United States v. Broussard
| Decision Date | 13 July 2021 |
| Docket Number | 0:19-cr-101 (SRN/KMM) |
| Parties | United States of America, Plaintiff, v. Aaron Rhy Broussard, Defendant. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
This matter is before the Court for a Report and Recommendation on Defendant Aaron Broussard's Motions to Dismiss the Indictment and Motions to Suppress. [ECF Nos. 5, 6, 9 44-51].[1] Mr. Broussard has been charged by Indictment with 21 counts related to importation, possession and distribution of controlled substances. Specifically, Mr Broussard is charged with one count of Conspiracy; one count of Importation of Fentanyl; seven counts of Possession with Intent to Distribute various controlled substances or controlled substance analogues; nine counts of Distribution of Fentanyl Resulting in Death; two counts of Distribution of Fentanyl Resulting in Serious Bodily Injury; and one count of Distribution of Fentanyl Resulting in Serious Bodily Injury and Death. [Indictment 1-16, ECF No. 1].
Mr. Broussard has filed numerous pretrial motions since his indictment, and the Court held a motion hearing on May 10, 2021. [Minutes, ECF No. 58]. Because he is pro se, Mr. Broussard's motions are organized somewhat differently from those ordinarily seen in our District. The Court has endeavored to organize Mr. Broussard's submissions and analysis into workable arguments.[2]
Mr. Broussard seeks dismissal of the charges against him on several independent grounds: grand jury misconduct through the presentation of a flawed theory of prosecution and a misstatement of the law; grand jury misconduct through the refusal to present exculpatory evidence; vindictive prosecution; and selective prosecution. Mr. Broussard also seeks suppression of evidence seized during the course of the investigation pursuant to search warrants and tracking warrants, and bases these requests on several grounds: that the warrant applications failed to establish probable cause, using a traditional “four corners” challenge; that the theory of illegality underpinning each of the warrant or tracking applications suffered from the same legal flaws as the Indictment itself; and that the warrant applications contained false or misleading statements. Additionally, Mr. Broussard argues that the charges against him must be dismissed because his constitutional right to a speedy trial has been violated by the pretrial delay in this case.[3] The Court will begin by analyzing the Motions to Dismiss the Indictment, followed by the Motions to Suppress, and will conclude with a discussion of the speedy trial claims.
After careful analysis of all of Mr. Broussard's filings, the Court recommends denial of each one of the motions to dismiss and suppress.[4]
I. OVERVIEW OF THE GOVERNMENT'S ALLEGATIONS
The Minnesota Indictment alleges that Mr. Broussard conspired with others, and imported, possessed, and distributed various controlled substances and controlled substance analogues. [Indictment, ECF No. 1]. Specifically, the Indictment asserts that over a period of several years, Mr. Broussard purchased a variety of substances from China-based suppliers, including numerous different controlled substance analogues that were intended for human consumption. He would then repackage those substances, market them for sale on websites- including PlantFoodUSA.Net-and send the substances to purchasers across the country using the mail. [Indictment, ECF No. 1]. Most seriously, the Indictment asserts that in March 2016, Mr. Broussard ordered 100 grams of 4-FA from his source in China, but instead received 100 grams of fentanyl. He then distributed that fentanyl to customers around the country, resulting in up to eleven overdose deaths and serious injury to four others.[5]
II. RELEVANT PROCEDURAL BACKGROUND
On December 6, 2016, a grand jury in Scranton, Pennsylvania, returned a one-count Indictment against Mr. Broussard, charging him with distribution and possession with intent to distribute a controlled substance resulting in serious bodily injury and death in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). United States v. Broussard, 3:16-cr-352 (RDM) (M.D. Pa.) (Indictment, ECF No. 1). The Indictment followed a multi-jurisdiction investigation into a cluster of fentanyl overdoses in various locations across the United States. United States. v. Broussard, 3:16-cr-352, 2020 WL 3839643, at *1 (M.D. Pa. July 8, 2020).[6] Specifically, investigators discovered that the victims had, shortly before their overdoses, purchased various compounds purported to be controlled substance analogues from a website with the domain name, “PLANTFOODUSA.NET.” Id. The grand jury returned the Indictment after two individuals in the Middle District of Pennsylvania allegedly overdosed on these substances, and investigators collected evidence that the operation was being orchestrated by Mr. Broussard from his home in Hopkins, Minnesota. Id.
Mr. Broussard was arrested on the same day the Pennsylvania Indictment was returned, and after an initial appearance, detention, and removal hearing, the Court granted the government's motion for detention. United States v. Broussard, 16-mj-909 (KMM) (D. Minn.) (ECF Nos. 2-6). On December 17, 2016, the Court ordered Mr. Broussard removed to the Middle District of Pennsylvania. Id. (ECF No. 9).
The Indictment[7] against Mr. Broussard in the Middle District of Pennsylvania was pending for four years. During that time, “[a]lthough Defendant's counsel engaged in plea negotiations that would include the charges brough in the Middle District of Pennsylvania, as well as open investigations in approximately thirteen (13) other jurisdictions, the parties were unable to reach an agreement.” Also during the pendency of the Pennsylvania charges, the government filed 15 motions to continue described as “unopposed.” United States v. Broussard, 3:16-cr-352 (RDM) (M.D. Pa.) (Unopposed Mots. to Continue, ECF Nos. 16, 18, 23, 25, 27, 29, 36, 38, 40, 42, 44, 48, 50, 53, 55; see also Oral Mot. to Continue, ECF No. 46; Joint Mot. to Continue, ECF No. 118). As for Mr. Broussard, he was appointed four different attorneys, for various reasons (ECF Nos. 11, 15, 62, 114); filed seven motions to continue (ECF Nos. 81, 82, 84, 86, 88, 90, 92); filed a number of pretrial motions (ECF Nos. 30, 64, 94, 97, 100, 116, 120, 123); and also filed a petition for a writ of habeas corpus. United States v. Broussard, 3:16-cr-352 (RDM) (M.D. Pa.); Broussard v. United States, 1:20-cv-2180, 2020 WL 8087921 (M.D. Pa. Nov. 23, 2020) (habeas corpus petition).
On April 10, 2019, a grand jury in the District of Minnesota returned an Indictment against Mr. Broussard, charging him with 21 counts, as summarized above. [ECF No. 1]. The Court appointed counsel to Mr. Broussard on September 19, 2019, although he remained in Pennsylvania at that time. Ultimately, the Pennsylvania indictment was dismissed on motion of the government on December 16, 2020. United States v. Broussard, 3:16-cr-352 (RDM) (M.D. Pa.) (Order, ECF No. 125). Upon learning that the Pennsylvania charges were going to be dismissed, the government here initiated the transfer of Mr. Broussard to the District of Minnesota, where he made his initial appearance on December 1, 2020, and held a detention hearing on December 11, 2020. On February 10, 2021, the Court held a hearing pursuant to Faretta v. California and granted Mr. Broussard's motion to proceed pro se. 422 U.S. 806 (1975). All told, Mr. Broussard has filed twelve pretrial motions[8] since his indictment, and the Court held a pretrial motion hearing on May 10, 2021. [Minutes, ECF No. 58].
III. ANALYSIS
A. The Controlled Substance Act, the Analogue Act, McFadden, and Criminal Intent
Many of the separate challenges Mr. Broussard levels at his Indictment and at the searches conducted in his case rely upon a single overarching argument: that the charges in the Indictment rely on a theory of guilt that is fundamentally flawed. In essence, he argues that the government will be unable to prove the requisite criminal intent under the Controlled Substances Act (CSA), 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), because there is no evidence that he intended to distribute a controlled substance. Although the Indictment alleges and the government advances a theory that, at a minimum, he intended to distribute a “controlled substance analogue, ” as contemplated by the Controlled Substances Analogue Act (AA), 21 U.S.C. § 813, Mr. Broussard argues that such knowledge is insufficient to sustain the degree of criminal intent required under § 841. Because it is the underpinning of many of Mr. Broussard's other challenges, the Court will address this legal theory first.
Contrary to Mr. Broussard's analysis, the Indictment against him is not fatally flawed. Indeed, Mr. Broussard's argument relies on two premises, neither of which carry the day. First, he alleges that the government will be unable to prove that he knowingly distributed fentanyl, which resulted in the deaths of his customers, arguing that at most the government might be able to prove that he knowingly distributed 4-FA, an amphetamine analogue. Second, he says that his alleged intent to distribute 4-FA is insufficient to support convictions under the CSA, which require intentional distribution of a controlled substance - because an analogue is not a controlled substance under the CSA, intent to distribute an analogue is not enough to sustain a conviction under that Act. But each of these arguments fails.
Section 841(a) of the CSA requires the government to prove beyond a reasonable doubt that (1) a defendant distributed the specific controlled substance identified in the...
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