United States District Court, D. Maine
ORDER ON MOTION TO DISMISS FOR INSUFFICIENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
trial on a charge of conspiring to distribute and possess
with intent to distribute heroin, Myron Crosby, Jr. moves to
dismiss the indictment as insufficient. The Court denies the
motion because it concludes the Indictment contains
sufficient detail to allow Mr. Crosby to defend the charge
and to bar double jeopardy.
BACKGROUND and the PARTIES' POSITIONS
September 14, 2017, a federal grand jury issued a one-count
indictment against Myron Crosby, Jr., alleging participation
in a conspiracy to distribute and possess with the intent to
distribute heroin in violation of federal criminal law.
Indictment (ECF No. 2). Count One alleges:
Beginning on a date unknown, but not later than May 1, 2015,
and continuing until a date unknown, but not earlier than
January 25, 2016, in the District of Maine and elsewhere,
MYRON CROSBY, JR. a/k/a “Marion Crosby, ” a/k/a
knowingly and intentionally conspired with others known and
unknown to commit offenses against the United States, namely,
the distribution and possession with the intent to distribute
one kilogram or more of a mixture or substance containing
heroin, a Schedule I controlled substance, in violation of
Title 21, United States Code, Sections 846 and 841(a)(1).
Id. at 1. In addition, the Indictment contains
quantity allegations as to Mr. Crosby:
It is further alleged that the amount of heroin involved in
the conspiracy that is attributable to the named defendant as
a result of his own conduct, and the conduct of other
conspirators reasonably foreseeable to him, is one kilogram
or more of heroin, a Schedule I controlled substance, and,
therefore, the mandatory minimum penalty of provisions of
Title 21, United States Code, Section 841(b)(1)(A) apply to
Id. at 1-2.
Mr. Crosby's Position
17, 2018, Mr. Crosby moved pursuant to Federal Rule of
Criminal Procedure 12(b)(3)(B)(iii) to dismiss the Indictment
“for a Failure of Adequate or Sufficiently Specific
Indictment Allegations.” Def.'s Mot. to Dismiss
for Insufficient Indictment (ECF No. 48) (Def.'s
Mot.). He argues that the Indictment fails to allege
sufficient facts to allow him to prepare a defense or defend
against a future charge on the ground of double jeopardy.
Id. at 4-5. He also critiques the Indictment's
failure to name any of his alleged co-conspirators and its
temporally open-ended nature. Id. at 5. Mr. Crosby
anticipates and rejects any argument by the Government that
an invalid indictment can be cured by a Bill of Particulars.
Id. at 5.
The Government's Position
Government responded to Ms. Crosby's motion on May 22,
2018. Gov't's Opp'n to Def.'s Mot. to
Dismiss for Insufficiency of the Indictment (ECF No. 57)
(Gov't's Opp'n). The Government urges
denial of the motion to dismiss, citing caselaw for the
proposition that an indictment for conspiracy under 21 U.S.C.
§ 846 “is sufficient if it alleges a conspiracy to
distribute drugs, the time frame during which the conspiracy
was operative and the statute allegedly violated, even if it
fails to allege any specific overt act in furtherance of the
conspiracy.” Id. at 2-3 (quotation and
citations omitted). The Government represents that an
indictment need not name all of the co-conspirators.
Id. at 3 (citing United States v.
Penagaricano-Soler, 911 F.2d 833, 840 n.5 (1st Cir.
1990). It also states that generality in the dates alleged in
an indictment is permissible and that “[t]he First
Circuit has recognized that date specificity is not a