Opinion
No. 06-1957-cr.
November 19, 2007.
UPON DUE CONSIDERATION of this appeal from the judgment entered by the United States District Court for the Eastern District of New York (Sifton, J.), it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.
For Defendant-Appellant: Roger Adler, New York, New York. For Appellee: Lee Freedman (Susan Corkery, John Buretta, of counsel , on the brief ), Assistant United States Attorneys, for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, New York.
PRESENT: JOSEPH M. McLAUGHLIN, HON. JOSÉ A. CABRANES, HON. ROBERT D. SACK, Circuit Judges.
Defendant Antone Porter appeals the district court's judgment convicting him, after a jury trial, of one count of conspiracy to distribute and possess with intent to distribute marijuana and cocaine base in violation of 21 U.S.C. § 846. Porter also appeals his sentence. We assume the parties' familiarity with the facts, the procedural history, and the scope of the issues presented on appeal.
Porter's argument that the district court erred in denying his motion to dismiss the indictment fails. A criminal defendant is entitled to an indictment that is "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c). This Court has "consistently upheld indictments that do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (internal quotation marks omitted). Here, the indictment and the superseding indictment provided Porter with notice of the charge against him and its essential elements, the approximate dates and general location of the narcotics conspiracy, and the type of narcotics involved. This is sufficient to satisfy Rule 7(c).
Likewise, the district court did not abuse its discretion in denying Porter a bill of particulars. "A bill of particulars is required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004) (internal quotation marks omitted). The Government provided Porter with pretrial discovery that included detailed information about where, when, and by whom the Government would seek to prove the drugs were distributed. In light of these disclosures, it cannot be said that Porter was not sufficiently advised of the specific acts of which he was accused prior to trial.
Porter also argues that insufficient evidence supported the jury's finding that he agreed to distribute crack cocaine through a steering arrangement by which he and other marijuana dealers referred customers seeking crack to crack dealers, and vice versa. This argument ignores testimony by an undercover detective that Porter sold marijuana in tandem with other defendants who sold crack; that a crack seller steered the detective to Porter for a marijuana sale; and that Porter steered the detective to a crack seller for a crack sale. This testimony provided ample basis for the jury to conclude that Porter entered into the agreement. United States v. Rea, 958 F.2d 1206, 1214 (2d Cir. 1992) (proof of tacit understanding suffices to show agreement).
In addition, Porter's sentence is procedurally reasonable. The district court correctly calculated the applicable Guidelines range and properly considered the 18 U.S.C. § 3553(a) factors. Further, Porter's objection to the district court's reliance on statements made by defendants in other related proceedings fails, as district courts may consider hearsay evidence in imposing sentence as long as it has "sufficient indicia of reliability." United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (internal quotation marks omitted). Here, the evidence considered by the district court was reliable, as it was drawn from related proceedings where the declarants were either subject to cross-examination or under oath in a plea allocution.
Finally, our review of the record reveals no basis for concluding that the sentence was substantively unreasonable.
For the foregoing reasons, the judgment of the district court is AFFIRMED.