United States District Court, D. South Dakota, Western Division
ORDER ON MOTION TO DISMISS COUNTS, MOTION FOR BILL OF PARTICULARS, MOTION TO SERVER COUNTS, AND MOTION TO SEVER DEFENDANTS
KAREN E. SCHREIER, District Judge.
Pending are various pretrial motions filed by defendant Gerald Wayne LeBeau.
Defendants Gerald and Neil Thomas LeBeau were indicted on May 20, 2014, on one count of conspiracy to distribute a controlled substance (cocaine) and one count of conspiracy to distribute a controlled substance (marihuana). Gerald was also indicted on a separate count alleging possession with intent to distribute a controlled substance (cocaine). On August 26, 2014, the government filed a superseding indictment charging the three previous counts and adding a fourth count charging Gerald with witness tampering.
Defendants have filed numerous motions. The court now addresses the following motions brought by Gerald:
1. Gerald's motion to dismiss counts I, II, and III, or alternatively to strike language from those counts (Docket 216).
2. Gerald's motion for a bill of particulars (Docket 222).
3. Gerald's motion to server charges (Docket 229).
4. Gerald's motion to sever defendants (Docket 232).
5. Gerald's supplemental motion to dismiss (Docket 290).
I. Motion to Dismiss Counts
Gerald requests that the court dismiss counts I, II, and III. The government opposes the motion. Docket 237. For the following reasons, the motion to dismiss counts is denied in its entirety.
A. Failure to State a Crime
Gerald argues that counts II and III contain language not found in the statute and believes as a consequence the grand jury returned an indictment for offenses with elements not found in the statute. Docket 217 at 1-2. According to Gerald, because 21 U.S.C. § 846 only refers to a person who "conspires" to commit a crime, it is improper for counts II and III of the superseding indictment to allege that Gerald "combined, conspired, confederated, and agreed" to commit a crime.
"An indictment is sufficient if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution.'" United States v. Huggans, 650 F.3d 1210, 1217 (8th Cir. 2011) (quoting United States v. Summers, 137 F.3d 597, 601 (8th Cir. 1998)). An indictment is sufficient unless it "is so defective that it cannot be said, by any reasonable construction, to charge the offense" in question. Id.
Gerald cites United States v. Zangger, 848 F.2d 923 (8th Cir. 1988), for the proposition that the extra language in counts II and III requires dismissal of those counts. Zangger does not support this proposition. Instead, Zangger merely reiterated that if an indictment is missing an essential element of the crime charged, it must be dismissed. Id. at 925 (dismissing an indictment that did not contain the essential element of obscenity). The Eighth Circuit Court of Appeals has repeatedly approved the language Gerald challenges here. See Huggans, 650 F.3d at 1218 n.3; United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001) ("Reasonably construed, the words combined, conspired, confederated, and agreed' adequately set forth the charge of conspiracy, especially combined with the references to 21 U.S.C. §§ 846 and 841(a)(1)."). An indictment need not use a particular wording so long as it contains all the essential elements of the crime charged. See White, 241 F.3d at 1021. Thus, counts II and III of the superseding indictment sufficiently state a crime.
B. Duplicitous Counts
Gerald next argues that both counts II and III are duplicitous "because they charge in one count both the crime of distributing and possession with intent to distribute, two separate offenses[.]" Docket 217 at 2. 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. In this case, both crimes charged are violations of 21 U.S.C. § 841(a)(1). "Where... 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 committed by conspiring to either distribute or possess with intent to distribute, counts II and III of the superseding indictment are not duplicitous.
C. Violation of Wharton's Rule
Gerald next argues that counts II and III violate Wharton's Rule. Docket 217 at 2-3. "Wharton's Rule provides: An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." United States v. Jones, 801 F.2d 304, 311 (8th Cir. 1986) (quoting 1 Anderson, Wharton's Criminal Law and Procedure § 89 p. 191 (1957)). Thus, Wharton's Rule is "a narrow exception to the general principle that a conspiracy and its underlying substantive 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 Eighth Circuit has expressed doubt as to whether Wharton's Rule applies to conspiracies under § 846. See Jones, 801 F.2d at 311 (quoting United States v. Bommarito, 524 F.2d 140, 144 (2d Cir. 1975)). If the Eighth Circuit had not so held, Wharton's Rule still would not apply here, because the record indicates that more than two persons were involved in a conspiracy to distribute drugs. Id. Wharton's Rule only applies if the government produces evidence that only two persons sold drugs to each other and there is no evidence of distribution to another person. That is not the scenario alleged here. Additionally, possession with intent to distribute does not require two participants for the completion of the substantive criminal act, so that method of proving the conspiracy charge would not implicate Wharton's Rule. The court finds that counts II and III of the superseding indictment do not violate Wharton's Rule.
D. Prejudicial Surplusage
Gerald next contends that counts I, II, and III should be dismissed because they contain language in excess of that found in the statute. Docket 217 at 3. Alternatively, Gerald asks the court to strike the surplus language from the superseding indictment. Specifically, Gerald takes issue with the phrases, "combine, ... confederate and agree with... others, " "a Schedule II controlled substance, " "Cocaine, its salts, optical and geometric isomers and salts of its isomers, " and "a Schedule I controlled substance."
"A motion to strike surplusage from an indictment... should only be granted where it is clear that the allegations contained therein are not relevant to the charge made or contain inflammatory and prejudicial matter.'" United States v. Michel-Galaviz, 415 F.3d 946, 948 (8th Cir. 2005) (alteration in original) (quoting Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962)). The Eighth Circuit has approved-in a slightly different context-use of the words "combined, conspired, confederated, and agreed" to set forth a conspiracy charge. See White, 241 F.3d at 1021. The other three phrases appear in statutory language. See 21 U.S.C. § 812 (establishing Schedule I and Schedule II); 21 U.S.C. § 841(b)(1)(B)(ii)(II) (setting out the penalty for a violation involving 500 grams or more of a mixture or substance containing a detectable amount of "cocaine, its salts, optical and geometric isomers, and salts of isomers"). Because the phrases used in the superseding indictment have ...