U.S. v. Owens, Criminal Action No. 95-10397-WGY.

• Decision Date: 27 February 1997
• Docket Number: Criminal Action No. 95-10397-WGY.
• Citation: 965 F.Supp. 158
• Parties: UNITED STATES of America v. Dwayne OWENS, Keillen Smith, Johnny Stephens, Robert Owens, Coleman Essex, Gordon Lowe, Wayne Meadows, Anthony Lewis, Kenneth Allen, and Fernando Owens, Defendants.
• Court: U.S. District Court — District of Massachusetts

965 F.Supp. 158

UNITED STATES of America v. Dwayne OWENS, Keillen Smith, Johnny Stephens, Robert Owens, Coleman Essex, Gordon Lowe, Wayne Meadows, Anthony Lewis, Kenneth Allen, and Fernando Owens, Defendants.

Criminal Action No. 95-10397-WGY.

United States District Court, D. Massachusetts.

February 27, 1997.

Robert L. Sheketoff, Sheketoff & Homan, Miriam Conrad, Office of the Federal Defender, Boston, MA, for Dwayne Owens.

John M. Moscardelli, Peters, Smith & Moscardelli, Boston, MA, for Keillen Smith.

Charles W. Rankin, Rankin & Sultan, Joseph J. Balliro, Jr., Balliro & Mondano, Boston, MA, for Kenneth Allen.

James Joseph Coviello, Revere, MA, for Gordon Lowe.

Richard E. Bachman, East Bridgewater, MA, for Anthony Lewis.

John Salsberg, Salsberg & Cunha, Boston, MA, for Johnny Stephens.

Bernard Grossberg, Boston, MA, for Robert G. Owens.

Michael J. Liston, Glass, Seigle & Liston, Boston, MA, for Coleman Essex.

Michael C. Andrews, Boston, MA, for Wayne Meadows.

Michael C. Bourbeau, Boston, MA, for Fernando Owens.

John W. Laymon, Laymon & Associates, Boston, MA, for Clarence Fields.

Ester C. Berglas, Weston, Patrick, Willard & Redding, Boston, MA, for Operation Pride.

Ted Heinrich, U.S. Attorney's Office, Boston, MA, Paul V. Kelly, Foley, Hoag & Eliot Boston, MA, Allison D. Burroughs, U.S. Attorney's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

YOUNG, District Judge.

Dwayne Owens and Robert Owens have been indicted for their alleged involvement in a drug racketeering enterprise (the "enterprise") and charged with various related offenses. Dwayne Owens has moved to dismiss Counts Three (conspiracy to murder Ina Stroud), Four (murder of Ina Stroud), Five (murder for hire of Ina Stroud), Six (assault on Deron Jones), Seven (assault on Glenn Hill), Thirteen (using and carrying firearm in conjunction with the murder of Ina Stroud), Fourteen (using and carrying firearm in conjunction with the assault on Deron Jones), and Fifteen (using and carrying a firearm in conjunction with the assault on Glenn Hill) of the Superseding Indictment on the ground that the five year statute of limitations established for these offenses had expired before the Superseding Indictment was returned. Robert Owens has moved to dismiss Counts Three (conspiracy to murder Ina Stroud), Four (murder of Ina Stroud), and Five (murder for hire of Ina Stroud) of the Superseding Indictment on the same ground. The government maintains that the Superseding Indictment was timely filed because the statute of limitations had either been tolled or extended as to these charges.

I. Background

The grand jury returned a Superseding Indictment against the defendants on May 14, 1996. The Superseding Indictment charges various offenses arising out of the drug distribution enterprise. Specifically, Dwayne Owens is charged with racketeering, 18 U.S.C. § 1962(c), (d); interstate travel in aid of racketeering, 18 U.S.C. § 1952(a)(2); conspiracy to murder, 18 U.S.C. § 1959(a)(5); murder, 18 U.S.C. § 1959(a)(1); assault, 18 U.S.C. § 1959(a)(3); murder for hire, 18 U.S.C. § 1958; conspiracy to distribute cocaine, 21 U.S.C. § 846; unlawful possession of firearms and ammunition, 18 U.S.C. § 922(g); using and carrying firearms during crimes of violence, 18 U.S.C. § 924(c); unlawful flight to avoid prosecution, 18 U.S.C. § 1073; money laundering, 18 U.S.C. § 1956; and aiding and abetting, 18 U.S.C. § 2. The Superseding Indictment charges Robert Owens with racketeering, 18 U.S.C. § 1962(c), (d); conspiracy to murder, 18 U.S.C. § 1959(a)(5); murder, 18 U.S.C. § 1959(a)(1); murder for hire, 18 U.S.C. § 1958; and conspiracy to distribute cocaine, 21 U.S.C. § 846.

The following factual allegations, drawn primarily from the Superseding Indictment and the pretrial proceedings, are relevant to the motions to dismiss:

In 1986, Dwayne Owens was a college student at Northeastern University in Boston, Massachusetts. The government alleges that in order to earn some extra money, Dwayne Owens and his girlfriend began to sell cocaine. According to the government, the business grew quickly. Dwayne Owens, as leader of the enterprise, brought in various people to help both in the distribution of drugs and in the maintenance and security of the drug enterprise. The government alleges that one such member of this enterprise was Robert Owens, Dwayne Owens' cousin.

In 1989, Dwayne and Robert Owens approached Clarence Fields ("Fields") to do some "work" for them.¹ At Dwayne Owens' trial, Fields testified that Dwayne and Robert Owens told him that they would pay him $2,000 if he would agree to kill someone for them. Dwayne Owens wanted to eliminate Ina Stroud ("Stroud"), an associate in the enterprise, because Dwayne Owens thought Stroud was giving information to authorities about his drug dealing activities and therefore "wanted her dead".

Fields testified that on July 8, 1989, Dwayne and Robert Owens gave him instructions to carry out the murder of Stroud. They allegedly paid him $1,000 prior to the murder and promised the remainder after completion of the assignment. Fields testified that he drove a stolen car provided by Dwayne and Robert Owens to Stroud's residence. Robert Owens convinced Stroud to step outside her apartment on the pretext that Fields wanted to make a drug purchase. After bringing Stroud to Fields, Robert Owens walked away and Fields and Stroud went into a hallway in the apartment building in which she lived. After arguing about the supposed drug deal, Fields drew a gun and aimed it at Stroud. Fields testified that he said, "Bitch, do you know what time it is?" He then shot her in the head at point blank range and she fell to the floor. Dwayne and Robert Owens paid Fields the remaining $1,000 after the shooting. Stroud died in the hospital several days later on July 16, 1989.

The government further alleges that in August, 1989, Dwayne Owens once again resorted to violence in order to maintain order and control over his enterprise. The government states that Dwayne Owens shot Deron Jones ("Jones") because he was threatening to compete in Dwayne Owens' lucrative drug business. Although Jones was shot in the chest, he survived. Dwayne Owens was arrested shortly afterward near the scene of the shooting.

The government alleges that at the time of the Jones shooting, Jones was with a man named Glenn Hill ("Hill"). According to the government, Hill was the only individual who could identify Dwayne Owens as Jones' assailant. On March 29, 1990, the government alleges that Dwayne Owens shot Hill in an attempt to eliminate the only witness who could link him to the Jones' shooting. Hill was shot in the arm and immediately told police at the scene that Dwayne Owens had shot him. The police went to Dwayne Owens' residence and burst in with a battering ram, but Dwayne Owens was not there. The government maintains that Dwayne Owens became a fugitive on that day and that he remained a fugitive until the day of his arrest in Richmond, Virginia on December 12, 1995.

At the time of the Stroud murder, the Jones' assault, and the Hill assault, the federal statute of limitations for these offenses was five years. See 18 U.S.C. § 3282.² Although these offenses were committed in 1989 and 1990, the Superseding Indictment was not returned until May 14, 1996 — over six years later. Facially, therefore, the Superseding Indictment is time barred as to these offenses.

There are several other facts, however, that bear on the statute of limitations analysis in this case.

First, the government alleges that because Dwayne Owens was fleeing from justice from 1990 until his capture in 1995, the statute of limitations tolled during that period for the murder and assault charges. Second, the government maintains that Robert Owens was also a fugitive for a period of time after the Stroud murder. Specifically, the government states that on March 22, 1988, Robert Owens was sentenced to sixteen months imprisonment for possession of heroin in California. He was paroled on April 5, 1989, and the parole was transferred to Massachusetts one month later. According to the government, Robert Owens violated his parole in August, 1989 by "absconding." On February 12, 1990, a Parole Violation Report was issued stating 1) that Robert Owens had failed to notify the parole officer of his change in residence and that his whereabouts had been unknown since August 31, 1989, and 2) that Robert Owens had failed to maintain legitimate employment after September 5, 1989. A parole warrant was subsequently issued for Robert Owens on March 8, 1990. On February 1, 1991, federal authorities arrested Robert Owens on firearms charges.³ The government maintains that Robert Owens was a fugitive for the eleven month period from March 8, 1990, the date of the parole warrant, to February 1, 1991, the date of his arrest.

In addition, on September 13, 1994, Congress increased the maximum penalty for the offenses of murder and murder for hire, making them capital offenses. 18 U.S.C. §§ 1958, 1959(a)(1) (as amended by the Violent Crime Control and Law Enforcement Act of 1994 [the "Violent Crime Act"], Pub.L. No. 103-322, §§ 60003(a)(11), (12), 330016(2)(c), 108 Stat. 1796, effective September 13, 1994). As a result, these offenses may now be prosecuted without limitation. 18 U.S.C. § 3281.⁴ While the government would be out of time under the original limitations period — even with the eleven month extension it seeks to tack on due to Robert Owens alleged fugitive status, that eleven month period is nevertheless a crucial bridge for the government as it arguably extends the original limitations period to the effective date of the current (capital) version of the statute — i.e., the version that has no period of limitation.

II. Discussion

A. Fleeing From Justice

The government asserts that both Dwayne and Robert Owens were fleeing from justice and that the statute of limitations tolled during their respective...