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United States v. Fanyo-Patchou

United States District Court, W.D. Washington, Seattle

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIE CHRISTINE FANYO-PATCHOU, RODRIGUE FODJO KAMDEM, and CHRISTIAN FREDY DJOKO, Defendants.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendants Marie Christine Fanyo-Patchou, Rodrigue Fodjo Kamdem, and Christian Fredy Djoko's motion to dismiss the indictment or, in the alternative, for a bill of particulars (Dkt. No. 96).[1] Having considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.

         I. BACKGROUND

         On August 1, 2019, a federal grand jury indicted Defendants on charges of cyberstalking in violation of 18 U.S.C. § 2261A(2)(A)-(B) and conspiracy to commit cyberstalking in violation of 18 U.S.C. § 371. (Dkt. No. 2-6.) The indictment alleges that Defendants engaged in a campaign of electronic harassment against John Doe, a gay man from Cameroon who lives in Seattle, from September 2018 through November 2018. (Dkt. No. 1 at 2-6.) As part of that alleged campaign, Defendants purportedly disseminated information about John Doe's sexual orientation-including nude images of John Doe and his husband-to the Cameroonian community. (See Id. at 3-6.) Defendants allegedly committed those acts with the intent to harass or intimidate John Doe, and the indictment claims that Defendants succeeded in placing John Doe in reasonable fear of serious bodily injury to himself and his immediate family members. (See id.)

         Since the grand jury indicted Defendants, the Government has provided Defendants with a large volume of discovery materials. (See Dkt. No. 104 at 11.) Those materials include “over 6, 700 pages, numerous photographs, audio records, and screenshots of online messages (texts, WhatsApp, and Facebook), translations and recordings and online message (French to English), Facebook records, cell phone analysis reports, law enforcement reports and transcripts of witness interviews, and immigration files.” (Id.) Despite these discovery materials, Defendants now move for dismissal of the indictment or, alternatively, for a bill of particulars. (Dkt. No. 96.)

         II. DISCUSSION

         Defendants argue that the indictment is inadequate because it does not identify the specific communications that gave rise to the conspiracy or the communications that Defendants sent with requisite the intent to put John Doe in danger or at risk of physical harm. (See Id. at 3.) The Government argues in response that the indictment is adequate because it tracks the relevant statutory language, it states the manner and means by which Defendants engaged in the conspiracy, and it provides a list of 15 overt acts committed during and in furtherance of the conspiracy. (See Dkt. No. 104 at 2-3.) In addition, the Government contends that a bill of particulars is unnecessary given the information it has provided in discovery. (See id.) The Court agrees with the Government. The indictment sets forth the Government's theory of the case and gives Defendants enough factual information to identify the conduct on which the Government intends to prove its theory at trial. That is all the Government must provide.

         A. Defendants' Request to Dismiss the Indictment

         Criminal defendants have the “right . . . to be informed of the nature and cause of the accusation” against them. U.S. Const. amend. VI. This right is important, but it is also narrow: “The defendant's constitutional right is to know the offense with which he is charged, not to know the details of how it will be proved.” United States v. Kendall, 655 F.2d 126, 135 (7th Cir. 1985). Thus, an indictment adequately informs the defendant if it (1) alleges the elements of the crime charged and (2) “provide[s] enough factual information to enable the defendant[] to identify the conduct on which the government intends to base its case.” United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003); see also United States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982) (“[T]he issue in judging the sufficiency of the indictment is whether the indictment adequately alleges the elements of the offense and fairly informs the defendant of the charge.”).

         In this case, the indictment alleges the elements of conspiracy and interstate cyberstalking.[2] (See Dkt. No. 1 at 2-6.) As shown by the chart in the Government's response, counts 1 and 2 of the indictment track 18 U.S.C. §§ 371, 2262A(2)(A), and 2262A(2)(B) almost word-for-word. (See Dkt. No. 104 at 4-5.) The indictment and the statutory text deviate only where the indictment substitutes general words or phrases, such as “two or more persons, ” for words specific to this case, such as the names of Defendants. (See id.)

         The indictment also provides Defendants with enough factual information to identify the conduct on which the Government intends to base its case. The indictment specifies the types of electronic communication systems that Defendants allegedly used to harass and intimidate John Doe. (See Dkt. No. 1 at 2) (referring to text messages, WhatsApp, and Facebook). In addition, the indictment gives a date range for the alleged conduct. (See Id. at 3-6.) Finally, the indictment alleges 15 overt acts committed in furtherance of a conspiracy to “harass[] and intimidate[] John Doe by distributing and disseminating personal and intimate materials relating to John Doe's sexual orientation to other members of the Cameroonian communities in the United States and Cameroon.” (See id.) Taken together, these allegations give Defendants enough information to identify the specific communications and other acts that may form the basis of the Government's case. See Fassnacht, 332 F.3d at 446 (rejecting defendants' argument that an indictment for obstruction of justice had to refer to specific acts or endeavors aimed at impeding a grand jury's investigation); United States v. Shepard, 2011 WL 3236073, slip op. at 1-2 (D. Ariz. 2011), adopted in part and rejected in part, 2011 WL 3235773 (D. Ariz. 2011) (upholding indictment for cyberstalking that did not identify specific harassing emails but did identify the method of harassment and the range of dates for when the harassment occurred).

         Defendants argue that this information is inadequate. According to Defendants, the indictment must identify both the specific communications that gave rise to the conspiracy and the communications that Defendants sent with the requisite intent to put John doe in danger or at risk of physical harm. (See Dkt. No. 104 at 3.) But neither the Constitution nor the Federal Rules of Criminal Procedure require an indictment to be so detailed. See Kendall, 655 F.2d at 135; United States v. Geise, 597 F.2d 1170, 1180 (9th Cir. 1979) (“[T]here is no requirement in conspiracy cases that the government disclose even all the overt acts in furtherance of the conspiracy.”). Rather, an indictment need only “provide enough factual information to enable the defendants to identify the conduct on which the government intends to base its case.” Fassnacht, 332 F.3d at 446. That is why in United States v. Shepard, 2011 WL 3236073, slip op. at 1-2 (D. Ariz. 2011), for example, the district court upheld an indictment for cyberstalking that simply alleged, “[f]rom on or about August 6, 2009, through April 13, 2020, at or near Tucson . . . Moses Antonio Shepard repeatedly contacted Linda Mari Arnaud by means of electronic mail.” The indictment in this case is far more detailed, and it informs Defendants of the “nature and cause of the accusation” against them. (See generally Dkt. No. 1.)

         Defendants rely heavily on United States v. Buddenberg, 2010 WL 2735547 (N.D. Cal. 2010), to support their position. (See Dkt. No. 96 at 8-10.) In that case, the district court seemed to announce a bright line rule that “in the context of an indictment for threats or intimidation, Rule 7 requires the United States to identify or at least summarize the actual words or expressive conduct that forms the basis of the charge.” Id. at 4. This bright line rule appears inconsistent with the general principle that the Government need only “provide enough factual information to enable the defendants to identify the conduct on which the government intends to base its case.” Fassnacht, 332 F.3d at 446. However, even if the rule from Buddenberg makes sense when the Government charges a defendant with, for example, communicating a specific threat to kidnap or injure a person, see 2010 WL 2735547, slip op. at 6-7 (citing United States v. Landham, 251 F.3d 1072, 1081 (6th Cir. 2001)), the charges in this case involve the cumulative effect a “course of conduct, ” see 18 U.S.C. § 2261A(2); (Dkt. No. 1 at 2-6). When such charges are at issue, it is inappropriate to require that the indictment specify each and every communication that makes up the illegal course of conduct. The indictment must instead allege the course of conduct with enough specificity that the defendant can identify the specific communications that the Government might rely on at trial. See Shepard, 2011 WL 3236073, slip op. at 1-2. That is what happened here. (See Dkt. No. 1 at 2-6.)

         B. Defendants' Request for a ...


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