United States v. Jackson

1

UNITED STATES OF AMERICA, v. LAWRENCE JACKSON, Defendant.

No. 2:21-cr-00113

United States District Court, D. Vermont

November 18, 2022

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR A BILL OF PARTICULARS (Doc 37)

Christina Reiss, District Judge

This matter comes before the court on Defendant Lawrence Jackson's motion for a bill of particulars concerning Count Eight of the Second Superseding Indictment, which alleges a violation of 18 U.S.C. § 924(c)(1)(A)(i) and (ii) and specifically alleges that Mr. Jackson “brandished” a firearm. Mr. Jackson seeks the dates on which he is alleged to have violated § 924(c) and the identification of the firearm he allegedly “brandished.” He also requests information about any other “individuals involved in the § 924(c) offense or the brandishing.” (Doc. 37 at 3-4.) The government opposes the motion.

Mr Jackson is represented by Michael L. Desautels, the Federal Public Defender for the District of Vermont. The government is represented by Assistant United States Attorneys Jonathan A. Ophardt and Zachary B. Stendig.

I. Factual and Procedural Background.

On May 23, 2022, Mr. Jackson was charged in a seven-count Superseding Indictment with distributing cocaine on three occasions in August and September 2020 (Counts 1-3); maintaining a residence for purposes of distributing illegal narcotics (Count 4); possessing cocaine and cocaine base with the intent to distribute (Count 5); carrying, using, and possessing firearms during, in relation to, and in furtherance of drug trafficking crimes (Count 6), and being a felon in possession of a firearm, alleged to be “a Taurus ‘The Judge' .410/.45 caliber revolver.” (Count 7) (Doc. 27 at 7.)

According to Mr. Jackson,

Discovery produced by the government suggests that [C]ounts 1-3 stem from three controlled buys conducted in August and September of 2020. More than a year later, on November 23, 2021, law enforcement obtained a warrant to search a residence (55 Killington Avenue, Rutland, VT) believed to be associated with Mr. Jackson. Discovery suggests that [C]ounts 4, 6, and 7 arise from the evidence found there, which the government alleges included one or more firearms. When law enforcement authorities determined that Mr. Jackson was not at the residence, the authorities stopped a car he was driving. The drugs found in the vehicle appear to be the basis for [C]ount 5. It is [C]ount 6, the § 924(c) count, that is at issue in this motion.

(Doc. 37 at 2.)

Count Six of the Superseding Indictment charged Mr. Jackson with violating 18 U.S.C. § 924(c)(1)(A)(i) and (ii) and alleged:

Between in or about the summer of 2020 and on or about November 23, 2021, in the District of Vermont, the defendant LAWRENCE JACKSON, aka “Boo-Bee,” knowingly carried and used firearms during and in relation to drug trafficking crimes, and knowingly possessed firearms in furtherance of drug trafficking crimes, for which he may be prosecuted in a Court of the United States, namely, possession with intent to distribute and distribution of cocaine base in violation of Title 21, United States Code, Section 841(a), and maintaining a drug involved premises, in violation of Title 21, United States Code, Section 856(a)(1). During this offense, the defendant LAWRENCE JACKSON, aka “Boo-Bee,” brandished a firearm.

(Doc. 27 at 6.)

On September 2, 2022, Mr. Jackson filed a motion for a bill of particulars, arguing that additional information was needed for his defense “in light of the generality of the charged crime and the limited information” provided to defense counsel. (Doc. 37 at 3.) He noted that the § 924(c) charge does not provide a date “[b]eyond the 18-month period alleged . . . that would allow Mr. Jackson to identify the incident or otherwise mount a defense.” Id. Discovery produced by the government as of the filing of his motion allegedly failed to “identify or otherwise narrow the scope of time or the firearm or individuals involved in the § 924(c) offense or the brandishing.” Id. at 3-4.

On September 7, 2022, a grand jury returned a Second Superseding Indictment against Mr. Jackson and others (Doc. 39), which contains a § 924(c) charge set forth as Count Eight rather than Count Six, and alleges:

Between in or about January of 2021 and on or about November 23, 2021, in the District of Vermont, the defendant LAWRENCE JACKSON, aka “Boo-Bee,” knowingly carried and used firearms during and in relation to drug trafficking crimes, and knowingly possessed firearms in furtherance of drug trafficking crimes, for which he may be prosecuted in a Court of the United States, namely the offense in Count One.

During this offense, the defendant LAWRENCE JACKSON, aka “Boo-Bee,” brandished a firearm on multiple occasions, as outlined below:

• In or about the summer of 2021, JACKSON brandished a firearm in the presence of FEMALE-1. JACKSON brandished the firearm at FEMALE-1 because he believed that FEMALE-1 had stolen a large quantity of cocaine and cocaine base.

• In or about the summer of 2021, JACKSON brandished a firearm in the presence of MALE-1 and struck MALE-1 with the firearm. JACKSON's striking of MALE-1 with the firearm was, in part, over money owed by MALE-1 to JACKSON for cocaine and cocaine base.

• In or about the summer of 2021, JACKSON brandished a firearm in the presence of FEMALE-2 and struck FEMALE-2 with the firearm. JACKSON brandished the firearm at FEMALE-2 and struck her with the firearm because JACKSON believed that FEMALE-2 had stolen a large quantity of cocaine and cocaine base.

• In or about June of 2021, JACKSON, while possessing cocaine base with the intent to distribute, brandished a firearm in the presence of FEMALE-3. After brandishing the firearm, JACKSON sexually assaulted FEMALE-3. After sexually assaulting FEMALE-3, JACKSON distributed some of the cocaine base he possessed to FEMALE-3.

• In or about August 2021, JACKSON, while possessing cocaine base with the intent to distribute it, brandished a firearm in the presence of MALE-2.

(18 U.S.C. § 924(c)(1)(A)(i) and (ii))

(Doc. 39 at 8-9.)

On October 14, 2022, the government opposed Mr. Jackson's motion for a bill of particulars, asserting that the motion is mooted by the Second Superseding Indictment, which “addresses nearly all of the defendant's requests in his motion.” (Doc. 62 at 1.)

The government confirms that it “intends to proceed to trial on the Second Superseding Indictment[,] not the first superseding indictment that was the subject of [Mr. Jackson's] motion.” Id. at 3 (emphasis omitted). Alternatively, the government asserts that even if Mr. Jackson's motion is not moot, Mr. Jackson is not entitled to a bill of particulars because the indictment “adequately places [Mr. Jackson] on notice of the charges against him.” Id. at 5. The government does not describe the discovery it has produced to date but rather relies on the alleged sufficiency of the Second Superseding Indictment.

After filing the Second Superseding Indictment, the government contacted Mr. Jackson's counsel to ask whether Mr. Jackson wished to withdraw his motion for a bill of particulars. Mr. Jackson's counsel declined to do so. On October 28, 2022, the court took Mr. Jackson's motion under advisement.

II. Conclusions of Law and Analysis.

A. Legal Standard Governing Bills of Particulars.

Under Fed. R. Crim. P. 7(f), a court “may direct the government to file a bill of particulars.” A bill of particulars is typically ordered “to provide sufficient information about the nature of the charge to enable a defendant to prepare for trial, to avoid unfair surprise, and to preclude a second prosecution for the same offense.” United States v. Kogan, 283 F.Supp.3d 127, 132 (S.D.N.Y. 2017) (citing United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990)); see also United States v. Huggans, 650 F.3d 1210, 1220 (8th Cir. 2011) (“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.”) (internal quotation marks omitted) (quoting United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009)); United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987) (stating that a bill of particulars is merited “only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.”), aff'd, 875 F.2d 857 (2d Cir. 1989).

Although the Second Circuit has “consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms[,]” United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), in certain circumstances, a bill of particular remains warranted. “[T]he principal function of a bill of particulars is to apprise a defendant of the essential facts of the crime for which [he] has been indicted, especially in instances where the indictment itself does little more than track the language of the statute allegedly violated.” United States v. Bell, 2020 WL 7260518, at *4 (S.D.N.Y. Dec. 10, 2020) (quoting Salazar, 485 F.2d at 1278); see also United States v. Moyer, 674 F.3d 192, 203 (3d Cir. 2012) (“When an indictment merely quotes the language of a statute and that statute contains generalities, the indictment must factually define those generalities, descending into particulars.”).

Correspondingly “[i] f the defendant has been given adequate notice of the charges against him, the government is not required to disclose additional details about its case.” United States v. Solomonyan, 451 F.Supp.2d 626, 641 (S.D.N.Y. 2006) (internal quotation marks omitted) (quoting United States v. Payden, 613 F.Supp....