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United States v. Rosso

United States District Court, N.D. Oklahoma

September 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JONATHAN ROSSO, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN CT UMITED STATES DISTRICT JUDGE

         Now before the Court are defendant Jonathan Rosso's motion for bill of particulars (Dkt. # 386), motion to dismiss for failure to state an offense (Dkt. # 387), and motion for a James and Urena hearing (Dkt # 388).

         Defendant is charged in an indictment (Dkt. # 2) and a superseding indictment (Dkt. # 246)[1]in count seven only with conspiracy to possess with intent to distribute and distribution of 1 kilogram or more of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(i). The named alleged co-conspirators in count seven are Lukas Widener and Joshua Gordan (collectively “co-conspirators”). Dkt. # 246.

         I. Defendant's Motion for Bill of Particulars (Dkt. # 386)

         Defendant asks the Court to require plaintiff to file a bill of particulars more specifically explaining his alleged role in the conspiracy charged in count seven. Dkt. # 386, at 1.

         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 indictments fail to give him notice of the specific acts he allegedly engaged in constituting conspiracy to possess with intent to distribute and the distribution of heroin. Dkt. # 386, at 2. Defendant requests that plaintiff be directed to file a bill of particulars with the following information:

(1) the exact date, time, and place when Rosso first participated in any act in support of or in furtherance of the claimed conspiracy;
(2) the date, time, and place of such acts and any subsequent acts;
(3) a description of the nature of any acts or statements relevant to the conspiracy;
(4) how officials determined that Rosso was involved in the conspiracy;
(5) when the conspiracy began;
(6) when and where Rosso joined the conspiracy;
(7) the quantity of heroin Rosso agreed or consented to ...

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