United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge.
the Court is Defendant's Motion to Dismiss Indictment
(Dkt. 65) and the United States' opposition (Dkt.71).
Upon consideration, Defendant's Motion to Dismiss is
is charged in a seven count Indictment with conspiracy to
possess with intent to distribute and distribute one kilogram
or more of heroin (Count One) and knowingly and intentionally
possessing, and aiding and abetting another in possessing
with intent to distribute heroin on six different dates
(Counts Two through Seven). Count Two, Three and Four do not
allege a quantity of heroin, while Counts Five, Six and Seven
allege a quantity of more than 100 grams. (Dkt. 9).
first contends that the indictment fails to provide adequate
notice of the charges against him. He relies on Rule 7(c),
Fed.R.Crim.P., which provides that an Indictment "must
be a plain, concise, and definite written statement of the
essential facts constituting the offense charged . . ."
Specifically, he contends that Count One is deficient because
it alleges an "open ended conspiracy, " fails to
identify the co-conspirators, and fails to define
"elsewhere." Paraphrasing his contention, Count One
fails to provide notice of when he committed the offense,
with whom, and where.
contentions are without merit. "To pass constitutional
muster, an indictment must be sufficiently specific to inform
the defendant of the charge against him and to enable him to
plead double jeopardy in any future prosecutions for the same
offense." United States v. Yonn, 702 F.2d 1341,
1348 (11th Cir. 1983). More specifically, an Indictment is
sufficient is it alleges the (1) essential elements of the
charged offense, (2) notifies the accused of the charges, and
(3) enables the accused to rely upon a judgment entered under
the Indictment as a bar against double jeopardy. United
States v. Jordan, 582 F.3d 1239, 1245 (11th
Cir. 2009). And an Indictment is sufficient if it tracks the
statute under which the accused is charged and provides a
statement of facts that provides notice of the offense.
United States v. McNair, 605 F.3d 1152, 1186
(11th Cir.), cert, denied, 562 U.S. 1270 (2011).
Significantly, for purposes of Defendant's contentions,
an Indictment need not allege the factual proof supporting
the charges. United States v. Crippen, 579 F.2d 340,
342 (5th Cir. 1978). Moreover, "an indictment
for conspiracy to commit a criminal offense need not be as
specific as a substantive count." United States v.
Ramos, 666 F.2d 469, 475 (11th Cir.1982).
to Defendant's contentions, the time and location, drug
amount, and purchasers involved are not essential elements of
a drug offense. United States v. Steele, 178 F.3d
1230, 1234 (11th Cir. 1999). An allegation that an
offense occurred in a federal judicial district is sufficient
to describe the location. Id. at 1234). And an
allegation that a conspiracy was committed during a certain
duration of time is sufficient. United States v.
Yonn, 702 F.2d 1341, 1348 (11th Cir. 1983).
Count One alleges the essential elements of the charged
conspiracy. And Count One sufficiently alleges the
temporal duration of the conspiracy charged, as well as the
location in which it was committed ("From an unknown
date, which was at least in 2015, through on or about
September 28, 2016, in the Middle District of Florida and
elsewhere .. ."). Considering the fluid and typically
clandestine nature of a drug trafficking conspiracy, this
allegation provides sufficient notice to Defendant of what he
is charged with having conspired to do, the "when"
and the "where" of the charged conspiracy, and the
involvement of others. And while the unindicted
co-conspirators, known and unknown, are not identified
("other persons both known and unknown to the Grand
Jury"), Defendant cites no authority requiring an
Indictment to identify unindicted
Two through Seven likewise track the language of the statutes
under which Defendant is charged, and each count alleges the
essential elements of the offenses charged: (1)
defendant's knowing or intentional, (2) possession of a
controlled substance, (3) with intent to distribute that
substance. 21 U.S.C. § 841(a)(1). See United States
v. Green, 296 F.App'x 811, 813 (11th Cir.),
cert. denied, 555 U.S. 1201 (2009). And 18 U.S.C.
§ 2 allows one to be punished as a principal if he
"aids, abets, counsels, commands, induces or
procures" the commission of an offense against the
United States. And that is what the Indictment alleges in
Counts Two through Seven. On six different dates.
the indictment alleges the essential elements of the charged
offenses, adequately notifies Defendant of the charges, and
enables him to rely on any judgment entered under the
Indictment as a bar against double jeopardy. Although the
Indictment could have alleged more, the Due Process Clause
does not require more. United States v. Yonn, supra.
 The essential elements of a conspiracy
under 21 U.S.C. §§ 846 and 841(b)(1)(A)
(1) an agreement between two or more people to possess
with intent to distribute and distribute the drugs, (2) the
defendant knew of the conspiratorial goal, and (3) that he
knowingly joined or participated in the illegal venture.
United States v. Reeves,742 F.3d 487, 497 (11th
Cir. 2014). The Indictment in this case alleges these
essential elements of the charged conspiracy, and the nature
of and quantity of ...