IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx-159-01 (PLF)

)

xxxxxxx xxxxxxxxxxxx, )

)

Defendant. )

_________________________ )

DEFENDANT'S MOTION AND INCORPORATED MEMORANDUM

TO DISMISS COUNT I DUE TO IMPERMISSIBLE VAGUENESS

Defendant xxxxxxxxxxx, by and through undersigned counsel, hereby moves this honorable Court to dismiss count one of the indictment because this count is impermissibly vague and deprives Mr. Winnegan of a critical constitutional protection.

The Supreme Court has held that the fifth amendment indictment clause and the sixth amendment notice clause, as reflected in Fed.R.Crim.P. 7(c), require that the indictment "sufficiently apprise the defendant of what he must be prepared to meet." Russell v. United States, 369 U.S. 749, 763-64 (1962) (quotations and citations omitted).

The instant indictment is fatally defective with regard to the conspiracy charged in count one. The charge fails to provide the defendant with notice of the particular manner and means by which this "conspiracy" was supposed to operate, of any specific acts supposedly taken in furtherance of the conspiracy, or of the respective roles of the alleged co-conspirators. Indeed, contrary to the common practice for charging the crime of conspiracy, the instant drug conspiracy is charged in a single paragraph and does little more than recite the statutory elements of the crime. See, e.g., United States v. Whitehorn, 710 F.Supp. 803, 817 (D.D.C. 1989) (rejecting argument that conspiracy count was impermissibly vague where manner and means of conspiracy was set forth with specificity), rev'd on other grounds, 888 F.2d 1406 (D.C. Cir. 1989).⁽¹⁾

Given the broad and ill-defined conspiracy charged in count one, there is simply no way for Mr. Winnegan to prepare to defend himself. Accordingly, count one should be dismissed.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 2004

(202) 208-7500

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing motion was served upon Mark Gellar, Assistant United States Attorney by hand delivering a copy to a receptacle at the United States District Courthouse, 3rd and Constitution Avenue, N.W., Washington, D.C. provided for pleadings upon the Office of the United States Attorney, on this 7th day of May, 1997

L. Barrett Boss

Assistant Federal Public Defender

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA )

v. ) CR. NO. xxxx-159-01 (PLF)

xxxxxxxxxxxxxxxxxx )

O R D E R

Upon consideration of the Motion of xxxxxxxxxx for defendant's Motion and Incorporated Memorandum to Dismiss Count I Due to Impermissible Vagueness, it is this day of May, 1997, hereby

ORDERED that the motion is granted; and it is further

ORDERED that Count One of the indictment is dimissed.

JUDGE PAUL L. FRIEDMAN

UNITED STATES DISTRICT COURT JUDGE

Copies to:

L. Barrett Boss

Assistant Federal Defender Mark Gellar

625 Indiana Avenue, N.W. Assistant U.S. Attorney

Suite 550 555 4th Street, N.W.

Washington, D.C. 20004 Washington, D.C. 20001

1. While the defendant has also filed a motion for a bill of particulars, "it is a settled rule that a bill of particulars cannot save an invalid indictment." Russell, 369 U.S. 770.