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United States v. Crosby

United States District Court, D. Maine

July 3, 2018

UNITED STATES of AMERICA
v.
MYRON CROSBY, Jr.

          ORDER ON MOTION TO DISMISS FOR INSUFFICIENT INDICTMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Facing 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.

         I. BACKGROUND and the PARTIES' POSITIONS

         On 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, defendant
MYRON CROSBY, JR. a/k/a “Marion Crosby, ” a/k/a “Templer, ”
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 each defendant.

Id. at 1-2.

         A. Mr. Crosby's Position

         On May 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.

         B. The Government's Position

         The 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 ...


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