United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.)
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.
Defendants' Request to Dismiss the Indictment
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.”).
case, the indictment alleges the elements of conspiracy and
interstate cyberstalking. (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.)
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).
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.)
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.)
Defendants' Request for a ...