United States v. Deas
| Decision Date | 08 January 2009 |
| Docket Number | No. 3:07-cr-73 (CFD).,3:07-cr-73 (CFD). |
| Citation | 596 F.Supp.2d 319 |
| Parties | UNITED STATES of America, v. Vida DEAS. |
| Court | U.S. District Court — District of Connecticut |
David J. Wenc, Wenc Law Offices, Windsor Locks, CT, John D. Maxwell, Brown, Paindiris & Scott, Glastonbury, CT, for Defendant.
RULING DENYING SECOND MOTION TO DISMISS SUPERSEDING INDICTMENT
On April 10, 2007, a federal grand jury in Hartford returned a 25-count indictment charging thirteen defendants, including Vida Deas, with various violations of federal law, including 21 U.S.C. §§ 841 and 846.1 Following the guilty pleas of the other defendants, Deas was the only defendant charged in a five-count superseding indictment returned on October 16, 2008, as follows count one alleges that Deas conspired to possess with the intent to distribute and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); count two alleges that Deas conspired to possess with the intent to distribute and to distribute 500 grams or more of powder cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); counts three and four allege that Deas possessed with the intent to distribute and distributed cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); count five alleges that Deas possessed with the intent to distribute cocaine base, also in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
In a letter addressed to the Court dated October 28, 2008, Deas moved to dismiss all five counts of the superseding indictment because it was not filed within 30 days of his arrest on March 27, 2007. The Court denied that motion in a ruling filed on November 24, 2008, 2008 WL 5063905. Deas again moved to dismiss the superseding indictment in a motion filed on December 3, 2008 [Dkt. # 588]. For the following reasons, the second motion to dismiss is denied.
Deas was arrested on March 27, 2007 based on a criminal complaint, and was indicted on April 10, 2007. The criminal complaint charged Deas with conspiracy to possess and distribute over 50 grams of cocaine base between about February 1, 2007 and March 25, 2007, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A).2 The affidavit in support of the complaint described Deas and Byron Turner as coconspirators who had converted cocaine into cocaine base and purchased cocaine from a person identified as "T" for that purpose. The affidavit states that those events occurred on February 13 and 14, 2007. Much of the information related in the affidavit came from court-authorized wiretaps of Turner's telephones in February and March of 2007.
The superseding indictment was returned while the original indictment was pending. The superseding indictment restated the original charges against Deas contained in the original indictment and made the changes described in the Court's ruling on the first motion to dismiss [Dkt. # 583], including changing the dates of the two charged conspiracies from "February 1, 2007 to on or about March 26, 2007" to "on or about January 2004 through on or about March 26, 2007." The government expanded the dates of the charged conspiracies after an October 2, 2008 interview with a cooperating co-defendant, who stated that Deas had converted crack cocaine for Turner on five to ten occasions prior to the wiretap portion of the investigation.
The Court's ruling denying the first motion to dismiss noted that the charges in the superseding indictment against Deas are identical in all material respects to the charges in the original indictment, with the exception of the expanded time period of the charged conspiracies. The government stated, prior to that ruling, that the expanded time periods charged in the superseding indictment were the result of information not known to the government at the time of the criminal complaint or the original indictment, but rather gained for the first time during an October, 2008 interview with a cooperating defendant. The Assistant U.S. Attorney has since stated that his previous recollection of what the government knew at the time of the original indictment was inaccurate. In fact, the government first interviewed the cooperating defendant on April 3, 2007— after the criminal complaint of March 27, 2007 but approximately one week before the original indictment was returned on April 10, 2007. During that interview, the government learned of information that may have supported a longer conspiracy than set forth in the original indictment's second count, relating to a cocaine powder conspiracy involving Turner and Isufaj.3 However, at the time of the April 3, 2007 interview, the cooperating defendant had not pleaded guilty or entered into any agreement with the government, the information provided by the cooperating defendant was not clear or specific and also was not compelling, as it was as yet uncorroborated and would not likely have been admissible at trial against Deas. The government appears to have considered this information less than reliable at that time, and argues that it was correct not to seek a broader indictment on April 10, 2007. The government relied principally on the wiretap information from February and March 2007 in proposing the original indictment to the grand jury. Deas argues that because the government knew of this information from the cooperating defendant supporting a longer conspiracy, the Speedy Trial Act's thirty-day requirement compelled the government to indict for the longer period within thirty days of the April 3, 2007 proffer session. Since the superseding indictment was returned after the thirty-day period expired, Deas claims its longer conspiracy period is barred by the Speedy Trial Act.
The Speedy Trial Act's "thirty-day requirement" requires that "any ... indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b). "[Section 3161(b) of the Act] was meant in part to ensure that accused individuals do not suffer for more than thirty days without being formally charged." United States v. Hajduk, 370 F.Supp.2d 1103, 1108 (D.Colo. 2005).
Although the Speedy Trial Act does not contain the words "superseding indictment," both the Second Circuit and this District have considered how to treat a superseding indictment under § 3161(b). See, e.g., United States v. Roman, 822 F.2d 261 (2d Cir.1987); United States v. Glover, No. 3:08-cr-4 (JCH), 2008 WL 4696120 (D.Conn. Oct. 21, 2008). In Glover, the court held that dismissal is not required under § 3161(b) "where an untimely superseding indictment pleads the same charges based upon the same facts as an earlier indictment." 2008 WL 4696120 at *4 ().4 It is this characterization of the charges against Deas that the government asserts: because under the Blockburger "same elements" test which is applied in the context of the Double Jeopardy Clause the two indictments charge the same offense, there is no Speedy Trial Act violation. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, the Court rejects the government's argument on the present record for several reasons. First, the Blockburger test may not be adequate for examining whether two charged conspiracies violate the Double Jeopardy Clause and is similarly inadequate to analyze whether two charged conspiracies violate the Speedy Trial Act's thirty-day rule. United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985) (); see also United States v. Lopez, 356 F.3d 463, 467-68 (2d Cir.2004) (). Second, the Court has found and continues to find that a change in the charged time period of the conspiracies, from two months in the original indictment to three years and two months in the superseding indictment, could effect a material change upon the charges in the original indictment. However, it is also well-settled that a superseding indictment issued more than thirty days after a defendant's arrest and adding a new charge to those contained in the complaint and original indictment does not violate the Speedy Trial Act. Such a charge does not inherit the original complaint's thirty-day clock but rather starts its own, new clock. Glover, 2008 WL 4696120 at *4. Because the criminal complaint here specified a two-month period for the two alleged conspiracies, and the original indictment's charged conspiracies were materially different (in length of time) from the superseding indictment's charged conspiracies, the Court finds that the superseding indictment did not inherit the thirty-day clock of the complaint. Third, the Double Jeopardy analysis is not always dispositive of whether a Speedy Trial Act violation has occurred. See United States v. Gaskin, 364 F.3d 438, 453-55 (2d Cir.2004) (...
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...Such a charge does not inherit the original complaint's thirty-day clock but rather starts its own, new clock.” United States v. Deas, 596 F.Supp.2d 319, 323 (D.Conn.2009) (citing United States v. Glover, No. 3:08–cr–4 (JCH), 2008 WL 4696120, *4 (D.Conn. Oct. 21, 2008) ); see also Napolitan......