U.S. v. Vondette

• Decision Date: 30 March 2001
• Docket Number: No. 97 CR 1010(TCP).,97 CR 1010(TCP).
• Citation: 248 F.Supp.2d 149
• Court: U.S. District Court — Eastern District of New York
• Parties: UNITED STATES of America, v. Michael J. VONDETTE, also known as "Glenn Titus," "Big Guy," "Big," "Harry," "Steve," and "Upstate Steve," Defendant.

Page 149

248 F.Supp.2d 149

UNITED STATES of America, v. Michael J. VONDETTE, also known as "Glenn Titus," "Big Guy," "Big," "Harry," "Steve," and "Upstate Steve," Defendant.

No. 97 CR 1010(TCP).

United States District Court, E.D. New York.

March 30, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Howard L. Jacobs, New York City, Joel R. Weiss, Melville, NY, Robert I. Kalina, Attorney At Law, New York City, for Defendant.

Burton Ryan, Jr., United States Attorney's Office, Criminal Division, Garden City, NY, for Plaintiff.

MEMORANDUM AND ORDER

PLATT, District Judge.

Although the extensive factual background of this case has already been fully discussed and is summarized in the Government's papers, a brief recitation of the recent events in this matter is necessary. On November 9, 2000, a grand jury returned a second superceding indictment which charged the (self-styled) pro se¹ defendant Michael Vondette with two crimes. First, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(vii), 841(b)(1)(C) and 18 U.S.C. §§ 3551 et seq., Vondette was charged with knowingly and intentionally conspiring with others between January 1980 and October 30, 1997 "to distribute and to possess with the intent to distribute in excess of one thousand kilograms of hashish, in excess of one thousand kilograms of a mixture and substance containing marijuana and methaqualone ..." after a prior felony drug conviction had become final. (Superceding Indictment at 1-2.) Vondette was also charged with conspiring to launder money between October 27, 1986 and January 30, 2000, in violation of 18 U.S.C. § 1956(h). Id.

Already having filed more than forty motions relating to the former indictments, Vondette sought to file additional motions under the current indictment. He therefore submitted an application dated November 22, 2000 and an additional set of motions dated November 24, 2000. At a court conference on November 30, 2000, Vondette indicated that he intended to submit additional motions, and the Government informed the Court that it would answer Vondette's remaining motions in an omnibus opposition brief. (R. at 21-23.) Vondette subsequently submitted sets of motions dated December 6, 2000 and December 12, 2000. After the Government submitted its opposition papers, Vondette drafted a reply with several additional motions, to which the Government has submitted a further reply. It should be noted that it appears that Vondette served only copies of the November 22, 2000 and November 24, 2000 motions on this Court. The Court was not served with his other motion packages or his reply. Copies of all of these packages have been obtained from the Assistant United States Attorney.

At a conference held on February 2, 2001, this Court denied the following motions contained in Vondette's four motion packages and his reply: a motion to dismiss the indictment because of prosecutorial misconduct in front of the grand jury (R. at 18-19); a motion to dismiss for selective prosecution (R. at 19); a motion for further bills of particulars (R. at 20); a motion to dismiss the indictment because it was tainted by mentioning a prior conviction (R. at 27-31); and a motion for a hearing pursuant to 21 U.S.C. § 851 (R. at 28.) The Court also granted Vondette's motion relating to subpoenas, ordering the Government to produce the subpoenaed information for an in camera inspection. (R. at 26.) This memorandum addresses Vondette's remaining pro se motions.

As has been his practice, Vondette's motion packages include motions which have been previously denied, such as his request to have a determination of the admissibility of co-conspirators' statements, see United States v. Vondette, slip op. at 2 n. 1 (Mar. 14, 2000), his motion to dismiss the indictment or preclude testimony pursuant to United States v. Sun-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999), see id. at 7-10, and his motion to compel a psychiatric examination of the Government's principal witnesses. See (R. of 5/22/00 conference.) Additionally, this Court has already indicated that it would address Vondette's motion to strike surplusage in the indictment at trial. Vondette, slip op. at 1 n. 1. It should also be noted that this Court held an audibility hearing on January 19, 2001, at which time it denied Vondette's audibility motion and granted his request to have an expert examine the tape. This Court also denied Vondette's motion seeking release on bail at the February 2, 2001 conference. (R. at 22.)

DISCUSSION

I. Speedy Trial Act

Vondette claims that the Government has impermissibly "gild[ed]" the charges in the second superceding indictment, compelling their dismissal. (Application of 11/22/00, at 2-3.) This Court addressed Vondette's contentions regarding speedy trial issues in a Memorandum and Order dated September 20, 2000 and adds this section to augment the record.

Although this case is more than three years old, only (by this Court's calculation) nineteen (19) non-excludable days elapsed before this case was deemed, with the consent of the defendant's then counsel, as "complex" under the Speedy Trial Act.² Vondette was arraigned on December 2, 1997 and an order of excludable delay was filed excluding time from December 2, 1997 until January 16, 1998. On February 27, 1998, another order of excludable delay was filed, excluding the time from January 16, 1998 until March 27, 1998. The clock ran from March 27, 1998 until the next court appearance on April 3, 1998 (seven (7) days) and then from April 3, 1998 until April 15, 1998 (twelve (12) days), at which time Vondette made a motion to dismiss the indictment. The clock was therefore stopped through May 11, 1998, when the Government filed opposition papers until June 19, 1998, when Vondette filed a reply. The Court would then have had thirty days to respond to this motion. During that thirty day period, however, on July 10, 1998, Vondette's attorney declared the case complex, with the understanding that he could later challenge that designation. He never did. Thus from July 10, 1998 forward, the clock was stopped, and a mere nineteen (19) days elapsed on the speedy trial clock. The second superceding indictment has not changed this situation, and therefore the indictment may not be dismissed on these grounds. And while this Court disagrees with the defendant's prior contentions that this Court has not ruled on his motions, any delay in decisions by this Court is justified by the complexity of this multinational drug conspiracy and the sheer (we have literally lost count of the number) volume of the defendant's sundry and frequently repetitive motions.

II. Due Process Violations

Vondette apparently claims that the Government has violated his due process rights by intentionally delaying the instant superceding indictment for a three year period for the purpose of gaining "a tactical advantage" and thereby substantially prejudicing him. (Application of 11/22/00, at 2-3.) As noted above, and in a Memorandum and Order dated November 30, 2000, there has been no impermissible delay: any delay is primarily caused by Vondette's extensive motion practice. In fact, this Court has offered Vondette a speedy trial on several occasions, but he has repeatedly and consistently refused. This motion is therefore denied.

III. Miscellaneous Discovery Motions

Vondette's second set of motion papers requests that "the specific drug quantity, as per the statute, is a `substantive element' of the offense; and as such, the `quantity' becomes a `trial issue', thereby subject to any and all pre-trial Brady Discovery requirements." (Letter Mot. of 11/24/00, at 2) (original emphasis omitted). Vondette also notes that the Government must "articulate its view of the `elements'; identify the specific `facts' it intends to prove at trial; and demonstrate a threshold evidentiary support of its position well before the government's case in chief at trial." Id. (original emphasis omitted). Vondette also requests the pretrial disclosure of both the identity of the Government's informants and their testimony and the immediate disclosure of Jencks Act material. Id. at 3.

All of these requests are denied. First, as this Court noted at the conference held on February 2, 2001, the Government operates at its peril if it does not disclose all Brady material. (R. at 16-17.) That warning notwithstanding, and although the Government has not addressed this issue, it does not appear that the Government has discovery obligations with regard to the exact quantity of narcotics allegedly involved in this conspiracy before the trial begins. None of the cases cited by Vondette require this conclusion. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt"); Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 2092-96, 147 L.Ed.2d 94 (2000) (construing statutory references in 18 U.S.C. § 924(c)(1) to particular types of firearms as creating separate crimes rather than sentencing factors, and thereby finding that a jury must decide whether a defendant used or carried a machine-gun to receive a higher sentence); Jones v. United States, 526 U.S. 227, 251-52, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that the provisions of 18 U.S.C. § 2119, a carjacking statute, are not sentencing factors but rather three distinct offenses, all of which must be charged in an indictment and proved beyond a reasonable doubt); Richardson v. United States, 526 U.S. 813, 824, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (holding that a jury hearing a case brought pursuant to 18 U.S.C. § 848 must unanimously agree that the defendant committed each specific violation which is alleged to constitute a continuing series)....