United States v. Akroush
| Decision Date | 05 June 2019 |
| Docket Number | No. 1:15-cr-00286-DAD-BAM,1:15-cr-00286-DAD-BAM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MAJED BASHIR AKROUSH, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING DEFENDANT'S MOTION TO DISMISS, MOTION TO SUPPRESS, AND MOTION FOR DISCOVERY
This matter is before the court on motions to dismiss, suppress evidence, and for discovery brought on behalf of defendant Majed Bashir Akroush.1 (Doc. Nos. 332, 338, 366.) A hearing on those motions was held on October 29, 2018, at which time the motions were not taken under submission for decision; instead a supplemental briefing schedule with respect to the motions was established at that time. (Doc. No. 377.) Eventually, supplemental briefing was submitted and a further hearing on the motions was held on April 15, 2019 at which Assistant United States Attorney Karen Escobar appeared on behalf of the United States, and attorney MarcDays appeared on behalf of defendant. Having reviewed the parties' briefing and heard from counsel, defendant Akroush's motions will be denied. However, the court will grant in part Akroush's request for a bill of particulars.
The court first addresses defendant's motion to dismiss. (Doc. No. 332.) It should be noted that motion sought dismissal of the original indictment in this case. (Doc. No. 1.) However, on February 21, 2019, a superseding indictment was returned which, in certain respects, mooted the arguments raised by the defense in support of dismissal. (Doc. No. 414.) The parties accordingly filed further briefing with respect to whether the superseding indictment is also subject to dismissal. (Doc. Nos. 416, 424.) The court will confine its analysis to the arguments presented in those supplemental briefs.
Defendant Akroush first argues that the superseding indictment must be dismissed because the allegations in counts one and two are unconstitutionally vague with respect to the time frame of the charged conspiracies. Both of the counts at issue here allege a conspiracy to manufacture, distribute, and to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. The sufficiency of the allegations of an indictment in this regard was addressed by the Ninth Circuit in United States v. Forrester, 616 F.3d 929 (9th Cir. 2010). The court in Forrester explained the requirements as follows:
Forrester, 616 F.3d at 940-41. Relying on this passage from the decision in Forrester, defendant Akroush argues that the superseding indictment in this case is deficient because the conspiracies not only are alleged to have begun "at a time unknown, but not later than on or about" a given date and continued to "on or about" but that the indictment also fails to allege any overt acts in connection with the charged conspiracies. (Doc. No. 424 at 2-3.)
Under Forrester, an indictment alleging a conspiracy to violate §§ 841 and 846 will survive a vagueness challenge if it does one of two things. First, the indictment will be sufficient if it "specifies an end date." Forrester, 616 F.3d at 941. However, even if the indictment fails to specify such an end date, it will nonetheless be deemed sufficient "so long as overt acts alleged in the indictment adequately limit the time frame of the conspiracy." Id. Defendant Akroush's argument that an indictment in charging a conspiracy must always allege overt acts in order to pass constitutional scrutiny is therefore contrary to the holding in Forrester. While allegations of overt acts may be sufficient to adequately provide notice of the timeframe of the alleged conspiracy, they are not necessary.2 See United States v. Aispuro-Medina, No. CR 16-01137-TUC-JAS (EJM), 2016 WL 11467565, at *3 (D. Ariz. Oct. 5, 2016), report and recommendation adopted, 2016 WL 6136451 (D. Ariz. Oct. 21, 2016); United States v. Hallock, No. 2:06-CR-396 JCM LRL, 2014 WL 1053596, at *6 (D. Nev. Mar. 14, 2014) (). Here, because the superseding indictment alleges that the
/////conspiracy continued to on or about October 13, 2015, no overt acts need be alleged in order for the indictment to be found sufficient in this regard.
Relatedly, defendant Akroush argues that the superseding indictment is deficient because it alleges that the conspiracies occurred "in the Counties of Kern and Los Angeles, within the State and Eastern and Central Districts of California, and elsewhere." (Doc. No. 414 at ¶¶ 13, 15) (emphasis added). He cites the Ninth Circuit's decision in Cecil for the proposition that such charging language is impermissible because the phrase "and elsewhere" indicates that the conspiracy could have occurred anywhere. Cecil, 608 F.2d at 1297. Without any kind of geographic limitation in the indictment, defendant Akroush argues that "there is no safeguard that Akroush will not be prosecuted 'elsewhere' for the same acts constituting these alleged conspiracies." (Doc. No. 424 at 4.)
While the superseding indictment is relatively brief in its allegations, the court is not persuaded that it must be dismissed under the principles announced in Cecil. The indictment in that case suffered from numerous defects: in addition to alleging that the charged conspiracies occurred "in Arizona, Mexico, and elsewhere," the indictment failed to "state any other facts or circumstances pertaining to the conspiracy or any overt acts done in furtherance thereof."3 Cecil, 608 F.2d at 1297. However, the "most important[]" deficiency identified by the Ninth Circuit in Cecil was the indictment's failure "to place the conspiracies within any time frame," leaving the conspiracy "open-ended in both directions." Id. As already indicated, the superseding indictmentin this case does not suffer from this notable deficiency. In addition, although the superseding indictment employs the same "and elsewhere" language as in Cecil, it provides greater geographic specificity than the indictment in that case, stating that the conspiracy took place in specific judicial districts and counties within California. See United States v. Benavides, No. CR 06-62-M-DWM, 2009 WL 10679281, at *5 (D. Mont. Dec. 15, 2009) (). As one district court has concluded, under Ninth Circuit law, an indictment alleging a conspiracy to violate §§ 841 and 846 need only allege four things to be sufficient: (1) a conspiracy to distribute drugs, (2) the drug involved, (3) the time frame during which the conspiracy was operative, and (4) the statute allegedly violated. Aispuro-Medina, 2016 WL 11467565, at *3. Counts one and two of the superseding indictment meet each of these requirements. Defendant Akroush's motion to dismiss will therefore be denied.
As an alternative to dismissal of the superseding indictment, defendant Akroush requests that the government be required to provide a bill of particulars with respects to counts 1 and 2. (Doc. No. 424 at 5.) Specifically, he seeks a bill of particulars that "(1) delineates which allege [sic] seizures or shipments are part of the conspiracies alleged in counts 1 and 2; (2) corrects and limits the time frame in counts 1 and 2; (3) includes only alleged acts which occurred in Kern and Los Angeles counties; and (4) identifies the co-conspirators known to the grand jury. (Id.)
The purpose of a bill of particulars is to inform the defendant of the nature of the charges against him or her with sufficient precision to enable the defendant to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to protect against double jeopardy should the defendant be prosecuted a second time for the same offense. United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991); United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984); United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). Federal trial courts have broad discretion in determining whether to grant a motion for bill of particulars. See Will v. United States, 389 U.S. 90, 98 (1967); United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999); United States v. Calabrese, 825 F.2d 1342, 1347 (9th Cir. 1987) (...
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