The opinion of the court was delivered by: Judge McClure
On December 13, 2007, a grand jury sitting in the Middle District of Pennsylvania returned a superceding indictment which charged defendant Crabb, along with seven co-defendants, with conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. (Rec. Doc. No. 76.)
On December 19, 2007, defendant was arraigned and entered a plea of not guilty.
On February 15, 2008, defendant filed a motion to dismiss the indictment (Rec. Doc. No. 138) and a motion for a bill of particulars (Rec. Doc. No. 140). Opposing briefs have been filed by the government for both motions. (Rec. Doc. Nos. 150-51.) No reply brief has been filed for either motion and the time for doing so has passed.
On February 28, 2008, the grand jury returned a second-superceding indictment which contained the same drug conspiracy charge against defendant and added a criminal forfeiture charge against him. Therefore, we do not believe that it renders defendant's motions moot.
For the following reasons, we will deny both of defendant's motions.
I. Defendant's Motion to Dismiss the Indictment
Rule 7(c) of the Federal Rules of Criminal Procedure states that "[t]he indictment or information must be a plain, concise, and definite written statement of essential facts constituting the offense charged." The Third Circuit has held that an indictment is sufficient if it: 1) contains the elements of the offenses charged and fairly informs a defendant of the charges against which he must defend and 2) enables the defendant to avoid subsequent prosecution for the same offense. United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000).
Defendant has been charged with conspiracy to distribute 50 grams or more of cocaine base under 21 U.S.C. § 846. Section 846 makes it a crime to "attempt or conspire to commit any offense defined in this subchapter" and further states that such a person "shall be subject to the same penalties as those prescribed for the offense." To sufficiently allege a federal drug conspiracy, an indictment must allege: 1) the existence of an agreement between two or more persons to commit an unlawful drug trafficking act and 2) the specific intent to enter into such agreement for the purpose of committing the underlying offense. United States v. Mark, Crim. No. 2006-80, 2007 WL 2669587 at * 2 (D. Virgin Islands, Sept. 5, 2007) (citing United States v. Werme, 939 F.2d 108, 112 (3d Cir. 1991)). A drug conspiracy under § 846 does not require an overt act in furtherance of the conspiracy. United States v. Shabani, 513 U.S. 10, 11 (1994).
We find that the indictment in the instant case complies with Rule 7(c). First, it clearly contains the elements of the offense charged and informs defendant of the charges against which he must defend. The superceding indictment alleges that defendant and others knowingly and intentionally conspired to possess with the intent to distribute 50 grams or more of cocaine base. (Rec. Doc. No. 76., at 2.) Furthermore, we find that the indictment sufficiently enables defendant to avoid a subsequent prosecution for the same offense. It provides defendant with the time and location of the conspiracy, as well as the names of his coconspirators and the means by which the conspiracy was committed. To the extent that defendant's motion appears to take issue with the amount of discovery that has been provided by the government (Rec. Doc. No. 139, at 3-4), this clearly does not affect the sufficiency of the indictment under Rule 7(c). Therefore, we will deny defendant's motion to dismiss the indictment.
II. Defendant's Motion for a Bill of Particulars
Defendant has also filed a motion for a bill of particulars. Federal Rule of Criminal ...