Opinion
Case No. 00-NCR-41 K
December, 2000
REPORT AND RECOMMENDATION
The defendant, Carlos Pimental, has made a motion to dismiss count 22 of the indictment "for failure to state a crime" (File Entry # 364). In an accompanying memorandum (File Entry # 365) the defendant appears to be arguing that there is insufficient evidence to support the charge, which is a claim somewhat different than that in the defendant's motion.
The defendant Carlos Arturo Pimental is charged in the indictment in this case in counts 21 and 22 (File Entry # 1). Count 21 charges the use of a communication facility in furtherance of a drug trafficking crime of distribution of a controlled substance. Count 22 charges the use of a communication facility in furtherance of a drug trafficking crime ( 21 U.S.C. § 843 (b)). It alleges that on May 14, 2000 Tracy Ann Sanchez and Carlos Arturo Pimental did "knowingly and intentionally use" the telephone in committing the offense of distribution of a controlled substance.
On August 15, 2000 the United States provided a bill of particulars to the defendants charged in the case. The bill of particulars submitted by the government was not a bill of particulars envisioned by Rule 7(f) F.R.Cr.P. but a statement of evidence that the government had on the various counts of the indictment (File Entry# 164). The bill of particulars recites that the "Government's evidence includes, but is not limited to, the evidence described below." (Id.). On page 8 of the bill of particulars, there is a statement as to the evidence in count 21 and count 22. As to count 22 the bill of particulars recites:
Counts 22 relates to a call from Carlos to Tracy relative to his arrest. Carlos called Tracy, and described how he was stopped and arrested on Friday, May 12, 2000. He said he was released on his own recognizance, but also wondered if he had been set up, because he saw Lisa Sanchez in the area several times when he was arrested. He said the police asked him if he wanted to tell them where he got the marijuana, and he told Tracy that he did not cooperate — that he is not a snitch. Tracy told Carlos that she did not set him up, and Carlos asked for her help in getting a lawyer. Tracy said she didn't understand why he wanted her to help, that he knew what he was doing, and that he wasn't working for her. She then told Carlos about the call from Heidi, and they discussed Heidi's threats against Tracy. Tracy told Carlos that Tracy is willing to "get nasty" with Heidi, and that Heidi does not know "who she's fucking with." Carlos told Tracy that Heidi would press charges, and Tracy responded that Tracy is not stupid; she will get someone else to "beat her ass." Tracy told Carlos that she is sorry for his [bad] luck, that she is no dumb little Mexican, but that she did not set up Carlos. Tracy said that getting arrested was the risk, and said that Johnny (Gomez) got 12 years "out of playing."
Nothing in the above quoted material illuminates the elements in count 22. The principal function of a bill of particulars is to apprize the defendant of the essential facts of the crime to allow a defendant to prepare for trial. United States v. Ivy, 83 F.3d 1266 (10th Cir. 1996);United States v. Levine, 983 F.2d 165, 166-67 (10th Cir. 1992); United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979). A bill of particulars cannot cure a deficient indictment, United States v. Neal, 692 F.2d 1296 (10th Cir. 1982); United States v. Wood, 958 F.2d 963, 1976 n. 20 (10th Cir. 1992), and a bill of particulars cannot fill in essential facts or save an invalid indictment. United States v. Staggs, 891 F.2d 1537, 1545 (10th Cir. 1989) (dissenting opinions). If there is a variance between the government's proof and the indictment and a bill of particulars that is to the defendant's prejudice, reversal can result. United States v. Francisco, 575 F.2d 815 (10th Cir. 1978); United States v. Glaze, 313 F.2d 757 (2d Cir. 1963).
A bill of particulars is not a discovery device United States v. Shepard, 188 F.R.D. 605 (D.Kan. 1999) and may not request evidentiary detail. United States v. Pottorf, 769 F. Supp. 1176 (D.Kan. 1991). Here, however, the government's bill of particulars provided specific evidence of the phone call in count 22. It is apparent the government's bill of particulars is unusual and outside of its obligation. However, it has submitted evidentiary specifics in its bill of particulars and the bill becomes informative and restrictive of the indictment.
The indictment in count 22 is adequate to charge a crime under 21 U.S.C. § 843(b). 21 U.S.C. § 843(b) precludes the knowing or intentional use of a communication facility in facilitating the commission of a felony under the controlled substances law, subchapter II. Count 22 charges the defendants "knowingly and intentionally" used a telephone in the distribution of a controlled substance (a felony). The charge is cast in the statutory language with all the elements of the offense alleged. This adequately informs the defendants of the offense and meets the requirements of Rule 7(c), F.R.Cr.P. for an indictment United States v. Keck, 773 F.2d 759 (7th Cir. 1985) (charging intentional or knowing use of a communication in committing drug offenses satisfied defendant's need to be informed by the indictment); see alsoUnited States v. Adams, 759 F.2d 1099 (3rd. Cir. 1985); United States v. Milton, 62 F.3d 1292, 1294 (10th Cir. 1995) (Indictment charging defendant with the use of a telephone to facilitate distribution of cocaine base adequately informed defendant of the charge, citing Keck). See also United States v. Dunn, 841 F.2d 1026 (10th Cir. 1988) (indictment sufficient for drug offense). The real question is what effect the addition of the bill of particulars has on the indictment.
The mens rea is charged conjunctively rather than disjunctively as set out on the statute.
The bill of particulars, although not a part of the indictment, becomes information relative to the indictment and can limit the scope of the indictment. Where the government pleads facts not required, it must prove its factual allegations in a 21 U.S.C. § 843(b) prosecution. United States v. Rodriguez, 546 F.2d 302 (9th Cir. 1976). A variance between the indictment and a bill of particulars can be prejudicial United States v. Francisco, supra. Where a bill of particulars has been provided to a defendant, the government is strictly limited to the particulars it has specified. United States v. Haskins, 345 F.2d 111 (6th Cir. 1965);Orfield's Criminal Procedure Under The Federal Rules, (Rhodes) 2nd Ed. § 7:139 (1985). The bill of particulars filed in this case presents a clear variance with the indictment and the limitation of the bill of particulars seems to require a conclusion that there was no violation of 21 U.S.C. § 843(b) in count 22.
The government has submitted a memoranda in opposition (File Entry # 379). The government contends that an indictment valid on its face may not be challenged on the basis of insufficiency of evidence. SeeCostello v. United States, 350 U.S. 359, 363 (1956); United States v. King, 581 F.2d 800, 802 (10th Cir. 1978); Beale, Bryson, Felman and Elston, Grand Jury Law and Practice, 2d Ed. Vol. 2 § 9:25 p. 9-98 (2000, Supp). The United States is correct in contending that normally, a defendant may not move to dismiss an indictment by offering opposing evidence. See United States v. Knox, 366 U.S. 77, 83 n. 7 (1969); United States v. Kilpatrick, 821 F.2d 1456, 1462 n. 2 (10th Cir. 1987); United States v. Self, 2 F.3d 1071, 1082 (10th Cir. 1993).
However, in the Tenth Circuit in United States v. Hall, 20 F.3d 1084 (10th Cir. 1994) the court said there were times, where factual issues are not disputed by the government, that facts beyond the indictment may be considered on a motion to dismiss, although normally a trial court should refrain from considering evidence "outside the indictment when testing legal sufficiency." 2d p. 1087. The government contends the operative facts in this case are in dispute in this case.
However, the above cases and analysis of the government are not directly applicable to this issue. First, defendant, as to count 22, is not trying to go behind the indictment, but is using the government's bill of particulars to challenge whether a crime has been committed. It is the government that has furnished the evidence in its pleading bill of particulars on which defendant is placing reliance for its motion to dismiss. This is proper under Hall and not contrary to Costello.
Because of the apparent need in this case to determine if the bill of particulars was the full extent of the government's evidence as to count 22, a hearing on the motion to dismiss was held on December 21, 2000. The United States Attorney asserted at the hearing that there was additional telephone evidence as to count 22 which illuminated the relationship between Tracy Sanchez and defendant Carlos Pimental and that Sanchez said she would not charge Pimental for the drugs involved in count 21 because of the seizure of the drugs by police. Although the court cannot see from the prosecutor's representation of the additional evidence how this added conversation involves the facilitation of a felony involving subchapters I or II of Chapter 13 of Title 21, the proper remedy is to allow the government to file a specific amended bill of particulars to count 22 to determine if there is a factual basis to avoid dismissal of the count. United States v. Wilks, 629 F.2d 669, 672 (10th Cir. 1980). If there is an inconsistency between the indictment and the bill of particulars, the initial remedy should be an opportunity to clarify the bill e.g. United States v. Hajecate, 683 F.2d 894, 897 (5th Cir. 1982) (dictum). If however, the amended bill of particulars shows no crime under 21 U.S.C. § 843(b) was committed, dismissal of count 22 is proper.
Recommendation
The defendant Carlos Pimental's motion to dismiss should be deferred and the government allowed to file an amended bill of particulars to count 22. The government shall file an amended bill of particulars within ten days of a confirming order of this report. Thereafter, the dismissal motion can be reviewed and reconsidered.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.