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United States v. Salazar

United States District Court, N.D. Indiana, Hammond Division

October 27, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM D. SALAZAR, Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on the Motion for Bill of Particulars [DE 397] filed by the defendant, William D. Salazar, on August 30, 2016. For the reasons set forth below, the motion is DENIED.

         Background

         On July 21, 2016, the grand jury returned the Second Superseding Indictment against the defendant and sixteen other individuals. The defendant, William D. Salazar, currently is charged with conspiracy to participate in racketeering activity in violation of 18 U.S.C. § 1962(d) and conspiracy to possess with intent to distribute and to distribute cocaine and marijuana in violation of 21 U.S.C. § 846. A conviction under each charge carries a maximum penalty of life imprisonment.

         The indictment indicated that the defendants were members of the “Almighty Latin Kings Nation”, hereinafter “Latin Kings”, and that they conspired and participated both directly and indirectly in the acts of murder, robbery, intimidation, aggravated battery, aggravated assault, and narcotics trafficking. The indictment set forth forty-nine overt acts committed in furtherance of the conspiracy. Salazar was named in the overt acts for his appointment as enforcer of the Latin King's Indiana Region and being ordered to have various members of the Latin Kings beaten for breaking the rules of the Latin Kings. Salazar was arraigned on August 16, 2016 and pleaded not guilty.

         The pending motion seeks information concerning the names of all unindicted co-conspirators; the date, time, place, and manner in which the defendant is alleged to have become a member of the conspiracies alleged in Counts I and II; and the date, time, and location of specific acts done in furtherance of the conspiracy alleged in Count I and Count II, along with the name of the individual alleged to have performed those acts. The Government filed a response to Salazar's motion on September 6, 2016 [DE 404]. Salazar did not file a reply.

         Discussion

         Federal Rule of Criminal Procedure 7(f) provides:

The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.

         In determining whether to grant the bill of particulars, “[t]he standard is whether the government's indictment sufficiently apprises the defendant of the charges to enable him to prepare for trial.” United States v. Canino, 949 F.2d 928, 949 (7th Cir.1991). See also United States v. Vaughn, 722 F.3d 918, 927 (7th Cir. 2013); United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003); United States v. Glecier, 923 F.2d 496, 501 (7th Cir. 1991); United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985).

         A defendant is only entitled to know the offense with which he is charged, not all the evidence of how it will be proved. See United States v. Kendall, 665 F.2d 126, 135 (7th Cir. 1981). The indictment is not required to “detail every factual nugget necessary for conviction”, nor is it required to “allege in detail the factual proof that will be relied on to support the charges.” United States v. Smith, 230 F.3d 300, 306 (7th Cir. 2000). Indeed, the Seventh Circuit has held that a bill of particulars is not necessary when an indictment lays out the elements of the charged offenses, gives sufficient notice of the charges to allow the defendant to prepare a defense, gives the time and place of the accused's allegedly criminal conduct, and cites the applicable statute or statutes. Vaughn, 722 F.3d at 927; See also United States v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003); Fassnacht, 332 F.3d at 446. The defendant's constitutional right is to know the offense with which he is charged, not to know the details of how it will be proved. Fassnacht, 332 F.3d at 466 (quoting United States v. Kendall, 665 F.2d 126, 135 (7th Cir. 1981)). The key question is whether the defendant was sufficiently apprised of the charges against him in order to enable adequate trial preparation. Vaughn, 722 F.3d at 927 (quoting United States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008)).

         In making this determination, the court is not required to consider only the indictment. The information may be provided to the defendant through “some other satisfactory form.” Canino, 949 F.2d at 949 (the government had maintained an “open-file” policy); Fassnacht, 332 F.3d at 447 n. 2 (“the government in this case provided the defendants with extensive pretrial discovery, giving them full access to all documentary evidence in the government's possession, thus further obviating the need for a bill of particulars”); Glecier, 923 F.2d at 501-02 (a “volume of documents and records” had been provided by the government during discovery). Adequate discovery can “satisfy the need for a bill of particulars.” Vaughn, 722 F.3d at 928.

         For a RICO conspiracy, the Government, “need only charge -- after identifying a proper enterprise and the defendant's association with that enterprise -- that the defendant knowingly joined a conspiracy the objective of which was to operate that enterprise through an identified pattern of racketeering activity.” Glecier, 923 F.2d at 500.

         Salazar has argued that the indictment does not contain any allegation of overt acts committed by him. Yet, Count I of the indictment has alleged that Castillo appointed Salazar enforcer of the Latin Kings and Count II alleged that Salazar conspired to possess with intent to distribute five kilograms or more of marijuana, and five kilograms or more of cocaine. Salazar has argued that to prepare and investigate the case properly he needs the names of all unindicted alleged co-conspirators; the date, time, place, and manner in which the defendant is alleged to have become a member of the conspiracies alleged in Counts I and II; and the date, time, ...


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