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United States District Court

For the Northern District of California 

*E-Filed 08/03/2010* 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

CHRISTOPHER BRYAN ABLETT, 

 Defendant. 

____________________________________/

No. C 09-00749 RS 

ORDER (1) DENYING DEFENDANT’S 

MOTIONS TO DISMISS THE 

INDICTMENT, (2) DENYING 

DEFENDANT’S MOTION TO STAY, 

AND (3) GRANTING IN PART AND 

DENYING IN PART DEFENDANT’S 

MOTION FOR A BILL OF 

PARTICULARS

I. INTRODUCTION 

 This action flows from the violent death of Mark Guardado. A three count Indictment was 

filed against Christopher Bryan Ablett on July 23, 2009, charging Ablett with murder in aid of 

racketeering, use and possession of a firearm in a murder, and use and possession of a firearm in 

relation to a crime of violence. Defendant has filed motions: (1) to dismiss pursuant to Rule 7(c)(1) 

of the Federal Rules of Criminal Procedure for failure to identify specifics of the racketeering 

activity; (2) for a bill of particulars; (3) to dismiss Counts Two and Three pursuant to the 

introductory clause of 18 U.S.C. Section 924(c)(1); (4) for election or dismissal of Counts Two and 

Three because of multiplicity; and (5) to stay the federal proceedings to allow defendant to return to 

state court. The Government’s response and defendant’s reply to the motions have been filed, and 

the parties appeared for oral argument on June 15, 2010. For the reasons stated below, the Court 

denies defendant’s motions to dismiss and motion to stay, and grants in part and denies in part 

defendant’s motion for a bill of particulars. 

// 

// 

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II. BACKGROUND 

 On September 2, 2008, Guardado, the purported President of the San Francisco Chapter of 

the Hell’s Angels, was shot and killed in San Francisco, California. The San Francisco Police 

Department had reason to believe an individual from an alleged rival motorcycle gang, the Mongols, 

was involved in the shooting, and on September 9, 2008 a San Francisco County Superior Court 

Judge issued an arrest warrant for Ablett. Shortly thereafter, Ablett made an initial appearance in 

state court. 

 On July 23, 2009, a federal grand jury returned an indictment charging Ablett with three 

crimes arising from the September 2, 2008 incident. Count One alleges that Ablett murdered 

Guardado for the purpose of gaining entrance to, maintaining, or increasing his position in the 

Mongols, an enterprise which purportedly engages in racketeering activity, in violation of 18 U.S.C. 

§ 1959, the Violent Crimes in Aid of Racketeering Activity (“VICAR”) statute. Count Two alleges 

that he used and possessed a firearm in furtherance of committing the murder in Count One, in 

violation of 18 U.S.C. § 924(j)(1). Count Three alleges that he used a firearm in furtherance of the 

crime of violence in Count One, in violation of 18 U.S.C. § 924(c)(1)(A). 

 After the grand jury returned the Indictment, the United States sought a Writ of Habeas 

Corpus ad Prosequendum as to Ablett. The defendant was removed from San Francisco County jail, 

and made his first appearance in this Court on July 29, 2009. 

III. DISCUSSION 

A. Motion to Dismiss Pursuant to Rule 7(c)

Ablett argues that Count One should be dismissed because the Indictment fails to identify 

the time and place of the racketeering activity allegedly engaged in by the Mongols, the identity of 

the victims of such activity, or what the phrase “times relevant to this Indictment” means. Under the 

Federal Rules of Criminal Procedure, an indictment “must be a plain, concise and definite written 

statement of essential facts constituting the offense charged.” Fed. R. Crim. Proc. 7(c)(1). 

“Generally, an indictment is sufficient if it sets forth the elements of the charged offense so as to 

ensure the right of the defendant not to be placed in double jeopardy and to be informed of the 

offense charged.” United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004) (citing U.S. v.

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Woodruff, 50 F.3d 673, 676 (9th Cir. 1995)). A “bare bones” indictment that employs the statutory 

language alone is ‘“quite common and entirely permissible so long as the statute sets forth fully, 

directly and clearly all essential elements of the crime to be punished.’” United States v. Fernandez, 

388 F.3d 1199, 1219-20 (9th Cir. 2004) (citing Woodruff, 50 F.3d at 676). Although the Indictment 

here is indeed bare bones, it tracks the VICAR statutory language and is sufficiently complete to 

defeat dismissal. 

VICAR proscribes the commission of violent crimes “for the purpose of gaining entrance to 

or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 

1959. To prove a VICAR violation, the government must establish that: (1) the criminal 

organization exists; (2) the organization is a racketeering enterprise; (3) the defendant committed a 

violent crime; and (4) the defendant acted, at least in part, for the purpose of promoting his position 

in the racketeering enterprise. United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995) (citing 

United States v. Vasquez-Velasco, 15 F.3d 833, 842 (9th Cir.1994)). 

In United States v. Fernandez, the defendants argued that an indictment failed to plead 

adequately the requisite motive and intent for a VICAR violation. 388 F.3d at 1219. The Ninth 

Circuit held that the indictment, which alleged generally that the violation was committed for the 

“purpose of maintaining and increasing the positions of the specified defendants in the Mexican 

Mafia,” tracked the required elements of the VICAR statute and was therefore sufficient. Id. at 

1220. Similarly, the Indictment here sufficiently tracks the statutory language. The Indictment 

alleges that, “[o]n or about September 2, 2008,... as consideration for the receipt of, and as 

consideration for a promise and agreement to pay, anything of pecuniary value from the Mongols, 

and for the purpose of gaining entrance to and maintaining and increasing his position in the 

Mongols, an enterprise engaged in racketeering activity, the defendant... unlawfully and knowingly 

did murder Mark Guardado.” The fact that the Indictment does not specify the time, place, or 

particulars of the Mongols’ alleged racketeering activity does not deprive the defendant of his ability 

to prepare a defense or to plead double jeopardy against a later prosecution. See United States v. 

Toliver, No.2:06-cr-00234-PMP-GWF, 2007 WL 923561, at *4-6 (D. Nev. Mar. 23, 2007), aff’d, 

2010 WL 2034766 (9th Cir. 2010) (finding that the Government need not identify specific 

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individuals who are members of a racketeering enterprise, and that an indictment provided sufficient 

notice under Section 1959 by alleging that “[the racketeering enterprise] was an existing enterprise 

engaged in racketeering activity when the Defendants committed the alleged [murder] on September 

13, 2004”). Simply put, Section 1959 does not require the Government to prove a pattern of 

racketeering activity, but rather that the Mongols existed as a criminal enterprise engaged in 

racketeering on September 2, 2008, and that Ablett murdered Guardado at least in part for the 

purpose of promoting his position within that enterprise. See Bracy, 67 F.3d at 1429-1430. The 

Indictment alleges these elements in sufficient, albeit barebones, fashion. 

 Ablett relies on United States v. Cecil in arguing that the Indictment fails adequately to 

allege a specific time period for the racketeering activity. 608 F.2d 1294 (9th Cir. 1979). In Cecil, 

the defendants were charged with conspiracy to distribute controlled substances in a two paragraph 

indictment that alleged no overt acts and failed to specify a time frame for the very conspiracy for 

which the defendants were charged. Id. at 1297. Unlike the Cecil indictment, however, the 

Indictment here alleges a specific VICAR act - the murder of Guardado - committed on September 

2, 2008. In other words, this case is distinguishable from Cecil in that there is little uncertainty as to 

the time frame of the alleged VICAR violation.1

 Moreover, as the Ninth Circuit has clarified, 

“[u]ncertainty regarding a conspiracy’s beginning and ending dates does not render an indictment 

fatally defective so long as overt acts alleged in the indictment adequately limit the time frame of 

the conspiracy.” United States v. Forrester, 2010 WL 2977722, at *8 (9th Cir. Jul. 30, 2010) 

(quoting United States v. Laykin, 866 F.2d 1534, 1542 (9th Cir. 1989)). Therefore, as the 

Indictment adequately tracks the language of the statute and sufficiently informs the defendant of 

the date of the alleged VICAR offense, defendant’s motion to dismiss Count One pursuant to Rule 

7(c) must be denied. 

 

1

 In addition, the district court in Cecil recognized that the indictment was seriously deficient, but 

determined that the deficiencies were remedied in the granting of a bill of particulars. 608 F.2d at 

1296. The Ninth Circuit, however, explained that a bill of particulars cannot save an invalid 

indictment because, if it could, defendants would be denied a basic protection of grand jury 

proceedings in that they could potentially be convicted on facts not found by, or even presented to, 

the grand jury. Id. at 1297 (citing United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979)). 

Although the Court here grants certain specific requests in Ablett’s motion for a bill of particulars, 

those requests clarify particular areas of ambiguity in the Indictment and are not designed to remedy 

any perceived deficiencies. 

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B. Motion for Bill of Particulars

 In the event his motion to dismiss the VICAR count is denied, Ablett requests that the Court 

direct the Government to file a bill of particulars pursuant to Rule 7(f) of the Federal Rules of 

Criminal Procedure, on the grounds that the Indictment is vague and includes a number of 

ambiguities. The decision to grant or deny a bill of particulars rests within the trial court’s 

discretion, and is appropriate where an indictment is ambiguous such that a defendant needs 

clarification in order to prepare a defense. U.S. v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983) 

(citations omitted). “[A bill of particulars] is designed to apprise the defendant of the specific 

charges being presented to minimize danger of surprise at trial, to aid in preparation and to protect 

against double jeopardy.” Id. In other words, the purpose of a bill of particulars is to clarify 

ambiguities in an indictment, not to serve as a replacement for discovery requests. Id.; see also, 

United States v. Ryland, 806 F.2d 941, 942 (9th Cir.1986) (“[a] defendant is not entitled to know all 

the evidence the government intends to produce but only the theory of the government's case”); U.S. 

v. Giese, 597 F.2d 1170, 1180-1181 (9th Cir. 1979) (“full discovery obviates the need for a bill of 

particulars”). 

 Ablett seeks ten separate requests in his motion for a bill of particulars.2

 As explained 

below, the motion will be granted as to a limited number of those requests which operate to clarify 

ambiguities in the Indictment. Besides those specific enumerated requests, defendant’s motion for a 

bill of particulars is otherwise denied. 

With respect to bill of particulars request (a), the Government shall clarify in paragraphs 1 

and 4 of the Indictment the time period encompassed within the phrase “[a]t all times relevant to this 

Indictment.” While the Indictment refers to the murder of Guardado on September 2, 2008, it also 

refers to ongoing criminal conduct by the Mongols gang, and is therefore vague and warrants 

clarification in order to put defendant on notice and prevent surprise at trial. With respect to bill of 

particulars request (f), the Government shall also clarify the precise offense or other acts included 

 

2

 In support of his motion for a bill of particulars, Ablett makes a number of references to United 

States v. Cerna, in which the Court ordered the Government “to provide a limited bill of particulars 

to clarify ambiguities and certain excessive generalities.” No. CR 08-0730 WHA, 2009 WL 

2998929 at *2 (N.D. Cal. Sept. 16, 2009). Cerna, however, is a markedly different scenario from 

this case, alleging 53 counts against 31defendants, including a number of conspiracy counts for 

which the specific requests as to the bill of particulars related. Id. 

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within the phrase “among other things” in paragraph 1 of the Indictment, within the phrase “include, 

but are not limited to” in paragraphs 5 and 6 of the Indictment, in the word “includes” in paragraph 

6(a) of the Indictment, and in the word “including” in paragraphs 6(a) and 7 of the Indictment. 

Although these words and phrases do not relate to Ablett’s charged conduct, but rather to the 

ongoing criminal activities of the Mongols gang, they leave open the possibility of other 

unidentified conduct that may be introduced and therefore are sufficiently vague to pose a danger of 

surprise at trial. Accordingly, the Government must clarify these words and phrases and must place 

boundaries in its response to the bill of particulars requests around the open-ended terms identified 

above. See U.S. v. Diaz, No. CR 05-00167 WHA, 2007 WL 196752 at *5 (N.D.Cal. Jan 23, 2007). 

C. Motion to Dismiss Based on Double Jeopardy

 Ablett seeks to require the Government to elect between Counts Two and Three of the 

Indictment. Alternatively, defendant alleges that Counts Two or Three should be dismissed because 

each arises out of the same predicate offense and are therefore multiplicitous, in violation of the 

Double Jeopardy clause of the Fifth Amendment. That constitutional protection provides that no 

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. 

Const. amend. V. Among other things, the “Fifth Amendment’s prohibition on double jeopardy 

protects against being punished twice for a single criminal offense.” United States v. Davenport, 

519 F.3d 940, 943 (9th Cir. 2008). In Blockburger v. United States, the Supreme Court established 

a test to determine if two offenses are independent of each other for Double Jeopardy purposes. 284 

U.S. 299, 304 (1932). Under this test, the court must determine “whether each provision requires a 

proof of fact which the other does not.” Id. 

Section 924(j) of Title 18 of the United States Code states, “[a] person who, in the course of 

violation of subsection (c), causes the death of a person through the use of a firearm” may be 

convicted under subsection (j)(1) if the “killing is a murder” as defined in 18 U.S.C. §1111. 18 

U.S.C. § 924(j)(1). Therefore, in order to convict the defendant of Count Two, the Government 

must prove that Ablett used a firearm in committing a murder. 18 U.S.C. § 924(j)(1). Section 

924(c) of Title 18 of the United States Code, on the other hand, provides that “[a] person who, 

during and in relation to any crime of violence or drug trafficking... uses or carries a firearm, or 

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who, in furtherance of any such crime, possesses a firearm” may be convicted under subsection 

(c)(1)(A). 18 U.S.C. § 924(c)(1)(A). To be convicted of Count Three, then, the Government must 

prove that Ablett used a firearm in furtherance of a crime of violence. Section 924(c) requires proof 

of a violent crime, but does not require proof of the specific crime of “killing” and/or “murder.” 

Thus, as explicitly stated in the statute and under the Blockburger test, Section 924(c) is a lesserincluded offense of Section 924(j) and does not invoke Double Jeopardy. See United States v. 

Jimenez-Torres, 435 F.3d 3, 10 (1st Cir. 2006) (Section 924(c)(1)(A) is a lesser-included offense of 

Section 924(j)(1) as a matter of law); United States v. Catalan-Roman, 585 F.3d 453, 472 (1st Cir. 

2009) (same). 

 Moreover, Counts Two and Three are only multiplicitous as they pertain to sentencing. As 

the Ninth Circuit stated in United States v. Jose, “[p]rosecutors should not be discouraged from 

charging defendants with greater and lesser included offenses in separate counts under the same 

indictment.” 425 F.3d 1237, 1247 (9th Cir. 2005); see also, Ohio v. Johnson, 467 U.S. 493, 500 

(1984). If a jury finds a defendant guilty of both the greater and lesser of included offenses, the trial 

court “[should] not enter a final judgment of conviction on both offenses, unless Congress clearly 

indicates that it intended to allow multiple punishments.” Id., 425 F.3d at 1247 (citing Rutledge v. 

United States, 517 U.S. 292, 302 (1996)). Counts Two and Three arise out of the same alleged act 

or transaction, and so a final judgment on both offenses may violate the Double Jeopardy clause. 

The prohibition against Double Jeopardy is inapplicable at this stage, however, where Ablett has yet 

to be tried. Accordingly, the Government is not required to elect between Counts Two or Three, 

and may proceed with both counts as alleged in the Indictment. Defendant’s motion for election or 

dismissal of Counts Two and Three because of multiplicity, therefore, must be denied. 

D. Motion to Dismiss Pursuant to the Introductory Clause of 18 U.S.C. § 924(c)(1)

 Ablett requests dismissal of Counts Two and Three based upon the Second Circuit’s 

interpretation of the introductory clause of Section 924(c), which provides for mandatory sentencing 

enhancements where firearms are possessed, brandished, or discharged during the commission of a 

violent or drug trafficking crime “[e]xcept to the extent that a greater minimum sentence is 

otherwise provided.” 18 U.S.C. § 924(c)(1)(A); see United States v. Williams, 558 F.3d 166 (2d 

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Cir. 2009); United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). In Williams and Whitley, the 

Second Circuit held that the mandatory minimum sentence under Section 924(c)(1)(A) is 

inapplicable where the defendant is subject to a greater minimum sentence for another offense. The 

holdings in Williams and Whitley addressed sentencing, however, and therefore are inapposite here, 

where Ablett has not been tried, let alone convicted and sentenced, on any of the charged conduct. 

Albett argues that the Second Circuit’s use of the word “inapplicable” in these cases means 

that Sections 924(c) and 924(j) themselves are inapplicable here because he is also charged with an 

offense that carries a possible death sentence. Instead, these cases simply mean that, were the Court 

to follow the Second Circuit, Section 924(c)(1)(A)’s mandatory minimum sentence would be 

inapplicable if Ablett is convicted on all three counts. Indeed, both Williams and Whitley upheld the 

respective convictions - each defendant had been convicted of Section 924(c) as well as another 

offense for which there was a greater minimum sentence - but remanded the cases for resentencing. 

Whitley, 529 F.3d at 151 (“[w]e agree that the consecutive minimum ten-year sentence is 

inapplicable to Whitley because he was subject to a higher fifteen-year minimum sentence as an 

armed career criminal”); Williams, 558 F.3d at 176 (affirming conviction and remanding “for 

resentencing... with our holding that [defendant] is not subject to the mandatory consecutive fiveyear minimum for the firearm conviction under Section 924(c)”). Nothing in those cases suggests 

that a conviction, let alone an indictment, for a violation of Section 924(c) combined with a 

conviction of a separate charge carrying a greater minimum sentence would be inconsistent with the 

statute. 

 Alternatively, Ablett requests that, because the United States Supreme Court has granted 

certiorari to resolve a circuit split as to the interpretation of Section 924(c)’s introductory clause, the 

Court should await resolution of the issue before proceeding to trial. United States v. Abbott, 574 

F.3d 203 (3rd Cir. 2009), cert. granted, Abbott v. United States, 130 S.Ct. 1284, 78 USLW 3254, 78 

USLW 3430, 78 USLW 3437 (U.S. Jan 25, 2010) (NO. 09-479) and United States v. Gould, 329 

Fed. Appx. 569 (5th Cir. Jul 29, 2009), cert. granted, Gould v. United States, 130 S.Ct. 1283, 78 

USLW 3430, 78 USLW 3437 (U.S. Jan 25, 2010) (NO. 09-7073). As with Williams and Whitley, 

however, the circuit courts in Abbot and Gould addressed the imposition of consecutive mandatory 

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minimum sentences; they did not address whether a defendant was properly charged with a violation 

of both Section 924(c) and an offense which carries a greater minimum sentence. Id. Moreover, 

even Ablett’s citation to United States v. Gardner, 2010 WL 801706 (2d Cir. Mar. 10, 2010), in 

which the Second Circuit suggested that the district court await resolution by the Supreme Court on 

the issue, fails to help him. Indeed, the court in Gardner, after confirming the conviction but 

remanding for resentencing, noted in dicta only that it would be “efficient use of judicial resources 

to await the Supreme Court's resolution of this issue before resentencing defendants in this case.” 

2010 WL 801706 at *3, FN 2 (emphasis added). That dicta in no way suggests that it would be 

improper to proceed to trial under the circumstances here. In short, Williams, Whitley, Abbot, Gould

and Gardner are inapplicable on the Section 924 counts at this juncture, and therefore defendant’s 

motion to dismiss Counts Two and Three must be denied. 

E. Motion to Stay

Ablett seeks to stay the federal proceedings so that he may return to state court and complete 

the related action in that forum. In support, he relies on the “anti-shuttling” provision of the 

Interstate Agreement on Detainers Act (“IADA”), and his right to a speedy trial. 18 U.S.C.A. App. 

2 § 2, art. IV(e). 

 Congress enacted the IADA in order to “systematize the transfer of prisoners between 

different facilities and jurisdictions in connection with multiple convictions and charges.” United 

States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980) (citing United States v. Ford, 550 F.2d 732, 740-

741 (2d Cir. 1977)). The statute was designed to remedy the “widespread disputes and delays which 

occurred before enactment of the agreement.” Id. The IADA, however, only applies to a defendant 

who has “entered upon a term of imprisonment in a penal or correctional institution in a party state.” 

18 U.S.C. App. 2, § 2, Article III(a). Thus, a pretrial detainee does not have a “sufficient interest in 

the rehabilitation programs of his confining institution to justify invocation of the [IADA].” Reed, 

620 F.2d at 711 (citations ommitted). Accordingly, the IADA does not apply to Ablett because, at 

the time the Indictment was filed, he had only made an initial appearance in state court. Ablett was 

not serving a “term of imprisonment” in a California correctional institution, and therefore cannot 

invoke the IADA. Moreover, federal and state prosecutors fully complied with the procedural 

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requirements for bringing federal charges against Ablett; the United States issued a Writ of Habeas 

Corpus ad Prosequendum as to Ablett, which the state honored. The Government and this Court 

have an interest in seeing these proceedings continue in a timely fashion, thereby affording Ablett 

his right to as speedy a trial as possible. Therefore, the motion to stay the federal proceedings to 

allow the state case to proceed first must be denied. 

IV. CONCLUSION 

 For the reasons stated above, defendant’s motions to dismiss and motion to stay are denied, 

and defendant’s motion for a bill of particulars is granted in part and denied in part. The 

Government is directed to respond to those granted bill of particulars requests within thirty days of 

the date of this order. 

IT IS SO ORDERED. 

Dated: 08/03/2010 

RICHARD SEEBORG 

UNITED STATES DISTRICT JUDGE 

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