158 F.3d 662 (2nd Cir. 1998), 223, United States v. Barnes

Docket Nº:223, Docket No. 96-1494.
Citation:158 F.3d 662
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher BARNES, Defendant-Appellant.
Case Date:October 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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158 F.3d 662 (2nd Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher BARNES, Defendant-Appellant.

No. 223, Docket No. 96-1494.

United States Court of Appeals, Second Circuit

October 21, 1998

Argued Aug. 29, 1997.

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Brian E. Spears, Bridgeport, CT (Shelley R. Sadin, Zeldes, Needle & Cooper, P.C., Bridgeport, CT, of counsel), for Defendant-Appellant.

Joseph W. Martini, Assistant United States Attorney, Bridgeport, CT (Christopher F. Droney, United States Attorney, New Haven, CT, Robert M. Appleton, Assistant United States Attorney, Bridgeport, CT, of counsel), for Plaintiff-Appellee.

Before: MESKILL and JACOBS, Circuit Judges, and KORMAN, District Judge. 1

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KORMAN, District Judge:

Christopher Barnes was named in Count Twenty-Seven of a thirty-three-count indictment arising out of the prosecution of the most significant members of the Latin Kings street gang, an enterprise that was engaged "in narcotics trafficking, murder, and other acts of violence." The indictment begins by narrating in extensive detail the background and history of the Latin Kings and its "Connecticut chapter," the means and methods of the enterprise, and some fifteen specific racketeering acts that constituted the pattern of racketeering in which the named defendants were alleged to have engaged.

Christopher Barnes was not charged as either a member or an associate of the Latin Kings criminal enterprise or in the numerous violent crimes in aid of racketeering that are described with precise specificity in twenty-five separate counts. Barnes's name emerges in the first of what are captioned as the "Drug Distribution Counts." The first is Count Twenty-Seven, which charges thirty-three named defendants, including Barnes, with a conspiracy that began in about November 1991 and continued to the date of the indictment, May 3, 1995. The indictment alleges that during this period Barnes and his co-conspirators "conspired and agreed together ... and with others to the grand jury known and unknown, to possess with intent to distribute heroin and marijuana, Schedule I controlled substances, and cocaine and cocaine base, Schedule II controlled substances, contrary to the provisions of Title 21 United States Code Section 841(a)(1)."

The context and the caption that precede it suggest that the single conspiracy count was intended to include all of the narcotic-related activities that the Latin Kings enterprise engaged in during its existence. Indeed, except for one substantive count against one defendant, the single conspiracy count is the only "drug distribution count" alleged in the indictment notwithstanding the fact that the principal purpose of the Latin Kings enterprise was "[f]acilitating, promoting, protecting, and enhancing the drug trafficking activities of its members."

The intended scope of Count Twenty-Seven was confirmed by the Assistant United States Attorney during the trial of the case. Arguing for the admission of weapons found during a search of the headquarters of the Latin Kings, he told Judge Nevas that the case should not be viewed in terms of the two defendants who were actually on trial. Instead, he argued that the conspiracy alleged in Count Twenty-Seven "was a statewide multi-city conspiracy involving a lot of different people[;][s]o it's not a simple conspiracy[;][i]t's a very extensive and very dangerous conspiracy ...." Tr. 23 (April 9, 1996).

Unlike the other counts of the indictment that were specific and detailed, Count Twenty-Seven did not provide a single detail about the complex multi-year conspiracy nor about the role that the defendant, Christopher Barnes, played in assisting his co-conspirators or in carrying out its objectives. The only information provided was its duration, the names of the co-defendants, and those of the four narcotic drug controlled substances that the defendants conspired to possess with the intent to distribute.

This conspiracy count, which provides only the bare bones of the charge, forms the basis for the principal issues raised in this appeal from a judgment of the United States District Court for the District of Connecticut (Nevas, J.) convicting Christopher Barnes of the conspiracy alleged in Count Twenty-Seven and sentencing him to the custody of the Attorney General for a period of twenty years. Specifically, the defendant alleges that the district court "erred by failing to require a bill of particulars that would have informed defendant as to the nature of the charge and prevented unfair surprise." Brief of Defendant-Appellant ("Def.Br.") 1. The defendant also argues that the nature of the charge and the proof at trial make it impossible to determine whether the jury convicted him of the conspiracy to possess crack with the intent to distribute it, which accounted for the twenty-year mandatory minimum sentence he received, or whether the conviction was predicated on an agreement to possess one of the other substances named in Count Twenty-Seven. Under these circumstances, he argues that he should have been sentenced for conspiracy to possess the controlled substance carrying the

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lowest mandatory minimum and maximum penalty.

The defendant also argues that Judge Nevas abused his discretion in admitting photographic evidence of weapons and ammunition seized during a search of the headquarters of the Latin Kings, and that Judge Nevas should have stayed the trial for three months to ensure the defendant the benefit of a new Qualified Jury Wheel. Moreover, he argues that Judge Nevas made a number of errors in calculating the appropriate Sentencing Guidelines.

  1. The Denial of the Bill of Particulars

    The defendant's claim that he was entitled to a bill of particulars is not without merit. Count Twenty-Seven of the indictment was insufficient on its face to provide the defendant with sufficient detail to defend adequately the charges against him. The evidence at trial only served to confirm this obvious fact. Specifically, the evidence showed that the defendant aided and abetted the crack manufacturing conspiracy of the Latin Kings by supplying crack vials and renting cars. The United States Attorney also offered evidence that, on one occasion in April 1994, the defendant may have attempted unsuccessfully to act as a middleman in the sale of an unspecified controlled substance between one of the leaders of the Latin Kings and a third party. Evidence was also admitted that "a small amount of suspected marijuana" was found during a search of the headquarters of the Latin Kings at 208 East Main Street in Bridgeport. Government Appendix ("G.A.") 121.

    More significantly, in terms of the defendant's claim of prejudice from the denial of a bill of particulars, Donafer Davis, an apparently late cooperating witness, testified to entering into a conspiracy with the defendant from September 1993 to April 1994 in which the latter would purchase cocaine and the two of them would convert the cocaine into crack. Davis testified that he was present on at least one occasion when the defendant picked up the cocaine from either Manny Roman or Richard Morales, who were the leaders of the Latin Kings, and that the defendant said he could obtain large quantities of cocaine from that source. Davis did not know whether any of the cocaine that the defendant supplied came from the Latin Kings other than the one occasion on which he was actually present.

    Davis also testified that during this same period, he asked the defendant if he could obtain heroin from Manny Roman or Richard Morales. The defendant replied that he could. The defendant told Davis that he had spoken with Manny Roman or Richard Morales and they said they would get it for him. About two days later, the defendant brought Davis seven grams of heroin. None of the acts the defendant allegedly undertook with Manny Roman and Richard Morales is alluded to in the conspiracy count or anywhere else in the indictment.

    Since the indictment provided not a shred of detail, the defendant was entitled to be otherwise apprised of the conduct that he was alleged to have undertaken in furtherance of this multi-faceted, if not multiple, conspiracy. See, e.g., United States v. Ramirez, 602 F.Supp. 783, 793 (S.D.N.Y.1985); United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied sub nom. Marin v. United States, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). Moreover, it is of no consequence that the requested information would have required the disclosure of evidence or the theory of the prosecution. While a bill of particulars "is not intended, as such, as a means of learning the government's evidence and theories," if necessary to give the defendant enough information about the charge to prepare his defense, "it will be required even if the effect is disclosure of evidence or of theories." 1 Charles Alan Wright, Federal Practice and Procedure § 129 (1982).

    A district court judge, however, has the discretion to deny a bill of particulars "if the information sought by defendant is provided in the indictment or in some acceptable alternate form." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987) (per curiam). Judge Nevas did not abuse that discretion here when he denied the defendant's application after "find[ing] that the

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    Government ha[d] provided the defendants with extensive additional information concerning their alleged involvement in the charged offenses so as to enable them to understand the nature of the charges against them, to prepare a defense, and avoid unfair surprise at trial." J.A. 116. See Bortnovsky, 820 F.2d at 574 (holding that the standard of review of a decision denying a bill of particulars is abuse of discretion).

    The only...

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