USA v. Jones et al

UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
NEWTON JONES (01),
WILLIAM CREEDEN (02),
KATERYNA JONES (03),
WARREN FAIRLEY (04),
LAWRENCE MCMANAMON (05),
CULLEN JONES (07),
Defendants.
Case No. 24-20070-DDC
MEMORANDUM AND ORDER DENYING MOTION TO DISMISS (Doc. 143)
The Current Motion
All six defendants have moved to dismiss the Indictment’s Count One, invoking Fed. R.
Crim. P. 12(b)(3)(B)(v). The targeted charge accuses defendants of RICO conspiracy.
Defendants claim this charge fails to state an offense. See, e.g., Doc. 143 at 3, 10. If defendants
fail on this part of their motion, they ask the court, alternatively, to require the United States to
provide a bill of particulars under Fed. R. Crim. P. 7(f). Id. at 16–18. The court isn’t persuaded
by either form of relief sought in defendants’ motion, so the court denies the motion in its
entirety.
Below, the court articulates its reasoning for these conclusions. This explanation begins
with the dismissal request. It concludes with the request for particulars.
I. 	DEFENDANTS’ MOTION TO DISMISS
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A. Overview of Defendants’ Theory and the Government’s Response
Count One of the Indictment charges defendants with violating 18 U.S.C. § 1962(d), i.e.,
conspiring to violate § 1962(c) of the same Title.1 Defendants’ motion theorizes that this charge,
as alleged in the Indictment, doesn’t state an offense. They assert that Count One is “legally
defective” because it doesn’t honor established law requiring the charged RICO enterprise to be
distinct from the defendants themselves and from the racketeering activity in which they
allegedly engaged. Doc. 143 at 10–11. Sharpening the tip of their argument, defendants contend
the Indictment never charges that the alleged enterprise—called the “Jones Enterprise” in the
Indictment—had a distinct organizational structure. Id. Defendants also assert that the
Indictment omits the purportedly essential allegation that the Jones Enterprise had a distinct
common purpose. Id. at 11. Defendants’ Reply goes in a slightly different direction. It contends
that Count One fails to “plead” that the Jones Enterprise was an association-in-fact enterprise.
Doc. 146 at 4–5. All this warrants dismissal under Fed. R. Crim. P. 12(b)(3)(B)(v), they say.
The government sees things differently. It responds that the charge in Count One does
everything the law requires of an indictment. Doc. 144 at 1–2. That is, Count One sets out all
the elements of the offense charged, and it provides defendants notice of the charges they face.
And it does so, the government asserts, with sufficient specificity so defendants could advance a
double jeopardy defense should a future criminal proceeding necessitate it. Id. at 13–14. The
government concludes with the well-established principle that the court may not look behind the
allegations to the facts behind Count One’s charge.
B. Standard applied to 12(b)(3)(B)(v) motions
1 	See Doc. 1 at 11, 15 (defendants conspired “to violate Section 1962(c) of Title 18, United States
Code, that is, to conduct and participate directly and indirectly in . . . the Jones Enterprise through a
pattern of racketeering activity[.]”) (quotation cleaned up).
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For years, our Circuit has identified the standard applied to a motion like the one at issue
here.
“An indictment is sufficient if it sets forth the elements of the offense
charged, puts the defendant on fair notice of the charges against
which he must defend, and enables the defendant to assert a double
jeopardy defense.”
United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (quoting United States v. Dashney,
117 F.3d 1197, 1205 (10th Cir. 1997)); see also, United States v. Redcorn, 528 F.3d 727, 733
(10th Cir. 2008). This kind of challenge “is not a means of testing the strength or weakness of
the government’s case, or the sufficiency of the government’s evidence.” Todd at 1067 (citing
United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)). Instead, the court can test an
indictment’s sufficiency “solely on the basis of the allegations made on its face, and such
allegations are to be taken as true.” Hall, 20 F.3d at 1087 (quoted in Todd). The question at the
motion-to-dismiss stage isn’t whether the government can muster enough evidence to support the
challenged charge. Instead, the court must decide “whether the allegations in the indictment, if
true, are sufficient to establish a violation of the charged offense.” Todd, 446 F.3d at 1068 (citing
United States v. Sampson, 371 U.S. 75, 78–79 (1962) and Hall, 20 F.3d at 1087).
Recently, in 2024, our Circuit revisited the standard used to measure an indictment’s
sufficiency. United States v. Sweet, 107 F.4th 944 (10th Cir. 2024). Sweet differs significantly
from the current action. The charge there was different—a child sex crime under 18 U.S.C.
§ 2242(b) vs. a RICO conspiracy here. And the charging documents couldn’t be less alike.
Sweet’s contested charge consisted of a total of 97 words. In contrast, the contested Count One
here spans 26 pages of allegations. As a result, Sweet’s holding doesn’t transfer to this case’s
challenge. But Sweet is significant, nonetheless. Not only does it reiterate the indictment-
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sufficiency standard discussed in Todd, but, more crucially, it also captures an important nuance
about when that standard demands greater specificity.
Sweet outlines the evolution of charging documents in federal court—from the standard’s
constitutional anchors through the 1945 adoption of the Federal Rules of Criminal Procedure—
and, in particular, Rule 7(c). See 107 F.4th at 956–58. 	In this historical overview, Judge
Federico emphasizes the shift from a “lengthy and technical” pleading standard to a “more
relaxed approach[.]” Id. at 957–58. That “more lenient criminal pleading standard” persists in
modern Supreme Court jurisprudence, Sweet explains. Id. at 958. Consider the leniency of the
familiar indictment-sufficiency formulation. Under Supreme Court precedent, an indictment
must “‘contain[] the elements of the offense charged[,] fairly inform[] a defendant of the charge
against which he must defend, and . . . enable[] him to plead an acquittal or conviction in bar of
future prosecutions for the same offense.’” Id. (quoting Hamling v. United States, 418 U.S. 87,
117 (1974)). And an indictment generally suffices if it “set[s] forth the offense in the words of
the statute itself[.]” Id. (quoting Hamling, 418 U.S. at 117). Judge Federico notes that our
Circuit “has also recognized the more lenient pleading standard” permitting an indictment that
“‘quotes the language of a statute and includes the date, place, and nature of illegal activity’” to
suffice. Id. (quoting United States v. Powell, 767 F.3d 1026, 1030 (10th Cir. 2014)). Our Circuit
requires no further detail to elucidate “‘the factual proof that will be relied upon to support the
charges.’” Id. (quoting Powell, 767 F.3d at 1030).
While it reaffirms the long familiar standard, Sweet also incorporates helpful nuance. It
recalls that “[m]ore specificity is required . . . when a statute’s text does not itself ‘fully, directly,
and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to
constitute the offence[.]’” Id. (quoting Hamling, 418 U.S. at 117). 	And it explains that, in such
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circumstances, the indictment must provide both the statute’s language and “‘such a statement of
the facts and circumstances as will inform the accused of the specific offence[.]’” Id. (quoting
Hamling, 418 U.S. at 117–18).
Applying both the familiar standard from Todd and the helpful nuance identified in
Sweet, the court now evaluates the substance of the defendants’ motion.
C. Does Count 1 comply with all three parts of the standard recognized in Todd
and Sweet?
This first part of the analysis requires the court to decide whether Count One “sets forth
the elements of the offense it charges.” Todd, 446 F.3d at 1067. This work begins with
identifying the elements of § 1962(d).
1. 	Does Count 1 set forth the elements of a § 1962(d) charge?
a. 	the elements of the offense
As already referenced, Count One accuses defendants of violating 18 U.S.C. § 1962(d)—
commonly known as racketeering conspiracy. See Doc. 1 at 11, 26. This law “makes it
‘unlawful for any person to conspire to violate’ 18 U.S.C. § 1962(c).” United States v. Smith,
413 F.3d 1253, 1265 (10th Cir. 2005), overruled in part on other grounds by Boyle v. United
States, 556 U.S. 938 (2009). Smith identified the elements of a § 1962(d) violation:
[W]e hold that in order to convict a defendant for violating §
1962(d), the Government must prove beyond a reasonable doubt that
the defendant: (1) by knowing about and agreeing to facilitate the
commission of two or more acts (2) constituting a pattern (3) of
racketeering activity (4) participates in (5) an enterprise (6) the
activities of which affect interstate or foreign commerce.
413 F.3d at 1266. Seven years after Smith, the Circuit tweaked this formulation slightly in
another case charging a § 1962(d) violation, United States v. Harris. 695 F.3d 1125 (10th Cir.
2012).
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There, the jury had convicted defendant on a RICO conspiracy charge. He appealed and
challenged the “substantive correctness of the jury instructions on the elements of § 1962(d)
conspiracy[.]” Id. at 1129. The instruction at issue identified the requirements for the § 1962(d)
conviction in this fashion:
First: 	A conspiracy or agreement, as detailed in the indictment,
existed between two or more persons to participate in the affairs of
an enterprise that affected interstate commerce through a pattern of
racketeering activity;
Second: that defendant deliberately joined or became a member of
the conspiracy or agreement with knowledge of its purpose[;] and []
Third: 	the defendant agreed that someone, not necessarily the
defendant, would commit at least two of the racketeering acts
detailed in the indictment.
* 	* 	*
Unlike the charge in Count 1 [the substantive violation under
§ 1962(c)], the government need not prove a defendant actually
committed two racketeering acts, nor that the objectives or purposes
of the conspiracy, whatever they may have been, have been achieved
or accomplished, nor that the alleged enterprise was actually
established, that the defendant was actually employed by or
associated with the enterprise, or that the enterprise was actually
engaged in, or its activities actually affected, interstate or foreign
commerce. 	The essential nature of Count 2 is the conspiratorial
agreement; the ultimate success or failure of the conspiracy is
irrelevant.
Id. at 1131 (italics added to quoted instruction by Tenth Circuit’s opinion) (bracketed material
added by Circuit). The Tenth Circuit rejected defendant’s challenge of the elements recited by
this Instruction, holding “that the challenged jury instruction accurately stated the law[.]” Id.
Harris also decided whether “the existence of an enterprise” is “an element of conspiracy to
commit a RICO violation under § 1962(d)[.]” Id. at 1132. The Circuit held “that the existence
of an enterprise is not element of § 1962(d) conspiracy to commit a substantive RICO violation.”
Id. at 1131.
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Synthesizing Smith and Harris, the court concludes that the elements of a § 1962(d)
violation consist of the following:
• 	a conspiracy or agreement existed
• 	between two or more persons
• 	to participate in an enterprise affecting interstate or foreign commerce
• 	through a pattern of racketeering activity
• 	defendant knowingly joined the conspiracy with knowledge of its purpose
• 	defendant agreed that someone, though not necessarily the defendant, would commit at
least two or more acts.
As referenced, note that the elements of a § 1962(d) violation do not require proof of an actual
enterprise. Smith, 413 F.3d at 1266.
b. 	Does Count One “set forth the elements of the offense” of
charges?
All in, defendants’ filings contend that three elements of a § 1962(d) conspiracy are
missing from Count One.
First, defendants contend that “[m]issing in particular is any allegation” that the Jones
Enterprise had “a distinct organizational structure.” Doc. 143 at 11 (emphasis in original).
They’re mistaken. Paragraph 2 of Count One charges that the named Jones Enterprise
“constituted an ongoing organization whose members functioned as a continuing unit for a
common purpose of achieving the objectives of the enterprise.” Doc. 1 at 11. But defendants,
citing the Supreme Court’s decision in Boyle, seem to believe that Count One’s invalid because it
never alleges that the alleged enterprise had a hierarchy or decision-making process. See Doc.
143 at 11 (citing Boyle, 556 U.S. at 945). This argument actually stands Boyle on its head. Boyle
explained that it found “no basis in the language of RICO for the structural requirements that
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petitioner asks us to recognize.” 556 U.S. at 948 (listing petitioner’s arguments to include
requirements such as a structural “hierarchy”). Boyle continued, “[a]s we said in Turkette, an
association-in-fact enterprise”—the kind of organizational structure charged in Count One
here—“is simply a continuing unit that functions with a common purpose. Such a group need
not have a hierarchical structure or a ‘chain of command[.]’” Id. In short, Boyle rejects the very
requirement that defendants ask the court to impose on Count One.
Next, defendants contend that the Indictment never asserts the Jones Enterprise had “a
distinct common purpose.” Doc. 143 at 11 (emphasis omitted). Again, they’re mistaken. Count
One asserts that the Jones Enterprise “constituted an ongoing organization whose members
functioned as a continuing unit for a common purpose[,]” i.e., “achieving the objectives of” the
Jones Enterprise. Doc. 1 at 11.
Last, and especially telling is defendants’ argument that the “Indictment also fails to
establish”—they mean, allege—“an agreement amongst the Defendants to commit the
underlying acts.” Doc. 143 at 14. Defendants’ premise is correct: an agreement is a necessary
element of a RICO conspiracy charge. Smith, 413 F.3d at 1266. But reading Count One
carefully one discovers that it charges this element. Specifically, it charges defendants “did
knowingly, intentionally and unlawfully combine, conspire, confederate, and agree together and
with each other, to violate Section 1962(c) . . . that is, to conduct and participate . . . in the
conduct of the affairs of the Jones Enterprise[.]” Doc. 1 at 15. In short, Count One accuses
defendants of agreeing with one another to violate one of RICO’s substantive provisions.
Defendants try to save this argument with a subsidiary argument. See Doc. 143 at 15.
They concede that Count One “summarily” and “generally alleges” defendants conspired to
violate § 1962(c). Id. But that isn’t enough, defendants assert, because “such threadbare
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recitations of the elements of a RICO claim, supported by mere conclusory statements, do not
suffice.” Id. Defendants’ legal citation for this argument, however, is the giveaway: They cite
Ashcroft v. Iqbal. See Doc. 143 at 15. Iqbal is a civil case applying the Federal Rules of Civil
Procedure. See 556 U.S. 662, 677 (2009) (applying Federal Rule of Civil Procedure 8(a)(2)).
Nothing in Iqbal suggests it applies to a motion to dismiss an indictment in a criminal case under
Fed. R. Crim. P. 12(b)(3)(B)(v).2
At bottom, defendants’ argument confuses a crime’s elements with the content of
evidence required to establish those elements. Here’s an example. Defendants assert that Count
One’s “legally defective because it contradicts the rules requiring a RICO ‘enterprise’ to be
distinct from both” the defendants themselves and the racketeering activity in which they
allegedly engaged. Doc. 143 at 10. But this rule—which is far more nuanced than defendants’
argument recognizes3 —doesn’t make this “distinct from” characteristic an element of a
2 	The closest defendants come to mustering legal support for the argument that an indictment must
contain specific facts comes on page 8 of their motion. There, they cite United States v. Cruikshank, an
1875 Supreme Court case. Doc. 143 at 8 (citing 92 U.S. 542 (1875)). Specifically, defendants quote
Cruikshank for the principle that the purpose of an indictment is, among other things, to inform the court
of the facts alleged, so that it “‘may decide whether [the facts] are sufficient in law to support a
conviction, if one should be had.’” Id. (quoting Cruikshank, 92 U.S. at 557). Assuming this passage in
Cruikshank remains viable today, the 65-page Indictment here easily suffices.
Counting material incorporated by reference, Count One devotes 26 pages to specifying
defendants’ alleged wrongdoing. See Doc. 1 at 1–26. And at least some of those 26 pages accuse
defendants of taking specific actions designed to effectuate the alleged conspiracy. See, e.g., id. at 16
(defendants agreed to “seek to dominate and control the operations of the Boilermakers Union” by
“embezzlement from union funds, wire fraud, and embezzlement from pension and welfare funds so as to
enrich themselves and other members of the conspiracy”), id. at 16–17 (defendants conspired to “preserve
their positions in the Boilermakers Union by ensuring that all incumbent international officers stood for
reelection in a single slate headed by the incumbent International President, Defendant NEWTON
JONES”), and id. at 20 (defendants conspired to “engage[ ] in unauthorized international travel to Europe,
Asia, South America, and Australia, which included first class airline tickets, lavish hotel stays, expensive
restaurant meals and wines, and entertainment worth more than five million dollars”).
3 	Boyle sews doubt about defendants’ view of this “distinct from” characteristic. There, the
Supreme Court answered its own question, i.e., must an enterprise’s “structure go beyond that inherent in
the pattern of racketeering activity in which its members engage?” 556 U.S. at 945 (internal quotation
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§ 1962(d) charge. Consider our Circuit’s careful inventory of § 1962(d)’s elements in Harris and
Smith. Neither case identifies the “distinct from” characteristic of an enterprise as an element of
RICO conspiracy. See Smith, 413 F.3d at 1266 & Harris, 695 F.3d at 1131 (reciting jury
instruction’s elements for § 1962(d) and concluding it “accurately stated the law”). Time will tell
whether the government can adduce proof establishing that the Jones Enterprise is sufficiently
distinct from defendants and their alleged racketeering activity to comply with the substantive
law explaining what this element means. But at this procedural moment, the Indictment survives
if it merely alleges the element. Count One sufficiently alleges the enterprise element. And that
is all that controlling precedent requires. Redcorn, 528 F.3d at 733 (“generally sufficient” if
indictment “set[s] forth an offense in the words of the statute itself” so long as “those words . . .
set forth all the elements necessary to constitute the offense[.]”); United States v. Mobley, 971
F.3d 1187, 1196 (10th Cir. 2020) (“Where the indictment quotes the language of a statute and
includes the date, place, and nature of illegal activity, it need not go further and allege in detail
the factual proof that will be relied upon to support the charges.” (quotation cleaned up)); see
also United States v. Rogers, No. 18-CR-10018-01-EFM, 2019 WL 2435758, at *4 (D. Kan. June
11, 2019) (distinguishing between what government must prove to convict defendant of an
marks omitted). The Court’s answer began by noting that one may interpret this question two different
ways. “If the phrase is interpreted to mean that the existence of an enterprise is a separate element that
must be proved, it is of course correct. As we explained in Turkette, the existence of an enterprise is an
element distinct from the pattern of racketeering activity and ‘proof of one does not necessarily establish
the other.’” Id. at 947 (quoting United States v. Turkette, 452 U.S. 576, 583 (1981)).
Importantly, the Court’s answer didn’t stop there. “On the other hand, if the phrase is used to
mean that the existence of an enterprise may never be inferred from the evidence showing that persons
associated with the enterprise engaged in a pattern of racketeering activity, it is incorrect.” Id. The
Court’s answer concluded by embracing the idea expressed in Turkette—noting namely that “the evidence
used to prove the pattern of racketeering activity and the evidence establishing an enterprise ‘may in
particular cases coalesce.’” Id. (quoting Turkette, 452 U.S. at 583). Whether this case is such a case, time
will tell.
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attempt crime at trial and what government must allege in indictment); United States v. Whatley,
No. 09-CR-531-DAK, 2010 WL 1236401, at *2 (D. Utah Mar. 29, 2010) (refusing to dismiss
indictment where defendant “has confused what the government is required to plead in the
indictment with what the government must prove at trial.”); United States v. Gueary, No. 02-
40025-01-SAC, 2002 WL 1334867, at *3 (D. Kan. May 22, 2002) (“[T]he government is not
required to set forth in its indictment the theory that it intends to use at trial to establish the
elements of the crime.”).
In sum, defendants have failed to substantiate their argument that Count One omits an
element of a § 1962(d) charge. The Indictment sufficiently alleges all three elements challenged
explicitly by defendants’ moving papers. And some of defendants’ arguments misapprehend the
legal standard governing their motion. The court thus concludes that the Indictment alleges each
element of a § 1962(d) charge, and thus it conforms to the first of the three requirements applied
in Todd and Sweet.
The court turns next to the “fair notice” requisite.
2. 	Does Count One provide defendants fair notice of the charge they
must defend?
The second part of the test measuring an indictment’s sufficiency asks whether the charge
puts defendants on fair notice of the charge they must defend in Count One. Todd, 446 F.3d at
1067. It’s not clear whether defendants contend that Count One flunks this touchstone. Their
motion never asserts that they do. But out of caution, the court briefly addresses this part of the
standard.
Last year, the Circuit held that an indictment adequately notified the defendant of the
charges against him. United States v. Garcia-Limon, 146 F.4th 885 (10th Cir. 2025). The
indictment there set out the elements for each offense charged, named the victim, specified the
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victim’s age range, established an eight-year date range when the offense allegedly had occurred,
identified where the offense allegedly had occurred (albeit in generic terms, i.e., “Indian
Country”), and included “the applicable statutory language” of the offense. Id. at 894. The
Court of Appeals found the indictment in Garcia-Limon was sufficient to inform the defendant
what he must defend. Id. at 895.
One would struggle to find support for a plausible argument that Count One here falls
short of this mark. This 65-page Indictment provides extensive background information about
the labor union purportedly victimized by defendants’ alleged conduct. Doc. 1 at 1–5. It
explains the connection between this union and a bank partially owned by the union and it
identifies the role the bank allegedly played in the charged conspiracy. Id. at 6. The Indictment
also outlines the legal duties imposed on unions and their officers by various federal acts, id. at
6–9, and identifies each defendant’s role—including their roles with the union and in the alleged
RICO enterprise. Id. at 11–14.
Based on these overarching allegations, Count One—which spans 15 pages plus 10 more
incorporated by reference—explicitly identifies the enterprise alleged, its purposes, each
defendant’s role in the alleged enterprise, and the means and methods used by the charged RICO
conspiracy. Count One then identifies the period when the alleged conspiracy operated, and then
devotes 11 full pages to alleging how each defendant purportedly acted to further this RICO
conspiracy’s goals. Id. at 11–26.
This court finds that the RICO conspiracy charge in Count One—the only one at issue in
defendants’ motion—gives defendants fair notice of the charge they must defend. It satisfies this
second prong of the standard. This conclusion leaves one last piece of the governing standard:
the double jeopardy requirement. The court addresses it next.
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3. 	Would Count One enable defendants to assert a double jeopardy
defense in a future case?
The Circuit’s standard also requires the Indictment to provide enough information that
defendants, if later charged in another criminal case and appropriate to do so, could assert a
double jeopardy defense. See, e.g., Hamling, 418 U.S. at 117; Sweet, 107 F.4th at 958. Several
Circuits have explained what this double jeopardy component demands.
For instance, the Third Circuit concluded that this measure of sufficiency requires “no
greater specificity than the statutory language . . . so long as there is sufficient factual orientation
to permit a defendant to prepare his defense and invoke double jeopardy.” United States v.
Stevenson, 832 F.3d 412, 424 (3d Cir. 2016) (quoting United States v. Huet, 665 F.3d 588, 595
(3d Cir. 2012)). These cases have explained that an indictment hits this mark when “it informs
the defendant of the statute he is charged with violating, lists the elements of a violation under
the statute, and specifies the time period during which the violation occurred.” Stevenson, 832
F.3d at 424 (quoting Huet, 665 F.3d at 595); see also United States v. Troy, 618 F.3d 27, 34 (1st
Cir. 2010). Here, Count One easily meets this mark.
It explicitly identifies the statute when it accuses defendants of violating § 1962(d). Doc.
1 at 11, 26. As already discussed, it alleges all the elements of that charge. And it articulates
periods for each defendant, specifying when that defendant participated in the alleged RICO
enterprise and attendant conspiracy. See id. at 12–14 (¶¶ 4–10) (dates participated in alleged
enterprise) and 15–16 (¶ 12) (specifying date when defendants allegedly conspired).
Defendants here haven’t explicitly argued that Count One here falls short of this part of
the motion to dismiss standard. But had they done so, it’s unlikely their argument could succeed.
4. 	Does § 1962(d) require “more specificity” here?
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Remember that in some circumstances, “[m]ore specificity is required[.]” Sweet, 107
F.4th at 958. The Circuit explained when this next level applies, and what it requires. More is
required—more, that is, than the language of the statute and the “date, place, and nature of illegal
activity”—when the text of the offense statute “does not itself ‘fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements necessary to constitute the
offence[.]’” Id. (quoting Hamling, 418 U.S. at 117).
Defendants make no argument that a RICO conspiracy offense requires more elements
than are stated in the two operative statutes—§§ 1962(d) and 1962(c). And as referenced above,
our Circuit has identified all the elements required for a § 1962(d) conviction. Defendants have
identified no extra-statute element for § 1962(d). The court thus concludes that the charge in
Count One need not provide “the more” that applies in some cases—but not this charge.4
5. 	Conclusion
Count One of the Indictment meets all three requirements of Todd’s standard and also
complies with Sweet. It sets out the elements of the offense charged by Count One. It provides
defendants with fair notice of the charge they must defend. And it arms them with enough
information to assert, if need be, a double jeopardy defense based on this charge’s prosecution.
The court thus denies defendants’ request to dismiss the charge in Count One.
II. 	Alternative Request for Bill of Particulars
Defendants devote the last two pages of their motion to the alternative form of requested
relief—a bill of particulars under Fed. R. Crim. P. 7(f). It’s important to understand the precise
particulars defendants ask the court to mandate. Their motion asks the court to order the
4 	Even if the charge in Count One required something “more”—defendants never show that it
does—Count One provides it. Its 25 pages of factual allegations provide far more than base requirement,
i.e., the language of the statute, “the date, place, and nature of illegal activity[.]” Sweet, 107 F.4th at 958.
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government to “clearly identify what aspects of the ‘Jones [E]nterprise’”—the enterprise alleged
by Count One—“are allegedly distinct from (1) the Defendant ‘persons’ themselves, (2) the
racketeering activity they allegedly engage[d] in, and (3) the [International Brotherhood of
Boilermakers], including but not limited to the alleged enterprise’s organizational structure,
common purpose, and independent operations.” Doc. 143 at 17.
The court’s analysis of this request follows. It begins with the standard governing
requests for such a bill.
A. Legal Standard
Judge Julie Robinson of our court summarized the legal standard applied to a request like
defendants’ here. Because her overview so ably collects these legal principles, the court quotes it
in its entirety here:
Rule 7(f) of the Federal Rules of Criminal Procedure states that a
court may issue a bill of particulars. The decision to issue a bill of
particulars falls within the discretion of the court. This discretion is
exercised while adhering to the recognized scope of a bill of
particulars. A bill of particulars is not a discovery device. It cannot
be used to take measure of the government’s case. The purpose of
a bill of particulars is to inform the defendant of the substantive facts
of the charges against him, but not to discover the evidentiary basis
for the charges. 	The defendant is not entitled to know all the
evidence the government will use against him at trial. However, the
defendant must be adequately informed of the charges against him
so that he may prepare a defense for trial. 	Additionally, a bill of
particulars is unnecessary where the information the defendant seeks
is available through “some other satisfactory form,” such as an open
file discovery policy.
United States v. Griffith, 362 F. Supp. 2d 1263, 1277–78 (D. Kan. 2005) (footnotes and citations
omitted). Griffith thus identifies two interests that compete for primacy in a bill-of-particulars
analysis—the defendant’s right to receive adequate information to prepare his defense and the
government’s right not to disclose all the evidence it will use at trial.
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A leading treatise summarizes the factors courts have applied and—in these
commentators’ view—should apply to weigh these competing interests. “The test for the court in
passing on a motion for a bill of particulars should be whether the information requested is
necessary to allow the defense to prepare its case or to avoid unfair surprise.” 1 Wright &
Leipold’s Federal Practice & Procedure § 130 (5th ed. 2022) (citing among others United States
v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008)). This same treatise endorses three factors that
courts should consider when deciding whether a particular request meets this standard. They are:
“the complexity of the crime charged, the clarity of the indictment, and the degree of discovery
and other sources of information” available to the defense. Id. (citing cases). The court embraces
these factors here and applies them in subsection B, following.
B. Applying Pertinent Factors to Defendants’ Request for Bill of Particulars
The first factor—the complexity of the crime charged—favors defendants’ request.
Count One combines two complicated and abstract theories of our criminal laws: RICO and
conspiracy. The next factor considers the clarity of the Indictment. Here, this factor disfavors
defendants’ request. Count One, for the most part,5 explicitly defines the enterprise and
identifies its participants. It describes the alleged enterprise’s purposes, the roles each defendant
allegedly played in the enterprise, its means and methods, the racketeering conspiracy (including
the federal laws the defendants agreed to violate), and also identifies at least some of the
racketeering conspiracy’s means and methods. See Doc. 1 at 11–26. In short, Count One plainly
5 	Count One names seven participants in the enterprise, but it also references “other[] [participants]
known and unknown to the Grandy Jury[.]” Doc. 1 at 11 (¶ 2). Some cases have required bills on
charges where the indictment references “others both known and unknown[.]” See United States v.
Rogers, 617 F. Supp. 1024, 1028–29 (D. Colo. 1985) (requiring government to identify “undisclosed and
unidentified co-conspirators, aiders and abettors . . . especially where the government plans to call such
persons as witnesses”). But defendants’ motion here never requests such information, so it’s not a
question the court must decide.
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discloses the government’s theory of the RICO conspiracy charge. The last factor asks about the
degree of discovery and other sources of information available to the defense. No party
addresses this consideration in any of the three rounds of briefing. See Doc. 143 at 16–18, Doc.
144 at 14–15, and Doc. 146 at 13–14. The court’s experience with requests for Rule 17 suggests
that defendants already have access to a voluminous collection of evidentiary material. The
parties often have referred to the discovery exchanged as extensive. Still, the parties’ silence on
this factor makes it difficult to assess this factor. The court will treat it as neutral. In sum, one
factor favors requiring the bill, one disfavors it, and one is neutral.
What should the court do with such a mixed hand? The court finds its answer in the
essence of defendants’ request: They ask the court to “clearly identify what aspects of” the
enterprise is “allegedly distinct from” defendants themselves, their alleged racketeering
activities, and the union who once employed them. Doc. 143 at 17. Defendants thus want the
court to force the government to “identify”—meaning, “tell defendants”—how the government
plans to differentiate between defendants and the alleged RICO enterprise, and differentiate
between defendants and the racketeering activity they allegedly conducted. This kind of
explanation doesn’t seek facts. It asks the court to order the government to showcase its legal
argument. That’s not a proper use for a bill of particulars.
Instead, the predominant purpose of a bill of particulars is providing “the defendant
notice of the essential facts supporting the crimes” to avoid “prejudicial surprise at trial.” 1
Wright & Leipold § 130 (emphasis added). Our Circuit has suggested that a request for
particulars isn’t available to pick the government’s brain about its theory of the case. A
defendant may not secure a bill of particulars “to compel the Government to disclose evidentiary
details or ‘to explain the legal theories upon which it intends to rely at trial.’” United States v.
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Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) (quoting United States v. Burgin, 621 F.2d 1352,
1359 (5th Cir.), cert. denied, 449 U.S. 1015 (1980)). Defendants’ request here doesn’t seek
essential facts; it targets evidentiary details and legal theories.
C. Conclusion
The court denies defendants’ request for the bill of particulars sought by their motion.
THEREFORE, IT IS HEREBY ORDERED THAT Defendants’ Motion to Dismiss
Count One or in the Alternative for a Bill of Particulars (Doc. 143) is denied.
IT IS SO ORDERED.
Dated this 5th day of February, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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