United States District Court, D. Nebraska
Gossett, III United States Magistrate Judge
matter is before the court on the motions for a bill of
particulars filed by Defendants Dione Dortch (Filing No.
203), Gregory Bahati (Filing No. 213), and
Julio Arias (Filing No. 234). The court will deny
January 27, 2016, six individuals, including Dortch, Bahati,
and Arias, were charged in a 15-count Superseding Indictment
with several offenses arising out their alleged criminal
activities in connection with the 40th and
44th Ave. Crips street gangs. (Filing No.
33). Count One charges all six defendants with a
conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), in violation of 18
U.S.C. 1962(d). The Superseding Indictment alleges that
between 2008 and 2015, the 40th Ave. and
44th Ave. Crips street gangs “cliqued
up” to form an enterprise under 18 U.S.C. §
1961(4). The Superseding Indictment alleges the enterprise
engaged in a pattern of racketeering activity under 18 U.S.C.
§ 1962(c), including attempted murder, witness
tampering, and the manufacture and distribution of controlled
substances. (Filing No. 20 at pp. 3-7). Count One
lists approximately 37 Overt Acts allegedly committed by the
defendants or other co-conspirators during the course of the
conspiracy. (Filing No. 33 at pp. 7-12).
Each overt act identifies a date or date range and the
defendant(s) alleged to have participated in the overt act.
is charged in Counts Thirteen, Fourteen, and Fifteen with
distribution of cocaine base on three occasions, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
(Filing No. 33 at pp. 18-19). Bahati is charged with
making threats in aid of racketeering, in violation of 18
U.S.C. § 1959(a)(4) (Count Eight), and brandishing a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (Count Nine). Dortch is charged with
being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(2) and 924(a)(2) (Count Ten);
witness tampering, in violation of 18 U.S.C. §§
1512(b)(1), 1512(b)(2)(A), and 1512(b)(3) (Count Eleven); and
attempted obstruction of justice, in violation of 18 U.S.C.
§ 1512(c)(2) (Count Twelve).
instant motions collectively request supplementation of Count
One, including disclosure of (1) the approximate date that
each defendant allegedly entered the enterprise; (2) the
particular dates, locations, drug quantities, and individuals
involved in the drug trafficking alleged in the overt acts of
the Superseding Indictment; and (3) “any acts of
alleged co-conspirators” in which the government
alleges defendants were involved. Additionally, Dortch
requests disclosure of the dates, places, and nature of his
alleged obstructionist activities, and any persons involved
in those activities, referenced in Count Twelve against him.
(Filing No. 203 at p. 2).
a defendant believes that an indictment does not provide
enough information to prepare a defense, then he or she may
move for a bill of particulars.” United States v.
Livingstone, 576 F.3d 881, 883 (8th Cir. 2009).
“The purpose of a bill of particulars is to inform the
defendant of the nature of a charge with sufficient precision
to enable him to prepare for trial and to avoid or minimize
the danger of surprise at trial.” Id.(internal
quotation marks omitted). “[A] bill of particulars is
not a discovery device to be used to require the government
to provide a detailed disclosure of the evidence that it will
present at trial.” United States v. Huggans,
650 F.3d 1210, 1220 (8th Cir. 2011).
determine whether there is a need for a bill of particulars,
the court should examine whether the indictment adequately
states an offense. “An indictment adequately states an
offense 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. Beasley, 688 F.3d 523, 532 (8th
Cir. 2012) (quoting United States v. Hayes, 574 F.3d
460, 472 (8th Cir. 2009). “An indictment will
ordinarily be held sufficient unless it is so defective that
it cannot be said, by any reasonable construction, to charge
the offense for which the defendant was convicted.”
Id.“Only when an essential element ‘of
substance' rather than ‘of form' is omitted is
an indictment fatally insufficient.” United States
v. Boykin, 794 F.3d 939, 944 (8th Cir. 2015), cert.
denied, 136 S.Ct. 856 (2016) (quoting United States v.
Villarreal, 707 F.3d 942, 957 (8th Cir. 2013). “An
indictment is normally sufficient if its language tracks the
statutory language.” Sewell, 513 F.3d at 821
(8th Cir. 2008) (quoting Hamling v. United States,
418 U.S. 87, 117 (1974).
full review of the Superseding Indictment and other relevant
materials, the court concludes that a bill of particulars as
to Count One is not necessary. The elements of RICO
conspiracy are: (1) the existence of an enterprise engaged in
a pattern of racketeering activity; (2) the enterprise was
engaged in, or its activities affected, interstate or foreign
commerce; and (3) each defendant knowingly agreed that he or
some other member of the conspiracy would commit at least two
racketeering acts. See Salinas v. United States, 522
U.S. 52, 62-65 (1997); United States v. Darden, 70
F.3d 1507, 1518 (8th Cir. 1995). Count One of the Superseding
Indictment describes in extensive detail the RICO conspiracy,
sets forth all of the elements of the offense, including a
date range that specifies the time period during which the
alleged conspiracy operated, and contains specific actions
alleged to have been taken by each defendant in furtherance
of the alleged RCIO conspiracy. The indictment is not
required to allege any overt acts to establish a RICO
conspiracy, although the government nevertheless did so in
this case. The Superseding Indictment together with the
government's disclosures are more than sufficient to
enable the defendants to understand the nature of the charge
in Count One, prepare a defense, and avoid unfair surprise.
Whether the government can meet its burden of proof is a
separate question for a later date. Therefore, the motions
for bill of particulars is denied as to Count One.
motion additionally requests supplementation of Count Twelve,
which alleges that defendant Dortch engaged in obstruction of
justice. The government represents to the court that Count
Twelve is based on the same conduct involving the same victim
that forms the basis for the witness tampering charge in
Count Eleven, and that Dortch has been provided discovery and
witness statements regarding these two charges. (Filing
No. 274 at p. 3). The government's response resolves
Dortch's stated concerns of ambiguity in Counts Eleven
and Twelve, and therefore the court denies his motion with
respect to those counts. Accordingly, IT IS ORDERED:
Defendants' motions for a bill of particulars (Filing
No. 203; Filing No. 213; Filing No.
234) are denied.
may object to a magistrate judge's order by filing a
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