United States v. Guillermo Tirado-Menéndez [2]

301 F. Supp. 3d 300
CourtUnited States District Court
DecidedMarch 28, 2018
DocketCriminal No. 17–415 (FAB)
StatusPublished

This text of 301 F. Supp. 3d 300 (United States v. Guillermo Tirado-Menéndez [2]) is published on Counsel Stack Legal Research, covering United States District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Guillermo Tirado-Menéndez [2], 301 F. Supp. 3d 300 (usdistct 2018).

Opinion

BESOSA, District Judge.

Before the Court are defendant Guillermo Tirado-Menéndez ("Tirado")'s motion to dismiss counts one and three pursuant to Federal Rule of Criminal Procedure 12 (" Rule 12") and motion for a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f) (" Rule 7"). (Docket Nos. 97 and 98.) For the reasons set forth below, the Court DENIES Tirado's motions.

I. BACKGROUND

On July 7, 2017, a federal grand jury returned an indictment charging Tirado with count one, "conspiracy to manufacture, distribute or dispense or possess with intent to distribute or dispense a controlled substance," and count three, "possession with intent to dispense a controlled substance outside the scope of professional practice and not for a legitimate medical purpose." (Docket No. 3 at pp. 1 & 7.) According to the indictment, "[b]eginning on a date unknown, but no later than in or about the year 2009, and continuing up to and until the return of the indictment," Tirado knowingly conspired to dispense "at least 70,000 units of Oxycodone" and "at least 40,000 units of Alprazolam" "outside the scope of professional practice and not for a legitimate medical purpose." Id. at pp. 1-2. The indictment alleges that Tirado also possessed the Oxycodone and Alprazolam with the intent to dispense them "outside the scope of professional practice and not for a legitimate medical purpose." Id. at p. 7.

Tirado seeks dismissal of these counts because, he argues, the indictment "fail[s] to inform sufficiently [sic] to prepare a defense and protect against Double Jeopardy" and count three "violates the statute of limitations." (Docket No. 97 at pp. 3 and 6.) Tirado asserts that the counts are "supported by conclusory language, without providing an ever-important statement of facts and circumstances to inform Dr. Tirado of the specific offense with which he is charged." Id. at p. 5. He maintains that the indictment is insufficient because it fails to "mention which patients are involved, or the number of patients," and does not include "the dates when the controlled substances were allegedly prescribed or dispense [sic]." Id. Tirado also contends that the statute of limitations *303governing count three "prescribes a period of limitation of five years," and that the conduct in the indictment covers a time span of "roughly nine years." Id. at p. 6. He argues that "the offense in question here is not a continuous offense" and thus is time-barred. Id.

In a separate motion, Tirado requests that the Court require the United States to submit a bill of particulars "so that [Tirado] may adequately prepare for trial, minimize surprise at trial, and enjoy the protections of the double jeopardy clause." (Docket No. 98 at p. 1.) Tirado supports this motion with arguments similar to those made in his motion to dismiss. Id. at pp. 2-5. The Court rejects Tirado's arguments supporting both motions.

II. MOTION TO DISMISS

A. Legal Standard

An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7. When considering a motion to dismiss an indictment, the Court "must take the allegations in the indictment as true" and must be mindful that "the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense." United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (internal citation omitted).

An indictment is sufficient "if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy." United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and citation omitted). "[I]t is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words set forth all the elements of the offense without any uncertainty or ambiguity." United States v. Brown, 295 F.3d 152, 154 (1st Cir. 2002) (internal quotation marks and citation omitted). "[M]istaken or omitted indictment language is reversible if it deprived the appellant of notice or otherwise misled him to his detriment." Ford, 839 F.3d at 104 (internal quotation marks and citation omitted). "[C]ourts[, however,] routinely rebuff efforts to use a motion to dismiss as a way to test the sufficiency of the evidence behind an indictment's allegations." United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011).

B. Discussion

1. Sufficiency of Indictment

Tirado's arguments are unavailing because the indictment apprises Tirado of the charged offenses, setting forth the elements of the crimes and the nature of the charges. See Docket No. 3; Ford, 839 F.3d at 104. The indictment provides a thorough outline of the conspiracy that exceeds five pages and details the involvement of each participant, including Tirado. (Docket No. 3 at pp. 1-6.) The indictment specifies, for example, that Tirado "would receive individuals in his medical offices who were seeking prescriptions for Oxycodone and Alphrazolam" and that he "would prescribe [the controlled substances] to those individuals without performing medical exams." Id. at pp. 4-5. The indictment continues that Tirado "referred to those individuals as 'Los Cristianos' ('The Christians'), because they were methadone patients." Id. at p. 5 (alteration in original).

The details in the indictment afford Tirado the opportunity to "prepare a defense and plead double jeopardy in any future prosecution for the same offense[s]." Guerrier, 669 F.3d at 3. Although Tirado contends *304

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Bluebook (online)
301 F. Supp. 3d 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guillermo-tirado-menendez-2-usdistct-2018.