USA v. MULLER et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
v.
ANDRE MULLER,
Defendant.
)
)
)
)
)
)
)
Docket No. 1:19-cr-00109-NT-1
ORDER ON DEFENDANT ANDRE MULLER’S OMNIBUS MOTION
The Defendant, Andre Muller, has filed an omnibus motion seeking a dozen
forms of relief. For the reasons discussed below, the motion is DENIED.
BACKGROUND
On June 12, 2019, a grand jury sitting in this district issued a two-count
Indictment alleging that the Defendant, Andre Muller, conspired with his two
codefendants—Robert Holland and Hector Munoz—and others “to obstruct, delay and
affect commerce and the movement of articles in commerce, namely controlled
substances, by robbery.” Indictment 1 (ECF No. 3). The Indictment further alleges
that the Defendant, Mr. Holland, and Mr. Munoz (the “Defendants”), and others,
“agreed . . . to steal controlled substances” from a residence in Rangeley, Maine, (the
“Rangeley residence”) and “developed a plan to carry out” this robbery. Indictment
1. The Indictment further alleges that this conspiracy began around July 21, 2016,
and continued until around July 28, 2016. Indictment 1. The Indictment also alleges
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 1 of 12 PageID #:
<pageID>

2
that on or about July 28, 2016, Mr. Munoz and a coconspirator1 entered the Rangeley
residence, armed with dangerous weapons, with the intent to commit the planned
robbery. Indictment 1. This conduct comprises Count One of the Indictment, which
charges a Conspiracy to Commit Hobbs Act Robbery, in violation of 18 U.S.C. §
1951(a). Count Two of the Indictment charges Mr. Munoz with Attempted Hobbs Act
Robbery for attempting the robbery that the Defendant and his coconspirators
allegedly planned.
On March 8, 2021, the Defendant filed a motion requesting thirteen particular
forms of relief. Def. Andre Muller’s Pre-trial Mots. (“Def.’s First Mot.”) (ECF No.
109). Some of the relief requested was based at least in part on the mistaken notion
that portions of the Indictment remained under seal. Def.’s First Mot. 8, 10–12, 20.
In response, the Government notified defense counsel that an unredacted copy of the
Indictment was available on the docket. Gov’t’s Resp. to Def.’s Pre-trial Mots.
(“Gov’t’s First Opp’n”) 3 (ECF No. 115). After a conference of counsel, the Defendant
filed a new motion, eliminating all mentions of the redacted indictment. Def. Andre
Muller’s Pre-trial Mots. (“Def.’s Mot.”) (ECF No. 120). The Government briefly
responded but relies primarily on its initial response. Gov’t’s Resp. to Def.’s Am. Pre-
trial Mots. (“Gov’t’s Second Opp’n”) (ECF No. 121).
1 	The Government has represented that the unnamed coconspirator who entered the residence
with Mr. Munoz was killed during the attempted robbery. Gov’t’s Resp. to Def.’s Pre-trial Mots. 7 n.3
(ECF No. 115).
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 2 of 12 PageID #:
<pageID>

3
DISCUSSION
The Defendant now requests twelve particular forms of relief. I address each
in turn.
I. 	Motion to Dismiss the Indictment
Generally, an indictment is sufficient if it tracks the language of the charged
statute, so long as that language includes all elements of the offense. United States
v. Savarese, 686 F.3d 1, 6 (1st Cir. 2012). However, the indictment “must also be
accompanied by such a statement of facts and circumstances as to inform the accused
of the specific offense with which he is charged.” Id.
The 	Defendant 	contends 	that 	the 	Indictment 	is 	deficient 	because 	it 	is
“insufficient on its face” and “fails to provide any particulars.” Def.’s Mot. 4, 7. While
the Indictment is indeed succinct, brevity is not the same as insufficiency. Mr. Muller
points to no authority requiring the Government to issue a speaking indictment. See
United States v. Edmond, 924 F.2d 261, 269 (D.C. Cir. 1991) (“Despite the . . . common
use of ‘speaking’ indictments, the function of a federal indictment is to state concisely
the essential facts constituting the offense, not how the government plans to go about
proving them.”). The Indictment identifies all of the necessary elements of Conspiracy
to Commit Hobbs Act Robbery, it identifies when the conspiracy took place, and it
identifies the essence of the plan. Count One contains sufficient facts to inform Mr.
Muller of the specific offense with which he is charged. The motion to dismiss the
Indictment is DENIED.
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 3 of 12 PageID #:
<pageID>

4
II. 	Motion for Bill of Particulars
“Motions for bills of particulars are seldom employed in modern federal
practice.” United States v. Sepulveda, 15 F.3d 1161, 1192 (1st Cir. 1993). A bill of
particulars is appropriate when, absent a more detailed specification, the defendant
“will be disabled from preparing a defense, caught by unfair surprise at trial, or
hampered in seeking the shelter of the Double Jeopardy Clause.” Id. at 1192–93. Mr.
Muller argues that the Indictment “fails to inform” him of “the particulars of [the]
conspiracy . . . particularly because the Indictment is wholly silent on Mr. Muller’s
alleged role in the conspiracy.” Def.’s Mot. 7. I disagree. The Indictment spells out an
approximately eight-day window in which the conspiracy is alleged to have occurred.
It identifies three individuals who allegedly planned the robbery and one who
allegedly attempted the robbery. It describes the alleged plan for the robbery. And it
provides the details of the alleged robbery attempt, including the purpose of the
robbery and the date and general location of the attempt. Contrary to Mr. Muller’s
contention, the Indictment also alleges his role in the conspiracy—that he was
allegedly involved with “develop[ing] a plan to carry out the” robbery. Indictment 1.
To be sure, the Indictment leaves open questions, such as who else may have
been involved with the conspiracy among the Defendants. But the existence of
questions does not mean that the Defendant is entitled to answers. See, e.g., United
States v. Penagaricano-Soler, 911 F.2d 833, 840 n.5 (1st Cir. 1990) (“It is settled law
that ‘the identity of the other members of the conspiracy is not needed, inasmuch as
one person can be convicted of conspiring with persons whose names are unknown.’ ”
(quoting Rogers v. United States, 340 U.S. 367, 375 (1951)). I understand that Mr.
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 4 of 12 PageID #:
<pageID>

5
Muller may want additional information from the Government, but that does not
mean he is entitled to it. See United States v. Faucette, No. 2:13-cr-79-DBH, 2013 WL
3458182, at *1 (D. Me. July 9, 2013) (“The purpose of a bill of particulars is not to
provide a defendant with discovery that otherwise would not be discoverable under
the criminal rules and Brady/Giglio.”). The charging document contains enough
detail to comport with the law. The motion for a bill of particulars is DENIED.
III. 	Motion for Severance
“There is a preference in the federal system for joint trials of defendants who
are indicted together” because joint trials “promote efficiency and ‘serve the interests
of justice by avoiding the scandal and inequity of inconsistent verdicts.’ ” Zafiro v.
United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200,
210 (1987)). Severance of properly joined defendants is thus appropriate “only if there
is a serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” Id. at 539. “The risk of prejudice will vary with the facts in each case” but
“less drastic measures, such as limiting instructions, often will suffice to cure any
risk of prejudice.” Id.
The Defendant makes two arguments in support of his severance motion. First,
he claims that, without a severance, he would suffer “spillover prejudice” because his
codefendants are “charged with more serious criminal offense conduct than Mr.
Muller . . . at least from a lay person juror’s perspective.” Def.’s Mot. 10. Assuming
that the facts surrounding the alleged robbery attempt are more egregious than those
surrounding the alleged planning of the robbery attempt, I still see no risk of spillover
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 5 of 12 PageID #:
<pageID>

6
prejudice. Mr. Munoz, the codefendant charged with actually attempting to commit
the robbery, has already pleaded guilty, and he will not be tried alongside Mr. Muller.
Further, the evidence of the robbery attempt will likely be admitted (to the extent
allowed under the Federal Rules of Evidence) against both Mr. Muller and Mr.
Holland, who have both been charged with conspiracy for their alleged roles in
planning the offense. Severance thus would not limit the Government’s proof. See
United States v. Sabatino, 943 F.2d 94, 96 (1st Cir. 1991) (“Although the evidence
[the one defendant] cites primarily depicts [her codefendant’s] participation in the
illegal venture, it was nevertheless admissible against [the first defendant] under a
basic tenet of traditional conspiracy theory, namely, that a conspirator is responsible
for acts his or her co-conspirators executed during the existence and in furtherance
of the conspiracy.”).
Second, the Defendant represents that his defense is antagonistic to those of
his codefendants. He claims that because “the Indictment concedes that Mr. Muller
never went to the Rangley [sic] home, Mr. Muller’s defense is ‘antagonistic’ to” the
defenses of his alleged coconspirators “such that the jury’s acceptance of the co-
defendant’s defense would preclude its acceptance of Mr. Muller’s defense.” Def.’s
Mot. 11. I disagree with Mr. Muller’s premise. The Indictment says nothing about
whether Mr. Muller went to the Rangeley residence, but assuming that he did not,
Mr. Muller fails to explain why a coconspirator who does not participate in the
commission of the planned offense necessarily has a mutually antagonistic defense to
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 6 of 12 PageID #:
<pageID>

7
a coconspirator who does so participate.2 In addition, as the Government explains,
because Mr. Munoz has pleaded guilty, the only remaining codefendant—Robert
Holland—appears to be charged with the same conduct as Mr. Muller. Gov’t’s First
Opp’n 7. “Defenses are not antagonistic merely because they are not congruent.”
United States v. Floyd, 740 F.3d 22, 36 (1st Cir. 2014). While mutually antagonistic
defenses can justify severance, they are not per se prejudicial, Zafiro, 506 U.S. at 538,
and Mr. Muller has failed to explain how he is being prejudiced here. To the extent
that any prejudice might result from Mr. Muller and Mr. Holland being tried
together, Mr. Muller is free to propose a limiting instruction for the jury. See United
States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990) (describing the district judge’s use
of “appropriate limiting instructions as to the admissibility of evidence against
particular defendants and as to the need to determine guilt on an individual basis”).
The motion for severance is DENIED.
IV. 	Motions Related to Discovery and Other Requested Relief
Most of the Defendant’s remaining motions deal with matters of discovery. He
seeks disclosure of information—name, address, social security number, criminal
history, and current whereabouts—about “any confidential informants, cooperating
co-defendants and unindicted coconspirators upon whom the government has relied.”
Def.’s Mot. 14. He also seeks all Brady and Giglio material, and he requests early
2 	The defendant who was charged with attempting to commit the robbery, Mr. Munoz, has
already pleaded guilty and has not offered any defense, much less a mutually antagonistic one.
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 7 of 12 PageID #:
<pageID>

8
disclosure of the Government’s witness list and 404(b) material. Def.’s Mot. 17–18,
20–21.
It is well established that the Government may withhold the identities 3 of
informants, see Roviaro v. United States, 353 U.S. 53, 59 (1957), and coconspirators,
see Penagaricano-Soler, 911 F.2d at 840 n.5. Disclosure of an informant is “only
proper” where a defendant establishes “concrete circumstances that might justify
overriding both the public interest in encouraging the flow of information, and the
informant’s private interest in his or her own safety.” United States v. Cartagena, 593
F.3d 104, 113–14 (1st Cir. 2010) (quoting United States v. Tzannos, 460 F.3d 128, 139
(1st Cir. 2006)). It is the Defendant’s “heavy” burden “to show that disclosure is
essential for an adequate defense.” United States v. Mills, 710 F.3d 5, 14 (1st Cir.
2013). Here, the Defendant offers only that he “cannot adequately prepare his
defense” and that this information is “most relevant to the ultimate question of [his]
guilt or innocence.” Def.s’ Mot. 15–16. These general assertions are insufficient to
meet the Defendant’s heavy burden.
The Government has made clear that to the extent it intends to call any
informant or unnamed coconspirator as a witness, it will comply with its disclosure
obligations under the Jencks Act. Gov’t’s First Opp’n 9. The Government also has
represented that it “has [disclosed] and will continue to disclose in a timely manner”
all Brady material. Gov’t’s First Opp’n 11. The Government contends—and the
3 	Since the Government can withhold identities, then, a fortiori, the Government can also
withhold the other information the Defendant seeks, such as the identifying information and criminal
histories of those individuals.
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 8 of 12 PageID #:
<pageID>

9
Defendant does not dispute—that it has provided discovery to the Defendant in three
tranches, twice in August 2019 and then again in May 2020 and that it has allowed
defense counsel to review redacted Jencks material in January 2020. Gov’t’s First
Opp’n 15. And the Government now represents that it plans to disclose all Giglio (and
Jencks Act) materials three weeks prior to a firm trial date. Gov’t’s Second Opp’n 2
n.1. The Government is generally aware from an earlier conference I held that failure
to meet its disclosure requirements can result in the exclusion of evidence. The
Government is not required to exceed the statutory requirements, although it has
agreed to provide early Jencks material. It is also not required to provide its witness
list months ahead of trial. As to the timing on Rule 404(b) evidence, the Government
acts at its own peril if it does not provide notice of any such evidence that it seeks to
offer at trial “so that the defendant has a fair opportunity to meet it.” Fed. R. Evid.
404(b)(3)(A).
The Defendant also requests that the Court inspect the grand jury minutes to
determine whether they should be provided to him. Def.’s Mot. 16–17. As the
Defendant acknowledges, only “proof of a compelling necessity which would, by its
nature, outweigh the presumption of secrecy attendant to grand jury proceedings”
can overcome the secrecy of the grand jury enshrined in the law. Def.’s Mot. 16–17
(citing United States v. Procter & Gamble Co., 356 U.S. 677 (1958)). Rather than try
to meet this burden, the Defendant contends that he should not be required to do so
because 	“the 	paucity 	of 	the 	allegations 	contained 	in 	the 	Indictment 	and 	the
government’s decision to withhold the identity of Mr. Muller’s co-conspirators and
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 9 of 12 PageID #:
<pageID>

10
accomplice” prevent him from doing so. Def.’s Mot. 17. The Supreme Court has
outlined no such exception for disclosure, see Douglas Oil Co. of Calif. v. Petrol Stops
Nw., 	441 	U.S. 	211, 	223 	(1979) 	(outlining 	standard 	for 	releasing 	grand 	jury
transcripts), and, in any event, this claim of inadequate information is suspect, given
the discovery that has already been provided to the Defendant. Despite receiving
discovery and being allowed to review redacted Jencks material, the Defendant offers
nothing to indicate any necessity for the undisclosed grand jury transcripts. I also
note that, for the most part, the Jencks Act prohibits the “compel[led] pre-trial
disclosure of grand jury minutes.” United States v. Doe, 455 F.2d 1270, 1274 (1st Cir.
1972).
Next, 	the 	Defendant 	requests 	an 	order 	requiring 	the 	Government’s
preservation of all “rough notes taken as part of its investigation.” Def.’s Mot. 19. The
Government indicates that it does not object to preserving any such notes that have
not yet been destroyed and has pledged to do so. I thus see no reason to intervene in
this matter.
The Defendant also seeks a Petrozziello ruling in advance of trial with regard
to any coconspirator statements that the Government seeks to introduce in its case-
in-chief. Def.’s Mot. 21–22; see generally United States v. Petrozziello, 548 F.2d 20 (1st
Cir. 1977). As with his other requested relief, the Defendant fails to explain the
specific need underlying his request. I need not make a Petrozziello ruling prior to
admitting a coconspirator statement—much less make such a ruling prior to trial—
and, indeed, there are reasons for not doing so. See United States v. Ciresi, 697 F.3d
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 10 of 12 PageID #:
<pageID>

11
19, 25 (1st Cir. 2012). Deferring such a ruling allows me to assess the admissibility
of the statement with the benefit of having heard all of the evidence and puts me in
the best position to determine whether the predicate facts for admissibility under
Federal Rule of Evidence 801(d)(2)(E) are met. Cf. United States v. Ciampaglia, 628
F.2d 632, 638 (1st Cir. 1980) (explaining that district court may provisionally admit
coconspirator statements and then “make a final Petrozziello determination” “at the
close of all the evidence”).
Finally, the Defendant seeks an extension of time to file a motion to suppress
and he “seeks leave to file additional motions as appropriate.” Def.’s Mot. 22. The
Government does not object to the latter request, Gov’t’s First Opp’n 15, and, indeed,
if the Defendant has a potentially meritorious motion that he could not have filed
prior to the pretrial motion deadline, he would be well within his rights to file such a
motion. No such leave of court is necessary. As to the request for an extension of time
to file a motion to suppress, the Government contends, without refutation, that it
provided discovery to the Defendant in August 2019 and in May 2020 and that
defense counsel was permitted to review redacted Jencks material in January 2020.
The Defendant has had ample time to file a motion to suppress if he thought it was
warranted on the material already provided. If it later comes to light that the
Government withheld information material to a motion to suppress, I will address
any request for additional time to file a motion to suppress at that time.
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 11 of 12 PageID #:
<pageID>

12
CONCLUSION
For the reasons stated above, the Court DENIES the Defendant’s omnibus
motion.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 22nd day of July, 2021.
Case 1:19-cr-00109-NT Document 124 Filed 07/22/21 Page 12 of 12 PageID #:
<pageID>