United States District Court, N.D. Indiana, South Bend Division
January 5, 2015
UNITED STATES OF AMERICA
ANDRE ALLAN FORBES.
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
This matter is before the Court to address the adequacy of Count 6 of the superseding indictment in light of concerns that the defendant raised in moving for a bill of particulars and that the government has exemplified through the bill of particulars it submitted. Count 6 charges the defendant, Andre Allan Forbes, with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Specifically, Count 6 charges:
In or around September-October 2013, in the Northern District of Indiana, Andre Allan Forbes, defendant herein, knowingly possessed a firearm in furtherance of a drug trafficking crime for which the person may be prosecuted in a court of the United States. In violation of Title 18, United States Code, Section 924(c)(1)(C)(i).
This same count appeared in the original indictment, but was only alleged to have occurred in or around October 2013, which at least implicitly suggested that the September 10, 2013 transaction charged in Count 1 was not meant to serve as a predicate for this offense under the original indictment. Only after the Court questioned whether the September 10 transaction was a predicate for Count 6 or could only be considered under Rule 404(b) did the government seek to supersede that count, suggesting at least some recognition by the government for the need to better particularize the indictment. Additionally, the fact that the government sought a superseding indictment to include the month of September 2013 within the § 924(c) charge certainly suggests that any predicate drug trafficking offenses occurring prior to September were not likely the subject of Count 6 when the superseding indictment was sought.
Upon the filing of the superseding indictment, the defendant moved to dismiss this count, but only on the grounds that the government was able to procure it only because of its own discovery violation and that the superseding indictment was the product of a vindictive prosecution. [DE 47]. The defendant separately moved for a bill of particulars on this count, asking that the government "[p]articularize the specific date of the drug crime that is alleged to have been furthered by a firearm" and "how and in what manner the firearm allegedly furthered the drug crime." [DE 48]. In subsequent argument and briefing on that motion, the defendant argued that a bill of particulars was required because the indictment did not notify him which predicate drug trafficking offenses the government alleged he possessed a firearm in furtherance of, so he was unable to adequately prepare his defense.
The Court agreed with the defendant that the lack of specificity in the superseding indictment warranted a bill of particulars, so it ordered the government to identify the specific drug trafficking crimes that served as predicates for the § 924(c) charge, including the particular offenses and their dates. The government responded with a bill of particulars that identified 26 separate occasions in September and October 2013 on which the defendant allegedly distributed a controlled substance, possessed a controlled substance with the intent to distribute, or attempted to possess a controlled substance with the intent to distribute. The government then filed an amended bill of particulars that further alleged that the defendant distributed cocaine powder and crack cocaine or possessed them with the intent to distribute to one individual on approximately 100 unspecified occasions from April through October 2013, and that he distributed or possessed with the intent to distribute cocaine powder and crack cocaine to other unspecified individuals on other unspecified occasions during that same time period.
The government's contention that all of these predicate offenses could fit within the same count of the indictment illustrates a problem that neither party has yet directly raised, but that was contemplated by the defense's initial request for a bill of particulars and now appears inescapable, which is that Count 6 is drafted too broadly to satisfy the defendant's constitutional rights to an indictment and to notice of the charges against him. Under the Fifth Amendment, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury." The Sixth Amendment further guarantees a defendant the right "to be informed of the nature and cause of the accusation" against him. In order to satisfy these rights, an indictment must fulfill three distinct functions:
First, the indictment must state all of the elements of the crime charged; second, it must adequately apprise the defendant of the nature of the charges so that he may prepare a defense; and third, it must allow the defendant to plead the judgment as a bar to any future prosecutions for the same offense.
United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000).
In setting forth the offense, "it is generally acceptable for the indictment to track' the words of the statute itself, " as the indictment here does, "so long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished." Id. (citing United States v. Hinkle, 637 F.2d 1154, 1157 (7th Cir. 1981)). However, "an indictment that tracks the statutory language can nonetheless be considered deficient if it does not provide enough factual particulars to sufficiently apprise the defendant of what he must be prepared to meet.'" Id. (quoting Russell v. United States, 369 U.S. 749, 763 (1962)); Russell, 369 U.S. at 765 ("Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."). "In order for an indictment to satisfy this second hurdle, " the Seventh Circuit "require[s], at a minimum, that it provide some means of pinning down the specific conduct at issue." Smith, 230 F.3d at 305. The presence or absence of any particular fact is generally not dispositive of that inquiry. Id.
Here, Count 6 of the superseding indictment provides barely any factual particulars as to how the defendant committed this offense or what the offense actually was. Other than the general allegation that the defendant violated § 924(c), the only facts specific to this offense are that it occurred in or around a two-month window-which the government's amended bill of particulars seeks to expand to a seven-month window-and that it took place in the Northern District of Indiana. Beyond that, it is unclear what firearm the defendant possessed, which of the numerous possible drug trafficking crimes he is alleged to have committed, in what manner his possession of a firearm is alleged to have furthered those crimes, or when the offense occurred within this broad window. A proper indictment may not need to include all of those details, but it must include some of them. As amply demonstrated by the government's amended bill of particulars, which contends that well over 100 offenses fit within this single count, these sparse details do not provide any means of pinning down the specific conduct at issue.
The Seventh Circuit addressed a similar indictment in Hinkle, 637 F.3d 1154, and found that it was constitutionally defective. There, the defendant was charged with "knowingly and intentionally us[ing] a communication facility, that is, a telephone, to facilitate acts constituting a felony under Title 21, United States Code, Section 841(a)(1); all in violation of Title 21, United States Code, Section 843(b), " on specified days in a specified county. Id. at 1156. The Seventh Circuit rejected the government's argument that these details adequately apprised the defendant of the charges against her:
Here, [the defendant] only knows that she is charged with using the telephone on certain days to facilitate in some manner the doing of one of six types of acts, any of which might involve any one of one hundred and forty-two controlled substances. The indictment tells her nothing about the gravamen of the alleged offense: what she attempted to facilitate with which controlled substance.
Id. at 1158. The Seventh Circuit further discussed this holding in United States v. Webster, 125 F.3d 1024, 1030 (7th Cir. 1997), where it explained that the deficiency in the indictment in Hinkle was due in large part to the fact that several of the elements-in particular, the facilitation element and the underlying drug offense-were inherently ambiguous and "could have referred to any of several criminal acts." Because the indictment "did not identify any act that facilitated the crime or any illegal drug involved, " it "failed to notify the accused of the gravamen of the alleged offense.'" Id.
By contrast, the offense at issue in Webster, bankruptcy fraud, involved less ambiguity, so the indictment was sufficient, albeit "minimally" so, even though it largely tracked the statutory language. Id. at 1030-31 (noting that, despite tracking the statutory language, the indictment still alleged the time, place, and context of the fraudulent concealment, the manner in which the defendant concealed the property, the party from whom it was concealed, and the general identity of the property). Likewise, the Seventh Circuit held in Smith that a witness retaliation count was adequate where, though it largely tracked the statute, it notified the defendant at least that he was charged with "witness retaliation for injuring, on October 30, in Moline, Illinois, an individual who gave testimony against him to the Grand Jury for the Southern District of Iowa, relating to the defendant's violations of the Lacey Act." 230 F.3d at 305-06. Finally, the Seventh Circuit addressed the sufficiency of a § 924(c) indictment in United States v. Franklin, 547 F.3d 726, 730-31 (7th Cir. 2008), and found that the indictment was sufficient because it "gave [the defendant] the date and place at which the offense occurred, identified the handgun that he carried, and cited the statute under which he was charged."
The § 924(c) charge at issue here is much more analogous to the charge at issue in Hinkle, and contains none of the details that supported the indictments in Smith, Webster, and Franklin. In Hinkle, the elements of the offense were that the defendant (1) used a telephone (2) to facilitate (3) a felony drug offense; here, the elements of the § 924(c) charge are that the defendant (1) possessed a firearm (2) in furtherance of (3) a drug trafficking offense. Just like the second and third elements in Hinkle, "in furtherance of" and the underlying drug trafficking offense are ambiguous and could refer to any number of acts and offenses. Moreover, unlike Webster, where the court found that the defendant had adequate notice of the bankruptcy fraud charge against him in part because he had not suggested that he filed any other bankruptcies fitting the description in the indictment, 125 F.3 at 1030, the government alleges that the defendant here committed scores of offenses fitting the description in the indictment. By not providing any further detail pinning down the specific conduct at issue, this count of the superseding indictment fails to adequately apprise the defendant of the nature of the charges so that he may prepare a defense, and thus appears deficient.
The government has noted in various of its filings that a valid indictment on a § 924(c) charge need not necessarily identify the specific drug trafficking crime at issue. E.g., United States v. Bradley, 381 F.3d 641, 646 (7th Cir. 2004) (noting that in order to avoid constructively amending the indictment, the government must prove the specific drug trafficking crime described in the indictment "when one is so cited"); United States v. Randall, 171 F.3d 195, 205 (4th Cir. 1999) (noting that "the government is under no obligation to specify a specific predicate offense in a § 924(c) charge"). As previously noted, however, no one detail is dispositive as to whether an indictment adequately apprises a defendant of the charges against him. Smith, 230 F.3d at 305. It is one thing to say that a § 924(c) charge need not state which drug trafficking crime the defendant is accused of, but it is quite another thing to say that the charge need not contain any detail at all. Those cases certainly do not stand for that proposition. The cases cited by the government also arise primarily in the context of analyzing whether the indictment was constructively amended, not whether the indictments were valid, so those cases did not need to address whether the indictments would have still contained enough other detail if they omitted the particular predicate offense. Meanwhile, in United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008), which the government has cited and which did address the sufficiency of a § 924(c) indictment, the indictment in question "specified particular dates on which the offenses occurred and the type of drugs which were involved in each transaction (i.e., ecstasy)." See also Franklin, 547 F.3d at 730-31. Here, however, the indictment specifies only a multiple-month window in which the offenses occurred, and provides no detail at all about the predicate offenses.
Because an indictment that is deficient in this respect violates a defendant's Fifth and Sixth Amendment rights to indictment by a grand jury and to notice of the charges against him, the remedy is to dismiss the offending count. Russell, 369 U.S. at 770. The government may argue that its bill of particulars now provides those missing details, but "it is a settled rule that a bill of particulars cannot save an invalid indictment." Id .; Hinkle, 637 F.2d at 1156 (stating that a bill of particulars "would not have cured this deficient indictment"). Indictments can only be returned by grand juries, and they cannot be enlarged by prosecutors or courts:
To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of the grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.
Id. That risk is particularly apparent here, as it appears that the government may not have even learned of some of the offenses included in the bill of particulars until after it secured the superseding indictment, meaning the grand jury could not have charged or even considered those offenses.
Therefore, the government is ORDERED to SHOW CAUSE why, in light of this discussion, the Court should not dismiss Count 6 of the superseding indictment. The government's response is due by Tuesday, January 6, 2015. If the defendant wishes to express a position on this matter, he may do so by the same deadline.
The Court also notes, however, that the defendant previously appeared content to go to trial with the five charged drug transactions, or at least four of them, as the predicates for the § 924(c) charge. If that is the case, the defendant can always waive his right to a sufficient indictment on this count and proceed as before, limiting this offense to the charged transactions instead of the 100-plus offenses in the bill of particulars. If the parties want to explore an agreement to proceed in that manner, they are free to do so.