U.S. v. Korey
| Decision Date | 15 May 2009 |
| Docket Number | Criminal No. 08-0039. |
| Citation | 614 F.Supp.2d 573 |
| Parties | UNITED STATES of America v. Jason KOREY, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
W. Penn Hackney, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.
On January 29, 2008, a grand jury sitting in the United States District Court for the Western District of Pennsylvania issued a five count indictment against defendant Jason Korey. Mr. Korey has filed a motion to dismiss the indictment [doc. no. 44]. Defendant contends that the charges contained in the indictment are both time-barred and are the result of vindictive prosecution. For the reasons set forth below, the motion will be granted.
The genesis of this case was in February of 2004, when a grand jury sitting in the Western District of Pennsylvania issued a five count indictment against defendant. All five counts charged firearms violations that allegedly occurred in July of 1999. The February 2004 indictment contained the following charges:
Count 1: Using, carrying, brandishing and discharging a firearm, equipped with a silencer, during and in relation to a drug trafficking crime, that is a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846, and possession of said firearm in furtherance of that drug trafficking crime in violation of 18 U.S.C. § 924(c);
Count 2: Possessing an unregistered firearm, a silencer, in violation of 26 U.S.C. § 5861(d);
Counts 3, 5: Possessing and concealing a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924(a)(2) and 2; and
Count 4: Possession of a firearm by a drug user or addict in violation of 18 U.S.C. § 922(g)(3).
United States v. Korey, No. 04-0015 (W.D.Pa.)[doc. no. 1]. Defendant pled guilty to counts 2 and 4 and pled not guilty and proceeded to jury trial on counts 1, 3 and 5. The jury acquitted defendant of counts 3 and 5, but convicted him of count 1; using a firearm in furtherance of a conspiracy to distribute cocaine in violation of 18 U.S.C. § 924(c). As to count 1, he was sentenced to the statutory minimum of 30 years imprisonment.2
Defendant appealed the conviction arguing that the trial court gave erroneous and prejudicial jury instructions. The Court of Appeals for the Third Circuit agreed and vacated the jury verdict and remanded the case for a new trial as to count 1, the remaining section 924(c) charge. United States v. Korey, 472 F.3d 89 (3d Cir.2007).
On January 4, 2007, the court of appeals issued its mandate. Defendant was not brought to trial, however, within seventy (70) days of the mandate as required by the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). Accordingly, on July 3, 2007, for the reasons set forth in a memorandum filed on that same date, the court dismissed the remaining count of the February 2004 indictment, without prejudice. The July 3, 2007 order stated, Korey, No. 04-0015 [doc. no. 124], 2007 WL 1965247, at *1 n. 1.
The government failed to reindict defendant within six months; instead, on December 28, 2007, the government filed a complaint with a United States Magistrate Judge [doc no. 1]. The government did not file an indictment against defendant until January 29, 2008 [doc. no. 13]. The indictment repeats and expands on the charges filed in the December 2007 complaint and contains the following five counts:
Count 1: Possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and (2);
Count 2: Conspired to possess with intent to distribute 500 or more grams of cocaine contrary to the provisions of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), in violation of 21 U.S.C. § 846;
Count 3: Attempted to possess with intent to distribute 500 or more grams of cocaine contrary to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), in violation of 21 U.S.C. § 846;
Count 4: Knowingly used and carried a firearm and silencer during and in relation to the following drug trafficking crimes:
1. Possessing with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) as charged in Count 1;
2. Conspiracy to possess with intent to distribute 500 or more grams of cocaine contrary to the provisions of 21 U.S.C. § 846 as charged in Count 2;
3. Attempt to possess with intent to distribute 500 or more grams of cocaine contrary to 21 U.S.C. § 846 as charged in Count 3;
and did knowingly and unlawfully possess said firearm in furtherance of said drug trafficking crimes. The grand jury further charges that in the course of this violation, the defendant, JASON KOREY caused the premeditated murder of William Kuhn with malice aforethought, as defined in 18 U.S.C. § 1111, and that said firearm was discharged and equipped with a firearm silencer in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (iii), 924(c)(1)(B)(ii), 924(j)(1) and (2);
Count 5: Conspired to violate 18 U.S.C. § 924(c), in violation of 18 U.S.C. § 924(o).
On July 21, 2008, defendant filed a motion to dismiss the indictment [doc. no. 44]. On October 24, 2008, the government filed its response to the motion to dismiss [doc. no. 53]. On March 24, 2009, defendant filed a reply [doc. no. 67]. On April 24, 2009, the court heard oral argument. The motion is now ripe for adjudication.
Defendant contends that the January 2008 indictment should be dismissed because all of the charges set forth therein, counts 1 through 5, are time-barred. Additionally, defendant argues that the indictment should be dismissed because it resulted from a vindictive prosecution.
For the reasons set forth below, we find that counts 1, 2, 3 and 5 of the January 2008 indictment are time-barred and must be dismissed. We find that count 4 is not time-barred; however, we find that it must also be dismissed because it is the result of a vindictive prosecution.
The conduct alleged in counts 1, 2, 3 and 5 was not charged in the original February 2004 indictment. The statute of limitations applicable to counts 1, 2, 3 and 5 is five years. 18 U.S.C. § 3282. The indictment charged defendant with committing the offenses "in or about 1999." Accordingly, the statute of limitations for these new offenses expired five years later, at the latest, December 31, 2004.
The government contends, however, that these new charges are not time-barred. The government argues that the January 2008 indictment is timely filed because it is merely a superseding indictment of the original February 2004 indictment [doc. no. 53 at 3-4]. The government contends, therefore, that the January 2008 indictment "relates back" to the filing date of the original indictment. According to the government, because the original indictment was timely filed, the January 2008 indictment is also timely. Id. The government, however, has overlooked a critical fact: the original February 2004 indictment was dismissed before the filing of the January 2008 indictment. That fact is fatal to the government's position.
In United States v. Friedman, 649 F.2d 199 (3d Cir.1981), the Court of Appeals for the Third Circuit adopted the following rule set forth United States v. Grady, 544 F.2d 598, 601-02 (2d Cir.1976):
Since the statute stops running with the bringing of the first indictment, a superseding indictment brought at any time while the first indictment is still validly pending, if and only if it does not broaden the charges made in the first indictment, cannot be barred by the statute of limitations.
Friedman, 649 F.2d at 203-04 (emphasis added). The court then reiterated the fact that the first indictment must be validly pending for the Grady rule to apply:
We are persuaded by Grady and hold that a superseding indictment returned while the original indictment is validly pending is not barred by the statute of limitations....
Id. at 204 (emphasis added).
Here, the original indictment was not "validly pending" in January of 2008. The original, February 2004 indictment was dismissed on July 3, 2007 for violation of the Speedy Trial Act. Korey, No. 04-0015 [doc. no. 124], 2007 WL 1965247, at *1. As such, the Grady rule does not apply.3
Because the statute of limitations was not tolled for the only reason advanced by the government, nor for any other reason, counts 1, 2, 3, and 5, are time-barred.
Count 4 of the January 2008 indictment charged defendant with knowingly using and carrying a firearm and silencer during and in relation to drug trafficking crimes in violation of 18 U.S.C. § 924(c). This offense repeats the conduct charged in count 1 of the February 2004 indictment. The court dismissed this charge, as stated earlier, on July 3, 2007, for violation of the Speedy Trial Act. Count 4 of the January 2008 indictment, however, further alleged that in the course of violating section 924(c), defendant "caused the premeditated murder of William Kuhn with malice aforethought, as defined in 18 U.S.C. § 1111 ...," in violation of 18 U.S.C. § 924(j). Section 924(j) was not charged in the February 2004 indictment.
Defendant contends that count 4 is time-barred because the government failed to reindict him on this charge within six months of the court's July 3, 2007 order dismissing the February 2004 indictment for violation of the Speedy Trial Act, as required by 18 U.S.C. § 3288 ("the savings clause").
The government responds with two arguments: (1) the filing of the December 28, 2007 complaint within the six (6) month time period triggered the savings clause under 18 U.S.C. § 3288; and (2) no statute of limitations applies to count 4 because, unlike count 1 in the February 2004 indictment, count 4 now alleges that defendant...
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