ORDER DENYING MOTION TO DISMISS; DENYING MOTION TO STRIKE SURPLUSAGE; AND DENYING IN PART AND GRANTING IN PART MOTIONS FOR A BILL OF PARTICULARS

YVONNE GONZALEZ ROGERS, District Judge.

On May 10, 2013, the Court held a hearing on the following motions, at which the government, each Defendant referenced, and counsel for the same appeared. A full record of those appearances is set forth in the Court's docket and will not be repeated here. Pending before the Court are:

Defendant Karl Gray's Notice of Motion and Motion to Strike Surplusage and for a Bill of Particulars (the "Gray Motion") (Dkt. No. 93);

Defendant Peggy Larez's Motion to Dismiss or in the Alternative for a Bill of Particulars ("Peggy Larez Motion") (Dkt. No. 90);

Joinders in the Gray Motion by Defendant Alberto Larez (Dkt. No. 94) and Defendant Elias Gonzales (Dkt. No. 104); and

Joinders in the Peggy Larez Motion by Defendant Elias Gonzales (Dkt. No. 92) and Defendant Richie Michelson (Dkt. No. 106). On April 15, 2013, having resolved this action, Defendant Peggy Larez withdrew her motion. The withdrawal only excluded Defendant Elias Gonzales, who maintained his joinder. (Dkt. No. 135.) At the hearing, the Court deemed Defendant Michelson's joinder to be valid and not extinguished. Thereafter, defendant Elias Gonzales entered a plea of Guilty and withdrew his Joinder to the Peggy Larez Motion. (Dkt. Nos. 164-165.) This Order addresses the Peggy Larez Motion, except to the extent an issue raised therein dealt specifically with charges against her.

The Court also entertained oral motions to join the Gray Motion by Defendants Richard Martinez (motion to strike only) and Rudy Martinez (motion to strike and for a bill of particulars).

Also before the Court are the Government's Omnibus Opposition to Motions for a Bill of Particulars ("Gov't Oppo.") (Dkt. No. 136) and Defendant Gray's Reply to Government's Opposition to Motion to Strike Surplusage and for a Bill of Particulars. (Dkt. No. 139.)

At the hearing, Defendants Gray and Michelson withdrew the request for a Bill of Particulars as to Counts Eighteen (18), Nineteen (19), Twenty (20), Twenty-Two (22), and Twenty-Five (25), in light of the representations made by the government in its Omnibus Opposition and discovery.

Having carefully considered the papers submitted and the pleadings in this action, oral argument, and for the reasons set forth below, the Court hereby: DENIES the Peggy Larez Motion to Dismiss; DENIES the Gray Motion to Strike Surplusage; and DENIES IN PART AND GRANTS IN PART the Gray Motion for a Bill of Particulars and the Peggy Larez Motion for a Bill of Particulars.

I. BACKGROUND

On January 8, 2013, a federal grand jury returned a Superseding Indictment against eleven defendants charging a total of twenty-seven counts. The Superseding Indictment stems from the alleged affairs of a racketeering enterprise known as Nuestra Familia, which is said to operate inside and outside of prison walls. Count One charged all eleven defendants with a violation of Title 18 U.S.C. section 1962(d).1 The remaining counts allege a pattern of racketeering consisting of various state and federal offenses, including murder, robbery, narcotics trafficking, extortion affecting interstate commerce, witness tampering and obstruction of justice; and conspiracy to commit the same, including assault with a dangerous weapon, among others detailed therein. Among these, Count Two alleges a violation of Title 18 U.S.C. section 1959, commonly known as Violent Crimes In Aid of Racketeering or "VICAR," at sub-section (a)(5).

The pending motions challenge both the nature and sufficiency of the underlying Superseding Indictment. Fundamentally, Defendants argue that the Superseding Indictment contains too much introductory, inflammatory and prejudicial language, while at the same time lacking in detail as to the allegations relative to the specific counts at issue.

II. APPLICABLE LEGAL STANDARDS

A. THE INDICTMENT

An indictment must be a "plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "An indictment is sufficient if it contains `the elements of the charged crime in adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy.'" United States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009) (quoting United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995)). "The test for sufficiency of the indictment is `not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.'" Awad, 551 F.3d at 935 (quoting United States v. Hinton, 222 F.3d 664, 672 (9th Cir. 2000)); see also United States v. Musacchio, 968 F.2d 782, 787 (9th Cir. 1991); United States v. Morlan, 756 F.2d 1442, 1444 (9th Cir. 1985). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment" and "must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). "The indictment must be `read as a whole' and construed according to common sense." Echavarria-Olarte v. Reno, 35 F.3d 395, 397 (9th Cir. 1994) (internal citations omitted). The government need only allege the essential facts necessary to apprise the defendant of the crime charged and need not specify the theories or evidence upon which it will rely to prove those facts. United States v. Cochrane, 985 F.2d 1027, 1031 (9th Cir. 1993). Although an indictment that tracks the language of the statute is generally sufficient, "implied, necessary elements, not present in the statutory language, must be included in an indictment." United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995). "An indictment's failure to `recite an essential element of the charged offense is not a minor or technical flaw . . . but a fatal flaw requiring dismissal of the indictment.'" United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001) (quoting United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999)).

B. A BILL OF PARTICULARS

Rule 7(f) of the Federal Rules of Criminal Procedure provides that "[t]he court may direct the government to file a bill of particulars." A motion for a bill of particulars is appropriate where a defendant requires clarification in order to prepare a defense. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). Such motions are within a trial court's discretion and are "designed to apprise the defendant of the specific charges being presented to minimize danger of surprise at trial, to aid in preparation and to protect against double jeopardy." Id.; United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). The Ninth Circuit has held that in deciding whether to order a bill of particulars, "a court should consider whether the defendant has been advised adequately of the charges through the indictment and all other disclosures made by the government." Long, 706 F.2d at 1054. In addition, "[a] defendant is not entitled to know all the [e]vidence the government intends to produce . . . ." United States v. Giese, 597 F.2d 1170, 1181 (9th Cir. 1979) (internal citations omitted).

The purposes of a bill are served where "the indictment itself provides sufficient details of the charges and if the Government provides full discovery to the defense." Mitchell, 744 F.2d at 705. In addition, and relevant here, no requirement exists in conspiracy cases for the government to "disclose even all the overt acts in furtherance of the conspiracy." Giese, 597 F.2d. at 1180 (citing United States v. Murray, 527 F.2d 401, 411 (5th Cir. 1976)); see United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975); United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975). Further, the government "is not required to furnish the name[s] of all other co-conspirators in the bill of particulars." See United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004). In deciding whether a bill of particulars is warranted, the district court is vested with "very broad discretion in ruling upon requests for such bills." Will v. United States, 389 U.S. 90, 99 (1967).

III. ANALYSIS

The pending motions collectively challenge: Count One (1) for a violation of Title 18 U.S.C. section 1962(d) for Racketeering Conspiracy; Count Two (2) for a violation of Title 18 U.S.C. section 1959(a)(5) for Conspiracy to Commit Murder in Aid of Racketeering; Count Three (3) for violation of Title 18 U.S.C. section 1959(a)(6) for Conspiracy to Commit Assault with a Dangerous Weapon in Aid of Racketeering; Count Four (4) for a violation of Title 18 U.S.C. sections 924(c)(1)(A) and 2 for Use/Possession of a Firearm in Furtherance of a Crime of Violence; Counts Five (5) and Six (6), each of which allege a violation of Title 18 U.S.C. sections 1959(a)(1) and (2) for Murder in Aid of Racketeering of Victim-1 and Victim-2; and Count 23 (23) for a violation of Title 18 U.S.C. sections 1512(c)(2) and 2 for Obstruction of Justice.

A. MOTION TO DISMISS

The Peggy Larez Motion seeks dismissal of Counts One, Three, and Four on the sole ground that the time period for the conspiracy has not been sufficient alleged. The Court disagrees.

Here, while the Superseding Indictment includes significant background allegations (discussed below), the government has also indicated that the racketeering, as alleged, continues. With respect to the Defendants here, the government argues that it intends "to prove evidence of the defendants' conduct from on or about December 2003 onward" (Gov't Oppo. at 20-21) and, in fact, in the 27-page Superseding Indictment, the government has included many specific dates regarding the conduct at issue:

(Gov't Oppo. at 12:16-23.) The Superseding Indictment is not open-ended on both sides of a temporal spectrum. These allegations are sufficient for purposes of withstanding a motion to dismiss and need not be more specific.

Based on the Court's review of the papers and pleadings, the Peggy Larez Motion to Dismiss is DENIED. The Government is limited to proof of alleged conduct from a starting date of on or about December 2003.

B. MOTIONS TO STRIKE SURPLUSAGE

The Gray Motion includes a motion to strike surplusage under Rule 7(d) of the Federal Rules of Criminal Procedure. The purpose of such a motion is to protect a defendant against "prejudicial or inflammatory allegations that are neither relevant nor material to the charges." United States v. Terrigno, 838 F.2d 371, 373 (9th. Cir 1988) (quoting United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir. 1983)).

Here, the motion focuses on the first nine introductory paragraphs of the Superseding Indictment, which outline the government's rendition of the formation, operation, and history of the prison organization known as Nuestra Familia. Defendants seek to strike the paragraphs, arguing they are "inflammatory" and unnecessary to the Superseding Indictment, which need only provide facts sufficient to establish a prima facie case, i.e. a "plain, concise, and definite written statement of the essential facts constituting the offense charged." See Fed. R. Crim. P. 7(c)(1). They further claim that the allegations are not relevant, but to the contrary, prejudicial.

Defendants have failed to demonstrate that the allegations are not material or relevant to the charges set forth in the Superseding Indictment. The allegations set forth the government's theory regarding the racketeering organization and its conduct, all of which inform the charges alleged. The alleged longevity, persistence, and firmly-established structure of the criminal organization impact the past, current, and future operations and the alleged criminal acts which emanate therefrom. The allegations inform on this issue of timing—i.e. why the "start dates" and/or "end dates" of any given defendant's alleged participation in the racketeering acts and/or conspiracies cannot be identified with meticulous precision. The allegations demonstrate that the organization is both organic and dynamic. As set forth above, issues regarding timing are material and relevant, as even Defendants themselves brought a motion to dismiss on the sole ground that specific dates could not be provided. Given these particular allegations, the Court cannot find that they are not material or relevant.

Next, Defendants have not identified any current or anticipated manifestation of prejudice. An "indictment is not evidence against the accused and affords no inference of guilt or innocence." Ramirez, 710 F.2d at 545. This action is not at the stage of preparing for trial, nor is the Court considering whether to allow a jury to see a copy of the Superseding Indictment. Without an articulated presence or anticipation of prejudice for the Court to evaluate, the Court will not assume that prejudice exists or that it will develop inevitably.

On these grounds, the Motion to Strike Surplusage is DENIED.

C. MOTIONS FOR A BILL OF PARTICULARS

The motions for a bill of particulars are addressed collectively herein and organized by Count.

1. COUNT ONE

With respect to Count One for a violation of Title 18 U.S.C. section 1962(d) for Racketeering Conspiracy, Defendants seek the following specific information:

Except for the requests relative to paragraphs 16, all of the information requested above falls within the purview of discovery and does not require specification in a bill of particulars. The referenced paragraphs of the Indictment cannot be viewed in a vacuum. As set forth above, the government's Superseding Indictment contains background allegations (incorporated by reference) regarding the alleged history of the Nuestra Familia operation and its understanding of the nature of the operations. These allegations inform all subsequent counts. Count One provides sufficient information regarding the elements the government intends to prove at trial and thus satisfies the constitutional concerns respecting double jeopardy. In addition, the government detailed in its opposition the discovery provided to defendants, individually and collectively, which will prevent surprise at trial and allow the defendants to prepare an adequate defense. An insufficient showing has been made that any specific defendant cannot prepare his defense adequately due to a lack of discovery.

Accordingly, with respect to Count 1, the collective motions are DENIED except as to paragraph 16. Should discovery prove insufficient, an individual defendant may file another motion which is more specific to said defendant. With respect to paragraph 16, the generic allegation regarding "other criminal conduct" is too ambiguous to provide notice of any charges beyond those more specifically alleged in the complaint. The motions are GRANTED as to the phrase "other criminal conduct" in paragraph 16.

2. COUNT TWO

With respect to Count Two for a violation of Title 18 U.S.C. section 1959(a)(5) for Conspiracy to Commit Murder in Aid of Racketeering, Defendants seek a bill of particulars with respect to the conspiracy alleged in paragraph 26, namely: specification as to when the conspiratorial agreement occurred, when Mr. Gray and the other named defendants actually joined in said agreement, the place or places in which the alleged agreement was reached, the persons present at that time and place, the form the alleged agreement took, and the individuals who Mr. Gray and the other named defendants allegedly agreed to kill.

All the information requested above falls within the purview of discovery and does not require specification in a bill of particulars. Count Two provides sufficient information regarding the elements the government intends to prove at trial and thus satisfies the constitutional concerns respecting double jeopardy. As previously stated, the Court understands that since the filing of the Indictment, the government has been providing discovery to each defendant. An insufficient showing has been made that any specific defendant cannot prepare his defense adequately due to a lack of discovery.

The collective motions as to Count 2 are DENIED. Should discovery prove insufficient, an individual defendant may file another motion which is more specific to said defendant.

3. COUNTS THREE AND FOUR

With respect to Count Three for a violation of Title 18 U.S.C. section 1959(a)(6) for Conspiracy to Commit Assault with a Dangerous Weapon in Aid of Racketeering and Count Four for a violation of Title 18 U.S.C. sections 924(c)(1)(A) and 2 for Use/Possession of Firearm in Furtherance of Crime of Violence, Defendants seek the same information as to each count:

With respect to paragraphs 24 and 25, they request specification of the time period encompassed by the phrase "at all times relevant to this Indictment."

With respect to paragraph 28 and 29, respectively, they request:

All the information requested above falls within the purview of discovery and does not require specification in a bill of particulars. Counts Three and Four provide sufficient information regarding the elements the government intends to prove at trial and thus satisfies the constitutional concerns respecting double jeopardy. As previously stated, the Court understands that since the filing of the Indictment, the government has been providing discovery to each defendant. An insufficient showing has been made that any specific defendant cannot prepare his defense adequately due to a lack of discovery.

The collective motions as to Counts 3 and 4 are DENIED. Should discovery prove insufficient, an individual defendant may file another motion which is more specific to said defendant.

4. COUNT 23

Count 23 charges a violation of Title 18 U.S.C. sections 1512(c)(2) and 2 for Obstruction of Justice arising out of the events described in the Superseding Indictment, which occurred "in or about October 2011" and relative to which, Defendants Gray and Alberto Larez "discarded firearms stored at a residence in Oakland, California." The motion seeks specific information regarding the "identity of the firearms Mr. Gray allegedly removed to obstruct justice, and the persons present when he did so." Count 23 provides sufficient information regarding the elements the government intends to prove at trial and thus satisfies the constitutional concerns respecting double jeopardy. The information requested falls within the purview of discovery and does not require specification in a bill of particulars. The motion as to Count 23 is DENIED.

5. REMAINING COUNTS REFERENCED IN THE PEGGY LAREZ MOTION

The Peggy Larez Motion requests a bill of particulars with respect to Counts 5 and 6 which each charge a violation of Title 18 U.S.C. sections 1959(a)(1) and (2) for Murder in Aid of Racketeering of Victim-1 and Victim-2. The motion seeks information regarding the "other `known persons' with whom Henry Cervantes is alleged to have murdered Victims 1 and 2." The remaining moving defendant (Michelson) on this motion has not been charged under Counts 5 and 6 and has not shown the basis upon which he is entitled to a bill of particulars. Moreover, the information requested falls within the purview of discovery and does not require specification in a bill of particulars. The Peggy Larez Motion as to Counts 5 and 6 is DENIED.

IV. CONCLUSION

For the reasons set forth above, the Court hereby:

A bill of particulars as set forth herein shall be filed within thirty (30) days of the date of this Order.

This Order terminates Dkt. Nos. 90 & 93.

IT IS SO ORDERED.