1Although the original indictment named nineteen (19) defendants, the nineteenth defendant, Mr. Frank

Robinson, was dismissed shortly after his death.

IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES of AMERICA : CRIMINAL ACTION

:

v. :

:

TEDDY YOUNG, et al. : No. 05-56

:

:

 MEMORANDUM

STENGEL, J. August 9, 2006

Currently before the court is defendant William McCoy’s motion to dismiss the

indictment. For the reasons set forth below, I will deny that motion.

I. BACKGROUND

This case involves an FBI wiretap on the cellular telephone of defendant Theodore

Young, Jr. (“Young”). The wiretap occurred from September 7, 2001, to June 8, 2002. 

All eighteen (18) defendants currently implicated in this case were intercepted in the

wiretap and charged in a federal indictment for being members and participants in the

Young Heroin Organization (“YHO”).1 As detailed in the indictment, all of the charged

defendants engaged in discussions concerning the distribution of controlled substances. 

In particular, the indictment alleges that defendant McCoy received processed, packaged,

and stamped heroin from Young and distributed the heroin by selling it on the streets. In 

Case 2:05-cr-00056-LS Document 377 Filed 08/09/06 Page 1 of 6
2

exchange for reselling the packaged heroin, McCoy allegedly received a portion of the

proceeds obtained from the sale of the heroin with the remainder going to Young. 

II. DISCUSSION

McCoy’s contends that the indictment is fatally flawed because it: (1) improperly

alleges a single conspiracy rather than multiple conspiracies; (2) the conspiracy count

fails to set forth an illegal agreement and is, therefore, insufficient; and (3) the evidence

before the grand jury regarding the telephone count was insufficient. All three arguments

are without merit.

A. The Indictment Properly Alleges a Single Conspiracy

As the Third Circuit stated in United States v. Boyd: 

The gist of a criminal conspiracy, the agreement between

co-conspirators, may continue over an extended period of

time and involve numerous transactions. Parties may join the

conspiracy after its inception, and may withdraw and

terminate their relationship with the conspiracy prior to its

completion. . . . The fact that conspirators individually or in

groups perform different tasks in pursuing the common goal

does not, by itself, necessitate a finding of several distinct

conspiracies. . . . And even if a small group of co-conspirators

are at the heart of an unlawful agreement, others who

knowingly participate with the core members and others to

achieve a common goal may be members of a single

conspiracy. . . . It follows from these basic principles that the

government, without committing a variance between a single

conspiracy charged in an indictment and its proof at trial, may

establish the existence of a continuing core conspiracy which

attracts different members at different times and which 

Case 2:05-cr-00056-LS Document 377 Filed 08/09/06 Page 2 of 6
3

involves different sub-groups committing acts in furtherance

of the overall plan.

United States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978) (internal citations omitted). 

Furthermore, in United States v. Kelly, 892 F.2d 255 (3d Cir. 1989), the Third Circuit

established a three-step inquiry “[t]o determine whether a series of events constitutes a

single conspiracy or separate, unrelated conspiracies.” Kelly, 892 F.2d at 259. This

inquiry requires: (1) determining whether there was a common goal among the

conspirators; (2) examining the nature of the scheme and determining whether the

agreement sought to bring about a continuous result which could not be sustained without

the continued cooperation of the conspirators; and (3) examining the extent to which the

participants overlapped in various dealings. Id. But see United States v. Padilla, 982

F.2d 110, 115 (3d Cir. 1992) (“we note that the Kelly factors are most useful to show the

existence of a single conspiracy, but that the absence of one factor does not necessarily

defeat an inference of the existence of a single conspiracy”).

In this case, the grand jury returned an indictment charging a violation of 21

U.S.C. § 846, laying out the basis for the single conspiracy, and further listing overt acts

committed by the defendants. In particular the indictment alleges that the YHO made a

highly coordinated and organized effort to supply heroin to the city of Philadelphia. 

Young, as the leader of the organization, used and employed cuthouse workers and

several re-sellers to distribute the heroin throughout Philadelphia. The cuthouse workers

would “cut” the heroin by mixing it with another substance and then package the “cut”

Case 2:05-cr-00056-LS Document 377 Filed 08/09/06 Page 3 of 6
4

heroin for distribution. The heroin would then be sold on the streets by re-sellers, like

McCoy. Furthermore, the indictment alleges that there was a unity of purpose to

distribute the heroin rather than a random group of networks operating independently of

each other. This factual particularity within the indictment is more than sufficient to

survive a motion to dismiss. See United States v. Watkins, No. 03-cr-309, 2005 U.S.

Dist. LEXIS 32583 (E.D. Pa. Dec. 13, 2005) (denying motion to dismiss indictment on

variance grounds prior to trial). 

B. The Conspiracy Count Sufficiently Sets Forth an Illegal Agreement

McCoy alleges that the indictment fails to properly allege an illegal agreement

between the defendants as a matter of law. The indictment states in pertinent part:

[the defendants] conspired and agreed together and with

others known and unknown to the grand jury, to

a) knowingly and intentionally distribute in excess of 1

kilogram of a mixture or substance containing a

detectable amount of heroin, a Schedule I controlled

substance, in violation of Title 21, United States Code,

Sections 841(a)(1) and 841(b)(1)(A), and;

b) knowingly and intentionally distribute a mixture or

substance containing a detectable amount of heroin, a

Schedule I controlled substance, in violation of Title

21, United States Code, Section 841(a)(1), within

1,000 feet of the real property comprising the J.B.

Kelly School, a public elementary school, located at

the intersection of Hansburry Street and Pulaski

Avenue in Philadelphia, Pennsylvania, in violation of

Title 21, United States Code, Section 860(a).

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5

Consequently, an illegal agreement to distribute heroin, and to do so within a

statutorily protected area, is properly alleged. See United States v. Niederberger, 580

F.2d 63, 68 (3d Cir. 1978) (finding it is well settled law that a statute describing a

criminal offense disjunctively may be charged conjunctively in an indictment). 

C. The Evidence was Sufficient as to the Telephone Count

Generally, challenges to the sufficiency of the evidence presented to the grand jury

after an indictment has been returned are improper. Costello v. United States, 350 U.S.

359, 363 (1956). In this case, McCoy’s contentions that there was insufficient evidence

before the grand jury is conclusionary and without merit. The grand jury returned a

properly pled indictment, and the government fully intends to prove the allegations

contained in the indictment at trial. There is no reason to dismiss the indictment for

insufficient evidence at this time.

III. CONCLUSION

McCoy’s motion fails to provide this court with any valid reason to dismiss the

indictment. An appropriate Order follows.

Case 2:05-cr-00056-LS Document 377 Filed 08/09/06 Page 5 of 6
IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES of AMERICA : CRIMINAL ACTION

:

v. :

:

TEDDY YOUNG, et al. : No. 05-56

:

:

 ORDER

AND NOW, this 9th day of August, 2006, upon consideration of defendant

William McCoy’s Motion to Dismiss the Indictment and Other Relief (Docket # 313), and

the government’s response thereto, it is hereby ORDERED that the motion is DENIED.

BY THE COURT:

 s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J.

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