The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
The indictment charges defendant Ben Stockman with one count of conspiracy to distribute a controlled substance, one count of possession with intent to distribute a controlled substance, and one count of distribution of a controlled substance. Docket 1. Stockman moves to dismiss all three counts of the indictment on numerous grounds. Docket 22. The government resists the motion. Docket 35. After carefully considering the parties' briefs and the relevant statutory and case law, the court denies Stockman's motion.
Stockman moves to dismiss the first charge in the indictment on eight separate grounds: (A) failure to state a crime, (B) duplicitous charging, (C) violation of Wharton's Rule, (D) prejudicial surplusage, (E) vagueness, (F) unknown quantities, (G) venue and jurisdiction, and (H) pre-indictment delay. The court finds that neither individually nor collectively do these arguments provide a basis for dismissal.
A. Failure to State a Crime
Stockman first argues that the case should be dismissed because the indictment is insufficient. It alleges defendants "did knowingly and intentionally combine, conspire, confederate and agree with others known and unknown," while the statute they are being charged under, 28 U.S.C. § 846, uses only the word "conspires" to describe the alleged act. An indictment is sufficient where it "fairly informs the accused of the charges against him and allows him to plead double jeopardy as a bar to future prosecution." United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir. 1988). As long as these criteria are met, it does not matter whether the indictment uses "a particular word or phrase" from the statute. United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001). An indictment is insufficient "only if an 'essential element "of substance" is omitted.' " Id. (quoting Mallen, 843 F.2d at 1102).
In White the Eighth Circuit Court of Appeals held that the phrase " 'combined, conspired, confederated, and agreed' adequately set forth the charge of conspiracy . . . ." Id. There, the indictment's sufficiency was not raised before the trial, so a standard of review more deferential to the government than the one in the instant case was applied. This court now finds that the phrase also meets the stricter standard. No essential element of the crime is missing, and the language provides sufficient notice for Stockman "to prepare his defense and to plead double jeopardy to any future prosecution." Mallen, 843 F.2d at 1103. Therefore, the first count of the indictment sufficiently states a crime.
Stockman next argues that the first count of the indictment should be dismissed as duplicitous because it charges in one count both the crime of distribution and that of possession with intent to distribute. Duplicitous charging must be avoided because a verdict of guilty on a single count will not reveal whether the jury found the defendant guilty of both crimes or only one of the two. But, in the instant case, both crimes are violations of 21 U.S.C. § 841(a)(1), and "[w]here the statute specifies two or more ways in which one offense may be committed, all may be alleged in the conjunctive in one count of the indictment, and proof of any one of the methods will sustain a conviction." Gerberding v. United States, 471 F.2d 55, 59 (8th Cir. 1973). Because the charged offense of conspiracy to violate § 841(a) can be accomplished through either the act of distribution or possession with intent to distribute, the court finds that the count is not duplicitous.
C. Violation of Wharton's Rule
Stockman next argues that the first count of the indictment should be dismissed because it violates Wharton's Rule. Wharton's Rule "operates as a narrow exception to the general principle that a conspiracy and its underlying offense do not merge" and applies only "when there is a 'general congruence of the [conspiracy] agreement and the completed substantive offense.' " United States v. Hines, 541 F.3d 833, 838 (8th Cir. 2008) (quoting Iannelli v. United States, 420 U.S. 770, 781-82 (1975)). The clearest indicator that this congruence exists is when the number of people involved in the agreement is equal to the number of people necessary to commit the crime. See United States v. Jones, 801 F.2d 304, 311 (8th Cir. 1986) (quoting Anderson, Wharton's Criminal Law and Procedure § 89 p. 191 (1957)).
The Eighth Circuit Court of Appeals has held that where the record indicates that more than two persons were involved in a conspiracy to distribute drugs, Wharton's Rule does not apply. Jones, 801 F.2d at 311. Moreover, the court expressed skepticism that Wharton's Rule is applicable to 21 U.S.C. § 846 at all by quoting at length a Second Circuit Court of Appeals case that so held. Even if it does apply to drug conspiracies in the Eighth Circuit, Wharton's Rule would only apply to the instant case if the government only produces evidence that the co-defendants sold to each other and no evidence that they sold to anyone else. Further, because possession with intent to distribute does not require two participants for completion of the criminal act, that method of proving the conspiracy charge would not implicate Wharton's Rule. Accordingly, the court finds that the first count of the indictment does not violate Wharton's Rule.
D. Prejudicial Surplusage
Stockman next argues that the first charge of the indictment should be dismissed because it contains language in ...