United States v. Carpenter
| Decision Date | 28 December 2018 |
| Docket Number | 18-cr-362 (ADS) |
| Parties | UNITED STATES OF AMERICA, v. LARRY CARPENTER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
United States Attorney's Office, Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722
By: Monica K. Castro, Assistant U.S. Attorney
Federal Defenders of New York, Inc.
610 Federal Plaza
Central Islip, NY 11722
By: Tracey L. Gaffey, Assistant Federal Defender
Presently before the Court is a motion by Larry Carpenter ("Carpenter" or the "Defendant"), pursuant to Federal Rule of Criminal Procedure ("FED. R. CRIM. P." or "Rule") 7 and 41, seeking to (1) dismiss Count One and a portion of Count Two of the superseding indictment; (2) suppress two cellular devices; (3) obtain a bill of particulars; and (4) strike the indictment for surplusage. For the following reasons, the Defendant's motion is denied in its entirety.
On June 24, 2018, Carpenter was arrested in East Farmingdale, New York. The arrest stemmed from two alleged drug sales: one where the Defendant purportedly sold 1.3 grams of crack-cocaine to Scott Allen, and the other where the Defendant allegedly sold 2.5 grams of heroin to a law enforcement operative. The Defendant ostensibly carried out these transactions while seated in the passenger seat of a vehicle (the "Vehicle"). A firearm and two cellular devices (the "Devices") were recovered from the passenger seat of the Vehicle. The next day, Carpenter appeared in front of Magistrate Judge A. Kathleen Tomlinson, who entered an order of detention.
On July 13, 2018, based on an affidavit (the "Affidavit") by Drug Enforcement Administration ("DEA") Special Agent Francis X. Rau ("Special Agent Rau"), Magistrate Judge Gary R. Brown signed a warrant (the "Warrant") for the search of the Devices. See Dkt. 38-1. Three days later, Special Agent Rau executed the return on the Warrant, stating, under penalty of perjury, that on July 16, 2018, the Devices were submitted to a forensic examiner in the DEA's New York Division for analysis.
On July 18, 2018, a grand jury returned a four-count indictment, charging the Defendant with the distribution of cocaine base and heroin; the use of a firearm in furtherance of a drug crime; and being a felon in possession of a firearm. Carpenter entered a plea of not guilty before Magistrate Judge Tomlinson and waived speedy trial until September 14, 2018. On August 23, 2018, the government provided defense counsel with initial discovery disclosures, including a copy of the Warrant, pursuant to Rule 16. The government also provided additional discovery on August 31, September 10, October 12, November 6 and November 9, 2018. The Devices were analyzed by the DEA on August 30, 2018, and September 11, 2018. Thirty days later, this data was produced to the Defendant.
At the September 14, 2018 status conference, Carpenter waived speedy trial until October 19, 2018. He appeared on October 19, 2018 and at that hearing pled guilty to distributing cocaine base and heroin. The Court set a trial date on the remaining charges for December 3, 2018.
On November 7, 2018, the government filed a superseding indictment, which added a charge of Conspiracy to Distribute Cocaine Base ("Count One"); augmented the existing firearms charge ("Count Two") to include the allegation that Carpenter used, carried or possessed a firearm in connection with Count One; and added the allegation that the Defendant is also known as "Kontraversy."
On November 19, 2018, the instant motion was filed. By December 14, 2018, it was fully briefed.
On December 12, 2018, the government filed a second superseding indictment, which augmented Count One to include the allegation that Carpenter conspired to distribute heroin in addition to cocaine base. The Defendant was arraigned on the second superseding indictment on December 26, 2018.
Trial is currently scheduled for January 15, 2019.
The Defendant contends that the superseding indictment fails to state an offense against him regarding Count One and a portion of Count Two because it does not allege an agreement, as required by the statute.
Rule 7(c)(1) requires an indictment to "be a plain, concise and definite written statement of the essential facts construing the offense charged." FED. R. CRIM. P. 7(c)(1). "An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962)), cert. denied, 504 U.S. 926 (1992).
To comply with Rule 7, an indictment must inform the accused of the crime with which he has been charged. United States v. Doe, 297 F.3d 76, 87 (2d Cir. 2002) (). In the Second Circuit, the government is required to "do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (quoting United States v. Tramunti, 513 F.3d 1087, 1113 (2d Cir. 1975)).
"An indictment must be read to include facts which are necessarily implied by the specific allegations made." Stavroulakis, 952 F.2d at 693 (internal citations omitted); see also United States v. Sabbeth, 262 F.3d 207, 218 (2d Cir. 2001) (). Yet, "for an indictment to fulfill the functions of notifying the defendant of the charges against him and of assuring that he is tried on the matters considered by the grand jury, the indictment must state some fact specific enough to describe a particular criminal act, rather than a type of crime." United States v. Pirro, 212 F.3d 86, 91 (2d Cir. 2000).
The Court accepts as true the allegations set forth in the indictment for purposes of determining the sufficiency of the charges.
The superseding indictment alleges that Carpenter "knowingly and intentionally conspire[d] to distribute and possess with intent to distribute [280 or more grams of cocaine base]," between September 2015 and June 2018. See Dkt. 33 at 1-2.
To establish a conspiracy, the government must demonstrate "[an] agreement among two or more persons to join in a concerted effort to accomplish an illegal purpose." United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009) (citing United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 91 L. Ed. 1654 (1947)); accord United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989) (). "As a literal matter, when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer." Id. Yet, in this Circuit, "the mere purchase and sale of drugs does not, without more, amount to a conspiracy to distribute narcotics." United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015). This recognizes the reality that a conspiracy does not arise merely because a buyer and seller transact narcotics. "[I]n the typical buy-sell scenario, which involves a casual sale of small quantities of drugs, there is no evidence that the parties were aware of, or agreed to participate in, a larger conspiracy." United States v. Hawkins, 547 F.3d 66, 71-72 (2d Cir. 2008) (citing United States v. Medina, 944 F.2d 60, 65 (2d Cir. 1991)).
As the government notes in its papers, the Defendant theorizes that the government's case against him is limited to a buyer-seller relationship. This type of conjecture is premature at this stage of the proceedings. The Defendant's argument is based on his own analysis of the evidence that the government will present during trial. Without seeing all the evidence to be presented at trial, the Court is unable to characterize the government's case as a simple buyer-seller relationship and declines to dismiss the relevant portions of the indictment prior to trial.
The vast majority of the cases cited in support of the Defendant's motion to dismiss were decided on appeal after all of the evidence was presented and the government obtained a conviction. In such an instance, a court could evaluate whether the government proved the necessary elements to constitute a conspiracy. See, e.g., United States v. Mittal, No. 98 Cr. 1302, 1999 WL 461293, at *6 (S.D.N.Y. July 7, 1999) (collecting cases).
Carpenter contends that the government has made a full proffer of the evidence it plans to present at trial. Citing only a single case in his papers where a motion to dismiss was granted prior to trial, United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998), he argues that the instant motion to dismiss is ripe for decision. In Alfonso, the Second Circuit held that the district court acted prematurely in ruling on a motion to dismiss to the extent the district court looked beyond the face of the indictment and drew inferences of proof that would be introduced at trial. Id. at 777-78. Yet, Judge Cabranes noted that if "the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial," the district court may address the sufficiency of the evidence in a pretrial motion to dismiss. Id. at 776-77. In support of this assertion, the Alfonso Court cited United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981), asserting that "in [Mennuti] the government had filed an affidavit making a full proffer of the evidence to be presented at trial." Alfonso, 143 F.3d at 777. In the instant case, the government has filed no such...
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