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United States v. Stockman

March 31, 2010

UNITED STATES OF AMERICA PLAINTIFF,
v.
BEN STOCKMAN, DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The second superseding indictment charges defendant, Ben Stockman (Stockman), with one count of conspiracy to distribute a controlled substance (Count I), one count of possession with the intent to distribute a controlled substance (Count II), and one count of distribution of a controlled substance (Count III). Docket 135. Defendant moves to dismiss Counts II and III of the second superseding indictment against him. Docket 146.*fn1 The government resists the motion. Docket 156. The court referred the motion to Magistrate Judge Veronica Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). Docket 164. On January 6, 2010, Magistrate Judge Duffy issued a report and recommendation recommending denial of Stockman's motion. Docket 165. Stockman now objects to the report and recommendation. Docket 186. The government has not filed any objections. After a de novo review of Magistrate Judge Duffy's report and recommendation, the court adopts the report and recommendation as supplemented herein.

STANDARD OF REVIEW

Under 28 U.S.C. § 636(b)(1), "when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, '[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.' " United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)); see also Fed. R. Civ. P. 72(b) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").

DISCUSSION

Stockman objects to Magistrate Judge Duffy's report and recommendation to the extent that the report and recommendation does not address his argument that Counts II and III are impermissibly vague, does not address his argument that the vagueness of Counts II and III expose him to an impermissible constructive amendment of the second superseding indictment, and finds that Counts II and III are not multiplicitous.

I. Vagueness

Stockman argues that Counts II and III are impermissibly vague. The court construes Stockman's argument as a challenge to the sufficiency of the second superseding indictment. 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). An indictment is insufficient "only if an essential element of substance is omitted." United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001) (internal quotation omitted).

Here, Counts II and III of the second superseding indictment fairly inform Stockman of the charges against him and are sufficient to allow him to plead double jeopardy to bar future prosecution. Count II alleges,

On or about August, 2008, at Rapid City, in the District of South Dakota, the defendant, Ben Stockman, did knowingly and intentionally posses, with the intent to distribute, cocaine, its salts, optical and geometric isomers and salts of its isomers, a Schedule II controlled substance, all in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

Docket 135. Count II includes all of the essential elements of a possession with the intent to distribute offense. See Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit (2009 ed.), § 6.21.841A.1 (long) (setting out elements of possession with intent to distribute offense). Count II also informs Stockman of the place and approximate date of the alleged offense. Thus, the court finds that Count II is sufficient. Likewise, Count III alleges,

On or about August, 2008, at Rapid City, in the District of South Dakota, the defendant, Ben Stockman, did knowingly and intentionally distribute cocaine, its salts, optical and geometric isomers and salts of its isomers, a Schedule II controlled substance, all in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

Docket 135. Count III includes all of the essential elements of distribution and informs Stockman of the place and approximate date of the alleged offense. See Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit (2009 ed.), § 6.21.841B (setting out elements of distribution offense). Count III is sufficient.

Stockman argues that Counts II and III are deficient because they are virtually indistinguishable and because there is no way he can know the day and place he is alleged to have committed the criminal acts. Stockman's argument that Counts II and III do not inform him of the place of the alleged offense is unavailing. As noted, Counts II and III inform Bradley that the offenses allegedly occurred in Rapid City, South Dakota. Stockman's argument that Counts II and III are insufficient because they do not inform him of the date the alleged offenses occurred is also unavailing. The second superseding indictment alleges that the offenses took place "[o]n or about August, 2008," giving Stockman an idea of when the alleged offenses took place. Moreover, "[t]ime is not a material element of a criminal offense unless made so by the statute creating it." United States v. Hogan, 539 F.3d 916, 925 (8th Cir. 2008) (internal quotation omitted). The date of the offense is not a material element of a possession with the intent to distribute or a distribution charge under 21 U.S.C. § 841(a). See id. (rejecting argument that jury instruction failed to allege date with respect to charges under 21 U.S.C. § 841(a)). Thus, Counts II and III are not insufficient because they ...


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