U.S. v. Wood
| Decision Date | 04 May 1998 |
| Docket Number | No. 97-40086-01/02-SAC.,97-40086-01/02-SAC. |
| Citation | 6 F.Supp.2d 1213 |
| Parties | UNITED STATES of America, Plaintiff, v. Randy C. WOOD, and Jerry R. Hammond, Defendants. |
| Court | U.S. District Court — District of Kansas |
Marilyn M. Trubey, David J. Phillips, Office of Federal Public Defender, Topeka, KS, for Randy C. Wood, Defendant.
Randy C. Wood, Topeka, pro se.
Michael M. Jackson, Topeka, KS, Jerry R. Hammond, Hollister, MO, for Jerry R. Hammond, Defendant.
Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for U.S.
The case comes before the court on the defendants' pretrial motions. The defendant Randy Wood has filed: Motion to Suppress Evidence (Dk.31); Motion for Disclosure of 404(b) Evidence (Dk.32); and Motion to Join the Co-Defendant's Motions (Dk.33). The defendant Jerry Hammond has filed: Motion to Adopt and Join in Pretrial Motions of Co-Defendant (Dk.35); Motion to Suppress Evidence (Dk.36); Motion to Dismiss Count II (Dk.37); Motion to Suppress Defendant's Statements (Dk.38); and Request for Notice Pursuant to Rule 404(b) (Dk.39). The parties presented oral arguments and evidence at a hearing on January 26, 1998, and at a continuation of the hearing on February 5, 1998. The court gave the defendant Hammond additional time to file a supplemental memorandum. The defendant timely submitted a memorandum totaling twenty-six pages to supplement his original five-page motion and memorandum. (Dk.54). Having received and reviewed all matters presented by the parties and having researched the controlling law, the court issues this order as its ruling on the above motions.
On October 22, 1997, the grand jury returned a four-count indictment against the defendants for conduct occurring on or about December 16, 1996. Count one charges both defendants with conspiracy to possess with the intent to distribute in excess of 175 grams of methamphetamine in violation of 21 U.S.C. § 846. Count two charges both defendants with attempting to possess with the intent to distribute in excess of 175 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Count three charges both defendants with using a facility in interstate commerce with the intent to carry on or facilitate the unlawful activity of possessing methamphetamine with the intent to distribute in violation of 18 U.S.C. § 1952. Count four charges the defendant Randy C. Wood with possession of a shotgun which has a barrel less than 18 inches in length and which is not registered to him in violation of 26 U.S.C. § 5861(d).
RULE 404(b) REQUESTS (Dks. 32 and 39).
Both defendants request notice of evidence that the government intends to introduce against them pursuant to Fed.R.Evid. Rule 404(b). The government responds that it will introduce all factual matters already disclosed in discovery. With respect to the defendant Wood, the government further represents that it considers all material provided in discovery to be intrinsic evidence. With respect to the defendant Hammond, the government further represents that it will provide advance notice of any new 404(b) evidence that was not revealed in the original discovery. At the hearing, both defendants conceded that the government's response satisfies the notice requirements of Rule 404(b). The court reminds the government of its continuing duty to comply with these requirements. The defendants' 404(b) request is denied as moot.
MOTIONS TO JOIN (Dks. 33 and 35).
The court grants these motions upon the express conditions stated in the court's Criminal Procedural Guidelines, ¶ I. C.
MOTION TO DISMISS (Dk.37).
The defendant Hammond moves to dismiss count two that charges him with attempting to possess with the intent to distribute in excess of 175 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The defendant argues that an overt act is an essential element to this offense and that count two fails to allege an overt act. The government responds as follows:
Counsel's motion might have some theoretical merit if this were a conspiracy case under 18 U.S.C. § 371, but this is a drug conspiracy case, and there is no need for the government to allege an overt act, since there is no overt act necessary for the completion of this crime. United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994); United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995); United States v. Johnson, 42 F.3d 1312 (10th Cir.1994); United States v. Savaiano, 843 F.2d 1280, 1284 (10th Cir. 1988).
(Dk.47, p. 1). Because count two does not charge a drug conspiracy, the court does not understand the government's response.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires an indictment to be "a plain, concise and definite written statement of the essential facts constituting the offense charged." "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 a defendant to assert a double jeopardy defense." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997); see United States v. Poole, 929 F.2d 1476, 1479 (10th Cir.1991). The sufficiency of the indictment is not a question of "whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged." United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92, (1953) (citations omitted). When challenged as lacking an element of the offense, the indictment is sufficient if there are "words of similar import" to the missing element. Dashney, 117 F.3d at 1205. In the Tenth Circuit, it is usually enough for the indictment to track the statute when the statute adequately expresses all of the elements to the offense. United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). An indictment is held only to minimal constitutional standards. United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir.1992). Practical rather than technical considerations guide the court in determining the sufficiency of an indictment. United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, 516 U.S. 1137, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996).
An act or omission that amounts to a substantial step taken toward the commission of the substantive offense is an essential element to a crime of attempt. United States v. DeSantiago-Flores, 107 F.3d 1472, 1478 (10th Cir.1997), overruled on other grounds, United States v. Holland, 116 F.3d 1353 (10th Cir.1997). The Tenth Circuit recently set out the following statement of law on this element:
The "substantial step" required to establish an attempt must be something beyond mere preparation. It must be an act "adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime." United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979). A substantial step is an "appreciable fragment" of a crime and an action of "such substantiality that, unless frustrated, the crime would have occurred." United States v. Buffington, 815 F.2d 1292, 1303 (9th Cir.1987). The step must be "strongly corroborative of the firmness of the defendant's criminal intent," United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), and must unequivocally mark the defendant's acts as criminal, United States v. McDowell, 705 F.2d 426, 428 (11th Cir.1983). See also Fryer v. Nix, 775 F.2d 979, 993 (8th Cir. 1985). It should "evidence commitment to the criminal venture." United States v. Oviedo, 525 F.2d 881, 885 (5th Cir.1976). However, "[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).
The dividing line between preparation and attempt is not clear and depends on a high degree on the surrounding factual circumstances. United States v. Neal, 78 F.3d 901, 906 (4th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 152, 136 L.Ed.2d 97 (1996).
DeSantiago-Flores, 107 F.3d at 1478-79.
It is true that count four of the indictment does not expressly allege and identify any act as being the substantial step. Count four, however, suffices in putting the defendant on fair notice of the charge against which he must defend and in enabling the defendant to assert double jeopardy in subsequent prosecutions. As far as sufficiently alleging the elements of the crime of attempted possession of a controlled substance with the intent to distribute, count two tracks the language of §§ 846 and 841(a)(1), and such language is generally enough.
In United States v. Bolden, No. 95-40062-SAC, 1995 WL 783638, at *2 (D.Kan. Dec.20, 1995), the court overruled a similar challenge to a count charging attempted bank robbery which purportedly failed to allege the element of a substantial step. The court held, in part:
United States v. Toma, No. 94-CR-333, 1995 WL 65031, at *1, 1995 U.S. Dist. LEXIS 1778, at *5 (N.D.Ill. Feb 10, 1995) (footnote omitted). Rule 31(c) of the Federal Rules of Criminal Procedure allows a conviction for "an attempt to commit the offense charged." If a defendant could be found guilty of attempted bank robbery when the indictment fails to allege a substantial step or to even mention "attempt to take," it is incongruous to hold that another defendant is entitled to dismissal because the...
To continue reading
Request your trial
-
U.S. v. Quiroz
...a DEA agent may use a canine trained in drug detection to sniff luggage in the custody of a common carrier"); United States v. Wood, 6 F.Supp.2d 1213, 1224-1225 (D.Kan.1998) (defendant's only possessory interest in Federal Express package was "`the contract-based expectancy that the package......
-
U.S. v. Va Lerie
...Royer to this footnote. 9. Our decision in Harvey was later cited by a federal district court in Kansas. In United States v. Wood, 6 F.Supp.2d 1213, 1224 (D.Kan.1998) (citing Harvey, 961 F.2d at 1363-64), the district court relied on Harvey in pronouncing "a seizure [does not] occur when ba......
-
State v. Bierer
...district court here in Kansas, to assert that Bierer has no standing to challenge the search of the package. In United States v. Wood, 6 F.Supp.2d 1213, 1219 (D.Kan.1998), a detective who was observing outgoing packages at a Federal Express facility noticed a suspicious package with a ficti......
-
People v. Zahn
...means to exclude others from intruding upon the contents of the package." Id. at 46 (citation omitted); see also United States v. Wood, 6 F.Supp. 2d 1213, 1224 (D.Kan., 1998). A person can deprive himself of standing by abandoning the object of the search or seizure. See People v. Jordan, 1......