United States v. Mims

UNITED STATES OF AMERICA, Plaintiff, v. ANDRE MIMS, et al., Defendants.

No. 19-cr-00811 (BRM)

United States District Court, D. New Jersey

April 20, 2022

NOT FOR PUBLICATION

OPINION

HON BRIAN R. MARTINOTTI, United States District Judge.

Before the Court are the Omnibus Pre-Trial Motions of Defendant Kasimu Shomari (“Shomari”) (ECF No. 137) Defendant Andre Mims (“A. Mims”) (ECF No. 142) and Defendant Freddie Mims (“F. Mims, ” and together with Shomari and A. Mims, “Defendants”) (ECF No. 147). Plaintiff United States of America (“Government”) opposed. (ECF 149.) Shomari and A. Mims filed replies. (ECF Nos. 152, 154.) Having reviewed the submissions filed in connection with the Motions and having held oral argument on March 2, 2022, for the reasons set forth below and for good cause having been shown, the Omnibus Pre-Trial Motions are GRANTED IN PART and DENIED IN PART.

I. Background

Defendants are alleged to be members of a drug trafficking organization. On or about January 24, 2021, a Superseding Indictment was returned charging Defendants as follows:

Count One - conspiracy to distribute heroin from December 2017 through May 15, 2018 in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846 as to Shomari, A. Mims, and F. Mims.

Counts Two through Six - distribution of heroin on December 28, 2017, January 3, 2018, January 11, 2018, February 13, 2018, and March 6, 2018 in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) as to A. Mims.

Count Seven - distribution of heroin on April 13, 2018 in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) as to F. Mims.

Counts Eight and Nine - distribution of heroin on April 15, 2018 and April 17, 2018 in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) as to Shomari and A. Mims.

Count Ten - possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

(ECF No. 98.) Throughout the Superseding Indictment, Shomari is referred to as “a/k/a ‘Anthony Woods,' a/k/a ‘Moo'” and A. Mims is referred to as “a/k/a ‘Face' a/k/a ‘Fifty.'” (Id.)

On March 24, 2021, Shomari filed a motion seeking various forms of pre-trial relief. (ECF No. 137.) A. Mims and F. Mims filed similar motions on June 2, 2021 and July 26, 2021, respectively. (ECF Nos. 142, 147.) On September 24, 2021, the Government filed an opposition to the motions. (ECF No. 149.) Shomari and F. Mims filed replies on November 10, 2021 and November 17, 2021, respectively. (ECF Nos. 152, 154.) The Court held oral argument on the motions on March 2, 2021. (ECF No. 161.)

Defendants raise a variety of issues in their motions, many of which-but not all-overlap. The Court addresses the issues below by category, or separately, as appropriate.

II. Decision

A. Motion to Dismiss Count One of the Superseding Indictment or, in the Alternative, for a Bill of Particulars

Shomari claims Count One, charging him with conspiracy to distribute heroin along with A. Mims and F. Mims, must be dismissed because it improperly alleges a single, overreaching conspiracy when the conduct it encompasses is distinct, disconnected, and lacks a common purpose. (ECF No. 137 at 6-7.) He also argues Count One should be dismissed because it “relies on vague phrases such as ‘others,' ‘others known and unknown' and ‘other persons and entities[.]'”

(Id. at 11-12.) Alternatively, he argues the Government should be compelled to “particularize its allegations” in Count One, contending the Superseding Indictment fails “to provide even minimal information such as the identities of the participants in the offenses charged, the specified dates on which the offenses allegedly occurred, the places where the offenses allegedly occurred, and the role allegedly played by Kasimu Shomari[.]” (Id. at 30-31.)

The Government contends the evidence at trial will demonstrate Shomari participated in a single conspiracy. (ECF No. 149 at 11-14.) The Government also contends it is proper to charge a defendant with a conspiracy with unidentified co-conspirators, and, as part of the Government's discovery production, he has been provided the identities of his co-conspirators. (Id. at 17-18.) The Government further argues Shomari is not entitled to a bill of particulars because his request is beyond the scope of a bill of particulars and the Superseding Indictment is sufficient to notify Shomari of the crimes with which he has been charged. (Id. at 28-29.)

Count One of the Indictment states:

COUNT ONE (Conspiracy to Distribute Heroin)

From in or around December 2017 through on or about May 15, 2018, in Essex County, in the District of New Jersey and elsewhere, the defendants,

ANDRE MIMS, . . .

KASIMU SHOMARI, . . . and

FREDDIE MIMS, did knowingly and intentionally conspire and agree with each other and others, known and unknown, to distribute and possess with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, contrary to Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B).

In violation of Title 21, United States Code, Section 846.

(ECF No. 98 at 1-2.) For the reasons below, the Court finds Count One of the Superseding Indictment is not deficient, and therefore will not be dismissed, nor is a bill of particulars warranted in this case.

1. Count One Sufficiently Charges a Heroin Distribution Conspiracy Against Shomari, and Dismissal Is Not Required

Federal Rule of Criminal Procedure 7(c) requires an indictment set forth only a “plain, concise, and definite written statement of the essential facts constituting the offense charged[.]” A court deems an indictment sufficient so long as it “(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.” United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (citation omitted). “Moreover, ‘no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.'” Id. (quoting United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989)). Accordingly, “an indictment may set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000) (quotation marks omitted) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974) (quoting United States v. Carll, 105 U.S. 611, 612 (1882))).

Shomari is charged in Count One of the Superseding Indictment with conspiracy “to distribute and possess with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, contrary to [21 U.S.C. §] 841(a)(1) and (b)(1)(B)” from December 2017 through May 15, 2018 in violation of 21 U.S.C. § 846. (ECF No. 98 at 1-2.)

Section 846 makes it a crime to “attempt[] or conspire[] to commit any offense defined in this title” and further states a person who commits such a crime “shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Section 841(a)(1) and (b)(1)(B) make it a crime to knowingly or intentionally distribute or possess with intent to distribute 100 grams or more of heroin.

Here, the Court is satisfied Count One of the Superseding Indictment complies with Rule 7(c)(1) and is sufficient to charge a drug conspiracy against Shomari because it tracks the statutory language; it identifies the existence of a drug conspiracy, the operative time of the conspiracy, the statute allegedly violated; it specifies the amount of controlled substance involved; and it alleges Shomari knowingly and intentionally conspired with other persons to achieve the purpose of the conspiracy.

To the extent Shomari argues Count One should be dismissed because it “improperly alleges a single, overreaching conspiracy when the conduct it encompasses is distinct, disconnected, and lacks a common purpose, ” Shomari's motion is premature. Whether the Government proves a single conspiracy or multiple conspiracies is a fact question for the jury, United States v. Perez, 280 F.3d 318, 345 (3d Cir. 2002). Following the presentation of the Government's case, Shomari may renew the motion to dismiss Count One. Accordingly, Shomari's motion to dismiss Count One of the Superseding Indictment is DENIED.

2. A Bill of Particulars Is Not Warranted Here

The Court finds a bill of particulars, for which Shomari moves in the alternative, is not warranted in this case. “A bill of particulars is a formal, detailed statement of the claims or charges brought by a plaintiff or a prosecutor.” United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005) (citation and quotation marks omitted). Federal Rule of Criminal Procedure 7(f) grants the Court the authority to order a bill of particulars where “an indictment's failure to provide factual or legal information significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial.” United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989). It is well-settled a bill of particulars “is not intended to be a discovery device.” United States v. DePaoli, 41 Fed.Appx. 543, 546 (3d Cir. 2002) (citing United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985)); see United States v. Coburn, 439 F.Supp.3d 361, 387 ...