U.S. v. Kouri-Perez, Crim. 97-091 (JAF).

• Decision Date: 02 March 1999
• Docket Number: No. Crim. 97-091 (JAF).,Crim. 97-091 (JAF).
• Citation: 47 F.Supp.2d 166
• Parties: UNITED STATES of America, Plaintiff, v. Yamil H. KOURI-PEREZ (01), et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

47 F.Supp.2d 166

UNITED STATES of America, Plaintiff, v. Yamil H. KOURI-PEREZ (01), et al., Defendants.

No. Crim. 97-091 (JAF).

United States District Court, D. Puerto Rico.

March 2, 1999.

COPYRIGHT MATERIAL OMITTED

Maria A. Dominguez-Victoriano, Asst. U.S. Attorney, Guillermo Gil, U.S. Attorney, San Juan, PR, for U.S.

Benny Frankie Cerezo, San Juan, PR, for Kouri-Perez.

Francisco Rebollo-Casalduc, San Juan, PR, for Sotomayor-Vazquez.

Yolanda Collazo, San Juan, PR, for Borel-Barreiro.

MEMORANDUM ORDER

FUSTE, District Judge.

This order expands upon our Order No. 52, of February 26, 1999, partially granting Defendants' motion for continuance dated February 24, 1999. We scheduled trial to commence on March 1, 1999 and, thereafter, we found it proper to delay the commencement of trial until March 11, 1999. See Docket Documents Nos. 531, 601, 622-24, and 627.

I. Relevant Procedural History

On May 5, 1997, a federal grand jury indicted Defendants for their alleged involvement in a conspiracy involving a money laundering and corrupt solicitation scheme. The alleged conspiracy involved the Advanced Community Health Services, Inc. ("ACHS") and improper use of federal funding appropriated for the treatment of AIDS victims. 18 U.S.C. §§ 371, 666, 1512(b), 1956(a)(1)(B)(i) -(ii), and 982. Docket Document No. 2. On February 11, 1998, the grand jury returned a second superseding indictment. Docket Document No. 229. We originally set trial to commence on March 1, 1999. On February 19, 1999, a federal grand jury returned a third superseding indictment, which added two new Defendants and expanded the length of the alleged conspiracy. Docket Document No. 582. We subsequently severed the two newly-added defendants. On February 24, 1999, Defendants moved to continue the trial. Docket Document No. 601. On February 26, 1999, we held a status conference on the record to discuss this motion. On that same day, we issued Order No. 52, ordering that the case be tried on the second superseding indictment, and granting Defendants' motion for continuance, but limiting it to ten days. We also severed Defendant Milagros García-León. This memorandum order expands upon Order No. 52.

II. The Superseding Indictments

The government obtained the third superseding indictment on February 19, 1999, ten days before trial was slated to begin. The apparent reason behind the timing of the recently-filed third superseding indictment is that witnesses subpoenaed by the grand jury contested their appearance. This required lengthy proceedings and an appeal. Upon the First Circuit's affirmance of our order compelling attendance and denying the stay of mandate, we entered orders which eventually, upon the admonishment of severe sanctions, forced the non-complying parties to appear before the grand jury on February 12, 1999. This attenuated process concluded on February 19, 1999, with the return of the third superseding indictment. See Docket Documents Nos. 506, 508-09, 512, 514-18, 566a-c, and 618. Thus, the government, through no apparent fault of its own, was unable to obtain the third superseding indictment at an earlier date.

Just two days before the filing of the third superseding indictment, the government amended its Fed.R.Crim.P. 12(d)(2) designation of evidence. See Docket Document No. 569. The government turned over additional discovery to Defendants. During the February 26 status conference, the parties discussed the additional documentation as the court probed how these documents are relevant to the second or the third superseding indictment.¹ Additionally, the third superseding indictment expanded the dates of the conspiracy by almost twenty-one months at the inception.²

We have carefully considered Defendants' motion and recognize their concerns regarding the third superseding indictment. However, we are also cognizant of the prosecution's position of being unable, through no apparent fault of their own, to obtain the third superseding indictment prior to February 19, 1999. Thus, in the interest of fairness to all parties, we consider the appropriate inquiry to be whether we should try this case on the second or the third superseding indictment.³

District courts have discretion to grant continuances upon a determination that the "ends of justice" necessitate such action. 18 U.S.C. § 3161(h)(8)(A). Prosecutors are free to file superseding indictments "at any time prior to a trial on the merits." United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir.1983) (citing United States v. Stricklin, 591 F.2d 1112, 1115 n. 1 (5th Cir.1979)). Nonetheless, the prosecution's filing of a superseding indictment does not "automatically" entitle a defendant to a continuance. United States v. Vaughn, 111 F.3d 610 (8th Cir.1997); see also United States v. Rojas-Contreras, 474 U.S. 231, 234, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985) (minor correction of indictment before trial did not require court to grant a continuance); United States v. Simpson, 979 F.2d 1282 (8th Cir. 1992) (new charge added to indictment before trial did not require court to grant a continuance); cf Del Vecchio, 707 F.2d at 1216 (stating that prior to trial, district court has discretion to decide which indictment to dismiss); accord United States v. Lindsey, 47 F.3d 440, 444 (D.C.Cir.1995).

As it is within our province to decide which indictment to proceed upon, we find that fairness and integrity compel us to proceed upon the second superseding indictment. See United States v. Bowen, 946 F.2d 734, 736 (10th Cir.1991) (stating that court found "no authority which supports the proposition that a superseding indictment zaps an earlier indictment to the end that the earlier indictment somehow vanishes into thin air"). Allowing prosecution pursuant to the third superseding indictment could subject Defendants to prejudice, mainly by implicating two additional defendants and twenty-one months of life to the conspiracy at its inception. Cf United States v. Torres-Rodriguez, 930 F.2d 1375, 1384 (9th Cir. 1991) (holding that prejudice is "determinative factor in deciding which counts of a multi-count indictment must be retried"). Both parties have been preparing for trial on the second superseding indictment for over a year, since February 11, 1998. Both sides have conducted vast amounts of research and invested substantial time preparing for a trial on the second indictment. Therefore, we hold that the parties will proceed to trial on the second superseding indictment. The third superseding indictment will govern the next trial involving the severed codefendants.

III. Scope of the Indictment

Given the discussions at the February 26 status conference, and considering our decision to proceed under the second superseding indictment, we explore the contours and limits of that indictment. The two most significant changes in the third superseding indictment were the addition of two new Defendants, Luis E. Dubón-Otero, Jr. and Jorge Garib-Bazaín, and the expansion of the dates of the conspiracy by approximately twenty-one months at the inception of the conspiracy. The main substantive counts did not change, except that codefendant Kourí-Pérez was added as a codefendant in two substantive counts. However, our decision to proceed upon the second superseding indictment means that the new Defendants are not a part of this stage of the lawsuit and the dates of the alleged conspiracy have not been expanded. Thus, Defendants are dealing with substantially the same case as they were prior to the third superseding indictment.

This is not to suggest that we are incognizant of the fact that some of the newly-designated documents may be relevant to the second superseding indictment. Defense counsel are absolutely correct in asserting that there is new evidence to be addressed. Nonetheless, the scope of the second superseding indictment is sufficiently expansive to cover some of that evidence. See Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (stating that "[t]he particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy for which petitioners contend is not essential to an indictment"); but see United States v. Santa-Manzano, 842 F.2d 1, 3 (1st Cir.1988) (holding that indictment that did not state "with reasonable specificity the facts making up the essential elements of the crime" was constitutionally defective).

For example, regarding the conspiracy charge pursuant to 18 U.S.C. § 371, the second superseding indictment states that the object of the conspiracy was for Defendants, "together with others known and unknown to the Grand Jury, to use the funds of ACHS and ISSJ (San Juan AIDS Institute), for unauthorized personal and other benefits, through a pattern of deceptive conduct and transactions ... [that were] nothing more than a means of concealing the fraudulent nature of the disbursements." Docket Document No. 229, ¶ 34 (emphasis added). Paragraph 43 states that "ACHS checks payable to these corporate entities and organizations would be converted into manager's checks in order to facilitate the negotiability of said checks and their transfer to their ultimate [illegal] destination." Id., ¶ 43 (emphasis added). Paragraph 46 states that "[f]unds from ACHS would be used for unauthorized personal benefit, including the attempted financing of a political campaign." Id., ¶ 46 (emphasis added). We find these charges to be sufficiently comprehensive to possibly include some of the government's new evidence that is relevant to the second superseding indictment. Additionally, defense counsel need only research and address the new material encompassed within the original dates of the conspiracy alleged in the second superseding indictment, October 10, 1990, through in or about February 1994. All other material, including the expansion of the conspiracy, is extraneous.

IV. The Ten-Day Extension

At the ...