United States District Court, N.D. Indiana, South Bend Division
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 ...