Opinion
04 Cr. 509 (RCC).
February 8, 2005
MEMORANDUM ORDER
Geronimo Rodriguez ("Defendant") is charged in a one-court indictment with conspiring to violate the narcotics laws of the United States. Specifically, Defendant is charged with agreeing with one or more individuals to distribute, and possess with intent to distribute, pills containing a detectable amount of 3,4-methylenedioxymethamphetamine hydrochloride (MDMA), the drug commonly known as "Ecstasy," in violation of 21 U.S.C. § 846. Defendant moves to dismiss the indictment in accordance with Rules 12 and 29 of the Federal Rules of Criminal Procedure on the grounds that "the indictment fails to charge a crime and, even if the Government's allegations are true, Defendant's actions do not constitute the crime charged in the Indictment." (Def.'s Mem. Supp. Motion at 1.) For the following reasons, Defendant's motion is DENIED.
I. BACKGROUND
The indictment in this case reads as follows:
COUNT ONE
The Grand Jury charges:
1. From at least on or about March 15, 2004, up to and including at least on or about March 17, 2004, in the Southern District of New York, GERONIMO RODRIGUEZ, the defendant, and others known and unknown, unlawfully, intentionally and knowingly did combine, conspire, confederate and agree together and with each other to violate the narcotics laws of the United States.
2. It was a part and an object of the conspiracy that GERONIMO RODRIGUEZ, the defendant, and others known and unknown, unlawfully, intentionally and knowingly would and did distribute and possess with intent to distribute a controlled substance, to wit, pills containing a detectable amount of 3,4 methylenedioxymethamphetamine hydrochloride ("MDMA" or "Ecstasy"), in violation Sections 812, 841(a)(1) and 841(b)(1)(C) of Title 21, United States Code.OVERT ACTS
3. In furtherance of the conspiracy and to effect the illegal object thereof, the following overt act, among others, was committed in the Southern District of New York:
a. On or about March 17, 2004, GERONIMO RODRIGUEZ, the defendant, provided one sample tablet of "Ecstasy" to a confidential informant acting under the supervision of the Drug Enforcement Administration.
(Title 21, United States Code, Section 846.)
II. DISCUSSION
The indictment is sufficient on its face as a matter of law. "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974). To state an offense, "an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime."United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (internal quotations omitted). Accordingly, "the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment." Id. at 777.
This indictment tracks the statutory language of both the conspiracy statute, 21 U.S.C. § 846, and the substantive narcotics statute that the conspirators allegedly agreed to violate, 21 U.S.C. § 841. Compare 21 U.S.C. § 846 (making it a crime for any person to attempt or conspire to commit a federal narcotics offense like that described by § 841(1)) and 21 U.S.C. § 841(1) (making it "unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance") with Ind. ¶ 2 (stating that the defendant "intentionally and knowingly would and did distribute and possess with intent to distribute a controlled substance, to wit, pills containing a detectable amount of 3,4 methylenedioxymethamphetamine hydrochloride") and Ind. ¶ 1 ("[T]he defendant . . . intentionally and knowingly did combine, conspire, confederate and agree . . . to violate the narcotics laws of the United States."). This indictment also alleges the approximate time ("[f]rom at least on or about March 15, 2004, up to and including at least on or about March 17, 2004," Ind. ¶ 1) and place ("in the Southern District of New York," id.) of the conspiracy. The indictment therefore states an offense and is sufficiently specific to permit Defendant to prepare his defense and to bar future prosecutions for the same offense. It is accordingly valid on its face.
Defendant also moves to dismiss the indictment on the ground that his actions do not constitute the crime charged in the indictment. Although the Court entertained Defendant's assertion that the indictment is insufficient as a matter of law, the Court will not review the sufficiency of the Government's evidence at this stage. See Alfonso, 143 F.3d at 776-77 ("Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial . . . the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment."); United States v. Gambino, 809 F. Supp. 1061, 1079 (S.D.N.Y. 1992) ("[A] defendant may not challenge a facially valid indictment prior to trial for insufficient evidence.").
Defendant's reliance on United States v. Taylor, No. 02 Cr. 73 (RPP), 2003 WL 22073040 (S.D.N.Y. Sept. 5, 2003), in arguing to the contrary is misplaced. Although Judge Patterson did consider the sufficiency of the evidence in resolving a pretrial motion to dismiss in that case, he did so under extremely unusual circumstances, the likes of which are not present here. InTaylor, the court had already conducted a trial of a co-defendant and granted a judgment of acquittal after the close of the Government's case. Taylor, 2003 WL 22073040, at ** 1-2 n. 1. Judge Patterson then relied on a "stipulated record" from the first trial, in which the Government's evidence was the same as would be presented against the moving defendant, for purposes of the defendant's motion to dismiss the indictment. Id. No similar circumstances exist here to warrant consideration of the sufficiency of the evidence in resolving Defendant's motion to dismiss.
"[A] defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary insufficiency."Gambino, 809 F. Supp. at 1079. And Rule 29 allows for a motion for a judgment of acquittal to be entertained, at the earliest, "[a]fter the government closes its evidence or after the close of all the evidence." Fed.R. Crim P. 29(a); United States v. Martin Linen Supply Co., 430 U.S. 564, 570 n. 8 (1977). Thus, this portion of Defendant's motion is denied as premature.
III. CONCLUSION
Defendant's motion to dismiss is denied in its entirety.
So Ordered.