United States v. Carpenter

• Decision Date: 28 February 2022
• Docket Number: CRIMINAL ACTION 3:20-CR-97-CRS
• Parties: UNITED STATES OF AMERICA PLAINTIFF v. CLARENCE CARPENTER DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

UNITED STATES OF AMERICA PLAINTIFF v. CLARENCE CARPENTER DEFENDANT

CRIMINAL ACTION No. 3:20-CR-97-CRS

United States District Court, W.D. Kentucky, Louisville

February 28, 2022

MEMORANDUM OPINION AND ORDER

CHARLES R. SIMPSON III, SENIOR JUDGE

On October 21, 2020, a grand jury returned a five-count indictment charging Defendant Clarence Carpenter with conspiring between January 2019 and October 13, 2020 to possess with intent to distribute various quantities of fentanyl, heroin and methamphetamine. The Indictment charged:

• Conspiracy to possess with intent to distribute 400 grams or more of fentanyl (Count 1);

• Conspiracy to possess with intent to distribute 100 grams or more of heroin (Count 2);

• Conspiracy to possess with intent to distribute methamphetamine (Count 3);

and charged the following firearms violations:

• Possession of a firearm by a convicted felon (Count 4); and

• Possession of a firearm in furtherance of the drug trafficking conspiracies charged in Counts 1 -3 (Count 5).

Carpenter was apprehended eight months after the Indictment was returned. He was arraigned and entered a plea of not guilty to the charges on June 10, 2021. He was ordered detained pending trial and he remains in custody. Trial was scheduled for August 9, 2021 but was continued generally on motion by Carpenter. DNs 14, 15. The Court held a number of status conferences (DNs 15, 17, 19, 23, 25, 26, 31). Continuances were granted with corresponding time excluded from the speedy trial period due to the need for additional time to prepare for trial. Id. During this preparation period, Carpenter sought and obtained review of his pretrial detention. (DNs 16, 18, 21, 22). On December 30 2021, the Court rescheduled the trial for March 7, 2022, a date within the 70-day period in which the trial must commence in accordance with the Speedy Trial Act, 18 U.S.C § 3161(c)(1).

Carpenter moved for disclosure of confidential informants (DN 28) and the United States sought to defer the production of certain discovery to protect the identity of a cooperating witness. (DN 27). After further briefing (DNs 32, 33, 34, 41), the Court took these matters under advisement and ultimately ruled on the motions (DNs 37, 47).

On February 14, 2022, the United States sought an extension of time to file its pretrial memorandum, indicating that it intended to seek a superseding indictment. This prompted Carpenter to respond and move the Court to prevent the filing of new charges in the case. (DNs 55, 63). On February 16, 2022, a grand jury returned a superseding indictment charging Carpenter with:

• Conspiracy to distribute fentanyl, heroin, and methamphetamine during the period 2018 to October 7, 2019 (Count 1);

• Distribution of a substance containing fentanyl and heroin on September 2, 2020 (Count 2);

• Distribution of a substance containing fentanyl and heroin on October 1, 2020 (Count 3);

• Distribution of a substance containing fentanyl and heroin and a substance containing methamphetamine (Count 4);

• Possession with intent to distribute 400 grams or more of fentanyl on October 13, 2020 (Count 5); • Possession with intent to distribute 100 grams or more of heroin on October 13, 2020 (Count 6);

• Possession with intent to distribute 50 grams or more of methamphetamine on October 13, 2020 (Count 7);

• Possession with intent to distribute 5 kilograms or more of marijuana on October 13, 2020 (Count 8);

• Possession of a firearm by a convicted felon (Count 9); and

• Possession of a firearm in furtherance of the drug trafficking crimes charged in Counts 5 through 8 (Count 10).

The Court held two status conferences in the matter, affording defense counsel the time needed to consult with his client concerning whether, in light of new charges brought in the Superseding Indictment, he would proceed to trial on March 7, 2022. It is, as yet, unclear whether the trial can proceed, but it remains scheduled to commence on that date.

Counsel for Carpenter indicated that he would be filing a motion to dismiss the Superseding Indictment under Fed.R.Crim.P. 48(b) and to proceed to trial on the original Indictment on March 7^th. Carpenter has now filed this motion (DN 67) and the United States has responded (DN 69). Carpenter did not file a reply. The matter is ripe for review.

While long on rhetoric, Carpenter's motion is short on facts to support a violation of the Speedy Trial Act or Carpenter's 6^th Amendment right. The Court will decline to dismiss the Superseding Indictment under Rule 48(b).

First, we note that there is nothing inherently improper about the United States' decision to seek a superseding indictment three weeks prior to trial. Indeed, courts in this circuit have recognized the United States' ability to supersede an indictment “at any point before trial, ” including “on the eve of trial.” United States v. Johnson, 299 F.Supp.3d 909, 926 (M.D.Tenn. 2018) quoting Thomas v. United States, No. 1:11-CV-0038, 2011 WL 6754061, at *10 (M.D.Tenn. Dec. 23, 2011) quoting Bordenkircher v. Hayes, 435 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)(“[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely at his discretion.”). See also, United States v. Wilks, 629 F.2d 669, 672 (10^th Cir. 1980)(noting “Absent prejudice to the defendant, a superseding indictment may be filed at any time before trial, ” finding no prejudice in return of a superseding indictment three days prior to trial as it “presented no factual questions that should not have been answered by defendant's investigation of the original Indictment.”).

Carpenter's assertion that the Superseding Indictment must be dismissed for unnecessary delay under Fed.R.Crim.P. 48(b) is nothing without more meat on the bone. He must show, under any analytical rubric, prejudice. Carpenter has shown no prejudice.

Carpenter has asserted a violation of the Speedy Trial Act. None has occurred. He has asserted a violation of his 6^th Amendment right to a prompt and speedy trial, which also has not been shown. Quoting Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Carpenter notes that the 6^th Amendment right, which Congress sought proactively to protect through enactment of the Speedy Trial Act, is concerned with “oppressive pretrial incarceration, ” “anxiety and concern of the accused, ” and the “possibility that the defense will be impaired.” 407 U.S. at 532. We find none of those concerns threatened here.

Rule 48 states that “[t]he court may dismiss an indictment, information, or complaint if unnecessary delay occurs in (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial.” The United States has correctly noted that the Court does not possess unbridled discretion to dismiss indictments. See United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)(courts may not “abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment.”). “Judges are not free, in defining ‘due process,' to impose on law enforcement officials our ‘personal private notions' of fairness and to ‘disregard the limits that bind judges in their judicial function.” Id. (quoting Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). In enacting Rule 48, Congress certainly did not intend that judges would do so through imposition of a self-created definition of “unnecessary delay.” The Advisory Committee Notes which accompany the 1944 adoption of Rule 48 indicate as much: “Note to Subdivision (b). This rule is a restatement of the inherent power of the court to dismiss a case for want of prosecution. Ex parte Altman, 34 F.Supp. 106 S.D.Cal.” While the Altman case is not significant in its facts, it does reinforce the power of the court to dismiss an indictment for want of prosecution. The court stated

We can conceive the anarchy which would result if the power to terminate a criminal proceeding for want of prosecution did not exist. Defendants might have prosecutions hang over their heads, like the sword of Damocles, for years, without an effort being made to bring them to trial. And yet, if the prosecutor should refuse to try them, and the court acquiesce, they would be at his mercy. The constitutional guaranty of speedy trial (United States Constitution, Amendment VI) would be brought to nought, if, when the court set a cause for trial and the prosecutor was not prepared to proceed, the Court were powerless to dismiss it for failure to proceed diligently.

Altman, 34 F.Supp. at 108.

Rule 48(b) has no application here, as there is no want of prosecution. The United States has and continues to diligently prosecute Carpenter and is ready to proceed to trial on March 7, 2022. Additionally, as there has been no Speedy Trial violation, a ruling that unnecessary delay has occurred in superseding the indictment and bringing the defendant to trial would stand diametrically opposed to the timetable authorized by the Speedy Trial Act. As explained herein, there is no attempt at restarting an expired or expiring Speedy Trial clock. There is no need.

Carpenter frames a self-serving motive in superseding the original Indictment. He outlines deficiencies in the document which he contends were discovered when the United States began preparing for trial. Carpenter argues that it is “patently unfair” that the United States has brought new charges against him at this late date. His argument is based upon the supposed “untenable position” of having “no true choice but to delay the trial...