The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
William Patterson and Daryl Smith, Chicago Police Officers
assigned to the Public Housing South Division, Tactical Unit,
are accused of conspiring and attempting to possess five
kilograms of cocaine with intent to distribute it and to
distribute it in violation of 21 U.S.C. § 841(a)(1) and 846.
Specifically, they are charged with agreeing to steal several
kilograms of cocaine and a large sum of money from a purported
drug dealer and turn it over to an individual cooperating with
the FBI. They allegedly stole five bricks of what they thought
to be cocaine, but actually was "sham cocaine," and
approximately $20,000 in cash from the purported drug dealer's
apartment while armed and wearing ski masks. They took the
stolen goods to a grocery store parking lot where they placed
the sham cocaine in the trunk of the cooperating witness' car,
then took the cash to Mr. Patterson's home. The government
additionally alleges that the defendants intentionally failed to
place the recovered property into the Chicago Police
Department's evidence inventory, and that Mr. Patterson
concealed the acts done in furtherance of the conspiracy by
preparing a Supervisor's Management Log that did not disclose
the property taken from the purported drug dealer's apartment.
Mr. Patterson and Mr. Smith bring several pretrial motions,
which I discuss seriatim.
A. Motion for a Bill of Particulars or In the Alternative to
Strike Language from the Indictment as Surplusage
The defendants seek a bill of particulars as to paragraph ten
of Count I of the indictment. Paragraph ten alleges that the
defendants "misrepresented, concealed and hid, and caused to be
misrepresented, concealed and hidden, the purposes of and the
acts done in furtherance of the conspiracy, by means including,
but not limited to" Patterson's failure to include the stolen
property in the Supervisor's Management Log. The defendants
complain that the government has not apprised them of any acts
of concealment other than Mr. Patterson's failure to report the
property in the log. The government responded by providing a
bill of particulars, which states that in addition to the
matters stated in paragraph ten, the government will also prove
that the defendants engaged in counter-surveillance while
transporting the cash and sham cocaine. The motion for a bill of
particulars is therefore denied as moot.
B. Motion for an Order Requiring the Government to
Immediately Produce All Material Required by the Brady
Doctrine
C. Motion to Dismiss Count Three of the Indictment
Counts III and IV*fn1 allege that the defendants possessed
firearms and carried them in relation to acts that violate
21 U.S.C. § 846, as set forth in Counts I (conspiracy) and II
(attempt). The defendants claim that Counts III and IV are
"duplicitous." See United States v. Marshall, 75 F.3d 1097,
1111 (7th Cir. 1996) ("`Duplicity' is the joining of two or more
offenses in a single count."). The government denies
"duplicity," but I need not reach the issue because the
government has filed an "Election as to Counts Three and Four of
the Indictment," in which it elects Count I as the predicate
drug trafficking crime under which it will make its proof on
Counts III and IV. It has also offered to redact Count III (and
presumably also Count IV) to correspond to its election. The
motion to dismiss is therefore denied. The government is ordered
to redact Counts III and IV to conform to its written election.
D. Motion to Dismiss Count One of the Indictment
Mr. Patterson also moves to dismiss Count I of the indictment
as "duplicitous" because it charges that the defendants
"conspired and agreed with each other knowingly and
intentionally to possess with intent to distribute and to
distribute a controlled substance." (Emphasis added). An
indictment is not "duplicitous" because it alleges a conspiracy
to commit several crimes in a single count. United States v.
Bruun, 809 F.2d 397, 406 (7th Cir. 1987). Count I alleges a
conspiracy in violation of 21 U.S.C. § 846. A single conspiracy
may exist "even though the commission of two or more offenses is
contemplated." Id.
E. Motion for an Order Requiring the Government to
Immediately Produce all Rule 404(b) Materials
The government acknowledges its obligation pursuant to
Fed.R.Evid. 404(b) to provide notice of any evidence of other
acts that it plans to use at trial, but objects to the request
for immediate disclosure. Under Rule 404(b), the defendants are
entitled to "reasonable notice" of such evidence. The motion for
immediate disclosure is denied; however, the government has
agreed to produce Rule 404(b) evidence 45 days prior to trial.
F. Motion to Strike Portions of the Tape Recordings Tendered
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