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United States v. Herrera

United States District Court, N.D. Oklahoma

August 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
REFUGIO HERRERA, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court are defendant Refugio Herrera's motion to dismiss for failure to state an offense (Dkt. # 140), motion for bill of particulars (Dkt. # 142), and motion for a James and Urena hearing (Dkt # 141).[1]

         Defendant Herrera is charged in a superseding indictment filed March 6, 2019, in count two only with conspiracy to possess with intent to distribute and to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii). The named alleged co-conspirators in count two are Lewis Oneal Clark, Diego Torres, Mary Hernandez, and Carlos Banegas (collectively “co-conspirators”). Dkt. # 29.

         I. Defendant's Motion to Dismiss for Failure to State an Offense (Dkt. # 140)

         Defendant argues that count two must be dismissed as to him because the government failed to allege any overt acts within the indictment. Accordingly, defendant argues that the indictment “provides [no] notice of how he interdependently possessed with intent to distribute methamphetamine with the alleged co-conspirators.” Dkt # 140 at 2.

         “An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997)). An indictment may not be challenged based on the strength or weakness of the government's case, but only on whether the allegations, if taken as true, support an indictment. Id. A very narrow exception to the rule against assessing the factual underpinnings of an indictment exists when undisputed facts establish that, “as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.” Id. at 1068 (quoting United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994)). “Dismissals under this exception are not made on account of a lack of evidence to support the government's case, but because undisputed evidence shows that, as a matter of law, the Defendant could not have committed the offense for which he was indicted.” Todd, 446 F.3d at 1068; see, e.g., Hall, 20 F.3d at 1085-86 (indictment dismissed where defendant was charged with knowingly using a pistol during a drug trafficking offense but offered undisputed evidence that he was not present when drugs were found in his home); United States v. Brown, 925 F.2d 1301, 1305 (10th Cir. 1991) (indictment dismissed where government admitted that it could not provide evidence demonstrating that stolen intellectual property involved stolen physical goods and statute at issue required such a showing).

         “To prove a [drug] conspiracy, the government must show that ‘(1) two or more persons agreed to violate the law; (2) the defendant knew the essential objectives of the conspiracy; (3) the defendant knowingly and voluntarily participated in the conspiracy; and (4) the alleged coconspirators were interdependent.'” United States v. Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir. 2011) (quoting United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006)). “An agreement constituting a conspiracy may be inferred from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose.” United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (internal citation omitted).

         Defendant fails to point to undisputed facts that establish, as a matter of law, that plaintiff is incapable of proving count two against him beyond a reasonable doubt. Instead, defendant essentially argues that plaintiff's evidence against him is weak because plaintiff does not have direct evidence that defendant engaged in an overt act in furtherance of the conspiracy. Even assuming plaintiff does lack such direct evidence, plaintiff is permitted to rely on circumstantial evidence to prove that defendant knew of the conspiracy to possess with intent to distribute and to distribute methamphetamine, and whether plaintiff's evidence is sufficiently strong to convict defendant is for the jury to decide (or, in some cases, for the Court to decide as a matter of law “[a]fter the government closes its evidence or after the close of all the evidence . . . .” Fed. R. Crim. P. 29(a) (emphasis added)). It would be contrary to Tenth Circuit authority to dismiss count two of the indictment against defendant based on his argument that plaintiff lacks evidence to sustain a conviction against him. See Todd, 446 F.3d at 1068. Moreover, the statutes under which defendant is charged in count two, 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii), do not require that any conspirator commit an overt act in furtherance of the conspiracy, and it is not necessary for the indictment to allege the specific acts engaged in by defendant or any other co-conspirator. United States v. Shabani, 513 U.S. 10, 17 (1994). The indictment provides the dates of the alleged conspiracy and the objects of the conspiracy. Thus, defendant's motion to dismiss count two of the indictment (Dkt. # 140) is denied.

         II. Defendant's Motion for Bill of Particulars (Dkt. # 142)

         Herrera asks the Court to require plaintiff to file a bill of particulars more specifically explaining his alleged role in the conspiracy charged in count two.

         Under Fed. R. Crim. P. 7(c), an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . .” If a defendant seeks more definite information about the charges against him, his remedy is to file a motion for a bill of particulars. United States v. Doe, 572 F.3d 1162, 1176 (10th Cir. 2009). “The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense.” United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996). A bill of particulars may be required when the indictment fails to give defendant notice of the government's theory of the case, but a defendant is not entitled to a bill of particulars to seek information about what evidence the government intends to introduce at trial. United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992). “If the indictment sets forth the elements of the offense charged and sufficiently apprised the defendant of the charges . . . to enable him to prepare for trial, a bill of particulars is not necessary.” Doe, 572 F.3d at 1176 (internal citation omitted).

         Defendant argues that the indictment fails to give him notice of the specific acts he allegedly engaged in constituting conspiracy to possess with intent to distribute and to distribute methamphetamine. Defendant requests that the government be directed to file a bill of particulars with the following information:

(1) the acts Herrera engaged in in support of the ...

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