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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

MARCUS ETIENNE, ELIZABETH

GOBERT, CRAIG MARSHALL, and

MARIO ROBINSON 

Defendants. /

No. CR 17-00093 WHA

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

MOTIONS FOR BILL OF

PARTICULARS

INTRODUCTION

In this prosecution under the Racketeer Influenced and Corrupt Organizations Act, the

Violent Crimes in Aid of Racketeering Act, and other penal statutes, defendants move for a bill

of particulars. For the reasons explained below, the motions are GRANTED IN PART AND DENIED

IN PART. 

STATEMENT

In August 2017, a federal grand jury returned a superceding indictment against

defendants Marcus Etienne, Elizabeth Gobert, Craig Marshall and Mario Robinson, charging six

counts. According to the ten-page superceding indictment, defendants were members of the

“Etienne Enterprise,” a criminal organization based in Louisiana. The superceding indictment

charges defendants with a drug conspiracy (Count One), murder during a narcotics offense
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(Count Two), use/possession of a firearm (Count Three), a RICO conspiracy (Count Four),

murder in aid of racketeering (Count Five), and conspiracy to commit murder in aid of

racketeering (Count Six) (Dkt. No. 37). 

Defendants each move for a bill of particulars. Robinson moves to join the motion

brought by Marshall, and Etienne moves to join the motions brought by Robinson and Marshall

(Dkt. Nos. 85–90).

ANALYSIS

FRCrP 7(f) provides that “[t]he court may direct the government to file a bill of

particulars.” Whether to grant a request for a bill of particulars is within the trial court’s

discretion. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). Our court of appeals has

explained that a bill of particulars serves three functions: (1) to inform the defendant of the

nature of the charges against him with sufficient precision to enable him to prepare for trial; (2)

to avoid or minimize the danger of surprise at the time of trial; and (3) to protect against double

jeopardy. United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991).

A bill of particulars should be limited to those purposes: “[a] defendant is not entitled to

know all the evidence the government intends to produce but only the theory of the

government’s case.” United States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986). Furthermore,

the government may add clarity to the allegations via discovery, and full discovery which reveals

the government’s theory of the case “obviates the need for a bill of particulars.” United States v.

Giese, 597 F.2d 1170, 1180 (9th Cir. 1979).

Each defendant submitted a list of information that they want the government to provide. 

To the extent now stated, the government will be ordered to provide a limited bill of particulars. 

The motions will otherwise be DENIED.

1. COUNT ONE. 

Count One of the superseding indictment charges all defendants with conspiring to

distribute and possess with the intent to distribute 100 kilograms or more of marijuana in

violation of Sections 846, 841(a)(1) and 841(b)(1)(B) of Title 21 of the United States Code. 

Robinson, Etienne, and Gobert seek information as to when each defendant is alleged to have
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joined the conspiracy and where (other than the Northern District of California) the conspiracy is

alleged to have taken place. Gobert’s motion sets forth an additional eight requests for

particulars with respect to Count One, including the identification of co-conspirators and specific

overt acts. 

The government has represented that it will proceed to trial with a Pinkerton theory of

liability as to all substantive charges (Dkt. No. 94 at 13). Under the Pinkerton doctrine, once a

defendant joins a conspiracy, he or she is potentially liable for the criminal actions of other

defendants in furtherance of the conspiracy, even those in which he or she did not directly

participate. Pinkerton v. United States, 328 U.S. 640 (1946). Accordingly, without knowing

when they are each alleged to have joined the drug conspiracy, defendants cannot know the

universe of conduct against which they must prepare a defense. 

The government, therefore, shall provide the defense with a bill of particulars clarifying

the earliest known date at which each defendant charged in Count One was participating in the

conspiracy, without prejudice to the government later proving a different date based on evidence

later acquired. The government shall also provide a bill of particulars clarifying the jurisdictions

beyond the Northern District of California in which the defendants are alleged to have conspired. 

Contrary to the government, providing this information does not amount to a “detailed

disclosure” of the government’s evidence or trial strategy. 

With the above-described exceptions, however, the allegations as to Count One are

adequate. Gobert’s “request for the ‘when, where, and how’ of every act in furtherance of the

conspiracy [is] equivalent to a request for complete discovery of the government's evidence,

which is not a purpose of the bill of particulars.” Giese, 597 F.2d at 1181. Moreover, our court

of appeals has explained that a bill of particulars is not warranted to obtain the names of

unknown co-conspirators, the exact nature of overt acts, or the precise timing of the alleged

conspiracy. United States v. DiCesare, 765 F.2d 890, 897 (9th Cir. 1985). With the exceptions

already noted, defendants’ requests as to this count are accordingly DENIED.
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2. COUNT TWO.

Count Two charges Marshall, Robinson, and Etienne with a violation of Section

848(e)(1)(A), murder during a narcotics offense. The superceding indictment alleges Marshall,

Robinson, and Etienne did “kill and counsel, command, induce, procure, and cause the

intentional killing of T.T., and such killing occurred on March 22, 2016” (Dkt. No. 37 ¶ 2). This

is insufficient information from which to prepare a defense. United States v. Williams, No.

13-cr-00764, 2015 WL 3830515, at *2 (N.D. Cal. June 19, 2015) (Judge William Orrick); United

States v. Alvarez, No. 14-cr-00120, 2014 WL 7240670, at *3 (N.D. Cal. Dec. 19, 2014) (Judge

Nathanael Cousins).

Defendants’ motions as to Count Two are GRANTED IN PART. The government must

provide a bill of particulars specifying its factual theory of prosecution as to each defendant

named in this count. Contrary to the government, disclosure of the government’s factual theory

of the case is one of the primary purposes of a bill of particulars. Ryland, 806 F.2d at 942. The

government must specify whether each defendant is charged as a principal or as an aider and

abettor (or both). If any defendant is charged as a principal, the government must specify the

variant (or variants) of principal liability on which the government will rely. If any defendant is

charged with aiding and abetting others who actually killed the victim, the government should

identify those accomplices. If known, the government must also identify the person who killed

the victim. 

3. COUNT THREE.

With respect to Count Three for violation of Section 924(j) of Title 18 of the United

States Code, use/possession of a firearm in furtherance of murder, the superceding indictment

alleges that defendants Marshall, Robinson and Etienne “aided and abetted each by the others,

and together with others known and unknown to the Grand Jury . . . did use and carry and

discharge a firearm” and “caused the death of T.T. by discharging a firearm at T.T.” This also

fails to provide enough detail to fairly apprise each defendant of the incident of possession or use

with which he is being charged. 
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 The government argues that United States v. Cerna, No. 08-cr-0730 WHA, 2009 WL 2998929 (N.D.

Cal. Sept. 16, 2009), on which defendants rely, is distinguishable because the Section 924(c) violation charged

in that case was connected to the overarching VICAR conspiracy to murder. This order disagrees and finds that

disclosure of the weapon’s model is necessary to apprise defendants of the incidents of possession or use with

which they are charged.

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Defendants’ motions as to this count are GRANTED IN PART. The government must

clarify whether each defendant is charged with actual or constructive possession (or both),

charged with principal liability or aiding or abetting (or both), and charged with carrying, using,

or discharging a firearm. If any defendant is charged with aiding and abetting others, the

government must identify those accomplices. The government must also specify, if known, the

model of the firearm used.1 

4. COUNT FOUR.

Count Four of the superceding indictment describes the alleged racketeering enterprise,

the purpose, means, and methods of the enterprise, the alleged racketeering conspiracy, and the

means and methods of that conspiracy. Count Four alleges a “pattern of racketeering activity”

consisting of: (1) multiple offenses involving dealing in controlled substances, in violation of 21

U.S.C. §§ 841(a)(1) and 846; (2) multiple acts indictable under 18 U.S.C. § 894 (extortionate

collection of extensions of credit); (3) multiple acts indictable under 18 U.S.C. § 1956 (money

laundering); (4) multiple acts indictable under 18 U.S.C. § 1958 (murder for hire); and (5)

multiple acts involving murder in violation of California and Louisiana law. Count Four further

alleges that it was part of the conspiracy that each defendant agreed that a conspirator would

commit at least two acts of racketeering activity (Dkt. No. 37 ¶¶ 4–16). 

Defendants seek a host of information regarding this count, including:

• When the RICO conspiracy allegedly commenced;

• When the defendants and each known co-conspirator joined the conspiracy;

• The identity of alleged co-conspirators;

• Details regarding the “multiple offenses involving dealing in controlled

substances”;

• Details regarding the “multiple acts” involving extortionate collection of

extensions of credit;
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• Details regarding the “multiple acts” involving money laundering;

• Details regarding the “multiple acts” involving murder for hire;

• Details regarding the “multiple acts” involving murder, including where they

occurred, who committed them, and how they were conducted;

• When each defendant agreed that a conspirator would commit at least two acts of

racketeering activity, and with whom he or she allegedly came to this agreement;

• Where the agreement to commit two acts of racketeering activity was formed, and

who was present when the agreement was reached; and

• Information regarding the overt acts, statements and events attributable to

defendants.

The principles governing requests for a bill of particulars “must be applied with some

care when the Government charges criminal offenses under statutes as broad as RICO.” United

States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). Indeed, “the wide latitude accorded the

prosecution to frame” a RICO charge brings with it “an obligation to particularize the nature of

the charge to a degree that might not be necessary in the prosecution of crimes of more limited

scope.” Ibid. Although sufficient in most respects, Count Four is too vague in light of the broad

conduct alleged. To the extent described below, defendants’ motions as to this count are

GRANTED. 

First, for the same reasons explained above in connection with Count One, the

government must provide the defense with a bill of particulars clarifying the earliest known date

at which each defendant was participating in the RICO conspiracy, without prejudice to the

government later proving an even earlier date. The government shall also provide a bill of

particulars clarifying the jurisdictions beyond the Northern District of California in which the

defendants allegedly conspired.

Second, the government must provide more information regarding the racketeering

activity alleged in Count Four. To be sure, the superceding indictment puts defendants on notice

that they will be required to defend against a conspiracy to distribute marijuana, against the

murder of T.T., and/or against a conspiracy to commit the murder of M.R. But for each activity
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alleged in paragraph 15, subparagraphs (a)–(e) on which the government will rely in its case-inchief at trial and which are not otherwise called out in the superceding indictment, the

government must identify such activities. This identification requires, to the extent known to the

government, disclosure of the following information: (1) a one-sentence description of the event

or activities constituting the charged conduct; (2) the persons who participated in the conduct;

and (3) the approximate date and location of the conduct. The government must provide this bill

of particulars even if clues regarding the acts particularized can be found by searching through

discovery. 

As explained above, however, the remaining information requested amounts “to a request

for complete discovery of the government’s evidence.” Giese, 597 F.2d at 1181. With the

exceptions already noted, defendants’ requests are therefore DENIED.

5. COUNT FIVE.

Count Five charges Robinson, Marshall and Etienne with murder in aid of racketeering in

violation of Section 1959(a)(1). The superceding indictment alleges that the Etienne Enterprise

engaged in racketeering activity and that: 

On or about March 22, 2016, in the Northern District of California, as

consideration for the receipt of, and as consideration for a promise and agreement

to pay, anything of pecuniary value from the Etienne Enterprise, and for the

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

Etienne Enterprise, an enterprise engaged in racketeering activity, the defendants,

[Etienne, Marshall, and Robinson], together with others known and unknown to

the Grand Jury, aided and abetted each by the others, did unlawfully, knowingly,

and intentionally, and with malice aforethought, commit and cause the murder of

T.T., in violation of California Penal Code, Section 187. 

As with Count Two, this is insufficient information for defendants to prepare a defense. 

The government must specify whether each defendant is charged as a principal or as an aider and

abettor (or both). If any defendant is charged as a principal, the government must specify the

variant (or variants) of principal liability on which the government will rely. If any defendant is

charged with aiding and abetting others who actually killed the victim, the government should

identify those accomplices. If known, the government must also identify the person who killed

the victim.
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Defendants seek the following additional information regarding Count Five:

• What consideration was alleged agreed to;

• When the defendants agreed to such consideration, and who specifically agreed;

and

• Details regarding the racketeering activities alleged in paragraph 17 of the

superceding indictment. 

In light of the bill of particulars that the government will be providing as to Count Four,

this additional information is not necessary to afford defendants sufficient notice of the conduct

charged. Except as described above, defendants’ motions as to this count are DENIED. 

6. COUNT SIX.

With respect to Count Six for a violation of Section 1959(a)(5), conspiracy to commit

murder in aid of racketeering, defendants Gobert, Etienne, and Robinson seek a bill of

particulars concerning the conspiracy alleged in paragraphs 17–20 of the superceding indictment. 

They request the following information: 

• Specification as to when the conspiratorial agreement occurred and when the

defendants joined the conspiracy; 

• The place or places in which the agreement was reached; 

• The persons present at the time and place the agreement was reached; 

• The form the alleged agreement took; and

• Identification of all overt acts, statements and events attributable to defendants. 

As with the other conspiracy counts, the government shall provide the defense with a bill

of particulars clarifying the earliest known date at which the defendants participated in the

conspiracy to commit murder, without prejudice to the government later proving an even earlier

date. The motion is also GRANTED to the extent that the government must provide details of who

was present at meetings in which the murder was discussed, when and where such meetings took

place, and what each defendant did or said to indicate participation in the conspiracy. For the

reasons explained above, defendants’ additional requests are DENIED.
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CONCLUSION

Robinson and Etienne’s motions for joinder are GRANTED. To the extent stated above,

defendants’ motions for a bill of particulars are GRANTED. The motions are otherwise DENIED. 

The government shall provide the above information by APRIL 6 AT NOON. 

IT IS SO ORDERED.

Dated: March 23, 2018. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE