United States v. Nance

168 F. Supp. 3d 541, 2016 U.S. Dist. LEXIS 55387, 2016 WL 1585775
CourtDistrict Court, W.D. New York
DecidedMarch 8, 2016
Docket12-CR-235-A
StatusPublished
Cited by4 cases

This text of 168 F. Supp. 3d 541 (United States v. Nance) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nance, 168 F. Supp. 3d 541, 2016 U.S. Dist. LEXIS 55387, 2016 WL 1585775 (W.D.N.Y. 2016).

Opinion

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE

This case is here on Defendant Demario Nance’s pre-trial motions requesting, among other things, dismissal, particularization, discovery, suppression, and severance. See Docket 635 (Defs Mtn.). As discussed below, several of Nance’s motions are foreclosed by the Court’s prior adoption of Magistrate Judge McCarthy’s reports and recommendations in this case.1 See Docket 629. In those situations, the Court notes where Nance has joined (and, therefore, preserved) arguments made by his co-defendants. As further discussed below, the Court largely denies Nance’s motions as either moot, premature, or not supported by the relevant law. The Court will, however, grant Nance’s motion requesting that the Government provide limited particularization concerning the date Nance is alleged to have first agreed with others to conduct the affairs of the alleged enterprise through a pattern of racketeering activity.

BACKGROUND

The Court assumes familiarity with this case and its procedural history. As background to Nance’s motions, however, the Court briefly summarizes the Government’s allegations. See Docket 198.

The twenty-one-count superseding indictment in this case involves the LRG-P gang, which allegedly operated around the Broadway-Fillmore area of Buffalo from approximately 2009 until 2012. The Gov[546]*546ernment alleges that LRG-P engaged in narcotics trafficking and violence, including murder. The Government further alleges that LRG-P maintained several “trap houses” in the Broadway-Fillmore area, which the gang allegedly used to process and distribute cocaine.

Count 1 of the superseding indictment, brought against fourteen of the fifteen original defendants, alleges a RICO conspiracy with twenty-three overt acts.2 The alleged overt acts fall into three broad (and sometimes overlapping) categories: (1) maintaining a number of “trap houses”; (2) planning to murder a rival gang member; and (3) processing and distributing cocaine and cocaine base. Count 2, brought against all defendants, alleges a conspiracy to possess, with intent to distribute, cocaine and cocaine base. Many of the remaining nineteen charges are the same as the overt acts alleged in furtherance of the RICO conspiracy.

Nance has been charged in three counts: (1) Count 1, alleging a RICO conspiracy, (2) Count 2, alleging a conspiracy to possess, with intent to distribute, cocaine and cocaine base, and (3) Count 21, alleging that Nance and eleven other defendants maintained a drug-involved premises.

DISCUSSION

Nance has made a number of motions, and the Government has made a motion for reciprocal discovery. The Court addresses each motion in turn.

1. Motion to dismiss

As noted, Nance has been charged in three of the superseding indictment’s twenty-one counts: Count 1 (alleging a RICO conspiracy), Count 2 (alleging a narcotics conspiracy), and Count 3 (alleging that Nance and others maintained a drug-involved premises).

Nance joins in his co-defendants’ earlier motions to dismiss, as Nance puts it, “the indictment,” without identifying any particular count(s) Nance seeks to dismiss. To the extent that Nance has joined in his co-defendants’ motions to dismiss Counts 1 and 2 on the grounds of vagueness and facial insufficiency, the Court has previously denied those motions. See Docket 629 at 4-6. Nance makes no new arguments for dismissal of those Counts, and the Court therefore denies Nance’s motion to dismiss Counts 1 and 2.3

2. Bill of particulars

Nance next moves for a bill of particulars. His argument is as follows: Count 1 alleges a RICO conspiracy from 2009 until January 23, 2012, but Nance was (1) incarcerated from 2005 until January 2010, (2) at a half-way house in Rochester, New York from January 2010 until

[547]*547March 2010, (3) on house arrest from March 2010 until July 2010, and (4) on an 8:00 p.m. curfew from October 2010 until December 2010, and again from May 2011 until July 2011. Given these facts, Nance argues that he is “entitled to a particularization of when he allegedly agreed with others to conduct the activities on behalf of the alleged [RICO] enterprise.” Defs Mtn. ¶ 31. Nance then requests a lengthy and detailed itemization of the Government’s anticipated evidence.

The basic question when deciding whether to order a bill of particulars is “whether the information sought is necessary, not whether it is helpful.” United States v. Facciolo, 753 F.Supp. 449, 451 (S.D.N.Y.1990). A bill of particulars is not a means for a defendant to obtain a preview of the Government’s evidence at trial. Rather, a bill of particulars “should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (internal quotation marks and citations omitted).

A bill of particulars is, therefore, typically appropriate only where the indictment is so vague as to risk “unfair[] surprise[] at trial” — for example, if the indictment gives the defendant no way of knowing what evidence the Government might introduce to prove its allegations. Id. In addition to this fairness rationale, a bill of particulars may also be necessary to allow a defendant to “interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987). It is the defendant’s burden to show this necessity. United States v. Duarte, 2014 WL 29366 at *1 (W.D.N.Y. Jan. 3, 2014).

The allegations in this case present an additional consideration: the principles governing a bill of particulars “must be applied with some care when the Government charges criminal offenses under statutes as broad as RICO.” United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988). Indeed, in cases alleging a RICO conspiracy, the Government may have an “obligation to particularize the nature of the charge” more so than the Government “might ... in the prosecution of crimes of more limited scope.” Id. To be clear, this does not mean that a bill of particulars is required every time the Government alleges a RICO conspiracy; it just means that, when the Government does allege a RICO conspiracy, the risks a bill of particulars are meant to guard against — especially unfair surprise and in inability to prepare for trial — are heightened. See id. (“We do not mean to imply that even in a RICO case the prosecution must always disclose in advance of trial every act it will prove that may violate some criminal statute. But here it is simply unrealistic to think that a defendant preparing to meet charges of extorting funds from one company had a fair opportunity to defend against allegations of extortions against unrelated companies, allegations not made prior to trial.”)

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Bluebook (online)
168 F. Supp. 3d 541, 2016 U.S. Dist. LEXIS 55387, 2016 WL 1585775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nance-nywd-2016.