United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION FOR A BILL OF
PARTICULARS (DOC. # 558) AND DENYING DEFENDANT'S MOTION
FOR THE EARLY PRODUCTION OF SPECIFIC JENCKS MATERIAL (DOC. #
CHRISTINE M. ARGUELLO, United States District Judge
matter is before the Court on Defendant Spencer Antoine's
(1) Motion for a Bill of Particulars or in the Alternative to
Dismiss the Indictment, and (2) Motion for the Early
Production of Specific Jencks Material. (Doc. ## 558, 559.)
For the following reasons, the Court denies both Motions.
Indictment in this case charges Mr. Antoine with twenty-six
total counts for his alleged role in a large drug conspiracy.
He has been charged as follows:
• Count 1: Conspiracy to Distribute and Possess with
Intent to Distribute 280 grams or more of cocaine base
(crack), and 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(iii),
(b)(1)(B)(II)(ii) and 846. Among other things, this Count
includes the dates of the offense (on or about and between
February 1, 2016 and March 29, 2017); the location (within
the State and District of Colorado and elsewhere); and the
participants involved (all 22 Defendants).
• Count 3: Distribution and Possession with Intent to
Distribute 28 grams or more of a mixture and substance
containing a detectable amount of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). This
Count also includes the date (February 18, 2016) and location
(Colorado) of the offense.
• Count 5: Distribution and Possession with Intent to
Distribute a Mixture and Substance containing a detectable
amount of cocaine base (crack), and aiding and abetting the
same, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C) and 18 U.S.C. § 2. Again, this Count includes
the date (March 18, 2016) and location (Colorado) of the
offense. It does not include a specific drug quantity.
• Counts 13, 14, 19, 21-23, 25, 28, 31, 33-36:
Distribution and Possession with Intent to Distribute a
Mixture and Substance containing a detectable amount of
cocaine base (crack), in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C). Each of these Counts includes the date,
location, and participants in the offense, but not the
specific drug quantity involved.
• Counts 15-17, 24, 29, 32: Use of a communication
device to commit a drug trafficking felony, in violation of
21 U.S.C. § 843(b). Each of these Counts includes the
date, location, and participants in the offense, but not the
specific drug quantity involved.
• Counts 18, 26, 27, 30: Distribution and Possession
with Intent to Distribute a Mixture and Substance containing
a detectable amount of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). Again, each of these
Counts includes the date, location, and participants in the
offense, but not the specific drug quantity involved.
indictment is held only to minimal constitutional standards,
and the sufficiency of an indictment is judged “by
practical rather than technical considerations.”
United States v. Dashney, 117 F.3d 1197, 1205 (10th
Cir.1997). “An indictment is sufficient ‘if it
contains the elements of the offense charged, putting the
defendant on fair notice of the charge against which he must
defend and if it enables a defendant to assert an acquittal
or conviction in order to prevent being placed in jeopardy
twice for the same offense.'” United States v.
Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) (quoting
United States v. Staggs, 881 F.2d 1527, 1530 (10th
Cir. 1989), cert. denied, 493 U.S. 1020 (1990)). In the Tenth
Circuit, it is usually enough for the indictment to track the
statute when the statute adequately expresses all of the
elements to the offense. United States v. Dunn, 841
F.2d 1026, 1029 (10th Cir.1988).
purpose of a bill of particulars is to inform the defendant
of the charge against him with sufficient precision to allow
him to prepare his defense.” United States v.
Ivy, 83 F.3d 1266, 1281 (10th Cir.) (quotation omitted),
cert. denied, 519 U.S. 901 (1996). It serves to minimize the
defendant's surprise to the substantive facts of the
charges, not the evidentiary basis of the charge. See
Wong Tai v. United States, 273 U.S. 77 (1927);
United States v. Hopkins, 716 F.2d 739, 745 (10th
Cir. 1982). “Unless the request for the bill of
particulars shows, on its face, that failure to grant the
request would result in prejudicial surprise, the preclusion
of an opportunity for meaningful defense preparation, [or
double jeopardy problems, ] defendant has the burden of
showing [by brief, affidavit or otherwise] that his or her
request meets one of the three criteria.” United
States v. Anderson, 31 F.Supp.2d 933, 938 (D.Kan. 1998)
(citing United States v. Wright, 826 F.2d 938, 943
(10th Cir.1987) (alterations in original). The district court
has broad discretion in deciding a motion for bill of
particulars. United States v. Edmonson, 962 F.2d
1535, 1541 (10th Cir.1992).
exercising its discretion, the trial court must remain
mindful of the parameters placed on a bill of particulars.
Though it may provide more information, a bill of particulars
is not intended to serve as a discovery device or to compel
the government's disclosure of the factual proof planned
for trial. Dunn, 841 F.2d at 1029. A defendant is
not entitled to notice of “all the evidence the
government intends to produce, but only the theory of the
government's case.” United States v.
Levine, 983 F.2d 165, 167 (10th Cir. 1992). Nor is it a
way to require the government's explanation of the legal
theories expected at trial. United States v.
Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983).
Evidentiary detail is not a proper request for a bill of
particulars. United States v. Barbieri, 614 F.2d
715, 719 (10th ...