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United States v. Mills

United States District Court, E.D. Michigan, Southern Division

April 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWIN MILLS, et al., Defendants.

          OPINION & ORDER DENYING DEFENDANT CARLO WILSON'S MOTION FOR BILL OF PARTICULARS OR, ALTERNATIVELY, TO STRIKE PORTIONS OF THE INDICTMENT AS SURPLUSAGE (DKT. 628), AND DEFENDANT EDWIN MILLS'S MOTION FOR BILL OF PARTICULARS (DKT. 661)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         This criminal case involves multiple defendants, all of whom have been charged with violating the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendant Carlo Wilson has filed motion for a bill of particulars or, in the alternative, to strike portions of the second superseding indictment as surplusage (Dkt. 628). The Government has filed a response in opposition to the motion (Dkt. 692), to which Wilson replied (Dkt. 729). Defendant Edwin Mills has also filed a motion for a bill of particulars (Dkt. 661). The Government has filed a response in opposition to the motion (Dkt. 708), to which Mills replied (Dkt. 743).[1] For the reasons stated below, the Court denies the motions.

         I. BACKGROUND

         A federal grand jury returned a second superseding indictment on February 28, 2018, charging the eleven defendants in this case with various crimes, including violations of RICO. See generally 2d Superseding Indictment (Dkt. 292). That indictment claims that Defendants were members and associates of a criminal enterprise-the “6 Mile Chedda Grove” street gang in Detroit-one of whose purposes was to “preserv[e] and protect[] the power, territory, reputation, and profits of the enterprise through murder, robberies, intimidation, violence, and threats of violence.” Id. at 2, 6. The enterprise purportedly operated on the east side of Detroit within an area bordered roughly by East McNichols Road to the north, Kelly Road to the east, Houston-Whittier Street to the south, and Chalmers Street to the west. Id. at 2. The “Chedda Grove” part of the enterprise's name is partially derived from one of the main streets in this territory- Cedargrove Street. Id.

         The indictment further alleges that the enterprise's profits derived primarily from the sale and distribution of controlled substances, including crack cocaine, heroin, and morphine. Id. at 5. The sale and distribution alleged were not limited to Michigan; gang members and associates purportedly sold and distributed controlled substances in Ohio, Kentucky, Tennessee, Alabama, and West Virginia. Id.

         Eight of the eleven defendants have since pleaded guilty.[2] The three remaining defendants have been separated into two groups with separate trial dates. See 8/7/2018 Order (Dkt. 425). Group One is currently composed of one defendant, Robert Baytops, who is not subject to the death penalty upon conviction. His trial will be scheduled at a future date. See 3/26/2019 Order (Dkt. 846) (granting Defendant Donell Thompson's motion for severance). Group Two, composed of two defendants who are death-penalty eligible, has a trial date of April 21, 2020. See 8/31/2018 Order (Dkt. 475).

         Defendants Carlo Wilson and Edwin Mills belong to Group Two and have each been charged with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); two counts of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count Eight involves victim A.T.; Count Ten involves victim S.H.); two counts of using and carrying a firearm during and in relation to a crime of violence causing death in violation of 18 U.S.C. §§ 924(c) and 924(j) (Count Nine involves victim A.T.; Count Eleven involves victim S.H.); two counts of assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3) (Count Twelve involves victim M.A.; Count Thirteen involves victim T.M.); and one count of using, carrying, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Fourteen, based on Counts Twelve and Thirteen). See generally 2d Superseding Indictment. On March 1, 2018, the Government filed its notice of intent to seek a sentence of death against Wilson and Mills (Dkt. 293).

         II. STANDARDS OF DECISION

         Under Federal Rule of Criminal Procedure 7(c), an indictment must include a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). It is well known that an indictment is legally insufficient unless “it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009) (“[T]he indictment must: (1) ‘set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces,' and (2) ‘be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.'” (quoting United States v. Douglas, 398 F.3d 407, 411 (6th Cir. 2005))); United States v. Chichy, 1 F.3d 1501, 1504 n.3 (6th Cir. 1993) (“An indictment as drafted is presumed sufficient if it tracks the statutory language, cites the elements of the crimes charged, and provides approximate dates and times.” (collecting cases)).

         Although an indictment may be legally sufficient for purposes of Rule 7(c) and Hamling, it may nonetheless fail to provide enough detail to enable a defendant to meaningfully prepare for trial. Accordingly, Rule 7(f) states that the Court “may direct the government to file a bill of particulars.” Fed. R. Crim. P. 7(f); see also 1 Charles Alan Wright, et al., Federal Practice and Procedure § 130 (4th ed.) (“A bill of particulars is a formal written statement by the prosecutor providing details of the charges against the defendant.”). A bill of particulars is meant to serve the following purposes:

(1) to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial; (2) to avoid or minimize the danger of surprise at the time of trial; and (3) to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense where the indictment itself is too vague, and indefinite for such purposes.

United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976); see also United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993) (“A bill of particulars is meant to be used as a tool to minimize surprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes.”). According to the Sixth Circuit, “the test in ruling on a motion for a bill of particulars is whether providing such details is necessary to the preparation of the defense and avoidance of prejudicial surprise.” United States v. Musick, 291 Fed.Appx. 706, 724 (6th Cir. 2008); see also United States v. Kogan, 283 F.Supp.3d 127, 132 (S.D.N.Y. 2017) (“[T]he proper inquiry on a motion to compel a bill of particulars is whether the information sought is necessary, not whether it is helpful.”).

         Importantly, a bill of particulars “is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial.” Salisbury, 983 F.2d at 1375; see also United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (holding that a bill of particulars “is intended to give the defendant only that minimum amount of information necessary to permit the defendant to conduct his own investigation.”); United States v. Martin, 822 F.2d 1089, at *3 (6th Cir. 1987) (Table) (per curiam) (“[A] bill of particulars is not to be used as a general discovery device. . . . This is particularly so in a conspiracy case where the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy.”). For example, a “defendant is not entitled to a bill of particulars if the purpose of the bill is to obtain a list of the Government's witnesses or to discover all of the overt acts that might be proven at trial.” Musick, 291 Fed.Appx. at 724. Nor is a bill of particulars meant to allow the defendant a preview of the Government's legal theory of the case. Kogan, 283 F.Supp.3d at 132.

         Finally, Rule 7(d) provides that, “[u]pon the defendant's motion, the court may strike surplusage from the indictment or information.” Fed. R. Crim. P. 7(d). Rule 7(d) is “properly invoked when an indictment contains nonessential allegations that could prejudicially impress the jurors.” United States v. Kemper, 503 F.2d 327, 329 (6th Cir. 1974); United States v. Berroa, 856 F.3d 141, 157 (1st Cir. 2017) (“Rule 7(d) serves to protect the defendant against immaterial or irrelevant allegations in an indictment, which may be prejudicial.” (citation, quotation marks, and ellipses omitted)). Because this rule is “strictly construed against striking surplusage, ” Kemper, 503 F.2d at 329, a motion to strike surplusage is disfavored and should only be granted if it is clear the language in the indictment is both irrelevant and prejudicial, United States v. Neller, 229 F.3d 1154, at *2 (6th Cir. 2000) (Table) (per curiam). A district court may strike irrelevant and prejudicial portions of an indictment, including overt acts from a conspiracy count. Id.; United States v. Montour, 944 F.2d 1019, 1026 (2d Cir. 1991) (same).

         III. DISCUSSION

         A. Wilson's Motion for a Bill of Particulars or, Alternatively, to Strike Portions of Indictment as Surplusage (Dkt. 628)

         Wilson makes the following five arguments in his motion: (i) regarding the charge of racketeering conspiracy in count one, paragraphs 2, 3, and 4 should be stricken as surplusage; (ii) if these three paragraphs are not stricken, the Government should provide greater specificity concerning the racketeering conspiracy charge; (iii) regarding the charges of murder in aid of racketeering and assault with a dangerous weapon in aid of racketeering, the Government should specify Wilson's purported “position” within 6 Mile Chedda Grove that he was allegedly maintaining or increasing; (iv) the Government should provide greater specificity regarding the statutory aggravating factors alleged in the notice of intent to seek the death penalty; and (v) the Government should provide greater specificity regarding the non-statutory aggravating factors alleged in the notice of intent. The Court will address each of these arguments in turn.

         1. Striking Paragraphs 2, 3, and 4 of Count One as Surplusage

         Regarding his argument that paragraphs 2, 3, and 4 in count one should be stricken as surplusage, Wilson only offers a conclusory assertion that these paragraphs are irrelevant, inflammatory, and prejudicial; he never explains why these paragraphs are irrelevant and prejudicial. See Def. Br. at 9. On the other hand, the Government contends that these paragraphs are relevant to establishing the existence and nature of a criminal enterprise-a necessary element for proving a racketeering conspiracy-because they illustrate “the area of Detroit over which 6 Mile claims dominion to illegally sell narcotics, ” “how 6 Mile members and associates operate within the enterprise, ” “how members and associates of 6 Mile gain entrance or associateship with the enterprise, ” and “ how 6 Mile members show their allegiance through tattoos, social media postings, and hand signs.” Gov't Br. at 14-15. The Court agrees with the Government.

         A criminal defendant violates the RICO Act if he or she conspires to “conduct or participate, directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity.” 18 U.S.C. §§ 1962(c)-(d). Stated differently, to establish the offense of racketeering conspiracy, the Government must prove the following four elements: (1) an agreement, (2) to conduct or participate, (3) in an enterprise, (4) through a pattern of racketeering activity. See Salinas v. United States, 522 U.S. 52, 62-63 (1997); see also United States v. Gills, 702 Fed.Appx. 367, 373 (6th Cir. 2017).

         Regarding the third element, the RICO Act defines an “enterprise” as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). The Sixth Circuit, looking to Supreme Court precedent, has held that the term “enterprise” should be interpreted liberally, much like the RICO Act itself. In re ClassicStar Mare Lease Litig., 727 F.3d 473, 492 (6th Cir. 2013); see also Boyle v. United States, 556 U.S. 938, 944 (2009) (“The term ‘any' ensures that the definition has a wide reach . . . and the very concept of an association in fact is expansive.” (internal citations omitted)). Consequently, the term “enterprise” has been described broadly as “a group of persons associated together for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981) (allowing proof of enterprise by showing “an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit . . . separate and apart from the pattern of activity in which it engages”). It has also been interpreted as requiring “simply a continuing unit that functions with a common purpose.” Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 794 (6th Cir. 2012) (quoting Boyle, 556 U.S. at 948).

         Here, count one of the second superseding indictment charges Mills with racketeering conspiracy. See 2d Superseding Indictment at 2. Paragraph 2 of count one claims that 6 Mile Chedda Grove, “including its leadership, members, and associates, ” constituted a “group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce.” Id. at 6. This paragraph further states that members of 6 Mile Chedda Grove “gain position, status, and respect within the gang, and become leaders within the gang, ” by, among other things, committing acts of violence and distributing narcotics, which some members referred to as “putting in work.” Id. Paragraph 3 then describes how the gang includes both female and male members, some of whom are referred to as an “OCB” or “Original Chedda Boy.” Id. at 3. Some of these members are family members, while others either grew up in the same neighborhood or attended the same school. Id. The gang also has an initiation process, whereby members are “jumped in, ” meaning that “current members of the gang physically fight and strike the new member.” Id. Finally, paragraph 4 describes how members of 6 Mile Chedda Grove often use graffiti, tattoos, distinctive hand signs, clothing, and social media to identify themselves as members. Id. at 4-5.

         These three paragraphs address the general nature, membership, criminal activities, initiation process, and members' display of affiliation with 6 Mile Chedda Grove, all of which are relevant for establishing whether a group of individuals constitutes a criminal enterprise to prove the charge of racketeering conspiracy. Because Wilson has failed to clearly show how these paragraphs are both irrelevant and prejudicial under Rule 7(d), the Court denies his request to strike these paragraphs as surplusage.

         2. Request for Greater Specificity Concerning Racketeering Conspiracy Allegations

         If the Court does not strike paragraphs 2, 3, and 4 in count one as surplusage, Wilson argues that the Government should provide greater specificity concerning the racketeering conspiracy ...


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