The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTION TO DISMISS
On May 19, 2009, defendants Curt Romanyshyn and Kent Hazelrigg were named in a multi-count superseding indictment and charged with various drug-related offenses, including conspiracy and distribution. Hazelrigg moves to dismiss the superseding indictment for multiple reasons. The government resists Hazelrigg's motion. After considering the parties' briefs and the relevant statutory and case law, the court denies Hazelrigg's motion.
Hazelrigg moves to dismiss the first charge in the superseding indictment on seven 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, and (G) venue and jurisdiction.
A. Failure to State a Crime
Hazelrigg first argues that the case should be dismissed because the superseding indictment is insufficient. It alleges that defendants "did knowingly and intentionally combine, conspire, confederate and agree with others known and unknown." Hazelrigg contends that the statute he is being charged under, 28 U.S.C. § 846, uses only the word "conspires" to describe the alleged act. A superseding 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 superseding indictment uses "a particular word or phrase" from the statute. United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001). A superseding indictment is insufficient "only if an 'essential element "of substance" is omitted.' " Id. (quoting Mallen, 843 F.2d at 1102). No essential element of the crime is missing, and the language provides sufficient notice for defendant "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 superseding indictment sufficiently states a crime. See United States v. Stockman, 2009 WL 2595613, at *1 (D.S.D Aug. 20, 2009).
Hazelrigg next argues that the first count of the superseding indictment should be dismissed as duplicitous because it charges in one count both the crime of distribution and 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
Hazelrigg next argues that the first count of the superseding 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 about whether 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 Wharton's Rule does apply to drug conspiracies in the Eighth Circuit, it 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 superseding indictment does not violate Wharton's Rule.
D. Prejudicial Surplusage
Hazelrigg next argues that the first count of the superseding indictment should be dismissed because it contains language in excess of that found in the statute. Specifically he takes issue with the phrases, "combine, . . . confederate and agree with . . . others," "a Schedule II controlled substance," and "methamphetamine, its salts, isomers, and salts of its isomers." Hazelrigg cites United States v. Oakar, 111 F.3d 146 (D.C. Cir. 1997), as an example of the rule that language that is "immaterial, irrelevant, and apt to convey prejudicial and immaterial material to the jury" should be stricken from the superseding indictment. (Def.'s Motion and Mem. to Dismiss, Docket 256 at 3.) The Oakar court, however, noted that "[m]aterial that can fairly be described as 'surplus' may only be stricken if it is irrelevant and ...