                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-15514         ELEVENTH CIRCUIT
                                                      FEB 16, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                D. C. Docket No. 8:10-cr-00298-JSM-MAP-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellant,

     versus

COURTNEE NICOLE BRANTLEY,

                                                        Defendant-Appellee.

              _________________________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
              _________________________________________

                            (February 16, 2012)

Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.


PER CURIAM:
       The government appeals the district court’s grant of Courtnee Brantley’s

motion to dismiss her indictment for misprision of a felony, 18 U.S.C. § 4. We

review the district court’s dismissal of an indictment de novo.1 United States v.

Sharpe, 438 F.3d 1257, 1258 (11th Cir. 2006). Reversible error has been shown;

we vacate the dismissal, reverse and remand the case for additional proceedings.

       Brantley’s misprision charge arose from a traffic stop: two police officers

were killed. Brantley was driving; and her boyfriend, a convicted felon, was

riding in the passenger seat. When the police stopped Brantley’s car, Brantley’s

boyfriend shot and killed both officers and then fled on foot. Brantley drove

away, failed to report the shooting, and later refused to answer questions about the

shooter’s identity.

       A federal grand jury returned an indictment charging Brantley with

misprision of a felony. The indictment alleged that Brantley, “having knowledge

of the actual commission of a felony cognizable by a Court of the United States,

that is, the possession of a firearm and ammunition by a convicted felon, did

knowingly and willfully conceal and not as soon as possible make known the same

to some judge or other person in civil authority” in violation of 18 U.S.C. § 4.



       1
         Because the government preserved its arguments for appeal, we reject Brantley’s
assertion that our review is limited to plain error.

                                               2
Pursuant to the district court’s order, the government also filed a bill of particulars

detailing Brantley’s alleged acts of concealment.2

       Following oral argument, the district court granted Brantley’s motion to

dismiss the indictment. In doing so, the court concluded that nothing evidenced

that Brantley took an affirmative act of concealment, a required element of the

offense. The court also dismissed the indictment on Fifth Amendment grounds

because Brantley likely would have incriminated herself by reporting her

boyfriend’s crime to the authorities.

       On appeal, the government argues that the district court, pre-trial, lacked the

authority to dismiss Brantley’s indictment based on the sufficiency of the

evidence. We agree. “There is no summary judgment procedure in criminal

cases,” and the Federal Rules of Criminal Procedure do not “provide for a pre-trial

determination of sufficiency of the evidence.” United States v. Critzer, 951 F.2d

306, 307 (11th Cir. 1992). Thus, “‘a court may not dismiss an indictment . . . on a

determination of facts that should have been developed at trial.’” Sharpe, 438

       2
         The bill of particulars alleged that Brantley concealed a felon in possession of a firearm
and ammunition by performing these affirmative acts: (1) fleeing the crime scene after witnessing
a convicted felon shoot two police officers; (2) removing evidence from the crime scene by
relocating her car; (3) disturbing the crime scene while fleeing; (4) having telephone contact with
her boyfriend after the shooting; (5) sending text messages to her boyfriend after the shooting in
which they discussed concealing her car; (6) sending text message to her boyfriend confirming
her loyalty to him; (7) sending text messages to various other people instructing them to conceal
her involvement in the shooting and her whereabouts; and (8) refusing to identify the shooter.

                                                3
F.3d at 1263 (alteration in original). The sufficiency of the government’s evidence

in a criminal case must be contested through a Fed.R.Crim.P. 29 motion for

acquittal at the close of the government’s case at trial. United States v. Salman,

378 F.3d 1266, 1268 (11th Cir. 2004).

      The government also challenges the district court’s conclusion that

Brantley’s prosecution for misprision was barred by the Fifth Amendment. In

making that determination, the district court relied on the facts set forth in the bill

of particulars and concluded that “notification to the authorities would compel

Brantley to give information which might tend to show that she had committed a

crime.” The sufficiency of a criminal indictment, however, must be determined

from its face. Critzer, 951 F.2d at 307. Because the district court looked beyond

the face of the indictment in making this determination, the district court erred in

dismissing the indictment on this basis. Moreover, nothing on the face of the

indictment commanded a conclusion that Brantley’s Fifth Amendment rights were

implicated.

      To be sufficient, an indictment must be specific enough “to inform the

defendant of the charge against him and to enable him to plead double jeopardy in

any future prosecution for the same offense.” Id. These requirements are satisfied

if the indictment tracks the language of the statute and sets forth the essential

                                           4
elements of the offense. Id. at 307-08. The essential elements of a misprision of a

felony are “knowledge of a crime and some affirmative act of concealment or

participation.” Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002).

      Brantley’s indictment tracked the language of 18 U.S.C. § 4 and charged her

with both essential elements of misprision. As a result, the indictment was

sufficient and should not have been dismissed. The sufficiency of the indictment

was also not undermined by the filing of a more detailed bill of particulars. See

United States v. Haas, 583 F.2d 216, 221 (5th Cir. 1978) (concluding that bare

allegations in an indictment are sufficient to withstand a motion to dismiss even

when a bill of particulars is needed for the defendant to prepare a defense).

      REVERSED AND REMANDED.




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