United States v. Darden (346 F. Supp. 3d 1096, 2018)

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

In this criminal case, the Government alleges that the 12 named Defendants are or were members of the Gangster Disciples who operated in and around Clarksville, Tennessee. Count One is a conspiracy count brought under the Racketeer Influence Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(a), and alleges that the Gangster Disciples is a criminal organization whose members and associates engaged in wide-ranging criminal behavior. Forty-four other Counts fill out the controlling Second Superseding Indictment (Doc. No. 380), and charge assorted crimes, including narcotics distribution, firearms trafficking, unlawful possession of firearms and ammunition, intimidation of witnesses, and acts of violence involving murder, attempted murder, and assault.

The case set is for a two month trial beginning March 1, 2019, and the parties have filed dozens of substantive Motions in anticipation thereof. By Order entered January 29, 2018 (Doc. No. 344), the Court set aside the week of November 26-30, 2018 for hearings on pending motions. Upon review of the Motions that have been filed, however, it is clear that a hearing is unnecessary for many of them and they are resolved in this Memorandum Opinion and Omnibus Order. The remaining Motions will be scheduled for hearing at a precise date and time during the week previously set aside.

I. Motions to Join

Several Defendants have filed Motions to Join in Motions filed by other Defendants. These include: (a) Decarlos Titington's "Motion to Join in and Adopt CoDefendant Burk's Motion for Daily Transcripts" (Doc. No. 572); Marcus Darden's "Motion to Join Co-Defendant Burks' Motion [to] Compel Notice of Intent to Offer Evidence of Other Crimes, Wrong or Acts" (Doc. No. 645); and (c) James Anderson Luke's "Motion to Adopt and Join CoDefendants Pretrial Motions" (Doc. No. 701). Those Motions are GRANTED.

II. Motions for Daily Transcripts

Some Defendants have filed Motions for Daily Trial Transcripts or variants thereof. In response, the Government "take[s] no position as to defendants' requests and submits defendants' motions to the discretion of the Court," (Doc. No. 670 at 1), but then cites a number of cases suggesting that the right to daily transcripts is not of a constitutional dimension.

"[T]he decision to supply daily transcripts to indigent defendants is a matter within the discretion of the trial judge." United States v. Bari, 750 F.2d 1169, 1181 (2d Cir. 1984). Indeed, while the Guide to Judicial Policy states that "[t]he furnishing of accelerated transcript services in criminal proceedings should be discouraged," it also "recogniz[es] that there are some circumstances in which such transcript services are necessary and required by either the prosecution or the defense." Guide to Judiciary Policy, Vol. 7, Ch. 3, § 320.30.20.

Though not addressing daily transcripts, the Supreme Court in Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) stated that " Griffin v. Illinois, [351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ] and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." The Court in Britt also observed that "[w]hile the outer limits of that principle are not clear," it "has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript." Id.

Given the anticipated length of the trial, the nature, scope and breadth of the charges, the number of witnesses likely to be called including cooperating witnesses, the voluminous discovery that has been provided, and the fact that many of Defendants are represented by one lawyer, the Court finds that daily transcripts will be invaluable and that there is no appropriate substitution for such transcripts. It may be that not all Defendants need transcripts for each witness who testifies because the evidence does not pertain to them, or is not of great significance. However, rather than adopting an ad hoc approach whereby some Defendants receive some transcripts, while others receive transcripts for different witnesses, daily transcripts will be made available for all witnesses who testify.

That said, the Court expects counsel to exercise discretion in ordering transcripts, so as to keep the transcription costs and/or copy costs down by requesting transcripts only where truly necessary to provide "an adequate defense."

The previously-mentioned Guide to Judicial Policy also quotes a Resolution adopted by the Judicial Conference in March 1980 and modified in September 1986 that provides:

That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate.

That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned.

Id. Thus, if the Government requests daily transcripts, the costs shall be born by it, with CJA counsel responsible for paying the copy rate and thereafter seeking reimbursement from CJA funds.

Based on the foregoing, the Motions for Daily Transcripts filed by Maurice Burks (Doc. No. 563), and Derrick Kilgore (Doc. No. 637) are GRANTED , as is Brandon Hardison's "Motion for 'Real Time' Transcription" (Doc. No. 640) to the extent he seeks daily transcripts. To the extent Hardison's request for "real time" relates to following the testimony during the questioning of a witness, the Court simply notes that screens are provided on counsel's table and, absent technical glitches, counsel can read along as the testimony is being transcribed.

III. Motions to Increase Peremptory Challenges

Hardison and Burks have both filed Motions for Additional Peremptory Challenges. Hardison requests that Defendants be allowed to exercise twenty (20) challenges jointly with the other defendants, with the Government being allowed to exercise twelve (12) challenges. Similarly, Burks "requests an adequate number of peremptory strikes to eliminate biased or questionable jurors and select a fair and impartial jury," and "moves the Court to increase the number of peremptory challenges to twenty (20), or to such an extent as the Court deems proper, to assure a fair trial." (Doc. No. 643 at 2).

Rule 24(b) of the Federal Rules of Criminal Procedure provides that in a non-capital felony case, "the government is entitled to 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year." Fed. R. Crim. P. 24(b). The rule goes on to provide that "the court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly." Id. A district court's decision regarding peremptory challenges is reviewed for an abuse of discretion, so long as it "[c]omplies with the minimum requirements of Rule 24 [.]" United States v. Gibbs, 182 F.3d 408, 435 (6th Cir. 1999).

If this case goes to trial in its present posture, the Court is inclined to grant Defendants' request to increase the number of peremptory challenges while at the same time correspondingly raising the number of Government peremptory challenges, so as to preserve the same ratio as that set forth in Rule 24. However, and as the Government points out in its response (Doc. No. 697), the trial in this case is months away, and the Court at this point in time has no way of knowing which Defendants may go to trial and on what counts. Accordingly, a ruling on the Motions to Increase Peremptory Challenges (Doc. Nos. 639 & 643) is DENIED. Said denial is WITHOUT PREJUDICE to raising the issue again at the Final Pretrial Conference scheduled for February 14 and 15, 2019.

IV. Motion to Pay for Childcare Costs

Burks has filed a "Motion for the Court to Pay For Care of Dependent Children and Family Members of Single Parents Who Are Selected as Jurors" (Doc. No. 564). In it, he writes:

2. Mr. Burks is entitled to a trial by a fair and impartial jury composed from a fair cross-section of the community pursuant to his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

3. In major cases generally, and particularly in cases which last as long as Maurice Burks' trial is expected to last, a large percentage of single parents, especially single African-American parents and women, are struck for cause by the Court due to the fact that they have no money to pay for alternative child care arrangements during a trial the length of Mr. Burks', or no money to pay for alternative care of dependent (usually elderly) family members during such a lengthy trial.

4. The Government's interest in not causing undue juror hardship does not outweigh the Accused's constitutional rights to a fair jury trial.

5. As a result of a jury selection process in which jurors who cannot afford child care are excluded, Maurice Burks may face a venire pool that is non-representative of a general cross-section of the community because certain poor and/or African-American individuals and/or women are removed due to hardships imposed by the length of the trial anticipated in Mr. Burks' case.

(Id. at 2). He then cites Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (mis-cited as Brown v. Louisiana ) for the proposition that, in the absence of payment of dependent care, the jury selection process will violate not only his "right to a fair and impartial jury composed from a fair cross-section of the community," but also his right to equal protection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As for funding, Burks claims the "Court can order that the costs of such care be taxed as costs in this case, just at it can order the costs of transportation, room and board be taxed as cost for any sequestered jury" pursuant to 28 U.S.C. § 1871(e).

Turning to the latter point first, the cited statute has nothing to do with paying for child or elder care in the routine case. Rather, it provides:

(e) During any period in which a jury is ordered to be kept together and not to separate, the actual cost of subsistence shall be paid upon the order of the court in lieu of the subsistence allowances payable under subsection (d) of this section. Such allowance for the jurors ordered to be kept separate or sequestered shall include the cost of meals, lodging, and other expenditures ordered in the discretion of the court for their convenience and comfort.

28 U.S.C. § 1871(e). Even assuming that dependent care expenses comes within the ambit of "convenience and comfort," no sequestration order has been entered in this Court. The remainder of the statute deals with non-sequestered juries and permits fees for such things as meals, lodging, parking, travel, and tolls, but mentions nothing about child or elder care.

Funding aside, Burks has not shown that the failure to provide funding for childcare will deny him equal protection or result in him being tried by a jury that is not a fair-cross section of the community. Batson, on which he relies, applies to peremptory strikes by the government against certain classes of persons. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), on which Burks also relies, "reaffirm[ed] what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where ... the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women." The scenario presented by Burks, however, does not arise from peremptory challenges or state action, but rather challenges for cause based on a potential juror's own request to be excused.

Duren and Taylor also do not aid Burks. Taylor merely holds that a male defendant had standing to challenge the systematic exclusion of women from jury pools, and that "the fair-cross-section requirement is violated by the systematic exclusion of women." Taylor, 419 U.S. at 531, 95 S.Ct. 692. Duren, decided four years later, applied Taylor to state statutes that automatically exempted from jury service any women requesting not to serve, and held that "such systematic exclusion of women that results in jury venires averaging less than 15% female violates the Constitution's fair-cross-section requirement." 439 U.S. at 360, 99 S.Ct. 664. Duren went on to hold that "[i]n order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id. at 364, 99 S.Ct. 664.

In his Motion, Burks does not discuss the Duren factors, let alone try to establish them. True, the systematic exclusions of African-Americans, Strauder v. State of W. Virginia, 100 U.S. 303, 311, 25 L.Ed. 664 (1879), Hispanics, Castaneda v. Partida, 430 U.S. 482, 492, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and women, Taylor, is unlawful, but it does not automatically follow that "a mixed race-gender group - such as African-American [fe]males - can constitute a distinctive group under Duren ." United States v. Barlow, 732 F.Supp.2d 1, 27 (E.D.N.Y. 2010) (collecting cases); see also, United States v. Greer, 900 F.Supp. 952, 957-58 (N.D. Ill. 1995) ("The Court concludes that recognizing the subgroup of African-American males as a Duren distinctive group would amount to pursuing a level and type of representativeness that is simply not demanded by the Sixth Amendment, which requires only a cross-section that is fair, not one perfectly attuned to multiple variables."). And it certainly does not follow that a mixed, race-gender-marital-parental-economic status group - such as an indigent African-American female single mother - to the exclusion of all others - should be deemed a distinctive group for purposes of Duren .

Regardless, Burks' complaint is not about unlawful exclusion by the Court or the Government, but about the possibility that certain individuals will seek to be excused because of family care issues. Setting to the side whatever implicit bias might be suggested by Burks' unstated premise that poor African-American men or women (or poor females in general) would be more sympathetic to his plight, this possibility exists for any a number of potential jurors be they Caucasian, Asian, Hispanic, male, female, married or unmarried, employed or unemployed.

Simply put, the probability that some jurors will not be able to serve because of child or elder care responsibility does not mean that Burks or the other Defendants will not be tried by a jury representing a fair cross-section of the community. To the contrary, even in the context of exclusion by statute, the Supreme Court in Duren"recognize[d] that a State may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. An exemption appropriately tailored to this interest would, we think, survive a fair-cross-section challenge." 439 U.S. at 359, 99 S.Ct. 664. The same can be said about jurors who seek to be excused because of responsibilities relating to caring for their children or other relatives.

Accordingly, Burks' Motion for the Court to Pay For Care of Dependent Children and Family Members of Single Parents Who Are Selected as Jurors (Doc. No. 564) is DENIED.

V. Motion to Preclude Evidence of Overt Acts Previously Adjudicated

Burks is named in six counts in the controlling Second Superseding Indictment. In Count One, an alleged RICO conspiracy, Burks is alleged to have engaged in 11 overt acts, including overt act "x." Overt act "x" states that "on or about February 4, 2010, Burks possessed with intent to distribute and distributed cocaine in Hopkinsville, Kentucky." (Doc. No. 380 at 14). Pursuant to the Double Jeopardy Clause of the Fifth Amendment, Burks requests that the Court prohibit the Government from introducing any evidence of overt act "x" because, in a Western District of Kentucky (Case No. 5:13-CR-54 (W.D. Ky, 2013), he was previously charged with, and plead guilty to, possessing with intent to distribute cocaine on the date and place alleged in overt act "x." More specifically, he pled guilty to seven charges contained in the Western District of Kentucky Indictment for which he received a 60 month sentence (Doc. No. 696-4 at 3), including that on February 4, 2010, he knowingly and intentionally distributed 10.686 grams of a mixture and substance containing a detectable amount of cocaine. (Doc. No. 692-2 at 2).

The Double Jeopardy Clause of the Fifth Amendment commands that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It protects a criminal defendant from being tried twice for the same offense, United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and protects against the imposition of multiple punishments for the "same act or transaction [that] constitutes a violation of two distinct statutory provisions," Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (citation omitted).

In Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), the Supreme Court held that prosecution for a continuing criminal enterprise ("CCE") offense after an earlier prosecution for one of the predicate offenses is constitutional under the Double Jeopardy Clause. In arriving at its decision, the Supreme Court observed:

Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature - in this case Congress - intended that each violation be a separate offense. If Congress intended that there be only one offense - that is, a defendant could be convicted under either statutory provision for a single act, but not under both - there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis.

471 U.S. at 778, 105 S.Ct. 2407. Such was the case regarding the CCE: "The language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970 ... show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses." Id. at 779, 105 S.Ct. 2407.

The Supreme Court in Garrett next "determine[d] whether prosecution for a CCE offense after an earlier prosecution for a predicate offense is constitutional under the Double Jeopardy Clause of the Fifth Amendment," with the "critical inquiry [being] whether a CCE offense is considered the 'same offense' as one or more of its predicate offenses within the meaning of the Double Jeopardy Clause." Id. at 786, 105 S.Ct. 2407. The Court then observed:

Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the "same" offense as one of the predicate offenses. The CCE offense requires the jury to find that the defendant committed a predicate offense, and in addition that the predicate offense was part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more other persons, that the defendant occupied the position of an organizer or manager, and that the defendant obtained substantial income or resources from the continuing series of violations.

In order to properly analyze the successive prosecution issue, [a court] must examine not only the statute which Congress has enacted, but also the charges which form the basis of the Government's prosecution [in the case at issue].

Id.

Much the same has repeatedly been said about RICO. See, United States v. Gonzalez, 921 F.2d 1530 (11th Cir. 1991) ; United States v. Esposito, 912 F.2d 60 (3d Cir. 1990) ; United States v. Hawkins, 658 F.2d 279, 287-88 (5th Cir. 1981) ; United States v. Boylan, 620 F.2d 359, 361 (2d Cir.1980) ; United States v. Aleman, 609 F.2d 298, 306 (7th Cir. 1979). The District of Columbia Circuit has explained:

The language and legislative history of RICO indicates little doubt that Congress, in enacting RICO, sought to allow the separate prosecution and punishment of predicate offenses and a subsequent RICO offense. RICO's statutory language indicates that Congress sought to supplement, rather than supplant, existing crimes and penalties. Section 1961(5) provides that a:

"pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment)

after the commission of a prior act of racketeering activity.

18 U.S.C. § 1961(5) (emphasis added). This language suggests that Congress envisioned the situation where a defendant is convicted and sentenced for a racketeering act and subsequently charged with a RICO violation based on the prior conviction.

This interpretation of the language of RICO is fully supported by the statute's legislative history:

It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.

United States v. Grayson, 795 F.2d 278, 282-83 (3d Cir. 1986) (internal case citations omitted). Even before Garrett, the Ninth Circuit observed:

There is nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions or consecutive sentences for a RICO offense and the underlying or predicate crimes which make up the racketeering pattern. The racketeering statutes were designed primarily as an additional tool for the prevention of racketeering activity, which consists in part of the commission of a number of other crimes. The Government is not required to make an election between seeking a conviction under RICO, or prosecuting the predicate offenses only. Such a requirement would nullify the intent and effect of the RICO prohibitions.

United States v. Rone, 598 F.2d 564, 571 (9th Cir. 1979).

"As the Court made clear in Garrett, multi-layered conduct offenses, such as CCE and RICO violations, are generically distinct in the double jeopardy arena," United States v. Crosby, 20 F.3d 480, 485 (D.C. Cir. 1994), and so it is here. The RICO offense "is not, in any commonsense or literal meaning of the term, the 'same' offense as one of the [overt acts]." United States v. Honken, 541 F.3d 1146, 1157 (8th Cir. 2008). RICO requires association and participation in an enterprise affecting interstate commerce; drug distribution does not. More specifically as it pertains to this case, Burks' alleged conduct involves the agreement to participate in the affairs of the Gangster Disciples enterprise through a pattern of racketeering activity that involved not merely a single cocaine sale, but also "acts involving murder," witness intimidation, obstruction of justice, and a host of other crimes in the Middle District of Tennessee. Said conspiracy allegedly continued over the course of almost 13 years. In contrast, convictions for selling cocaine in a different district on specific days is hardly the same crime charged in the RICO count. This is so, even if the proof would likely be the same regarding one or more of the elements. United States v. Garcia, 259 F. App'x. 747, 750 (6th Cir. 2008) ; United States v. DeCarlo, 434 F.3d 447, 455-56 (6th Cir. 2006).

Burks's reliance on the United States v. Persico, 620 F.Supp. 836 (S.D.N.Y. 1985), is unpersuasive. While the district court stated for purposes of the overt act requirement that "there must also exist an allegation of either (1) some type of post-plea unlawful conduct, ... or (2) a post-plea accumulation of evidence sufficient to establish either a second predicate offense or participation in a criminal enterprise," id. at 844, the Second Circuit on appeal explicitly refused to decide whether "subsequent RICO charges can survive double jeopardy objections only if the subsequent indictment alleges conduct that post-dates the plea to the prior charges or if evidence, accumulated subsequent to that plea, establishes either a second predicate offense or participation in a criminal enterprise," United States v. Persico, 774 F.2d 30, 32 (2d Cir. 1985). On a subsequent appeal after remand, the Second Circuit went even further by expressing "serious doubt as to whether evidence of post-plea involvement is necessary to defeat a double jeopardy challenge to RICO convictions based on predicate acts that were the subject of prior guilty pleas." United States v. Persico, 832 F.2d 705, 711 (2d Cir.1987). For its part, the District of Columbia Circuit in Crosby, 20 F.3d at 486, did not "find it dispositive that ... there [wa]s no allegation that the [defendants] committed, or in light of their incarceration could not have committed, any criminal act since their last predicate prosecution." Instead, "in order to prevail on a RICO charge, the government must prove a sort of antisocial conduct entirely different, in both type and magnitude, from the underlying offenses." Id.

Similarly, the Seventh Circuit in United States v. O'Connor, 953 F.2d 338, 344 (7th Cir. 1992) refused to require that the Government "allege[ ] a RICO offense which continues beyond the date of prosecution for previous offenses," noting that "[i]t is not realistic to expect a responsible prosecutor, dealing only with a single predicate offense, necessarily to determine at that time that it is permissible, practical and prudent to proceed under the RICO statute as well." In so doing, the court agreed "with [its] colleagues in the Fourth Circuit that '[w]ithout ample discretion, the government would be forced to either proceed against a defendant for violations that might later serve as predicate acts and foreclose a RICO prosecution in the future or allow predicate acts to go unpunished in anticipation that at some future time the RICO elements would coalesce.' " Id. (quoting United States v. Arnoldt, 947 F.2d 1120, 1128 (4th Cir. 1991) ). Given this appellate authority, and in the absence of Sixth Circuit law to the contrary, the Court declines to follow the district court's suggestion in Persico that, in the absence of post-plea conduct, a subsequent RICO prosecution is barred by the double jeopardy clause.

Accordingly, Burks's "Motion to Preclude Evidence of 'Overt Act' Previously Adjudicated in Federal Court" (Doc. No. 592) is DENIED.

VI. Motion to Dismiss for Pre-Indictment Delay

Among the overt acts in the RICO count of the Second Superseding Indictment are the allegations that "on or about January 15, 2006" Darden "shot, and attempted to kill, Person 8 in Clarksville, Tennessee," and that "[o]n or about December 14, 2007" he "shot Person 9," also in Clarksville. Because those events occurred approximately a decade before the return of the Superseding Indictment wherein they were first charged, and some evidence was destroyed in 2010 and 2012, Darden seeks dismissal on due process grounds. Alternatively he requests that the Court provide the jury with a spoliation instruction and/or set a hearing outside the presence of the jury at which time the Government would be required to present proof of Darden's alleged involvement in the shooting.

Turning first to the due process argument, statutes of limitations, "which provide predictable, legislatively enacted limits on prosecutorial delay," are the primary safeguard against "overly stale criminal charges." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Nevertheless, a "statute of limitations does not fully define the [defendant's] rights with respect to the events occurring prior to indictment," United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and, "[i]n certain cases, the Due Process Clause protects against preindictment delay," Parker v. Burt, 595 F. App'x 595, 601 (6th Cir. 2015).

"In this circuit," however, "dismissal for pre-indictment delay 'is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.' " United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009) (quoting United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984) ). This standard " 'is nearly insurmountable, especially because proof of actual prejudice is always speculative.' " United States v. Montgomery, 491 F. App'x 683, 691 (6th Cir. 2012) (quoting United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir. 1997) ).

Defendant bears the "heavy burden to prove that pre-indictment delay caused actual prejudice." United States v. Wright, 343 F.3d 849, 860 (6th Cir. 2003). " 'Bare assertions, without supporting evidence, are not sufficient to demonstrate prejudice.' " Montgomery, 491 F. App'x at 691 (quoting United States v. Vaughn, 444 Fed. App'x 875, 879 (6th Cir. 2011) ).

At this point, Darden's motion is long on conjecture but short on proof, both as to the prejudice and tactical advantage prongs of the inquiry. He vaguely asserts that the "[b]ullet fragments, phone records, guns, and shell casings could all serve to exonerate [him] or, at least, weaken the government's case," and that he has to "defend himself from decade-old charges with no ability to examine, challenge, or present what could be the most compelling evidence." (Doc. 638 at 6). He does not explain, however, how testing the forensic evidence referred to in Clarksville Police Department ("CPD") reports would exonerate him or weaken the government's case. This is particularly problematic because CPD reports point to him as being a suspect in both shootings, and there is no suggestion that he was not charged because someone else was responsible. Apparently, he was not charged because witnesses were uncooperative, and there was insufficient proof in the eyes of the CPD or Montgomery County prosecutors.

"Similarly, the mere absence of records is not enough to establish actual prejudice." United States v. Corona-Verbera, 509 F.3d 1105, 1113 (9th Cir. 2007). There must be at least some showing that records would have been exculpatory, and that they became lost as a result of delay. United States v. Carruth, 699 F.2d 1017, 1019 (9th Cir. 1983). "Bare assertions," United States v. Vaughn, 444 F. App'x 875, 879 (6th Cir. 2011), vague allegations, United States v. Farias, 836 F.3d 1315, 1325 (11th Cir. 2016), and speculation, United States v. Ford, 328 F. App'x 377, 378 (9th Cir. 2009), will not suffice to show prejudice. See also United States v. Muñoz-Franco, 487 F.3d 25, 58 (1st Cir. 2007) ("With respect to prejudice, a defendant must do more than allege that witnesses' memories had faded or that evidence had been lost that might have been helpful to him."); United States v. Bartlett, 794 F.2d 1285, 1290 (8th Cir. 1986) (collecting cases) ("The defendant also must relate the substance of the testimony which would be offered by the missing witnesses or the information contained in lost documents in sufficient detail to permit a court to assess accurately whether the information is material to the accused's defense.").

Nor has Darden come close to showing that the delay was the result of the Government seeking to obtain a tactical advantage. He simply argues, with no supporting proof, that federal agents were "well aware, long before [the instant] indictment, that Clarksville had closed the case and destroyed the evidence"; that the U.S. Attorney's Office thus "made the tactical decision to build a RICO case" and add the shootings above as overt acts in the RICO conspiracy charge, "in the hope that otherwise inadequate evidence showing Marcus Darden's involvement would be bolstered by inclusion in a much larger, wide-ranging indictment"; and that the government "has not, and will not, be able to show the discovery of any new evidence related to the shootings between the time the cases were closed by [CPD] and the date of the indictment." (Doc. No. 638 at 2, 6).

In response, the Government represents that federal agents were unaware that the CPD had destroyed evidence in connection with the January 15, 2006, shooting until approximately July 2016, and they were also unaware that the CPD had destroyed evidence in connection with the December 15, 2007, shooting until approximately November 2017. The Government also claims that it developed new evidence in November 2017 regarding Darden's involvement in both shootings. It then superseded its original indictment, on December 14, 2017, and included those shootings as overt acts of racketeering activity in furtherance of the RICO conspiracy.

As for general delay in bringing this case, the Government relies on the same representations that it made regarding a substantially similar Motion (Doc. No. 373) filed by Burks. In a Memorandum and Order denying Burks' Motion, the Court discussed those representations. That discussion (Doc. No. 472 at 6-7) is incorporated herein by reference.

As pointed out in the prior Order, the Court can rely on representations from the Government in considering the reasons for delay. See, Rogers, 118 F.3d at 476-77 (citing Lovasco, 431 U.S. at 796, 97 S.Ct. 2044 for the proposition that a court may rely upon counsel's representations as to the reason for the delay); United States v. Thomas, 404 F. App'x 958, 961 (6th Cir. 2010) ("Even when the government cites its own court filings rather than offering sworn testimony on the investigative reasons for the delay, we may accept the government's representations about the reason for delay."). As this Court also pointed out in its prior Order, those reasons are more than sufficient to dispel any notion that the Government improperly delayed bringing charges for a tactical advantage. Accordingly, Darden's Motion to Dismiss for Pre-Indictment Delay (Doc. No. 638) is DENIED WITHOUT PREJUDICE to reasserting such a motion if he is able to show that the delay substantially prejudiced his defense, and the government intentionally delayed in order to gain a tactical advantage.

Darden's alternative requests for a spoliation instruction and/or a hearing are also DENIED. The request for a spoliation instructions is premature, even leaving aside the question of whether bad simple negligence or bad faith must be shown for such an instruction. See United States v. Braswell, 704 F. App'x 528, 545-47 (6th Cir. 2017) (White J., Concurring) (discussing various standards employed among the circuits and disagreeing "that the issue whether a criminal defendant must show bad-faith conduct by the government to justify even the mildest of spoliation sanctions - a permissive adverse-inference instruction - is settled in this circuit"). All the Court has before it at this time is the Government's representation that (1) it knew nothing about the destruction of the evidence until a decade later, and (2) the evidence was destroyed as a part of the routine purge of old cases.

Nor is Darden entitled to a hearing that "will give the Court (and the defense) some context in determining whether these shootings bear any relationship to the RICO conspiracy alleged here, or indeed constitute evidence that is inadmissible as character evidence under Rule 404(b) of the Federal Rules of Evidence." (Doc. No. 638 at 7). This amounts to an impermissible attempt to preview how the Government intends to prove its case. See, United States v. Presser, 844 F.2d 1275, 1286 (6th Cir. 1988) ("The Supreme Court has never held that the Constitution creates [the right to know the "tactical strengths and weaknesses" of the government's case] and we do not believe it exists."); United States v. Williams, No. 16-CR-111, 2017 WL 9361072, at *2 (E.D. Wis. Feb. 23, 2017) (observing that, "while a defendant is entitled to know the offense with which he is charged, the government need not disclose all the details of how it will prove its case"); United States v. Johnson, No. 11-20551-40, 2014 WL 12703420, at *1 (E.D. Mich. Mar. 26, 2014) ("While Defendant would no doubt welcome the chance to preview the Government's case and how it intends to present that case to the jury, the court declines to force the Government to provide this roadmap, particularly when Defendant has put forth no compelling reason to do so.").

VII. Motions to Compel Notice of Intent to Offer Evidence of Other Crimes, Wrongs, or Acts

Burks requests that the Court enter an Order "requiring the Government to provide written notice of what, if any, evidence of other crimes, wrongs, or acts of the Accused it intends to introduce in its case-in-chief or in any reasonably foreseeable rebuttal." (Doc. No. 567 at 1). He notes "that empirical studies, common sense, and review of actual case results lead inescapably to the conclusion that admission of other crimes evidence heavily tilts the scales of justice toward the side of conviction," and that the Sixth Circuit has stated "notice given to the defense regarding 'other crimes' evidence must be sufficiently clear so as 'to permit pretrial resolution of the issue of its admissibility.' " United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). By separately filed Motion, "Darden shares the concerns raised by Mr. Burks in his motion to compel notice of any other crimes or bad acts [that] the Government in this decade-long, wide-ranging conspiracy case may seek to introduce evidence of other crimes or bad acts by the defendant." (Doc. No. 645 at 1-2).

Rule 404(b) of the Federal Rules of Evidence provides:

Evidence of other crimes, wrongs, acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b). Thus, "[u]nder Rule 404(b), when the defendant requests notification of the government's intent to introduce other-act evidence, the government must provide such notice in a reasonable form and manner." United States v. Gonzalez, 501 F.3d 630, 637 (6th Cir. 2007).

In response to both Motions, the Government represents that, at present, any "evidence of other crimes, wrongs, or acts" that it expects to introduce at trial are intrinsic to the RICO and drug conspiracy charges and, as such need not be noticed under Rule 404(b). As for true Rule 404(b) evidence that it will use in its case-in-chief, the Government request that it be not be required to provide notice of such evidence until January 15, 2019.

In Count One of the Indictment, Burks and Darden are both charged with being part of a racketeering conspiracy in violation of 18 U.S.C. § 1962(d). In Count Two of the Indictment, they are charged with conspiring to distribute and possessing intent to distribute cocaine, oxycodon, methadone, hydrocodone, and marijuana in violation of 21 U.S.C. § 846. Neither counts require proof that either Defendant committed specific over acts, or that the charging indictment specify such acts.

" 'Unlike a substantive RICO charge, a RICO conspiracy charge does not require proof that the defendant committed any predicate acts' and 'does not even require proof that the defendant 'agreed to commit two predicate acts himself, or even that any overt acts have been committed.' " United States v. Rios, 830 F.3d 403, 424 (6th Cir. 2016) (quoting United States v. Fowler, 535 F.3d 408, 420-21 (6th Cir. 2008) ). " 'To the contrary, it merely requires proof that the defendant 'intended to further 'an endeavor which, if completed, would satisfy all of the elements of a substantive [RICO] criminal offense [and] it suffices that he adopt the goal of furthering or facilitating the criminal endeavor.' " Id. As a consequence, "[t]here is no requirement that a RICO conspiracy indictment allege any overt act." Id. (citing Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 477, 139 L.Ed.2d 352 (1997) ).

Likewise, "the United States Supreme Court has made clear that '

21 U.S.C. § 846, the drug conspiracy statute, [does not] require[ ] the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy.' " United States v. Cureton, 661 F. App'x 369, 377 (6th Cir. 2016) (citing United States v. Shabani, 513 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) ). This is "[b]ecause the essence of the crime of conspiracy is agreement," and "the government must prove that each member of a conspiracy agreed to participate in what he knew to be a collective venture directed toward a common goal." United States v. Patel, 579 F. App'x 449, 461 (6th Cir. 2014).

Notwithstanding the foregoing, Darden argues that "[a]dvance notice of the Government's intent to introduce such evidence comports with Federal Rule of Evidence 404(b) [.]" (Doc. No. 645 at 2). However, that Rule deals with extrinsic, not intrinsic evidence.

"Extrinsic acts include other crimes or wrongs which 'occurred at different times and under different circumstances from the offense charged,' while intrinsic acts 'are those that are part of a single criminal episode.' " United States v. Knox, 17 F. App'x 353, 357 (6th Cir. 2001) (quoting United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). " Rule 404(b) is not implicated when the other crimes or wrongs evidence is 'intrinsic,' that is, 'part of a continuing pattern of illegal activity.' " United States v. Long, 450 F. App'x 457, 462 (6th Cir. 2011) (quoting United States v. Gonzalez, 501 F.3d 630, 639 (6th Cir. 2007) ). This includes RICO conspiracy counts. United States v. Gills, 702 F. App'x 367, 383 (6th Cir. 2017) ; United States v. Garland, 320 F. App'x 295, 305 (6th Cir. 2008).

Even though the Rule 404(b) analysis is not necessary for determining the admissibility of intrinsic evidence in a RICO case, and assuming that the Government has properly viewed whatever crimes or wrongs evidence it possesses is truly intrinsic, the Court is still concerned about notice to Defendants. "Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure," and "[i]f notice is not given, and the adversary process is not permitted to function properly, there is an increased chance of error." Lankford v. Idaho, 500 U.S. 110, 127, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). This can be of particular concern in the context of a RICO case. As the Second Circuit observed in the context of reversing a RICO count where the alleged extortion offenses were "not limited to" the four extortion counts listed in the Indictment:

With the wide latitude accorded the prosecution to frame a charge that a defendant has "conspired" to promote the affairs of an "enterprise" through a "pattern of racketeering activity" comes an obligation to particularize the nature of the charge to a degree that might not be necessary in the prosecution of crimes of more limited scope. In this case the indictment charges a RICO conspiracy of seven years' duration carried out through various extortion offenses. The indictment puts Davidoff on notice that he will be obliged to defend against extortionate schemes directed at one company, AEI, and companies associated with it in contemplation of a merger. At trial Davidoff is then confronted with evidence of extortions aimed at entirely different companies. Though we agree with the Government that even in a RICO case it is not obliged to disclose before trial all of its evidence, we believe the trial judge exceeded his discretion in this RICO prosecution by denying a bill of particulars identifying at least the victims of discrete extortionate schemes that the prosecution intended to prove... We do not mean to imply that even in a RICO

case the prosecution must always disclose in advance of trial every act it will prove that may violate some criminal statute. But here it is simply unrealistic to think that a defendant preparing to meet charges of extorting funds from one company had a fair opportunity to defend against allegations of extortions against unrelated companies, allegations not made prior to trial.

United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988).

Here, the RICO count encompasses the period from 2005 until the return of the Indictment in 2017, and includes 76 overt acts running the gamut from gathering to discuss the affair of the Gangster Disciples, to retaliation, to murder, "among others." (Doc. No. 380 at 11). The last thing Defendants need is for the Government to offer proof at trial of still other violent acts or crimes without advanced notice.

The "well-established rule" is "that the overt act element of a conspiracy charge may be satisfied by an overt act that is not specified in the indictment," but this is only true "so long as there is no prejudice to the defendant." Rios, 830 F.3d at 424 (citing United States v. Salmonese, 352 F.3d 608, 619 (2d Cir. 2003) ). While the Government has provided Defendants with what it characterizes as "voluminous discovery" (which some Defendants have quantified be close to a terabyte of information), the possibility exists that counsel, who obviously will be focusing on what has actually been alleged, may lose the forest for the trees. See, United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987) ("commend[ing] the Government for cooperating in the turning over of documents prior to trial," but "not looking with favor on the manner in which the Government conducted the prosecution" where "key events w[e]re shrouded in mystery at the commencement" of the trial, and noting the "Government did not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided"); United States v. McQuarrie, No. 16-CR-20499, 2018 WL 372702, at *5-6 (E.D. Mich. Jan. 11, 2018) (noting that "[b]ecause the Constitution requires that the defendant be presumed innocent, the defendant should also be presumed ignorant of the factual basis for the charges," and that a "defendant may be denied notice of the charges both when information is actively concealed and when the relevant information is provided in a manner reminiscent of the proverbial needle in the haystack"). Therefore, to ensure fundamental fairness and due process, and to eliminate a potential delay in the trial or the possibility of a mistrial because one or more Defendants is blind-sided by alleged crimes that can be easily disclosed in advance of trial, the Government will be required not only to disclose other "crime, wrongs, or other acts" within the meaning of Rule 404(b), but also other crime or violent acts in the form of "overt acts" under the RICO count that the Government intends to utilize in its case in chief.

This leave the question of when such disclosures should be required. The Government's request for a January 15, 2019 deadline is entirely reasonable because it is a month and a half before trial. See e.g., United States v. Northington, No. CRIM. A. 07-550-05, 2013 WL 420296, at *6 (E.D. Pa. Feb. 4, 2013) (finding notice provided "over a month before trial" sufficient); United States v. Giffen, 379 F.Supp.2d 337, 345 (S.D.N.Y. 2004) (discussing reasonableness standard and requiring Government to provide Rule 404(b) notice 45 days before trial); United States v. Falkowitz, 214 F.Supp.2d 365, 393 (S.D.N.Y. 2002) (collecting cases for the proposition that two to three weeks before trial is sufficient notice). Accordingly, Burks' and Darden's Motions to Compel Notice of Intent to Offer Evidence of Other Crimes, Wrongs, or Acts (Doc. Nos. 567 & 645) are GRANTED to the extent that the Government shall provided all Defendants with Rule 404(b) notice on or before January 15, 2019. Also by that date, the Government shall provided Defendants with notice of other crimes or violent acts that constitute "overt acts" for purposes of Count One alleging a RICO conspiracy. This notice is limited to evidence that the Government intends to rely on during its case-in-chief.

VIII. Motions for Bill of Particulars

Darden, Burks, Xavier Jenkins, and James Luke have each filed Motions for Bill of Particulars (Doc. Nos. 591, 595, 599, and 700). Prior to addressing those Motions, the Court sets forth the applicable standard.

A. Standard of Review

A district court, in its discretion, United States v. Robinson, 390 F.3d 853, 867 (6th Cir. 2004), "may direct the government to file a bill of particulars." Fed. R. Crim. P. 7(f). "The function of a bill of particulars is to 'to minimize surprise and assist [the] defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes." United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004) (quoting United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993) ). "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.' " Id. Instead, "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 F. App'x 706, 724 (6th Cir. 2008).

B. Motion for Bill of Particulars - Count One

Among the overt acts alleged in Count One is the following:

a. On or about January 15, 2006, in or near Clarksville, Tennessee, [1] DARDEN and [11] WHITLOCK planned to shoot Person 8 for disrespecting the Gangster Disciples.

b. On or about January 15, 2006, [1] DARDEN shot, and attempted to kill, Person 8 in Clarksville, Tennessee.

l. On or about December 15, 2007, [1] DARDEN shot Person 9 in Clarksville, Tennessee.

jjj. In or about March 2014, [1] DARDEN and other Gangster Disciples gathered in Nashville, Tennessee, to administer a "smashing" or "violation" of Person 1.

(Doc. No. 380 at 11, 19). Darden has filed a Motion for Bill of Particulars (Doc. No. 595) requesting the "exact" date, time, place, and name of the alleged victim for the foregoing overt acts.

"[A]n indictment is sufficient if 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, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Count One meets those requirements, even after considering that the principles surrounding a bill of particulars "must be applied with some care when the Government charges criminal offenses under statutes as broad as RICO." Davidoff, 845 F.2d at 1154.

Leaving aside the voluminous discovery that has been provided and likely answers many of the questions posed by Darden, a court is not required to grant a Bill of Particulars seeking the exact date, time, and location of overt acts. See United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004) (stating that district court did not abuse its discretion in denying "bill of particulars specifying the exact time and place of each alleged act associated with each offense identified in the indictment"); United States v. Crule, No. 15-CR-143-V, 2017 WL 5166565, at *2 (W.D.N.Y. Nov. 8, 2017) ; (rejecting request for details of the charged conspiracy such as "the precise date" defendant became a member, and the location of cocaine that was found); United States v. Turner, No. 14-20019, 2015 WL 687313, at *3 (E.D. Mich. Feb. 18, 2015) (rejecting motion for bill of particulars where defendant requested "the exact date and times and specific place on which each specific alleged offense occurred"); United States v. Agard, 531 F.Supp.2d 1072 (D. N.D. 2008) ("As a general rule, the accused is not entitled to a bill of particulars which provides the exact date of the commission of the alleged crimes where time is not an essential element of the crime."). Put simply, "[e]videntiary details such as the who, what, when, where, and why of the crimes alleged fall within the scope of discovery and do not warrant a bill of particulars." United States v. Galecki, No. 215CR00285APGPAL, 2018 WL 2390062, at *3 (D. Nev. May 24, 2018) (citing United States v. Ellis, 121 F.Supp.3d 927, 941 (N.D. Cal. 2015) ).

Furthermore, the "Persons" listed in the excerpted portions of Count One may well be Government witnesses. To the extent they are, disclosure via a bill of particulars is not appropriate. Musick, 291 F. App'x at 724. Besides, the Magistrate Judge has issued an Order requiring the Government to provide its list of witnesses at least two weeks before trial.

To the extent they are not witnesses, significant concerns have been raised about victims' safety in this case. United States v. Lorenzana-Cordon, 130 F.Supp.3d 172, 176 (D.D.C. 2015) (rejecting a bill of particulars where legitimate concerns were raised about safety); United States v. Lanier, No. 3:11-CR-00098, 2012 WL 5921148, at *5 (M.D. Tenn. Nov. 26, 2012) (same); United States v. Gotti, No. 02-CR-743 (S-4)(RCC), 2004 WL 32858, at *9 (S.D.N.Y. Jan. 6, 2004) (same). Furthermore, a bill of particulars is required only where the "charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused." Chen, 378 F.3d at 163. Though the Court is not privy to the discovery that has been provided, the limited discovery that has been placed in the record suggests that Darden has learned far more about the Government's version of the events than he suggests. For example, the CPD report dated January 15, 2006 indicates that an aggravated assault occurred around 1:30 a.m. at 837 Richardson St. in Clarksville, Tennessee, and that this was allegedly linked to an incident that happened the night before at the Club Salee. (Doc. No. 638-1 at 1-3). A second CPD report indicates that a another aggravated assault occurred around 3:00 a.m. on December 15, 2007, with the accompanying ATF report indicating that this occurred at the Smooth Cats nightclub in Clarksville. (Doc. No. 638-2 at 1-4; 638-1 at 1) ).

Darden's Motion for a Bill of Particulars (Doc. No. 595) is DENIED. To the extent Darden truly does not know the identify of Persons 1, 8 and 9, he can raise the issue at the pretrial conference.

C. Motion for Bill of Particulars - Count Two

Burks and Luke have filed Motions for a Bill of Particulars (Doc. Nos. 591 and 700) in relation to Count Two. Burks claims that Count "is uncommonly vague," and "[i]t is hard to imagine a case where a bill of particulars is more necessary." (Doc. No. 591 at 3). He "specifically requests this Court to order the Government to provide the specific time, place and locations of overt acts allegedly committed by [him] comprising the alleged conspiracy alleged in Count Two." (Id. at 4-5). Similarly, Luke argues that "Count Two of the Indictment is extremely vague." (Doc. No. 700 at 2). He asks to "be provided with a list of and brief summary of all overt acts the government alleges defendant committed in furtherance of the drug conspiracy charged in Count Two of the Indictment." (Id. at 6).

Count Two reads:

Beginning on a date unknown but at least as of in or about 2005, and continuing through the return date of this Indictment [April 19, 2018], in the Middle District of Tennessee and elsewhere, the defendants, [1] MARCUS TERMAINE DARDEN, [2] MAURICE DUNCAN BURKS, [4] LAMAR ANDRE WARFIELD, [5] DERRICK LAMAR KILGORE, [6] ELANCE JUSTIN LUCAS, [7] DECARLOS TITINGTON, [8] LAWRENCE MITCHELL, [9] LORENZO CORTEZ BROWN, [11] REX ANDREW WHITLOCK, and [12] JAMES ANDERSON LUKE, did combine, conspire, confederate, and agree, together and with others known and unknown to the Grand Jury, to knowingly and intentionally distribute and possess with intent to distribute five kilograms or more of cocaine hydrochloride; 280 grams or more of cocaine base, that is, crack cocaine; oxycodone; methadone; and hydrocodone, all Schedule II controlled substances; and marijuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).

All in violation of Title 21, United States Code, Section 846.

(Doc. 380 at 21-22). "To prove a defendant guilty of conspiracy to distribute and possess with intent to distribute controlled substances, the government has to show '(1) an agreement to violate drug laws (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.' " United States v. Warman, 578 F.3d 320, 332-33 (6th Cir. 2009) (quoting United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005) ).

No doubt the length of the alleged conspiracy is long - twelve years - but that is not unheard of. See, United States v. Calabrese, 490 F.3d 575, 580 (7th Cir. 2007) (declining to dismiss RICO conspiracy counts alleging one conspiracy that lasted 4 decades and another that lasted 11 years); United States v. Howard, No. CRIM.A. 12-01, 2015 WL 6669162, at *5 (E.D. La. Nov. 2, 2015) (alleging a drug conspiracy lasting at least 16 years); Thompson v. United States, 719 F.Supp.2d 977, 978 (N.D. Ill. 2010) (drug conspiracy lasting 15 years); United States v. Korbe, No. 02:09-CR-0005, 2010 WL 2404384, at *4 (W.D. Pa. June 10, 2010) (alleging an 18 year drug conspiracy). And, while the precise date of the commencement of the alleged conspiracy is not specified, "an indictment that is open-ended as to beginning dates but not end dates suffices." United States v. Vassar, 346 F. App'x 17, 22 (6th Cir. 2009)

Nor is Count Two unconstitutionally vague. Consider, by comparison, the allegations involving a drug conspiracy in Korbe where Count Five alleged:

From in or around 1990, and continuing thereafter to on or about November 19, 2008, in the Western District of Pennsylvania, the defendant CHRISTINA MARIE KORBE, did knowingly, intentionally and unlawfully conspire with persons both known and unknown to the grand jury, to distribute and possess with the intent to distribute five hundred (500) grams or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, contrary to the provisions of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(ii).

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

Korbe, 2010 WL 24043