United States District Court, N.D. California
ORDER RE: DEFENDANT'S MOTIONS TO DISMISS Re: Dkt. Nos. 133, 134
SUSAN ILLSTON, District Judge.
The Court set forth a detailed factual background in its prior order in this case, and therefore will not repeat it here. See Docket No. Docket No. 117 at 1-4. The procedural history pertinent to the present motions is as follows. Defendant Elijah Cooper was arrested on October 4, 2013. On October 17, 2013 the grand jury returned a two-count indictment against Cooper, charging him with: (1) distribution of cocaine base, in violation of 21 U.S.C. §§ 841 (a)(1), 841 (b)(1)(B)(iii); and (2) conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846.
On July 31, 2014, the Court issued an order ruling on eight motions filed by Cooper. Docket No. 65. Therein, the Court granted defendant's motion to dismiss Count Two of the indictment. Id. at 7. On August 28, 2014, the grand jury returned a superseding indictment, charging the same two counts as the original indictment. Docket No. 67. On November 12, 2014, the Court issued an order, on Cooper's motions, dismissing Count Two of the superseding indictment. Docket No. 87. On December 10, 2014, the government filed a notice of appeal, challenging the Court's dismissal of the conspiracy charge. Docket No. 94. Neither party sought a stay pending the government's appeal, and at a status conference on February 27, 2015, the Court set a May, 2015 trial date. Docket No. 115. On March 16, 2015, when the its appellate brief became due, the government voluntarily dismissed its appeal. Docket No. 118. At a status conference held on March 26, 2015, the Court set April 9th as the deadline for the government to provide Cooper with trial exhibits, and to file a superseding indictment if it so chose. Docket No. 122.
On April 7, 2015 the government filed a second superseding indictment ("SSI"), charging Cooper with: (1) distribution of cocaine base, in violation of 21 U.S.C. §§ 841 (a)(1), 841 (b)(1)(B)(iii); (2) use of a communication facility to commit a drug felony, in violation of 21 U.S.C. § 843(b); and (3) conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846. In response, Cooper filed a motion to dismiss the SSI, and a motion to dismiss Counts Two and Three of the SSI. Docket Nos. 133, 134.
I. Motion to Dismiss Counts Two and Three
A. The Conspiracy Count
Federal Rule of Criminal Procedure 7(c) provides that an indictment must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." In the Ninth Circuit, an indictment is usually sufficient if it sets forth the elements of the offenses charged. United States v. Fernandez, 388 F.3d 1199, 1200 (9th Cir. 2004); see also United States v. Woodruff, 50 F.3d 673, 676 (9th Cir. 1995) ("In the Ninth Circuit the use of a bare bones' information - that is one employing the statutory language alone - is quite common and entirely permissible so long as the statute sets forth fully, directly and clearly all essential elements of the crime to be punished.") (alteration, citation, and internal quotation marks omitted)). In considering a motion to dismiss an indictment, the Court may not look beyond "the four corners of the indictment in analyzing whether a cognizable offense has been charged." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). An indictment is sufficient to withstand a defendant's motion to dismiss "if it contains the elements of the charged offense in sufficient detail (1) to enable the defendant to prepare his defense; (2) to ensure him that he is being prosecuted on the basis of the facts presented to the grand jury; (3) to enable him to plead double jeopardy; and (4) to inform the court of the alleged facts so that it can determine the sufficiency of the charge." United States v. Rosi, 27 F.3d 409, 414 (9th Cir. 1994) (citation omitted).
The Court has twice granted Cooper's motion to dismiss the conspiracy count because it failed to provide "the substantial safeguards to criminal defendants that indictments are designed to guarantee." United States v. Cecil, 608 F.2d 1294, 1296 (9th Cir. 1979) (per curiam) (citation and internal quotation marks omitted). See Docket Nos. 65, 87. The Court found that the initial indictment failed to provide sufficient detail regarding (1) when the conspiracy took place because the time frame was essentially open-ended in both directions, (2) the identity of the alleged coconspirators, and (3) facts regarding what they were alleged to have done. Docket No. 65 at 6. The first superseding indictment provided a more definite time frame (approximately four months), yet failed to specify the identity of any of the alleged co-conspirators. The conspiracy charge in the SSI reads as follows:
COUNT THREE: (21 U.S.C. § 846 - Conspiracy to Possess With Intent to Distribute and Distribute Cocaine Base)
3. The allegations contained in Counts One and Two of this Indictment are realleged and incorporated as if fully set forth here.
4. From on or about February 4, 2013, and continuing until on or about March 18, 2013, in the Northern District of California, the defendant, ELIJAH COOPER, knowingly and intentionally combined, conspired, confederated and agreed with Anthony Knight and other persons known and unknown to the Grand Jury to possess with intent to distribute, and to distribute, a Schedule II controlled substance, to wit, twenty-eight grams and more of mixtures and substances containing cocaine base [.]
The SSI has narrowed the time frame of the conspiracy by approximately two and a half months, and for the first time has named an individual with whom Cooper is alleged to have conspired. Count Three also "reallge[s] and incorporate[s]" the allegations from Counts One and Two, which include allegations that, on February 5, 2013, ...