MEMORANDUM AND ORDER On November 30, 2020, Daniel E. Russo (“Defendant”) moved to dismiss as duplicitous and untimely Count One of the Indictment, charging him with Conspiracy to Distribute and Possess with Intent to Distribute Oxycodone in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(C), and 846. See, Def.’s Mot. (“Mot.”), Dkt. Entry No. 31-1 at 11-18. Defendant also seeks a bill of particulars. Id. at 18-20. The Government opposed Defendant’s motions. See, Govt. Opp’n (“Opp’n”), Dkt. Entry No. 32. Defendant replied. See, Def.’s Reply. (“Reply.”), Dkt. Entry No. 37. For the reasons set forth below, Defendant’s motions are denied. BACKGROUND Familiarity with the facts and procedural history of this case is presumed and only those facts relevant to the disposition of the motions are repeated herein. On January 17, 2020, a grand jury of this district returned an indictment charging Defendant with Conspiracy to Distribute and Possess with Intent to Distribute Oxycodone (“Count One”), Distribution of and Possession with Intent to Distribute Oxycodone (“Count Two”), Distribution of Oxycodone by a Pharmacist Without a Legitimate Prescription (“Count Three”), and nine counts of Subscribing to False Tax Returns in violation of 21 U.S.C. §§846, 841(b)(1)(C), 841(a)(1) and 841(b)(1)(C), 843(a)(1) and 843(d)(1), and 26 U.S.C. §7206(1), respectively. See, Indictment, Dkt. Entry No. 1 at 4-12. With respect to Counts One through Three, the drug related offenses, Defendant’s conduct allegedly occurred “[i]n or about and between March 2011 and June 2014, both dates being approximate and inclusive[.]” Id.
15, 17, 19. The parties executed tolling agreements, which tolled the five-year statute of limitations for these counts from March 22, 2017 through October 31, 2017. See, Exhibits 2-3 to Mot., Dkt. Entry No. 31-2, at 36-41. Pursuant to Federal Rule of Criminal Procedure 16, the parties have participated in pretrial discovery. See, Dkt. Entry Nos. 12, 18, 20, 22, 24-25, 28-29. The Government has produced to Defendant, among other documents, thousands of allegedly fraudulent oxycodone prescriptions that Defendant filled at his pharmacy as evidence of Counts One through Three. Mot. at 7-8. Upon review of these documents, Defendant found that the prescriptions were written by more than a dozen medical professionals. Id. at 8. These included Drs. John Joseph, Robert Terdiman, Rogelio Lucas, Benjamin Bernstein, Firas Barakat, and Joan Lehach, and Nurse Practitioners (“NPs”) Rools Deslouches and Ingrid Gordon-Patterson. Id. Defendant asserts that he last filled oxycodone prescriptions for Drs. Joseph and Bernstein and NP Deslouches in 2012, Drs. Terdiman and Lucas in 2013, and NP Gordon-Patterson in May 2014. Id. at 9-10, 17. Defendant also states that he filled oxycodone prescriptions for Drs. Barakat and Lehach in June 2014. Id. at 10, 18. Defendant moves to dismiss Count One of the Indictment as duplicitous and untimely. Defendant argues that this count impermissibly joins multiple, distinct conspiracies. Id. at 9, 15-18. Specifically, Defendant maintains that the evidence reveals conspiracies between Defendant and each individual prescriber of oxycodone but does not establish a connection or dependency among the conspiracies. Id. Moreover, nearly all the conspiracies are time barred. Id. at 17-18. According to Defendant, even considering the parties’ tolling agreements, the only conspiracies that arguably fall within the five-year limitations period are those between Defendant and Dr. Barakat and Defendant and Dr. Lehach. Id. at 18. Defendant claims that the Government combined the unrelated conspiracies into a single conspiracy charge in Count One to prosecute Defendant for crimes that are time barred. Id. at 3, 18. Therefore, Count One should be dismissed as duplicitous and untimely. The Government counters that Count One charges only one conspiracy and Defendant’s duplicity argument is premature because whether the evidence reveals a single conspiracy or multiple conspiracies is a question of fact for the jury to decide. Opp’n at 5-6, 12-13. The Government further argues that, if Count One impermissibly charges separate and potentially time barred conspiracies, Defendant may seek to exclude the Government’s evidence for the time barred conspiracies at trial or request a jury instruction regarding the statute of limitations. Id. at 12.1 Defendant replies that the Court may consider the issue of single versus multiple conspiracies pretrial when, as here, a duplicitous charge prejudices a defendant and reiterates that the evidence does not reflect a singular conspiracy, but rather multiple independent and time barred conspiracies. Rep. at 2-6. Defendant also moves for a bill of particulars contending that the Indictment omits critical information necessary for him to prepare his defense. Mot. at 18. Defendant requests five categories of information: (1) the identity of “every individual or entity that the government contends are co-conspirators — including any purported unindicted co-conspirators, cooperating witnesses, and/or confidential sources[]” with respect to Count One; (2) a specification of “ any connection/relationship between [Defendant] and the alleged co-conspirators establishing Count One as a single conspiracy as opposed to multiple conspiracies[;]” (3) a specification of “ when in March 2011 the conspiracy allegedly started and when in June 2014 it ended[;]” (4) from among the oxycodone prescriptions produced by the Government, the identification of the specific oxycodone prescriptions that form the basis for the allegations in Counts One through Three; (5) and production of Brady materials. See, Ex. 5 to Mot., Dkt. Entry No. 31-2 at 46-47. The Government opposes Defendant’s request maintaining that the Indictment, the Government’s argument at Defendant’s initial court appearance, and the materials it has produced in discovery have informed Defendant adequately of the nature of the charges. Opp’n at 18. Defendant did not reply to the Government’s argument. LEGAL STANDARDS I. Motion to Dismiss Count One of Indictment Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(i), a defendant may move to dismiss an indictment for various defects, including “joining two or more offenses in the same count (duplicity).” Fed. R. Crim. P. 12(b)(3)(B)(i). An “indictment is impermissibly duplicitous where: 1) it combines two or more distinct crimes into one count in contravention of Fed. R. Crim. P. 8(a)’s requirement that there be a separate count for each offense, and 2) the defendant is prejudiced thereby.” United States v. Vilar, 729 F.3d 62, 79 (2d Cir. 2013) (quoting United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001) (internal quotation marks omitted)). “A motion to dismiss an indictment must satisfy a high standard.” United States v. Brooks, 2009 WL 3644122, at *2 (E.D.N.Y. Oct. 27, 2009) (citation and internal quotations omitted). This is because “[a]n indictment…need not be perfect, and common sense and reason are more important than technicalities.” United States v. Bustos de la Pava, 268 F.3d 157, 162 (2d Cir. 2001) (citation omitted). A court must “accept[] the facts alleged in the indictment as true and determine[] only whether the indictment is ‘valid on its face.’” Brooks, 2009 WL 3644122, at *2 (quoting Costello v. United States, 350 U.S. 359, 363 (1956)). The United States Supreme Court has held that “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974) (citations omitted); See also, United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (“[A]n indictment must charge[] a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.”) (internal quotations and citation omitted). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as [they]…fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Hamling, 418 U.S. at 117-18 (citations and internal quotations omitted). “Essentially, the indictment must…be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Brooks, 2009 WL 3644122, at *2 (citing Fed. R. Crim. P. 7(c)(1)). II. Motion for Bill of Particulars The purpose of a bill of particulars is to provide a defendant with information concerning the details of the charges against him, if necessary to: (1) prepare for trial, (2) avoid prejudicial surprise at trial, or (3) preclude a second prosecution for the same defense. See, United States v. Rigas, 490 F.3d 208, 237 (2d Cir. 2007) (citations omitted). 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. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (internal quotations and citation omitted). The applicable standard for whether a bill of particulars should issue is not whether the information sought would be helpful to the defense, but whether it is necessary. United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y.1994). Moreover, “[a] bill of particulars is not required where the information sought by the defendant has been made available in alternative forms.” United States v. Kelly, 91 F. Supp.2d 580, 583-84 (S.D.N.Y. 2000) (citations omitted). Whether to grant a bill of particulars generally is a decision entrusted to the sound discretion of the district court. United States v. Ramirez, 609 F.3d 495, 502 (2d Cir. 2010). DISCUSSION I. Motion to Dismiss Count One of the Indictment A. Duplicity “[A]n indictment is duplicitous if it includes multiple crimes in one count, but not if it includes in that count multiple ways of committing a single offense.” United States v. Daugerdas, 837 F.3d 212, 225 (2d Cir. 2016). “[A]cts that could be charged as separate counts of an indictment may [] be charged in a single count if those acts could be characterized as part of a single continuing scheme.” Vilar, 729 F.3d at 79 (quoting United States v. Olmeda, 461 F.3d 271, 281 (2d Cir. 2006) (internal quotation marks omitted)). “[A] conspiracy indictment presents unique issues in the duplicity analysis because a single agreement may encompass multiple illegal objects.” United States v. Peters, 543 F. App’x 5, 7 (2d Cir. 2013) (quoting United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992) (internal quotation marks omitted)). “[A] single count of a conspiracy to commit several crimes is not duplicitous, for ‘[t]he conspiracy is the crime, and that is one, however diverse its objects.’” United States v. Williams, 705 F.2d 603, 624 (2d Cir. 1983) (quoting Braverman v. United States, 317 U.S. 49, 54 (1942) (citation omitted)). “Whether the government has proven the existence of the conspiracy charged in the indictment [or] several independent conspiracies is a question of fact for a properly instructed jury.” United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995) (citations omitted). Applying this principle, courts repeatedly have denied pretrial motions to dismiss conspiracy counts as duplicitous. See, United States v. Nachamie, 101 F. Supp.2d 134, 153 (S.D.N.Y. 2000) (collecting cases). Count One of the Indictment alleges a single conspiracy among Defendant and others to distribute and possess with intent to distribute oxycodone. Indictment
