Opinion
1:19-CR-00155 EAW
2021-06-29
UNITED STATES of America, v. Jariel COBB a/k/a Doobie a/k/a Black, James Reed a/k/a Fatts, Jahaan McDuffie a/k/a Wanka, Destenee Bell a/k/a K, Deandre Wilson a/k/a D, and Deshema Clark, Defendants.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America. Alan S. Hoffman, Buffalo, NY, for Defendants.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Alan S. Hoffman, Buffalo, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
On June 18, 2021, the Court issued a Decision and Order addressing certain aspects of the defendants’ pretrial motions, including the motions for bills of particulars filed by Jariel Cobb, Deandre Wilson, and Deshema Clark. (Dkt. 242 at 12-13; see also Dkt. 186; Dkt. 189; Dkt. 190). As further explained in the June 18, 2021 Decision and Order, the Court for the most part agreed with the government that the defendants had not met their burdens to establish the need for bills of particulars in this case. (Dkt. 242 at 14). However, the one exception to the Court's ruling was Cobb's request for a bill of particulars with respect to Count 4 and Count 7, on which the Court reserved decision. (See id. at 15). This Decision and Order resolves that aspect of Cobb's motion. For the reasons explained below, Cobb's motion for a bill of particulars as to Count 4 and Count 7 in the second superseding indictment is granted in part.
With respect to Count 4, Cobb seeks "each place (address) within the Western District of New York (or ‘elsewhere’) where Mr. Cobb allegedly possessed with intent to distribute, and distributed, cocaine," and "the date(s) when Mr. Cobb allegedly engaged in the charged conduct." (Dkt. 190-2 at 6). For Count 7, Cobb seeks "the location (address) where Mr. Cobb allegedly engaged in the charged conduct in Count 7." (Id. at 7).
DISCUSSION
Pursuant to Fed. R. Crim. P. 7(f), a defendant may seek a bill of particulars "in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky , 820 F.2d 572, 574 (2d Cir. 1987). "The ultimate test must be whether the information sought is necessary, not whether it is helpful," and where "[w]hat [the] defendant seeks is in the nature of the ‘wheres, whens and with whoms’ ... Courts have held [that information] to be beyond the scope of a bill of particulars." United States v. Mitlof , 165 F. Supp. 2d 558, 569 (S.D.N.Y. 2001) ; see also United States v. Jimenez , 824 F. Supp. 351, 363 (S.D.N.Y. 1993) ("The defendants ... request the ‘whens’ ‘wheres’ and ‘with whoms’ of acts and participation in the charged conspiracy. Pretrial motions for such information are routinely denied."). "The granting of a bill of particulars rests within the sound discretion of the district court." United States v. Strawberry , 892 F. Supp. 519, 526 (S.D.N.Y. 1995). "While the Court is guided by the precedent set forth by the Second Circuit on this matter, to determine whether a request for a bill of particulars is proper, an analysis of the specific circumstances of this case is required." United States v. Carpenter , No. 18-cr-362 (ADS), 2018 WL 6933160, at *7 (E.D.N.Y. Dec. 28, 2018) (citing United States v. Bin Laden , 92 F. Supp. 2d 225, 234 (S.D.N.Y. 2000) ). With these principles in mind, the Court turns to Count 4 and Count 7 of the second superseding indictment.
Cobb contends that particularization of Count 4 and Count 7 is essential so that he is not prosecuted in multiple counts for the same crime. (Dkt. 190-2 at 7 n.2). Count 4, which is titled "Distribution of 5 Kilograms or More of Cocaine," reads as follows:
Beginning in or about 2016, the exact date being unknown, and continuing until on or about September 25, 2019, in the Western District of New York, and elsewhere, the defendants, JARIEL COBB a/k/a Doobie a/k/a Black and JAMES REED a/k/a Fatts , did knowingly, intentionally, and unlawfully possess with intent to distribute, and distribute, 5 kilograms or more of a mixture and substance containing cocaine, a Schedule II controlled substance.
All in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A) and Title 18, United States Code, Section 2.
(Dkt. 106 at 4). Count 7, which is titled "Possession with Intent to Distribute 500 Grams or More of Cocaine," reads as follows:
On or about February 22, 2019, in the Western District of New York, the defendants, JARIEL COBB a/k/a Doobie a/k/a Black and JAMES REED a/k/a Fatts , did knowingly, intentionally, and unlawfully possess with intent to distribute 500 grams or more of a mixture and substance containing cocaine, a Schedule II controlled substance.
All in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B), and Title 18, United States Code, Section 2.
(Id. at 6).
Thus, Count 4 and Count 7 charge the same statutory violation—a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 —albeit different statutory penalty provisions are invoked due to the greater drug quantity alleged in Count 4. Moreover, Count 4 is broader than Count 7, as it encompasses conduct allegedly occurring beginning in or about 2016 and continuing until on or about September 25, 2019, whereas Count 7 only includes conduct allegedly occurring on or about February 22, 2019. Further, Count 4 criminalizes possession with intent to distribute and distribution of narcotics, while Count 7 criminalizes only possession with intent to distribute. However, as those counts are currently pleaded, the conduct forming the basis for a conviction pursuant to Count 4 could also serve as the basis for a conviction under Count 7, as both counts involve possession of cocaine by the same individuals and during the same timeframe. In other words, the government could prove a violation of Count 7 by proving a violation of Count 4. Without some further particularization from the government of the conduct forming the basis for Count 4 and Count 7, it is impossible for Cobb to identify with sufficient particularity the nature of the charges pending against him and to ensure that he is not prosecuted in multiple counts for a single crime. Indeed, it is this very argument that forms the basis of Cobb's multiplicity argument—that Count 4 and Count 7 involve the same conduct and the same statutory violation, and thus charge a single crime in two separate counts.
Despite the marked similarly between Count 4 and Count 7, as noted at the June 21, 2021 status conference, the Court recognizes that the government could respond with particularization of conduct on Count 4 that expressly excludes the conduct forming the basis for Count 7. The Court will require the government to provide a bill of particulars to amplify the distinctions between Count 4 and Count 7, beyond what is already provided in the second superseding indictment. See United States v. Walker , 922 F. Supp. 732, 740 (N.D.N.Y. 1996) ("[T]o the limited extent discussed below regarding defendant[’s] ... request to consolidate counts 16 and 18 as multiplicitous, the government must specify to the extent presently known information sufficient to enable those defendants to distinguish the offenses charged under those counts.") ; see also United States v. Sattar , 314 F. Supp. 2d 279, 318 (S.D.N.Y. 2004) (bill of particulars required "when the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused" (citation omitted)); Carpenter , 2018 WL 6933160, at *7 ("Where the additional facts are necessary to appraise the defendant of the charges against him with sufficient precision, a bill of particulars is appropriate." (quotations and citation omitted)).
In Walker , the defendant moved for consolidation of Count 16 and Count 18 of the second superseding indictment, both of which charged "[o]n or about March 21, 1995, in the Northern District of New York, the defendant[s], Tommy Walker, Gary Miller, and Tracey Blackwell, aiding and abetting each other, knowingly and intentionally possessed with intent to distribute crack cocaine (cocaine base), a schedule II controlled substance." 922 F. Supp. at 759. The government argued that although the language contained in Count 16 and Count 18 was identical, the counts were not multiplicitous because they charged the defendants with possession of contraband discovered in different locations. Id. The court found that, under the circumstances, "the most appropriate course of action at this point is for the government to distinguish counts 16 and 18 through a bill of particulars," and ordered the government to provide a bill of particulars "that is sufficient to enable the defendants to distinguish the conduct charged in counts 16 and 18 of the second superseding indictment." Id.
At oral argument on May 20, 2021, in connection with addressing Cobb's multiplicity argument, the government asserted that while both Count 4 and Count 7 allege possession with intent to distribute, Count 4 is titled as "distribution," as opposed to Count 7, which is titled as "possession with intent to distribute." (Dkt. 230 at 15). Then, at the court appearance on June 21, 2021, the government sought to distinguish Count 4 and Count 7 based on the order in which they are listed in the second superseding indictment, arguing that Count 4 is followed by Count 5 and Count 6, both of which charge maintaining a drug-involved premises that specify the same time period—from 2016 until September 25, 2019—as does Count 4. However, neither of these arguments address Cobb's concern that, as Count 4 and Count 7 are currently charged in the second superseding indictment, the same exact conduct that could suffice to prove the charge in Count 4 could also prove the charge in Count 7. Because the same statutory provisions are at issue with both counts, this issue implicates Cobb's ability to ensure that he is not being prosecuted in multiple counts for the same crime, and falls squarely within the ambit of the purpose of a bill of particulars. Further, while the government argues that it has provided voluminous discovery in this case, that fact alone does not obviate the need for a bill of particulars. United States v. Nachamie , 91 F. Supp. 2d 565, 571-72 (S.D.N.Y. 2000). Here, while acknowledging that the government has provided voluminous discovery to the defense, Cobb argues that the discovery materials produced to him do not provide any clarity on the government's proof as it relates to Count 4 versus how that proof relates to Count 7. See United States v. Feola , 651 F. Supp. 1068, 1133 (S.D.N.Y. 1987) ("In deciding whether the bill of particulars is needed, the court must determine whether the information sought has been provided elsewhere, such as in other items provided by discovery, responses made to unobjected requests for particulars, prior proceedings, and the indictment itself."), aff'd , 875 F.2d 857 (2d Cir. 1989) ; see also United States v. Beavers , No. 3:16-CR-00068 JD, 2016 WL 6775966, at *2 (N.D. Ind. Nov. 16, 2016) (granting motion for bill of particulars where "as originally plead in the indictment, and based on the wide breadth of discovery, it is impossible for the Defense (and, frankly, the Court) to determine which statement or statements by the Defendant is covered by Count 1 and which statement or statements by the Defendant is covered by Count 2.").
Based on these considerations, the Court grants in part Cobb's motion for a bill of particulars as to Count 4 and Count 7 of the second superseding indictment. While the Court will not, as requested by Cobb, order the government to particularize every place and time when Cobb allegedly possessed with intent to distribute and distributed cocaine that is the basis for Count 4 (see Dkt. 190-2 at 6-7), the government must provide further particularization as to the conduct that serves as the basis for Count 7, including the specific location(s) where the conduct occurred, and how that conduct is different than the conduct serving as the basis for Count 4, including whether the location(s) and drugs that serve as the basis for the charges in Count 4 also serve as the basis for the charges in Count 7. The government shall provide the bill of particulars on or before July 13, 2021. See United States v. Ahmad , 53 F.R.D. 194, 199 (M.D. Pa. 1971) (denying aspect of defendants’ motion for a bill of particulars on Count 1 of the indictment that sought "the time, place, and manner in which each defendant joined the conspiracy, the period of time during which he was a member, and when he withdrew" as an improper request, but requiring the government to provide particularization as to other information relating to co-conspirators); see also United States v. Bazezew , 783 F. Supp. 2d 160, 168 (D.D.C. 2011) (finding that the defendants were entitled to a bill of particulars providing some, but not all, of the information they sought).
CONCLUSION
For the foregoing reasons, the Court grants in part Cobb's motion for a bill of particulars as to Count 4 and Count 7 in the second superseding indictment. The government shall provide a bill of particulars as set forth herein on or before July 13, 2021. In the meantime, because the Court needs to review the government's bill of particulars in order to sufficiently consider Cobb's motion to dismiss these counts on the grounds of multiplicity, the Court continues to reserve on that aspect of Cobb's motion to dismiss and the speedy trial clock remains stopped pursuant to 18 U.S.C. § 3161(h)(1)(D).
SO ORDERED.