MEMORANDUM OPINION AND ORDER

ANN MONTGOMERY, District Judge

I. INTRODUCTION

This matter is before the undersigned United States District Judge pursuant to the Objections of Defendant Allen Steven Mickle ("Defendant") [Docket No. 30] to the Report and Recommendation ("RR") of Magistrate Judge Arthur J. Boylan [Docket No. 28] and Defendant's Appeal From Magistrate's Pretrial Order [Docket No. 31] to Judge Boylan's Order on Motion for Bill of Particulars and Motion to Strike Surplusage ("Order") [Docket No. 27]. Both the RR and the Order were issued on September 3, 2004.

The RR denies Defendant's Motions to Suppress Eyewitness Identifications [Docket No. 13] and to Suppress Statements, Admissions and Answers [Docket No. 14]. The Order denies Defendant's Motions for a Bill of Particulars [Docket No. 10] and to Strike Surplusage [Docket No. 23]. The factual background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections and Appeal. For the reasons set forth below, the Objections and Appeal are denied, and the RR and Order are adopted.

II. DISCUSSION

In appeals of nondispositive pretrial matters, the district court must set aside any portion of the magistrate judge's ruling that is "clearly erroneous or contrary to law." See D. Minn. LR 72.1(b)(2).

A. Report and Recommendation

Defendant objects to two recommendations of the RR. Defendant first objects to the finding that the eyewitness identification of Defendant was not improperly suggestive. Second, Defendant objects to the RR's conclusion that the statements made by Defendant during his transport were not the result of threats, promises, or other forms of coercion, and were not obtained in violation of Defendant's constitutional rights. Defendant also objects to the factual finding that "the agent's reply to the defendant's question was not designed to elicit further statements from the defendant." RR at 4. Based on the following, the recommendations of the RR are adopted.

Defendant relies on his previously filed memorandum in support of his motions to suppress as the basis for his Objections to the RR. The first Objection relates to the recommendation regarding eyewitness identifications. Defendant argues that the pictures included in the lineups and their manner of arrangement in the lineups created a substantial likelihood of irreparable misidentification with respect to Defendant. The RR found that each photo array consisted of males having the same or similar physical characteristics (complexion, hairstyle, and facial hair) for that array. Additionally, although one of the identical twins is shown in one array and the other twin is shown in the second array, all of the photos in the arrays are alike in size and view, and none of the same individuals are depicted on both lineups. Accordingly, the lineups did not create a substantial likelihood of irreparable misidentification with respect to Defendant because the lineups were not impermissibly suggestive.See United States v. Johnson, 56 F.3d 947, 953-54 (8th Cir. 1995).

Defendant further argues that the manner in which the photo arrays were displayed to witnesses created constitutional grounds for suppression. The RR found that Maureen Stack's identification of one twin depended on different reasons from her identification of the other twin (Ms. Stack identified the first twin as a person known to her as "Star" and the second twin as a coworker's boyfriend). Moreover, the RR found that Carmelina Barber was not advised by the police that they were investigating identical twins. Ms. Barber's prior viewing of a photo array containing one twin does not create an overly suggestive circumstance as to the identification of the second twin, this defendant. Finally, a lineup witness need not explicitly identify which Mickle twin was known to the witness. As stated in the RR, whether the witness is ultimately able to distinguish one twin from the other twin may be subject to cross-examination. The fact that this issue might later be contested at trial does not, however, compel a determination that the lineups were presented in an unconstitutionally suggestive manner. Accordingly, these witness identifications should not be suppressed on the basis of the method of presentation to witnesses. See United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991).

The second Objection relates to the recommendation regarding Defendant's in-transport statements to federal agents. Defendant argues that the statements taken after Agent Nichols advised Defendant of his Miranda rights should be suppressed because the government failed to establish a sufficient waiver of Defendant's right to counsel. Miranda only bars statements made by a defendant in custody where the defendant was not given a proper warning and the statements were made in response to interrogation. United States v. Waloke, 962 F.2d 824, 829 (8th Cir. 1992). The RR found that any questioning by government agents ceased upon Defendant's assertion of his right to counsel. The RR further found that Defendant voluntarily offered his subsequent statements relating to prison time and past arrests. The statements were not made in response to questioning by agents or in response to discussions initiated by agents. The statements were not the products of threats, promises, or other forms of coercion, and were not obtained in violation of Defendant's constitutional rights. Accordingly, Defendant's Objections are denied.

Finally, Defendant objects to the factual finding of the RR that "the agent's reply to the defendant's question was not designed to elicit further statements from the defendant." Defendant offers no rebuttal as to why this finding is inaccurate. The RR notes that the comments by the agent were made as a direct response to Defendant's question. With no evidence to suggest that the agent did anything to elicit further statements from the Defendant, the finding will not be overturned. The factual findings of the RR will be adopted.

B. Order

Defendant appeals Judge Boylan's Order denying his Motions for a Bill of Particulars and to Strike Surplusage. In regard to the denial of his Motion for a Bill of Particulars, Defendant relies on his memorandum in support of the Motion. In his memorandum, Defendant argues that the government has indicted one broad conspiracy; however, the evidence adduced during discovery indicates the government intends to prove either a number of different conspiracies, or one narrow conspiracy. In addition, Defendant argues in his Appeal that a bill of particulars might avoid a potential mistrial if the government were to present a case that materially differs from the charges contained within the Superseding Indictment. In opposition, the government states that only one conspiracy theory has been charged, and that is the theory upon which the government intends to proceed.

Judge Boylan's Order correctly notes that the Superseding Indictment [Docket No. 17], along with the pretrial disclosures, are sufficient to inform the defendant of the charges against him and prevent surprise or prejudice at trial. An examination of the Superseding Indictment reveals that one conspiracy is set forth in detail, satisfying the requirements of this Circuit. See United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993) ("An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution"). Accordingly, Defendant's Appeal of the Order will be denied on this ground.

Defendant also objects to the Order with respect to the denial of his Motion to Strike Surplusage. In his memorandum in support of that Motion [Docket No. 24], Defendant argued that the inclusion of sentencing factors in the Superseding Indictment was unconstitutional in light of Blakely v. Washington, 124 S.Ct. 2531 (2004) (finding Washington State's sentencing guidelines unconstitutional). Defendant also asserted the sentencing allegations set forth in the Superseding Indictment do not relate to the crimes charged. Finally, Defendant alleged the sentencing allegations reference an incorrect guideline. The RR concluded that Blakely did not overturn the federal sentencing guidelines, and, in any event, Defendant failed to argue that the sentencing allegations were prejudicial. In his Appeal, however, Defendant apparently abandons his arguments regarding the constitutionality of the sentencing enhancements. Instead, Defendant claims the sentencing allegations are immaterial and prejudicial to him. Defendant proposes a bifurcated trial as a remedy.

The RR correctly noted that a motion to strike surplusage from an indictment is within the district court's discretion and should be granted only where it is clear that the language at issue is not relevant to the charges or contains inflammatory material. United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir. 1990). The sentencing allegations here do not appear, on their face, to be prejudicial, and therefore, the RR will be adopted.

The RR's position on the constitutionality of the sentencing guidelines is, at least for the time being, accurate. As a result, Defendant's Motion to Strike Surplusage will be denied. Issues relating to how and when the jury learns of the sentencing enhancement allegations of the Superseding Indictment can be discussed on the trial date.

III. CONCLUSION

1. Judge Boylan's RR and Order [Docket Nos. 28 and 27] are ADOPTED in their entirety;

2. Defendant's Objections and Appeal [Docket Nos. 30 and 31] are DENIED;

3. Defendant's Motions to Suppress Eyewitness Identifications [Docket No. 13] and to Suppress Statements, Admissions and Answers [Docket No. 14] are DENIED; and

4. Defendant's Motions for a Bill of Particulars [Docket No. 10] and to Strike Surplusage [Docket No. 23] are DENIED.