USA v. Blackwell

1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Plaintiff,
v. 	No. 4:23-CR-505 MAL
MARCELLIS BLACKWELL,
Defendant.
Order
Before the Court are Defendant Marcellis Blackwell’s objections (Doc.
126) to the magistrate judge’s Report and Recommendations (Doc. 124) on
Blackwell’s motions to dismiss (Docs. 94, 95) counts in the Second Superseding
Indictment 	(Doc. 	84). 	The 	Report 	and 	Recommendations 	recommended
denying Blackwell’s motion to dismiss all counts of the Second Superseding
Indictment charging 18 U.S.C. § 1519 (Doc. 94), denying Blackwell’s motion to
dismiss sixteen counts charging 18 U.S.C. § 242 (Doc. 95), and denying
Blackwell’s motion for a bill of particulars (Doc. 95). Blackwell objects to each
of these recommendations. (Doc. 126 at 5, 1–5, and 5, respectively). 	Because
Blackwell objects, this Court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1)(C).
The Court, having reviewed the report and recommendation de novo,
adopts the magistrate judge’s recommendations and 	DENIES 	Defendant
Marcellis Blackwell’s motions to dismiss (Docs. 94, 95) and motion for a bill of
particulars (Doc. 95). 	The Court also adopts the magistrate judge’s report in
full, except to the extent modified by this order. 28 U.S.C. § 636(b)(1)(C).
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Discussion
Blackwell objects to the magistrate judge’s recommendation to deny
(1) Blackwell’s motion to dismiss, or alternatively for a bill of particulars, on
16 counts charging violation of 18 U.S.C. § 242 (Counts 2, 4, 6, 7, 11, 13, 15,
17, 18, 20, 22, 24, 28, 30, 32, and 34), Doc. 95, and (2) his motion to dismiss the
counts charging 18 U.S.C. § 1519, Doc. 94. The Court addresses each objection
in turn.
I. 	18 U.S.C. § 242
The Second Superseding Indictment charges Blackwell with 19 counts of
“deprivation of rights under color of law,” 18 U.S.C. § 242. 	That statute
provides:
Whoever, under color of any law…willfully subjects any person…to the
deprivation of any rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States…shall be fined under
this title or imprisoned not more than one year, or both;…and if…such
acts include kidnapping or an attempt to kidnap, aggravated sexual
abuse, or an attempt to commit aggravated sexual abuse…shall be fined
under this title, or imprisoned for any term of years or for life, or both,
or may be sentenced to death.
18 U.S.C. § 242. 	Of the 19 counts of 18 U.S.C. § 242 charged, 16 reference
kidnapping, alleging (at least) that:
Blackwell, while acting under color of law, willfully deprived [victim] of
his right 	to bodily 	integrity, a right 	secured 	and protected by 	the
Constitution and laws of the United States, when he fondled [victim’s]
genitals 	under 	[his] 	clothing, 	without 	[his] 	consent 	and 	without 	a
legitimate 	government 	purpose, 	after 	[victim] 	was 	arrested 	and
restrained. 	[Blackwell’s] conduct included kidnapping. 	In the
course 	of 	committing 	the 	offense, 	[Blackwell] 	engaged 	in 	sexual
misconduct of the type prohibited by subsection (b) of Title 18, United
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States Code, Section 2244. In violation of and punishable under Title 18,
United States Code, Sections 242 and 250….
Doc. 84 at 2–15, 17–20 (Counts 2, 4, 6, 7, 11, 13, 15, 17, 18, 20, 22, 24, 28, 30,
32, and 34).
Blackwell objects to the recommendation to deny his motion to dismiss
the counts charging 18 U.S.C. § 242 on four grounds. First, he claims that the
counts alleging violation of 18 U.S.C. § 242 that reference kidnapping must be
dismissed because the kidnapping sentencing enhancement in 18 U.S.C. § 242
is unconstitutionally vague. Doc. 126 at 1. Second, he argues that the counts
alleging 	violation 	of 	18 	U.S.C. 	§ 242 	that 	reference 	kidnapping 	must 	be
dismissed because they “fail to give sufficient notice” of what is prohibited, in
violation 	of 	the 	Sixth 	Amendment 	and 	the 	Federal 	Rules 	of 	Criminal
Procedure. 	Doc. 126 at 3–4. 	Third, Blackwell claims that Count 6 must be
dismissed because it alleges he also engaged in “aggravated sexual abuse” but
fails to specify which of at least four means of committing aggravated sexual
abuse is at issue, making it impossible for him to prepare for trial. Doc. 126 at
4–5. 	Fourth, Blackwell claims that Count 6 must be dismissed because, in
concluding 	Count 	6 	did 	not 	need 	to 	be 	dismissed, 	the 	magistrate 	judge
erroneously relied on cases decided before the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), for the rule that an indictment
“need not set forth factors that are relevant only to the sentencing” of an
offender. Doc. 126 at 5. In the alternative, Blackwell argues that he is entitled
to a bill of particulars that provides the elements and underlying facts for the
“kidnapping” allegations and specifies which means of committing “aggravated
sexual abuse” the government intends to prove. Doc. 126 at 5.
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A. The 	Counts 	alleging 	violation 	of 	18 	U.S.C. 	§ 242 	that
reference kidnapping should not be dismissed on the basis
of the argument that “kidnapping” in 18 U.S.C. § 242 is
unconstitutionally vague.
Blackwell objects to the recommendation to deny his motion to dismiss
the counts charging 18 U.S.C. § 242 on the grounds that the kidnapping
sentencing enhancement is unconstitutionally vague. 	Doc. 126 at 1–3. 	It is
not.
1. Legal Standard
“A statute is unconstitutional for vagueness if it fails to provide adequate
notice of the proscribed conduct or lends itself to arbitrary enforcement.”
United States v. Milk, 66 F.4th 1121, 1134–35 (8th Cir. 2023) (quotation and
citation omitted). 	“When reviewing for vagueness” the Court must “first
determine if a statute is vague as applied to the defendant’s conduct, and only
if it is will [the Court] consider whether a statute is facially unconstitutional.”
Id. at 1135 (quoting United States v. KT Burgee, 988 F.3d 1054, 1060 (8th Cir.
2021)). A statute is vague as applied to a defendant’s conduct if the statute did
not 	give 	“adequate 	warning, 	under 	a 	specific 	set 	of 	facts, 	that 	[the
defendant’s] behavior was a criminal offense.” Milk, 66 F.4th at 1135 (quoting
United States v. Palmer, 917 F.3d 1035, 1038–39 (8th Cir. 2019)) (emphasis
added).
Under some circumstances, a district court must wait until the facts of a
case are fully developed at trial before ruling on a vagueness challenge. See
United States v. Turner, 842 F.3d 602, 604–05 (8th Cir. 2016). 	Rule 12(b) of
the Federal Rules of Criminal Procedure allows parties to “raise by pretrial
motion any defense, objection, or request that the court can determine without
a trial on the merits.” Fed. R. Crim. P. 12(b)(1). “A motion is capable of pretrial
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determination ‘if trial of the facts surrounding the commission of the alleged
offense would be of no assistance in determining the validity’ of the motion.’”
Turner, 842 F.3d 602, 605 (8th Cir. 2016) (quoting United States v. Covington,
395 U.S. 57, 60 (1969)). 	Courts must rule on a Rule 12(b) motion before trial
unless there is “good cause to defer a ruling” and deferring the ruling will not
“adversely affect a party’s right to appeal.” Fed. R. Crim. P. 12(d).
2. Application of law to facts
Blackwell brings a facial challenge, not an as-applied one, because “[t]he
issue before us is framed in purely legal form and is devoid of any factual
context” relating to Blackwell’s specific case. 	See United States v. Stephens,
594 F.3d 1033, 1037 (8th Cir. 2010); Doc. 95 at 2 (alleging the kidnapping
enhancement in 18 U.S.C. § 242 is unconstitutionally vague because the
statute does not define it). Because a party cannot succeed on a facial challenge
without succeeding on an as-applied challenge, Blackwell’s facial challenge
fails. See Milk, 66 F.4th at 1135–36 (party cannot succeed on a facial challenge
without first succeeding on an as-applied challenge). 	Should Blackwell wish
to bring an as-applied challenge, he may do so at trial.1
1 Even if Blackwell were understood as bringing an as-applied challenge (he
should not be), this would be an instance in which there is “good cause to defer
a ruling” on a pretrial motion under Fed. R. Crim. P. 12(d). 	In order to
determine whether 18 U.S.C. § 242’s kidnapping provision is vague as applied
to Blackwell’s conduct, this Court would need to know what specific conduct is
at issue. And this would be based on the facts as found by the trial factfinder.
See Turner, 842 F.3d at 605; see also United States v. Reed, 114 F.3d 1067, 1070
(10th Cir. 1997) (holding that district court’s void-for-vagueness determination
“should be based only on the facts as they emerge at trial”); United States v.
Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (Gorsuch, J.) (“Rule 12 doesn’t
authorize…disposition 	[of 	motions] 	before 	trial” 	when 	“contested 	facts
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B. The counts referencing “kidnapping” under 18 U.S.C. § 242
do not violate the Sixth Amendment or the Federal Rules
of Criminal Procedure.
Blackwell next objects to the magistrate judge’s conclusion that the
counts charging 18 U.S.C. § 242 give sufficient notice to prepare a defense
under the Sixth Amendment and the Federal Rules of Criminal Procedure.
Doc. 126 at 3. 	Specifically, he argues that 18 U.S.C. § 242 fails to define
“kidnapping,” 	that 	“kidnapping” 	is 	defined 	differently 	across 	different
jurisdictions, that the indictment fails to contain the elements of kidnapping,
and that this fails to provide sufficient notice to prepare for trial. 	Id. (citing
Doc. 95 at 8–9). 	These arguments are the same as Blackwell’s arguments in
his objections regarding his vagueness challenge. Doc. 126 at 1–3.
1. Legal Standard
The Sixth Amendment guarantees criminal defendants the right “to be
informed of the nature and cause of the accusation[.]” U.S. Const. amend. VI.
Federal Rule of Criminal Procedure 7(c)(1) requires that:
The indictment must be a plain, concise, and definite written statement
of the essential facts constituting the offense charged and must be signed
by an attorney for the government . . . A count may allege that the means
by which the defendant committed the offense are unknown or that the
defendant committed it by one or more specified means. For each count,
the indictment must give the official or customary citation of the statute,
surrounding the commission of the offense would be of any assistance in
determining the validity of the motion[.]”). “Even when the court is ultimately
responsible for deciding the merits of a legal defense, it is sometimes said
evidence adduced at trial can provide a ‘more certain framework’ for its
analysis—particularly when it isn’t clear before trial precisely what evidence
will and won’t be admissible.” Pope, 613 F.3d at 1259 (quoting United States v.
Reed, 114 F.3d 1067, 1070 (10th Cir. 1997)).
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rule, regulation, or other provision of law that the defendant is alleged
to have violated.
Fed. R. Crim. P. 7(c)(1).
An indictment gives sufficient notice under the Sixth Amendment and
the federal rules “if it, first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he must defend, and
second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117
(1974); see also United States v. Huggans, 650 F.3d 1210, 1217 (8th Cir. 2011).
“Generally, an indictment which sets forth the words of the statute itself is
sufficient, as long as those words fairly inform the defendant of the elements
necessary to constitute the offense charged.” United States v. McKnight, 799
F.2 443, 445 (8th Cir. 1986); see also United States v. Sewell, 513 F.3d 820, 821
(8th Cir. 2008).
2. Application of law to facts
The allegation that Blackwell’s conduct “included kidnapping” sets forth
the words of 18 U.S.C. § 242 itself, and the term “kidnapping” fairly informs
Blackwell of the elements necessary to constitute the offense charged.
The Court rejects the argument that “kidnapping” in 18 U.S.C. § 242 fails
to provide sufficient notice of the conduct it proscribes. 	True, “kidnapping” is
not defined in 18 U.S.C. § 242. 	But statutory provisions do not have to
expressly define every key term to provide sufficient notice of proscribed
conduct. See, e.g., Chapman v. United States, 500 U.S. 453, 462, 467–68 (1991)
(holding that penal statute 21 U.S.C. § 841(b)(1)(B) gave adequate notice
despite “mixture” and “substance” not being defined). If statutes were required
to define all key terms, many federal statutes would fail to provide sufficient
notice. 	Take, for instance, other statutes that do not define the term at issue
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here: “kidnapping.” 	At least eight statutes include kidnapping as an element
without 	defining 	kidnapping 	or 	expressly 	incorporating 	a 	definition 	of
kidnapping. See 18 U.S.C. § 115(a)(1)(A); 18 U.S.C. § 249(a)(1)(B)(ii); 18 U.S.C.
§ 351(b); 18 U.S.C. § 875(b); 18 U.S.C. § 877; 18 U.S.C. § 1583(a)(1); 18 U.S.C.
§ 1751(b); 18 U.S.C. § 1201.
Despite not expressly defining kidnapping in the statute, the kidnapping
sentencing enhancement provides sufficient notice of the proscribed conduct.
“Congress is not required to define every term in a statute.” United States v.
Lazzaro, 129 F.4th 514, 525 (8th Cir. 2025) (quotation and citation omitted).
Where, 	as 	here, 	Congress 	does 	not 	specifically 	define 	an 	enhancement
provision, the provision must be ascribed its “generic, contemporary meaning”
derived from the sense in which the term is now used in the criminal codes of
most States. Taylor v. United States, 495 U.S. 575, 592–96, 598 (1990).
Therefore, “kidnapping,” as used in 18 U.S.C. § 242, means generic kidnapping
as used in the criminal codes of most States. Id.; see also United States v.
Goforth, 87 F.4th 380, 381 (8th Cir. 2023) (holding that “kidnapping,” as used
in the United States Sentencing Guidelines, “carries a uniform or ‘generic’
meaning drawn from the criminal codes of most States” (citing Taylor, 495 U.S.
at 598)). 	The basic elements of kidnapping include unlawfully removing or
confining a person to facilitate commission of a felony. 	See, e.g., Model Penal
Code § 212.1. (2017).
Yet Blackwell argues in his objections that the generic meaning of
kidnapping 	“fails 	to 	give 	fair 	notice 	because 	there 	is 	no 	single, 	generic,
contemporary 	meaning—different 	jurisdictions 	give 	‘kidnapping’ 	different
meanings and different elements.” Doc. 126 at 2 (citing Doc. 95 at 5), see also
id. at 3 (“‘kidnapping’ carries different meaning and elements across different
jurisdictions.”). 	Not so. 	Variation in the exact formulations of kidnapping
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offenses 	does 	not 	prevent 	“kidnapping” 	from 	having 	a 	uniform, 	generic
meaning. See Taylor, 495 U.S. 575 at 589 (holding “burglary” had a generic,
contemporary meaning “[a]lthough the exact formulations vary[.]”). The whole
point of generic meaning is to recognize that a uniform concept of the term
exists 	despite 	jurisdiction-by-jurisdiction 	variation. 	Because 	kidnapping
offenses across jurisdictions reflect the same basic, consistent elements of
unlawfully removing or confining a person for a purpose, see, e.g., Model Penal
Code § 212.1 (2017), a person of common intelligence can clearly understand
that 	generic 	kidnapping 	prohibits 	such 	conduct. 	Thus, 	the 	kidnapping
allegations fairly inform Blackwell of the elements necessary to constitute the
offense charged and provide sufficient information for Blackwell to prepare for
trial.
Moreover, the Eighth Circuit has already recognized that “‘kidnapping’
carries a uniform or ‘generic’ meaning” in the United States Sentencing
Guidelines. 	See Goforth, 87 F.4th at 381. 	Therefore, this Court holds that
“kidnapping” 	in 	18 	U.S.C. 	§ 	242 	does 	too. 	The 	kidnapping 	sentencing
enhancement in 18 U.S.C. § 242 does not fail to provide sufficient notice under
the 	Sixth 	Amendment 	or 	the 	Federal 	Rules 	of 	Criminal 	Procedure.
“Kidnapping” refers to generic kidnapping as derived from the sense in which
the term is used in the criminal codes of most states. 	See Taylor, 495 U.S. at
592–96 (1990); Goforth, 87 F.4th at 381.
The kidnapping allegations provide Blackwell with sufficient notice
under the Sixth Amendment and the Federal Rules of Criminal Procedure.
The Court overrules Blackwell’s objection.
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C. Count 6 need not be dismissed for not specifying a single
theory of “aggravated sexual abuse.”
Blackwell objects to the magistrate judge’s recommendation to deny
Blackwell’s motion to dismiss Count 6 for failure to define “aggravated sexual
abuse.” Doc. 126 at 4–5 (objection to R&R); Doc. 95 at 9–10 (motion to dismiss).
He claims that there are four different types of “aggravated sexual abuse” that
the indictment could be referencing, and without knowing which one the
government is referencing, he cannot prepare for trial. 	Doc. 126 at 4–5; Doc.
95 at 9–10. 	Blackwell alleges this violates his Fifth and Sixth Amendment
rights to be charged only by a grand jury and to be informed of the nature and
cause of the accusation. Doc. 126 at 4–6; Doc. 95 at 9–10.
1. Legal Standard
An indictment gives a defendant sufficient notice of the conduct charged
“if it, first, contains the elements of the offense charged and fairly informs a
defendant of the charge against which he must defend, and second, enables
him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.” Hamling, 418 U.S. at 117; see also Huggans, 650 F.3d at 1217.
“Generally, an indictment which sets forth the words of the statute itself is
sufficient, as long as those words fairly inform the defendant of the elements
necessary to constitute the offense charged.” McKnight, 799 F.2 443, 45 (8th
Cir. 1986); see also Sewell, 513 F.3d 820, 821 (8th Cir. 2008). “The government
is free to prove a defendant’s liability for one criminal offense using multiple
theories of guilt.” United States v. Platter, 514 F.3d 782, 787 (8th Cir. 2008).
An indictment does not have to make clear which theory of liability the
government will use to prove a particular element. United States v. Zackery,
494 	F.3d 	644, 	649 	(8th 	Cir. 	2007) 	(“An 	indictment 	need 	not 	plead 	the
government’s theory of liability.”); see also Fed. R. Crim. P. 7(c)(1) (“A count
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may allege that the means by which the defendant committed the offense are
unknown or that the defendant committed it by one or more specified means.”).
2. Application of law to facts
Count 6 of the Second Superseding Indictment alleges that Blackwell’s
conduct involved “aggravated sexual abuse” and that the count would be
“punishable under” 18 U.S.C. § 250(b)(1). Doc. 84 at 5. Section 250(b)(1) sets
the 	maximum 	penalty 	at 	life 	imprisonment 	when 	the 	offense 	involves
“aggravated sexual abuse, as defined in [18 U.S.C. §] 2241[.]” 18 U.S.C.
§ 250(b)(1). Blackwell is correct that 18 U.S.C. § 2241 provides multiple ways
a person can commit “aggravated sexual abuse.” 	See 18 U.S.C. § 2241(a), (b),
(c). 	But the indictment need not spell out which theory of aggravated sexual
abuse it will rely on, as the government may rely on more than one. 	Zackery,
494 F.3d 644, 649 (8th Cir. 2007); Platter, 514 F.3d at 787; see also Fed. R.
Crim. P. 7(c)(1). 	The elements for each type of aggravated sexual abuse are
contained in 18 U.S.C. § 2241. 	Blackwell can use that statute to prepare for
trial. Thus, Count 6 of the indictment contains sufficient information to fairly
inform Blackwell that he has been charged with aggravated sexual abuse as
defined in 18 U.S.C. § 2241, the elements of which are enumerated therein.
The Court overrules this objection.
D. Apprendi is not a reason to dismiss Count 6 either.
Blackwell 	objects 	to 	the 	magistrate 	judge’s 	recommendation 	to 	not
dismiss 	Count 	6 	of 	the 	indictment 	because, 	he 	argues, 	the 	magistrate
“erroneously relied on pre-Apprendi cases for the rule that an indictment ‘need
not set forth factors that are relevant only to the sentencing’ of an offender.”
Doc. 126 at 5 (quoting Doc. 124 at 10, in turn quoting Almendarez-Torres v.
United States, 523 U.S. 224, 228 (1998)). 	Blackwell argues that “aggravated
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sexual abuse” must be charged in the indictment under the Fifth and Sixth
Amendment because it is a sentencing allegation other than a prior conviction.
Doc. 126 at 5 (citing Apprendi v. New Jersey, 530 U.S, 466, 476 (2000)).
1. Legal Standard
While 	construing 	a 	federal 	statute 	in 	Jones 	v. 	United 	States, 	the
Supreme 	Court 	held 	that 	“under 	the 	Due 	Process 	Clause 	of 	the 	Fifth
Amendment and the notice and jury trial guarantees of the Sixth Amendment,
any fact (other than prior conviction) that increases the maximum penalty for
a crime must be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.” 	526 U.S. 227, 243 n. 6 (1999). 	In Apprendi, the
Supreme Court extended that rule to state statutes under the Fourteenth
Amendment. 530 U.S. at 476.
2. Application of law to facts
Blackwell is correct that the allegation of “aggravated sexual abuse” is a
sentencing allegation other than a prior conviction and must be charged in the
indictment under the Fifth and Sixth Amendments (although more precisely
under Jones rather than Apprendi based on the federal nature of the criminal
statute at issue). But he is wrong to think that the magistrate judge’s citation
to pre-Apprendi cases justifies dismissal of Count 6. 	“Aggravated sexual
abuse” was charged in Count 6 of the indictment. 	See Doc. 84 at 5. 	And the
allegation 	of 	“aggravated 	sexual 	abuse” 	in 	Count 	6 	provided 	sufficient
information 	to 	fairly 	inform 	Blackwell 	that 	he 	has 	been 	charged 	with
aggravated sexual abuse as defined in 18 U.S.C. § 2241, the elements of which
are enumerated in the statute referenced by the indictment. 	See supra, Part
I. B. and I. C. 	Count 6 need not be dismissed based on Apprendi. 	The Court
overrules this objection.
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E. Blackwell is not entitled to a bill of particulars further
defining “kidnapping” and “aggravated sexual abuse.”
Blackwell also objects to the magistrate’s conclusion that he was not
entitled to a bill of particulars. Doc. 126 at 5. Specifically, Blackwell rehashes
the same arguments he made about why the kidnapping and sexual abuse
allegations should be dismissed. Id.; supra, parts I.A., I.B., and I.C.
1. Legal Standard
The purpose of a bill of particulars is to inform the defendant of the
nature of a charge with ‘sufficient precision to enable him to prepare for trial;
and ‘to avoid or minimize the danger of surprise at trial.’” United States v.
Livingstone, 	576 	F.3d 	881, 	883 	(8th 	Cir. 	2009) 	(citing 	United 	States 	v.
Hernandez, 299 F.3d 984, 989–90 (8th Cir. 2002)). The purpose is not, however,
to provide the defendant with discovery or to provide detailed disclosure of the
government’s evidence. 	United States v. Lundstrom, 880 F.3d 423, 439 (8th
Cir. 	2018). 	Courts 	have 	broad 	discretion 	to 	deny 	motions 	for 	a 	bill 	of
particulars. United States v. Sileven, 985 F.2d 962, 966 (8th Cir. 1993).
2. Application of law to facts
Blackwell argues that a bill of particulars is warranted because (1) the
elements 	and 	underlying 	facts 	for 	the 	kidnapping 	allegations 	were 	not
identified, and (2) the aggravated sexual abuse allegation was not narrowed to
a single theory of liability. Doc. 126 at 5. 	Both arguments fail for the same
reasons set forth in Part I.B and I.C. The Court finds that a bill of particulars
is not appropriate and overrules this objection.
II. 	18 U.S.C. § 1519
In a second motion to dismiss, Blackwell moved to dismiss all counts
charging 18 U.S.C. § 1519 in the Second Superseding Indictment (Counts 3, 5,
8, 10, 12, 14, 16, 19, 21, 23, 25, 27, 29, 31, 33, and 35) on the ground that they
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failed to state an offense. Doc. 94 at 1. 	Each of those counts of the Second
Superseding 	Indictment 	included 	the 	allegation 	that 	Blackwell 	“altered,
concealed, 	covered 	up, 	and 	falsified 	a 	NCPC 	record 	by 	turning 	off 	his
department-issued body worn camera” at a relevant time. Doc. 84 at 3–4, 6–
10, 12–21. 	In his motion to dismiss each of these offenses, Blackwell claimed
that turning off a department-issued body-worn camera at a relevant time does
not constitute “alter[ing], conceal[ing], cover[ing] up, [or] falsifying” a record.
Doc. 94 at 2. 	Thus, Blackwell argued that each of these counts should have
been dismissed. Id. In the alternative, Blackwell “move[d] to strike from these
[18 U.S.C. § 1519] counts the allegation that he altered, concealed, covered up,
and falsified a NCPC record ‘by turning off his department-issued body worn
camera.’” Doc. 94 at 1.
The government 	responded 	to Blackwell’s arguments by 	moving to
dismiss the challenged language from each § 1519 count except Count 35,
which 	the 	government 	moved 	to 	dismiss 	completely. 	Doc. 	102 	at 	1
(Government’s Motion to Strike Surplusage); Doc. 103 (Motion to Dismiss
Count 35). The magistrate judge granted the government’s motion to dismiss
Count 35. 	The magistrate judge then granted the government’s motion to
strike (in the rest of the counts) the words “turning off his department-issued
body worn camera before concluding his interaction with [initials of respective
victim] and,” on the basis that both the government and Blackwell agreed to
striking that language. Doc. 124 at 3. In the absence of the stricken language,
the magistrate judge recommended denying Blackwell’s motion to dismiss the
counts charging 18 U.S.C. § 1519. Id. at 5.
A. The counts charging 18 U.S.C. § 1519 need not be dismissed.
Blackwell objects to the magistrate judge’s recommendation to deny his
motion to dismiss, arguing that these counts should be dismissed because they
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still fail to state an offense. He also argues they should be dismissed because,
according to him, these counts included an invalid legal theory when the grand
jury returned the indictment. Doc. 126 at 5–6. The Court disagrees.
1. Legal Standard
The Fifth Amendment provides that “[n]o person shall be held to answer
for a[n]…infamous crime, unless on a presentment or indictment of a grand
jury.” U.S. Const. amend. V. Generally, a grand jury indictment “may not be
amended.” United States v. Ross, 210 F.3d 916, 922 (8th Cir. 2000) (citing
United States v. Burnett, 582 F.2d 436, 438 (8th Cir. 1976)). 	“The court may,
however, amend an indictment by striking language that is merely a matter of
form, or where the language omitted is surplusage and nothing is thereby
added to the indictment and the remaining allegations state the elements of
an offense.” Id. (cleaned up).
2. Application of law to facts
Because the magistrate judge struck the allegedly offensive language,
Blackwell’s motion to dismiss on the grounds that the indictment includes that
language is moot.
Blackwell 	also 	claims 	that 	the 	18 	U.S.C. 	§ 1519 	counts 	should 	be
dismissed because “the grand jury returned an indictment based on an invalid
legal theory” (even if the allegedly offending language is now stricken). 	Doc.
126 at 5–6. 	Blackwell provides no authority supporting his argument, and it
fails anyway.
The counts alleging violation of 18 U.S.C. § 1519 in the original Second
Superseding Indictment (the one including Count 35) did not allege that simply
turning off one’s “department-issued body worn camera before concluding [an]
interaction with [a victim],” Doc. 84 at 3–4, 6–10, 12–20, is itself sufficient to
“knowingly alter[], conceal[], cover[] up, or falsif[y]…any record” under 18
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U.S.C. § 1519. The better read of Counts 3, 5, 8, 10, 12, 14, 16, 19, 21, 23, 25,
27, 29, 31, and 33 of the Second Superseding Indictment is that turning off
one’s body camera and then lying about it in the record one subsequently writes
constitutes 	“knowingly 	alter[ing], 	conceal[ing], 	cover[ing] 	up, 	or
falsif[ying]…[a] record.” 	Here is the full text from the Second Superseding
Indictment:
Specifically, the defendant knowingly altered, concealed, covered up, and
falsified a NCPC record by turning off his department-issued body worn
camera before concluding his interaction with K.W. and including a false
statement in his written report of the arrest of K.W., specifically that
his department-issued body camera was active and recorded the
entirety of the call.
Doc. 	84 	at 	4 	(emphasis 	added). 	Dropping 	the 	words: 	“turning 	off 	his
department-issued body worn camera before concluding his interaction with
[initials of respective victim] and” is not necessary to the offense alleged in
Counts 3, 5, 8, 10, 12, 14, 16, 19, 21, 23, 25, 27, 29, 31, and 33, and so does not
violate the Fifth Amendment right to be indicted by a grand jury. 	See Ross,
210 F.3d at 922 (“[t]he court may . . . amend an indictment by striking language
that is . . . surplusage and nothing is thereby added to the indictment and the
remaining allegations state the elements of an offense) (cleaned up); see also
United States v. Miller, 471 U.S. 130, 136 (1985) (“A part of the indictment
unnecessary to and independent of the allegations of the offense proved may
normally be treated as ‘a useless averment’ that ‘may be ignored.’” (quoting
Ford v. United States, 273 U.S. 593, 602 (1927))). The Court denies Blackwell’s
motion 	to 	dismiss 	all 	remaining 	counts 	charging 	18 	U.S.C. 	§ 	1519 	and
overrules this objection.
Conclusion
Blackwell’s objections (Doc. 126) are overruled, and Judge Cohen’s
report and recommendation (Doc. 124) is adopted except as altered by this
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order. Blackwell’s motion to dismiss all counts charging 18 U.S.C. § 242,
including his separate challenge to Count 6, is DENIED. 	Blackwell’s motion
for a bill of particulars is DENIED. 	Blackwell’s motion to dismiss the counts
charging 18 U.S.C. § 1519 is DENIED.
SO ORDERED.
December 22, 2025
___________________________
Maria A. Lanahan
United States District Judge
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