Opinion
No. 03 Cr. 906 (RPP).
August 31, 2004
OPINION AND ORDER
At a pretrial conference, and with the consent of parties, this Court on July 16, 2004, adjourned the trial date of this recently transferred case from August 16, 2004 to September 8, 2004 (Tr. at 7). At the conference, the government agreed that it would make a proffer of Rule 404(b) evidence by August 5, 2004. The Court, thereafter, set the trial date with the understanding that it fell within the speedy trial restrictions since forty days remained on the speedy trial clock and Judge Sand had excluded time until July 29, 2004 (Tr. at 2).
Transcript of hearing dated July 16, 2004.
At that time, the Superseding Indictment then pending (S-5) charged both defendants with conspiracy to rob an individual of narcotics in May 2003 (Count One); attempted robbery of narcotics during which a gun was discharged on May 28, 2004 (Count Two); possession of a firearm on May 28, 2003, in relation to the charges in Counts One and Two (Count Three); conspiracy to distribute and possess with intent to distribute marijuana in May 2003 (Count Four); and possession of a firearm in May 2003 in connection with the crime charged in Count Four (Count Five).
At the July 16, 2004 pretrial conference, the government advised the Court and defense counsel that it intended to supersede the indictment to add factors that might be affected by the Supreme Court opinion in Blakely v. Washington, 124 S. Ct. 253 (2004), but would not be "adding any charges." (Tr. at 12.) The government was given until August 6, 2004 to file the Superseding Indictment, as well as to provide notice of the general nature of any Rule 404(b) evidence.
As for the nature of Rule 404(b) evidence that the government would seek to offer, the government stated it would involve three prior robberies committed by the defendants with the co-conspirators in Texas and two attempted robberies in New York, all committed in May 2003 (Tr. at 18-19). The defense was to respond to the proposed 404(b) evidence by August 20, 2004. With the consent of the parties, the Court then excluded the time under the Speedy Trial Act until the new trial date, September 8, 2004.
By letters dated August 5, 2004, the government furnished the Court with its Rule 404(b) application and a Superseding Indictment handed down by the Grand Jury on August 5, 2004.
The Court received the superseding indictment S-6 on August 9, 2004, and due to the absence of the government attorney, the Court was unable to arraign the defendants on the Superseding Indictment until August 18, 2004.
The Superseding Indictment (S-6) adds five new counts, charging both defendants with conspiracy to rob "Bruce" of narcotics proceeds in May 2003 in violation of 18 U.S.C. § 1951 (Count Four); attempted robbery of "Bruce" on May 14, 2003 while possessing a firearm in violation of 18 U.S.C. §§ 1951 and 2 (Count Five); and possession of a firearm, and aiding and abetting the possession of a firearm in relation to a crime of violence, i.e., the attempted robbery on May 14, 2003 charged in Count Five in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(C)(i) (Count Seven); and charging Defendant Miller with attempted robbery of "Bruce" on May 18, 2004 "in the course of such conspiracy to rob, a firearm was discharged" in violation of 18 U.S.C. §§ 1951 and 2 (Count Six); and using, carrying and possession of a firearm in connection with the attempted robbery of Bruce on May 18, 2003 charged in Count Six in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 924(c)(1)(C)(i) and (ii) (Count Eight). Counts Nine and Ten of Superseding Indictment S-6 are the same, respectively, as Counts Four and Five of Superseding Indictment S-5.
By letter dated August 13, 2004, counsel for Windzer Fleurissaint moved to dismiss Counts Four, Five and Seven based on pre-accusatory delay in violation of the due process clause, stating that the government had known of the alleged facts underlying the new charges for many months (at least since July 16, 2004). Counsel asserted that the defense did not have time to prepare adequately to meet the new charges by the trial date of September 8, 2004, and stating that, based on the government's representations that its Superseding Indictment would not add new charges, it had consented to the exclusion of time under the Speedy Trial Act. The letter further argues that, since the government has had notice of the newly filed charge from its cooperating witnesses for a considerable period, it had only sought and obtained the Superseding Indictment for strategic purposes to the prejudice of the Defendants. The letter of August 13, 2004 cites, as authority for the proposed relief, United States v. Lovasco, 431 U.S. 783, 788-790 (1977), and United States v. Marion, 404 U.S. 307, 325-26 (1971), and asks for dismissal of the charges with prejudice. The letter also withdrew Fleurissaint's consent to the exclusion of time granted at the July 16, 2004 pretrial conference on the grounds that he had been misled by the government at the July 16, 2004 hearing.
At the arraignment on the Superseding Indictment, on August 18, 2004, the CJA counsel assigned to Defendant Fleurissaint was not present, and the Court, after expressing its consternation at the government's filing a Superseding Indictment containing new charges in the light of its express representations in open court to the contrary and in the light of the firm trial date of September 8, 2004, arraigned the Defendants on Superseding Indictment S-6. At arraignment, Defendant Fleurissaint was represented by attorneys from CJA assigned counsel's office. Defendant Miller joined Defendant Fleurissaint's motion to dismiss the new charges in the Superseding Indictment. With the consent of Defendants Fleurissaint and Miller, time under the Speedy Trial Act was excluded to September 8, 2004. Since CJA assigned counsel for Defendant Fleurissaint was not present, the case was adjourned to August 24, 2004. On August 24, 2004, counsel for Fleurissaint orally renewed his request for dismissal of the added counts pointing out that the Superseding Indictment added mandatory consecutive 25-year sentences on each 18 U.S.C. § 924(c) count, such that Miller would now potentially face 92 years in jail and Fleurissaint would face 67 years in jail.
On August 25, 2004, the government replied to the letter of August 13, 2004 from counsel to Fleurissaint, pointing out that the Supreme Court cases cited by the defendant related only to indictment delay, and that Judge Kaplan in United States v. Montoya-Echeverria, 896 F. Supp. 148 (S.D.N.Y. 1995) dismissed a defendant's motion to dismiss a Superseding Indictment under similar circumstances stating, "the government has the right to determine what charges to seek from the grand jury and when to seek them." (Id.) On August 30, Defendant Fleurissaint replied to the government's letter of August 25, 2004, and on August 31, 2004, the government filed a reply.
On August 27, 2004, the Court refused to take a plea by Defendant Miller to three counts of the superceding indictment on the grounds it did not appear to be a voluntary plea.
Discussion
Judge Kaplan in Montoya-Echeverria, was not faced with the circumstances here. In this case, (1) the trial date on the fifth Superseding Indictment was reset on July 16, 2004 from August 16, 2004 to September 8, 2004; (2) on July 16, 2004, the prosecution represented to the Court and defense counsel that any Superseding Indictment would not add any new charges; (3) the Court and defense counsel relied on the government's representation; (4) by adding 18 U.S.C. § 922(c) counts, the Superseding Indictment increased the potential ranges of incarceration for both defendants from 42 years to 67 years for Fleurissaint and 92 years for Miller; and (5) defense counsel has asserted that a search for witnesses to disprove the events charged in the new counts cannot be concluded by the trial date or soon thereafter.
In its letter of August 31, 2004, the government claims that Fleurissaint's repeated claim of undue prejudice continues to lack merit because "since at least July 16, 2004 he has been on notice of the acts underlying the new charges and the government's intention to introduce evidence of such at trial." It states, "counsel's incentive to investigate these acts arose at that point, if not earlier, and Fleurissaint's claim that he is now expected to conduct such an investigation at the '11th hour' lacks credibility."
This argument by the government demonstrates its obliviousness to the harm it caused to the trial schedule and to Defendants' preparations for trial by filing the Superseding Indictment. The prior acts which the government outlined at the July 16, 2004 hearing did not subject the Defendants to any further sentence than the crimes charged in indictment S-5. By charging these acts as crimes, Fleurissaint was suddenly facing a 25-year mandatory increase in his sentence. The government has acknowledged that there is no evidence that corroborates the co-conspirators' testimony that such a crime was committed. Accordingly, rather than relying on a trial strategy based on the credibility of the cooperating witnesses, the significantly increased penalty requires defense counsel to attempt to prove the negative, to find witnesses to cast doubt that any such crime was committed at the time and place stated, over 15 months ago, and, thus, reduce the likelihood of conviction on the 18 U.S.C. § 924(c) count, a mandatory consecutive sentence of 25 years. Such an investigation can be time consuming.
Under Rule 14 of the Federal Rules of Criminal Procedure, the Court has discretion to grant relief from a joinder of offenses when the joinder appears to prejudice a defendant by ordering separate trials of counts. Fed.R.Crim.P. 14.
Conclusion
Accordingly, the Court will sever Counts Four, Five, Six, Seven and Eight of the Superseding Indictment (S-6), and trial will proceed on September 8, 2004, on the remaining counts in Superseding Indictment S-6 or on Superseding Indictment S-5 at the election of the government. A pretrial conference will be held at 9:30 a.m. on September 1, 2004.
In view of this ruling, decision on Defendants' motion to dismiss Counts Four through Eight is reserved since it may require an evidentiary hearing.
IT IS SO ORDERED.