Opinion
CRIMINAL NO. 99-308 (DRD); 157.
August 25, 2000.
Jacabed RODRIGUEZ, Assistant U.S. Attorney, for Plaintiff.
Linda GEORGE, Esq., for Defendant.
REPORT AND RECOMMENDATION
At the hearing scheduled for July 31, 2000, the government appeared represented by the criminal prosecutor Jacabed Rodríguez and by the Civil Division AUSA Lisa Bhatia. Defendant appeared represented by counsel Linda George. The hearing on defendant Capella Quiñones' Motion to Dismiss (D.E. #66) was originally scheduled for June 28, 2000, after the court had ruled on the defendant's request for the bill of particulars (D.E. #120, 133, 109).
The chronological background of this motion has been properly submitted by defense counsel's recount in D.E. #140.
The government submitted there was no need for an evidentiary hearing since the issues presented by defendant were of a legal nature. It represented to this magistrate that the court had issued some orders during status conference meetings that were not shown in the minutes or orders of record to the effect that the double jeopardy issue was a matter of law. In addition, the government also represented the court has ruled that no Grand Jury minutes were to be disclosed. Notwithstanding, having reviewed in-camera the content of the Grand Jury minutes, this magistrate finds there was no need for disclosure and have ordered the Clerk's Office to return same to the government (D.E. #151).
The defendant had subpoenaed through counsel six witnesses who are also codefendants pending trial. The United States Marshal indicated that, as previously ordered, it had made available four of these witnesses in the event that counsel was allowed to present their testimonies. Two other codefendants summoned as possible witnesses are not in this jurisdiction but in Florida. Counsel for defendant, however, indicated she has not previously interviewed these witnesses, nor has she arranged with their attorneys to be present nor indicated to this magistrate the nature of their testimonies or if in fact they were willing to testify and waive any right.
Attorney George had contacted one attorney Batista in Florida and was attempting to talk to other attorneys representing these codefendants, to put them on notice that subpoenas were being submitted.
In addition, AUSA Bhatia, representing the law-enforcement agencies, objected to the subpoenas issued to the agents for failure to comply with 28 Code of Federal Regulations § 1621, et seq., insofar as the nature of the testimony to be elicited. The government still acknowledged that counsel George had indicated in her previous letter the doctrine or points of law she intended to prove through their testimonies, yet the government claimed lack of specificity in that there was no proffer regarding their testimonies. Since the hearing was not held, compliance or not with C.F.R. regulations need not be entertained.
Considering the arguments raised, as well as the absence of other witnesses to testify at this juncture, the matter of whether an evidentiary hearing is to be held was deemed submitted. The transcript of these proceedings was filed on August 7, 2000, and has become available to this magistrate and the parties.
The government's Motion Requesting Court Ruling (D.E. #137), although referred to the court, is directly related to the matters before to this magistrate and is to be resolved in this report. Since the record is devoid of any limitation imposed by the court on the issue referred, this report shall entertain those matters considered appropriate (D.E. #137, 112).
The government is apprised that as to those matters referred to this magistrate, subsequent filings related to the matter should be addressed to this office or at least served with courtesy copies.
Defendant Capella Quiñones' request to dismiss is predicated on an alleged violation of due process because of the pre-indictment delay in bringing the charges set forth in the indictment as to Criminal No. 99-308. The activities charged relate to events beginning in the summer of 1991 and ending around April 1998.
"Count One
From on or about a date not later than the summer of 1991, the exact date to the grand jury unknown, until on or about not earlier than April of 1998, the exact date to the grand jury unknown . . . the defendants herein, did knowingly, willfully, unlawfully, and intentionally combine, conspire, confederate and agree with each other and with divers other persons, to . . . commit offenses against the United States, to wit, to . . . possess with intent to distribute and distribute multi-kilo quantities of controlled substances . . . in excess of five (5) kilograms of cocaine; . . . and in excess of one hundred (100 kilograms of marihuana) (emphasis supplied).
"Count Two
From on or about a date not later than the summer of 1995, the exact date to the grand jury unknown, until on or about not earlier than April of 1998, the exact date to the grand jury unknown, . . . the defendants herein, did knowingly, willfully, unlawfully and intentionally combine, conspire, confederate and agree with each other and with divers other persons to commit offenses against the United States, to wit, to . . . import into the United States from a place outside thereof, to wit, the Dominican Republic, multi-kilogram quantities of controlled substances . . ." (emphasis supplied)
Insofar as the issue of double jeopardy, the charges in the superseding indictment in Criminal No. 99-161 (SEC) refer to activities beginning on a date unknown, but no later than November 1, 1997, through a date unknown, but no earlier than August 12, 1999. An overt act is attributed to Capella-Quiñones related to December 4-5, 1998. In addition to Capella-Quiñones, only two other of the thirteen codefendants; Luis A. Feliciano Valentin and Roberto López-Morales, are charged in both indictments.
"Count One
Beginning on a date unknown, but no later than in or about November 1, 1997, and ending on a date unknown, but no earlier than or about the date of the return of this Superseding Indictment . . . the defendants herein, . . . combine, conspire, confederate and agree with each others to knowingly and intentionally possess with intent to distribute and distribution of in excess of five (5) kilograms of cocaine and multi-kilogram quantities of marihuana. . . .
In regard to the most recent superseding indictment against this defendant, Crim. 97-284, the government indicated that it is in no manner connected to the previous criminal cases discussed above.
The government's Opposition to Defendant's Motion to Dismiss makes reference to four issues raised by the defendant; due process violation for prejudicial overreaching, due process violation due to pre-indictment delay, duplicity, and double jeopardy (D.E. #104, 100). Other codefendants joined the motion regarding the pre-indictment delay issue. Codefendants William Pérez-Rivera, Roberto López-Morales, Melvin Torres-Roldán, and Luis Feliciano-Valentín joined the motion in its totality (D.E. #88).
Overreaching Indictment:
Defendant Capella-Quiñones has raised that the overt acts of murders not charged in the indictment, are prejudicially overreaching. Since the indictment in Criminal No. 99-308 charges a conspiracy, some of the alleged acts are attributed to the co-conspirators, for which reason the defendant would hardly be able to establish any surplusage, disparity or prejudicial overreaching of the charges. The relief, had the issue been properly addressed, could be severance for trial purposes. Furthermore, the court has already disposed of D.E. #62 indicating that the acts "described in the overt acts describe relevant conduct as to conspiracy and will provide for appropriate jury instructions as to any matter considered surplusage" (D.E. #83).
Under Fed.R.Crim.P. 7(d) a defendant may move to strike surplusage from an indictment to protect from immaterial or irrelevant allegations which may be prejudicial. United States v. Lewis. 16 F.3d 64 (1st Cir. 1994); United States v. Fahey, 769 F.2d 829 (1st Cir. 1985).
The issues raised by defendant Capella-Quiñones will be discussed herein below as presented:
Pre-indictment delay:
Defendant claims that the allegations of the indictment refer to a conspiracy that is over eight-year-old and thus in violation of the defendant's due process right since the lack of overt acts attributable to this defendant fails to bring the charges within the applicable statute of limitation. The court has already disposed of the issue regarding the Bill of Particulars wherein the government identified to defendant some of the overt acts in furtherance of the conspiracy of this defendant that were not included in the charging document, in addition to providing some dates and sites of the meetings and activities.
Regarding a claim of pre-indictment delay, it has been held that a three-year delay to indict for bank fraud charges was not encompassed under the protection of the Sixth Amendment umbrella. A defendant needs to prove actual prejudice resulting from such delay, since the relevant statute of limitations provides safeguard against possible prejudice resulting from pre-accusation delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455 (1971). See United States v. Kenrick. 2000 WL 1036346 (1st Cir. 2000) where due process may provide a basis for dismissal if defendant can show at trial that prosecutorial delay in bringing charges has prejudiced the right to a fair trial.
Defendant claims that the lapse of time severely inhibits the ability to retrieve evidence, locate, and interview witnesses and establish an alibi. Regarding the latter, defendant states he had resided in New York for three to four years within the period of the conspiracy and records of his continuous employment and presence in said state are no longer available. Nor are records of the defendant's activities while in Puerto Rico seven and eight years ago (D.E. #66). The government has already provided a bill of particulars with specific information as to sites, dates, and charges related to the conspiracy. An alibi defense rcannot prosper through a proven conspiracy charge. It is for a defendant to meet the heavy burden of showing that the delay caused actual substantial prejudice and that the prosecution participated in such delay to gain tactical advantages. United States v. Stokes, 124 F.3d 39 (1st Cir. 1997), Marion, supra.
Duplicity:
As the defendant submits in his counsel's brief in support of the motion to dismiss, duplicity is the joining in a single count of two or more distinct and separate offenses. Once more it makes therein reference to the murder charges that appear in the overt acts already disposed by the court. Still, a perusal of the charges in the indictment in Criminal No. 99-308, withstands a claim of duplicity since the two counts distinctly presents separate offenses. Count one charges a conspiracy to possess controlled substance, while Count two charges conspiracy to import controlled substances, which are clearly separate offenses. The allegations as presented evolve rather on a possible variance of the government's presentation of evidence as to the murders in relation to the narcotic conspiracies that could be cured by the court during trial.
United States v. Valerio, 48 F.3d 58 (1st Cir. 1994) (prohibition against duplicitous indictment arises primarily out of concern that jury may find defendant guilty on a count without a unanimous verdict on the commission of any particular offense).
Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239 (1946) (where indictment charged a single conspiracy and proof established separate and distinct conspiracies, without appropriate precautionary jury instructions, variance error was not harmless).
Double Jeopardy:
Insofar as to the possibility that Criminal No. 99-161 presents an overlapping conspiracy because of the time frames, defendant seems to allege that Criminal No. 99-308 and Criminal No. 99-161 could be charging the same offense or conspiracies for which had there been only one charging document, it could be considered multiplicious.
An indictment is considered multiplicious when a single offense is charged in more than one count in violation of the double jeopardy protection. For double jeopardy protection to apply, the charges are considered the same offense when the same act or transaction constitutes a violation of two distinct separate provisions. The test to be applied is whether each provision requires proof of a fact which the other does not.Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932).
"[N]or shall any person for the same offense be twice put in jeopardy of life or limb." U.S. Const. Amend. V.
However, the defendant's claim of double jeopardy is indeed encompassed by the possible cumulative punishment he would be facing, if convicted in the two criminal indictments. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673 (1982).
Refers to cumulative sentences imposed in a single trial.
Double jeopardy also protects against multiple punishment in successive proceedings. Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488 (1997). Having defendant preserved the claim of double jeopardy, it may be properly assessed once the government's evidence as to the offenses has been screened and defendant would effectively face multiple punishment for the same offenses. Since cumulative punishment may be more properly evaluated after a conviction on a successive prosecution, a decision on the issue raised by defendant, in the absence of all factors, would be premature. Cf. United States v. Baird, 63 F.3d 1213 (3d Cir. 1995); see also Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199 (1995).
Double jeopardy clause safeguards individual against second prosecution for same offense following acquittal, second prosecution for same offense, following conviction and against multiple punishment. United States v. Stoller, 78 F.3d 710, 1 st Cir. 1996), United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir. 1991). See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969).
This magistrate has determined there is no further need for an evidentiary hearing on the issues above discussed.
It is thus recommended that the Motion to Dismissed BE DENIED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee. 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
In San Juan, Puerto Rico, this 16th day August, 2000.