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United States v. Wysinger

July 14, 2010


The opinion of the court was delivered by: Reagan, District Judge


A grand jury indicted John Wysinger and five co-defendants on October 21, 2009. A superseding indictment against the six appeared on December 16, 2009, but the allegations as to Wysinger remained the same: he allegedly violated 21 U.S.C. §§ 846 by being part of a conspiracy to distribute crack cocaine between May 2006 and June 2009 and allegedly violated 21 U.S.C. § 841(a) and 18 U.S.C. § 2 by aiding and abetting the distribution of cocaine around May 27, 2009. (Superseding Indictment 1--2.) After the Court continued the trial of the case, Wysinger filed an abundance of pretrial motions. (Docs. 101--108.) The United States opposes all of them. (Doc. 112.) All of them will be denied.

Sufficiency of the Indictment & Bill of Particulars

Wysinger has moved to dismiss the indictment against him, and presents two main arguments for dismissal. (Doc. 108.) The first of the two arguments is that the indictment is insufficient. He has also moved for a bill of particulars. (Doc. 102.) Because the question of whether an indictment is sufficient and whether a bill of particulars should be filed have a similar analytical framework, the Court will consider these questions together.

Wysinger's argument for insufficiency is made in four parts: (1) the indictment does not state sufficient facts to charge Wysinger with an offense; (2) that the indictment does not comply with Rule 7(c); (3) the indictment does not apprise Wysinger of the charges against him with sufficient particularity or specificity and (4) that the indictment is repugnant to the Fifth and Sixth Amendments to the Constitution because it fails reason #3 and, for that reason, does not protect Wysinger against double jeopardy. Each one of these objections is overcome, however, if the indictment serves its three main functions: "It must state the elements of the crime charged, adequately inform the defendant of the nature of the charges, and allow the defendant to plead the judgment as a bar to future prosecutions." United States v. Singleton, 588 F.3d 497, 499--500 (7th Cir. 2009) (citations omitted) (citing Fed. R. Crim. P. 7(c)(1); United States v. Torres, 191 F.3d 799, 805 (7th Cir. 1999)); accord United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000).

Count 1 of the indictment charges conspiracy under 21 U.S.C. §§ 841(a) and 846, and the Seventh Circuit "has consistently held" that an indictment charging a drug conspiracy "fulfills these functions if it sets forth the existence of a drug conspiracy, the operative time of the conspiracy, and the statute violated." Singleton, 588 F.3d 497, 499--500 (7th Cir. 2009) (citations omitted) (citing United States v. Cox, 536 F.3d 723, 727--28 (7th Cir. 2008); United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991)). Count 1 contains all the elements that are sufficient for a conspiracy charge: it sets forth the existence of the drug conspiracy, alleges that the conspiracy occurred between May 2006 and June 2009 and indicates that 21 U.S.C. §§ 846 and 841(a) are the statutes violated. (Superseding Indictment 1--2.)

Count 2 does not charge conspiracy but charges actual distribution in violation of 21 U.S.C. § 841(a). An indictment that tracks the statutory language is generally sufficient, especially if it provides a method of "pinning down the specific conduct at issue." See Smith, 230 F.3d at 305 (citing Russell v. United States, 369 U.S. 749, 763 (1962); United States v. Hinkle, 637 F.2d 1154, 1157 (7th Cir. 1981); United States v. Josten, 704 F. Supp. 841, 844 (N.D. Ill. 1989)). The superseding indictment in Count 2 alleges that Wysinger knowingly and intentionally possessed with intent to distribute at least 500 grams of a controlled substance, which tracks the language of 21 U.S.C. § 841(a). It also alleges that the distribution occurred around May 27, 2009 in St. Clair County, Illinois, giving Wysinger a method of pinning down the specific conduct at issue. The superseding indictment goes even farther than required as it charges Wysinger specifically with aiding and abetting the possession, which "is merely a theory of liability, not a substantive offense, and need not be charged in the indictment." United States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002) (citing United States v. Ruiz, 932 F.2d 1174, 1180 (7th Cir. 1991)). Count 2, then, is sufficient.

Also related to the indictment issues is Wysinger's motion for a bill of particulars. (Doc. 102.) Wysinger argues that, on the indictment alone, he will be unable to adequately prepare his defense and asks the Court to order the United States to prepare a bill of particulars. The reasons he offers for this conclusion are (1) he is unaware of the nature of the crimes with which he is charged; (2) the indictment does not list the acts that would qualify as aiding or abetting; (3) the indictment does not list the amount of cocaine that was involved in the conspiracy and (4) the indictment does not list the addresses within the Eastern District of Missouri where the conspiracy took place.*fn1

The Court can order the United States to prepare a bill of particulars. Fed. R. Crim. P. 7(f). To determine whether it should order the bill, the Court undertakes an analysis similar to constitutional sufficiency of the indictment: "[I]n both cases, the key question is whether the defendant was sufficiently apprised of the charges against him in order to enable adequate trial preparation." United States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008) (citing United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003); United States v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003)). Important information for preparing a defense would be "the elements of each charged offense, the time and place of the accused's allegedly criminal conduct, and a citation to the statute or statutes violated." Id. (citing Fassnacht, 332 F.3d at 446). Even if the indictment fails to provide "the full panoply" of the information, the Court need not order a bill of particulars if the information is available from discovery or another satisfactory form. Id. (quoting Hernandez, 330 F.3d at 975).

Wysinger's situation is awfully similar to the defendant in Blanchard. The indictment here, although constitutionally adequate, is admittedly sparse. However, Wysinger has plenty of access to discovery, being given at this point 459 pages of discovery and 36 compact discs of recordings relating to the offense with which he is being charged. As he has access to the full panoply of information required to prepare a defense, a bill of particulars is unnecessary.

Grand Jury Issues

Wysinger's second argument for dismissal of the indictment involves the grand juries. He argues that the indictment was made on insufficient evidence or hearsay evidence before the grand jury that indicted him. His argument that the indictment was made on insufficient evidence will fail. As the Supreme Court has stated, defendants cannot challenge an indictment on these grounds:

If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.

Costello v. United States, 350 U.S. 359, 363 (1956) (footnote omitted).

Related to this reason for dismissal is Wysinger's motion to disclose grand jury proceedings. (Doc. 106.) Wysinger seeks disclosure of the grand jury's minutes and records, as well as any prior presentments to the grand jury or records of other grand juries that had considered the instant presentment. The purpose of this sweeping request, according to Wysinger, is "not to invade the secrecy of the grand jury, but to determine what procedures were followed by the Government in presenting this matter and obtaining the instant indictment." Specifically, Wysinger wants to determine if the evidence before the grand jury was gathered by other grand juries, if the grand jury was given the opportunity to review and vote on each count of the indictment, and whether counsel for the United States properly advised the grand jury on matters of law.

Although the proper functioning of grand juries "depends upon their absolute secrecy," In re Grand Jury Proceedings, Special Sept., 1986, 942 F.2d 1195, 1198 (7th Cir. 1991), the Court may order the disclosure of grand jury proceedings to a defendant "who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). The key phrase of the rule is "show that a ground may exist" as opposed to "speculate that a ground may exist." In other words, "[i]n order for a party to gain access to the normally inaccessible transcripts of proceedings before a grand jury, there must be a showing of particularized need." United States v. Canino, 949 F.2d 928, 943 (7th Cir. 1991) (citing United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1978)). The burden of demonstrating "particularized need" is met if the defendant shows that the grand jury records are "needed to avoid possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed." United States v. Balogun, 971 F. Supp. 1215, 1232 (N.D. Ill. 1997) (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979)). Additionally, "in considering the effects of disclosure of grand jury proceedings, the courts must consider not only immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries." Id. (quoting Douglas Oil, 441 U.S. at 222). However, it should be noted that "[m]ere unsupported speculation of possible prosecutorial abuse does not meet the particularized need standard." Canino, 949 F.2d at 943 (citing Edelson, 581 F.2d at 1291).

There are two problems with Wysinger's request that compel its denial. First, every one of his concerns is speculation. Although Wysinger goes at length in his brief to discuss the important role that the grand jury has in the legal system and the important ethical rules that prosecutors must maintain in those proceedings, he alleges no facts which would suggest that those rules have been breached or that those roles have been usurped. He merely presents a suspicious hunch that a breach or usurpation has taken place and wants the records to see if it did. See Canino, 949 F.2d at 943 ("[T]he defense, in its brief, has not pointed to anything in the record which might suggest that the prosecutor engaged in improper conduct before the grand jury. We are left with only the defense's suspicious hunch . . . ."). A mere hunch is not good enough for the Court to break the secrecy required for the effective functioning of the grand jury. The second problem with the request is that, even if Wysinger had provided something that provided a reason to break the grand jury's secrecy, his request is not at all structured to cover only necessary material. In requesting all the records from the indicting grand jury relating to himself and potentially other past ones, his request is immense, so much so that routinely allowing those sorts requests would "replace the general rule of secrecy of grand jury proceedings with a general rule of open discovery of grand jury proceedings." Balogun, 971 F. Supp. at 1232. The Court declines to do so.

Motion for Pretrial Hearing on Admissibility of Co-Conspirator Statements

Wysinger has also moved for the Court to determine, before trial, the admissibility of co-conspirator statements offered against him that would otherwise be hearsay. (Doc. 103.) The burden of admissibility of the otherwise hearsay statements is on the United States, which must show by preponderance of the evidence that "(1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statement(s) sought to be admitted were made during and in furtherance of the conspiracy." United States v. Alviar, 573 F.3d 526, 540 (7th Cir. 2009) (citing United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991); United States v. Santiago, 582 F.2d 1128, 1133-- 34 (7th Cir. 1978)). The United States may, but need not, follow a procedure known as a Santiago proffer, in which it may "submit evidence of these elements in a pre-trial proffer, and the district court may admit the statement(s) subject to its later determination during trial that the government has established by a preponderance of the evidence the three foundational elements." Id. (citing Santiago, 582 F.2d at 1131).

Wysinger does not indicate on which co-conspirator statements he wants the Court to make a pre-trial admissibility determination, and although the United States indicates that co-conspirator statements are possible, it notes that it is not in a position to seek a pretrial ruling on admissibility. This matter is not ripe for holding a hearing yet, and even if it were the Court is not required to hold a hearing as the admissibility of the statements could be determined at trial. Id. As the trial date approaches, the parties should become more aware of the potential co-conspirator statements, at which time the Court can revisit holding a hearing outside the jury's presence regarding admissibility.

Motions for Discovery

Wysinger also asks the Court for three discovery orders. The first is a request for a broad disclosure of evidence favorable to Wysinger or impeaching of the government's witnesses, such as a witness's prior felony convictions, prior criminal conduct not resulting in a conviction, and prior occasions in which the witness has testified before a court or grand jury. (Doc. 104.) The second request is for any promises of leniency toward government witnesses with respect to charges against them, decisions not to prosecute, decisions to diminish taxes due or other benefits. (Doc. 107.) The two requests can be placed under the heading of seeking impeachment evidence to be used in trial.

The prosecution's duty under the Due Process Clause to disclose evidence favorable to the defense includes not just exculpatory evidence but impeachment evidence as well. United States v. Mitchell, 178 F.3d 904, 907 (7th Cir. 1999) (citing United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Boyd, 55 F.3d 239, 244 (7th Cir. 1995)).

Although Wysinger represents that the United States has refused to disclose the above evidence, the United States represents that it presently has no such witnesses to which that information applies, that it has turned over all evidence that it is required to disclose so far and that, once it determines its witnesses (which should be soon as all co-defendants have pleaded guilty or are scheduled to do so), it will seasonably comply with its constitutional and statutory discovery duties when required. When faced with a broad, non-specific request for disclosure, other district courts have, on this representation, decided not to compel disclosure and have been affirmed by the Seventh Circuit. See, e.g., United States v. Jumah, 599 F.3d 799, 809 (7th Cir. 2010) (affirming a district court that relied on the "bonafides of the government" when the defendant failed to allege "specific pieces of evidence that had been withheld"); see also id. ("[W]e hasten to point out that Brady does not grant criminal defendants unfettered access to government files." (alteration in original) (quoting United States v. Phillips, 854 F.2d 273, 278 (7th Cir. 1988))). The Court will follow the same course. If this ends up being an incorrect assumption and Wysinger is subjected to discovery surprise during trial, the Court retains the power to impose discovery sanctions, including continuation of the case, exclusion of the evidence that should have been disclosed, or other just remedies. See Fed. R. Crim. P. 16(d)(2) (noting that, if a party does not comply with Rule 16, the Court may continue the case, prohibit introducing the evidence that should have been disclosed, or enter an order "that is just under the circumstances"); United States v. Cruz-Velasco, 224 F.3d 654, 665 (7th Cir. 2000) (noting that the district court sanctioned the government's failure to produce a document before trial by forbidding the government from using the document, and that this remedy was within the court's discretion).

Wysinger also asks the Court to order the United States to preserve and produce the rough notes taken by government agents of interviews with persons who may be witnesses at trial. The Court declines the invitation to order the discovery of these notes but sees no reason why they ought not be preserved. See Fed. R. Crim. P 16(a)(2) (noting that reports or memoranda made by government agents in connection with investigating or prosecuting the case are not discoverable); United States v. Morris, 957 F.2d 1391, 1402 (7th Cir. 1992) ("'A government agent's summary of a witness's oral statement that is not signed or adopted by the witness is not producible.'" (quoting United States v. Allen, 798 F.2d 985, 994 (7th Cir. 1986))); United States v. Morrison, 946 F.2d 484, 494-- 95 (7th Cir. 1991) ("Agent notes and summaries of witness statements that are neither adopted by the witness nor substantial verbatim recitals of what the witness said are deemed unreliable under the [Jenks Act] and need not be produced."); United States v. Harris, 542 F.2d 1283, 1292 (7th Cir. 1976) ("[N]othing in the Jencks Act requires that notes made in the course of an investigation be preserved after they have served their purpose in the preparation of interview reports.").

Motion to Suppress Evidence

Finally, Wysinger asks the Court to suppress evidence obtained as the result of an interrogation made while Wysinger was under arrest. (Doc. 101.) Wysinger argues that he was not properly informed of his rights as required by Miranda v. Arizona before the government's agents interrogated him while in custody. 384 U.S. 436 (1966). He also argues that even if he was properly read his rights, he invoked his right to consult an attorney or have an attorney present for questioning, yet the government agents continued to question him. He seeks to suppress the statements made to the agents as well as the video made of the interrogation.

Based on the parties' submissions, the Court concluded that the question on suppression could be decided without a hearing and ordered the United States to produce to the Court the video in question (which had already been disclosed to Wysinger). The video can be summarized as follows:


Wysinger was interrogated on June 9, 2009 in an interview room in an East Saint Louis Police Department building. A video of that interrogation was made. The video began at 12:53 PM and shows Wysinger seated alone at a table secured with hand restraints. Soon, two agents of the Drug Enforcement Agency entered the room; one was named Mike Rehg, who did most of the talking.

Agent Rehg began to speak to Wysinger, but then Wysinger interrupted him, saying, "Do I need a ...

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