United States v. Ahmad
| Decision Date | 23 June 2021 |
| Docket Number | 20-CR-00089(LJV)(JJM) |
| Parties | UNITED STATES OF AMERICA, v. SYED AHMAD, Defendant. |
| Court | U.S. District Court — Western District of New York |
REPORT, RECOMMENDATION AND ORDER
Defendant Syed Ahmad is charged, along with three co-conspirators, in a Superseding Indictment [53][1] with conspiracy to distribute marijuana, in violation of §846. Id., Count 1. Before the court are Ahmad's omnibus pretrial motion [76] and the government's crossmotion for reciprocal discovery (government's Response [79] at 18-19), which have been referred to me by District Judge Lawrence J. Vilardo for initial consideration [6].
Having considered the parties' submissions [76, 79, 84] and heard oral argument on June 7, 2021 [86], for the following reasons the government's cross-motion is granted Ahmad's non-dispositive motions are denied, and I also recommend that his motions to dismiss and suppress be denied.
Ahmad is currently incarcerated after pleading guilty in December 2019 in the Central District of Illinois to possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B). See Judgment [76-2]. According to Ahmad, the charges in this case and those leading to his plea both emanate from his December 2017 arrest in Jacksonville, Illinois. Ahmad's Memorandum of Law [76-10] at 1.
Ahmad seeks to the dismiss the Superseding Indictment as against him on double jeopardy grounds because “the charges here . . . reprise the charges against him resolved by [his] guilty plea in the Central District of Illinois”. Ahmad's Memorandum of Law [76-10] at 2.
“The double jeopardy clause protects against . . . a second prosecution for the same offense after conviction”. United States v. Persico, 832 F.2d 705, 710 (2d Cir. 1987). “A double jeopardy claim cannot succeed unless the charged offenses are the same in fact and in law.” United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003). However, “the critical double jeopardy inquiry is not factual, i.e., whether the same conduct is at issue in charges brought under different statutes, but legal, i.e., whether the ‘offense' - in the legal sense, as defined by Congress - complained of in one count is the same as that charged in another.” United States v. Basciano, 599 F.3d 184, 198 (2d Cir. 2010).
The offenses here - possession of marijuana with intent to distribute and conspiracy to distribute marijuana - are not the same in law. “[I]t is well settled that substantive drug offenses and a conspiracy to commit those offenses are distinct offenses for double jeopardy purposes”. United States v. Nunez, 2011 WL 112260, *3 (W.D.N.Y. 2011); Norris v. Brown, 2011 WL 2490838, *5 (E.D.N.Y. 2011) (). See also United States v. Felix, 503 U.S. 378, 389 (1992) ().
Plaintiff points to the offenses being the same in fact (e.g., “nothing produced by the government suggests any involvement by Mr. Ahmad outside of any agreement to possess marijuana for distribution dating back to activity prior to his December 31, 2017 arrest in Illinois” Ahmad's Memorandum of Law [76-10] at 4-5), but “only when the counts charged are based on the same statute does the relevant inquiry become whether the crimes ‘are the same in fact'”. United States v. Jenkins, 280 F.Supp.3d 364, 372 (W.D.N.Y. 2017) (citing Basciano, 599 F.3d at 198). In any event, the government states that “Ahmad's conduct is greater than just a sole incident” (government's Response [79] at 18), which I accept for purposes of this motion. Therefore, I recommend that this motion be denied.
In passing, Ahmad notes that the “[p]re-indictment delay due to the government's choice to wait until 2020 to bring charges based on information it possessed since 2018, while detained and then incarcerated, [is] severely prejudicial to [him], [and] also violated his Fifth Amendment right to due process”. Ahmad's Memorandum of Law [76-10] at 5. Although the government does not respond to that argument, it is not supported by the authority cited by Ahmad. He relies on United States v. Groves, 571 F.2d 450 (9th Cir. 1978), which dismissed an Indictment on vindictive prosecution grounds that was returned shortly after the defendant sought dismissal of the Criminal Complaint under the Speedy Trial Act. Since those circumstances bear no similarity to those here or to Ahmad's pre-indictment delay argument, I recommend that this motion be denied.
According to Ahmad “it appears the government asked a confidential source to identify [him], using a photo, without an appropriate array”. Ahmad's Memorandum of Law [76-10] at 5. The single photograph of Ahmad that was used to make the identification ([76-8] at 2) has “Frank?” handwritten on the bottom.
The government explains that the photo of Ahmad was “first shown to a cooperating witness [who] testified in [the] Grand Jury”. Government's Response [79] at 9. It argues that “the concerns that animate Wade”[3] are not implicated here, since “the cooperating Witness “knew Mr. Ahmad well” (i.e., “for years”), and that any concerns about suggestiveness of the out-of-court identification can be explored at trial. Id. at 11-13. I agree with the government.
A defendant has the right not to be subjected to an identification procedure that creates a “very substantial likelihood of irreparable misidentification”. Manson v. Brathwaite, 432 U.S. 98, 116 (1977). In determining whether to suppress identification testimony, the court must undertake a two-step analysis. First, the court must consider whether the identification procedure was “impermissibly” or “unnecessarily” suggestive. If so, the identification must nevertheless possess “sufficient aspects of reliability”. United States v. Bubar, 567 F.2d 192, 197 (2d Cir. 1977). Thus, “[e]ven if the procedure was unnecessarily (or impermissibly) suggestive . . . a district court may still admit the evidence if, when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability.” United States v. Bautista, 23 F.3d 726, 729-30 (2d Cir. 1994).
“An in-court identification is . . . admissible, despite an improper pre-trial identification procedure, if the witness is familiar with the defendant prior to the incident.” United States v. Crumble, 2018 WL 1737642, *2 (E.D.N.Y. 2018). While it is curious that the witness who purportedly identified Ahmad from the photograph appears to have written “Frank?” on that photograph, I accept the government's representations concerning the identifying witnesses' familiarity with Ahmad and find that further disclosure of the identification procedures used, much of which has already been disclosed by the government, is unnecessary. See United States v. Johns, 336 F.Supp.2d 411, 424 (M.D. Pa. 2004) (“[t]he court is entitled to rely on the representations of counsel, as officers of the court”).
When the government's witnesses, their anticipated testimonies, and Jencks Act material are disclosed, Ahmad will be “in a better position to determine if either a Wade hearing or voir dire outside the presence of the jury are necessary” and have the ability to seek that relief, if necessary. United States v. Valdez, 2020 WL 7700338, *6 (W.D.N.Y.), adopted, 2020 WL 7137137 (W.D.N.Y. 2020); United States v. Stephenson, 2020 WL 2115719, *9 (W.D.N.Y.), adopted, 2020 WL 2113496 (W.D.N.Y. 2020) (same). As the government notes, if the witness knew Ahmad as it alleges, “it is doubtful [he] will claim that . . . [the witness] misidentified him”. Government's Response [79] at 15. Therefore, I recommend that this motion be denied.
Ahmad moves to suppress the “physical evidence seized from [him] and alleged statements attributed to [him] in connection with his December 31, 2017 arrest in Illinois”. Ahmad's Memorandum of Law [76-10] at 8. This same motion was denied by the Central District of Illinois, but preserved as part of Ahmad's plea and currently on appeal before the Seventh Circuit Court of Appeals (Case No. 19-3490). Id. Instead of relitigating that issue, Ahmad asks that “[i]f the Seventh Circuit reverses or remands the case to the Central District of Illinois, the Court should consider whether to hold a new suppression hearing”. Id. Since the government does not object to this proposal (government's Response [79] at 9), I recommend that the motion be denied, without prejudice to renewal.
“Rights of discovery in criminal cases, unlike in civil cases, are severely circumscribed.” BCCI Holdings (Luxembourg), Societe Anonyme v. Pharaon, 1995 WL 489426, *4 (S.D.N.Y. 1995). Apart from the government's Brady, [4] Giglio, [5] and Jencks Act (18 U.S.C. §3500) obligations, which are addressed separately, Fed. R. Crim. P. (“Rule”) 16 “is . . . the sole authorized vehicle under the Federal Rules of Criminal Procedure for pre-trial discovery in criminal cases”. United States v. Louis, 2005 WL 180885, *2 (S.D.N.Y. 2005).
Ahmad moves pursuant to Rule 16 for various forms of discovery. Ahmad's Memorandum...
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