United States v. Pennick, 10-CR-191-A

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Docket Number10-CR-191-A
Decision Date02 August 2016

TYRONE PENNICK, et al., Defendants.



August 2, 2016


The Defendant, Tyrone Pennick, is charged in a Second Superseding Indictment with cocaine trafficking through a continuing criminal enterprise, with conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine, with other cocaine-related offenses, with money laundering, and with witness tampering. The case is before the Court on motions filed by Defendant Pennick to dismiss two Counts on speedy trial grounds, to dismiss Counts on other grounds, to suppress wiretap evidence, and for various pretrial disclosures.

For the reasons that are stated below, the Court dismisses Counts 1 and 2 of the Second Superseding Indictment, which are the continuing criminal enterprise Count and the cocaine conspiracy Count, for violation of the Defendant's Sixth Amendment right to a speedy trial. The Court otherwise denies the Defendant's motions to dismiss, denies his motion to suppress wiretap evidence, and primarily denies his motions for additional pretrial disclosures and relief.

The parties shall appear to set a date for trial and for a status conference on August 3, 2016 at 9:00 a.m.

Page 2


Defendant Pennick was arrested on December 16, 2009 on a criminal complaint charging him and 26 other persons with cocaine-related drug-trafficking offenses in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 846, and with participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (the "CCE"). The complaint was based upon a 281-page affidavit of a law enforcement agent. If convicted of participation in the CCE alone, the Defendant would face a mandatory-minimum sentence of 20 years imprisonment. 21 U.S.C. § 848(a). The Defendant was detained pending trial.

Approximately six and a half months later, on June 29, 2010, Defendant Pennick and nine others were indicted. The Defendant was charged in a CCE count in violation of 21 U.S.C. § 848, and in a controlled-substances conspiracy count in violation of 21 U.S.C. § 846 allegedly involving more that five kilograms of cocaine and more that 50 grams of cocaine base. Retained counsel was substituted for the Defendant's previously assigned counsel, and appeared at the arraignment with the Defendant.

Ten months later, Defendant Pennick and 19 others were charged in a Superseding Indictment returned on May 3, 2011. The Defendant remained charged in a CCE count and the cocaine-related conspiracy count, but faced no new charges. Of the 19 other defendants charged in the Superseding Indictment, 18 have pled guilty and one, Raul L. Garnica, is a fugitive who has never appeared.

Defendant Pennick's first pretrial motions were filed on November 29, 2011,

Page 3

nearly two years after he was first detained on December 16, 2009. The Defendant and eight his co-defendants joined in omnibus pretrial motions filed by co-defendants, and while hearings were occurring on the motions, and the motions being addressed, Defendant's second counsel was replaced by the Defendant for reasons that do not appear in the record. The Defendant's third counsel was substituted as counsel in March of 2012. Defendant's third counsel sought additional time, and the Defendant moved to be severed from co-defendants scheduled to go to trial in June of 2012 because his counsel could not complete pretrial motion practice and be ready for trial. The Defendant was severed from the trial, along with three co-defendants, including the fugitive, Raul L. Garnica, and continued to pursue pretrial motions to dismiss and for other relief.

On May 20, 2014, a Second Superseding Indictment was returned against only Defendant Pennick. He was charged in a CCE count and a cocaine-related conspiracy count materially the same as those in which he was charged in the Superseding Indictment. The Defendant was also charged, however, with 11 additional counts as follows: possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); two counts of attempted possession of cocaine with intent to distribute in violation of 21 U.S.C. § 846; one count of money laundering and one count of money-laundering conspiracy in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I) and 1956(h), respectively; four counts of witness tampering in violation of 18 U.S.C. § 1512; and two counts of using a communication facility to facilitate a controlled substances offense in violation of 21 U.S.C. § 843(b).

Page 4

During the pretrial motion practice after return of the Second Superseding Indictment, Defendant Pennick's third counsel, who is a citizen and resident of Canada, became unable to cross the international border. New counsel was again substituted, and the Defendant is currently represented by the fourth attorney to have represented him during this case.

Defendant Pennick moved for release from pretrial detention because of the extraordinary length of his pretrial detention, and because his fourth counsel needed time to become familiar with the case. The Defendant was released on conditions that include electronically-monitored home incarceration pursuant to an Order entered on June 26, 2015.


I. Motion to Dismiss for Speedy Trial Violations. Defendant Pennick moves to dismiss the CCE Count and the cocaine-related conspiracy Count he faces on the ground that his rights to a speedy trial under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. (the "Act"), and the Sixth Amendment have been violated because of the lengthy delays in bringing him to trial. He argues that these charges in the Superseding Indictment should be dismissed with prejudice. For the reasons stated below, the Defendant's motion to dismiss the CCE Count and the cocaine-related conspiracy Count upon Speedy Trial Act grounds is denied, but his motion to dismiss these Counts for a Sixth Amendment speedy trial right violation is granted.

Page 5

A. Speedy Trial Act Claim. Generally, the Speedy Trial Act requires the trial of a defendant to start within 70 days after the defendant is publicly charged or makes an initial appearance. 18 U.S.C. § 3161(c)(1). Section 3161(c)(1) provides the 70-day speedy trial clock starts with the filing of the information or indictment or "from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." Id.

The Act excludes from the 70-day speedy trial clock periods of delay attributable to a number of specified events and circumstances, and a few periods of delay are triggered automatically. See § 3161(h)(1) - (6). For every kind of delay that does not automatically trigger an exclusion of time, formal steps must be taken and docketed to exclude time from the speedy trial clock. See Zedner v. United States, 547 U.S. 489, 506-07 (2006); see e.g., United States v. Bert, 814 F.3d 70 (2d Cir. 2016).

Pursuant to § 3162(a)(2) of the Act, if the 70-day speedy trial clock is violated, the charges "shall be dismissed on motion of the defendant." Id.; see Zedner, 547 U.S. at 499 ("if a meritorious and timely motion to dismiss is filed, the district court must dismiss the charges, though it may choose whether to dismiss with or without prejudice."). A defendant filing a motion to dismiss charges bears the burden of proving a violation of the Act. 18 U.S.C. § 3162(a)(2); United States v. Adams, 448 F.3d 492, 503 (2d Cir. 2006).

Dismissal of an indictment for a Speedy Trial Act violation may be with or without prejudice to reinstatement of the charges. 18 U.S.C. § 3162(a)(2). In

Page 6

determining whether to dismiss with prejudice or without prejudice, a district court is required to consider:

the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Act] and on the administration of justice.

18 U.S.C. § 3162(a)(1). In addition to the three factors specified in the statute, the Supreme Court has held that a court must also consider whether there was prejudice to the defendant as a result of the delay. United States v. Taylor, 487 U.S. 326, 333-34 (1988); see also United States v. Bert, 514 F.3d 70 (2016).

As a threshold matter, § 3161(h)(6) of the Speedy Trial Act provides for one calculation of the 70-day period within which the trial must start that applies to all defendants who are joined together for trial. United States v. Pena, 793 F.2d 486, 489 (2d Cir.1986) (construing § 3161(h)(7) before it was redesignated § 3161(h)(6) by technical amendment in the Judicial Administration and Technical Amendments Act of 2008, Pub. L. No. 110-406, § 13(3), 122 Stat. 4291); see e.g., United States v. Byrd, 466 F. Supp.2d 550, 551-52 (S.D.N.Y. 2006). In Pena, the Court of Appeals stated that "cases involving multiple defendants are governed by a single speedy trial clock, which begins to run with the clock of the most recently added defendant, and [ ] delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants." 793 F.2d at 489.

Moreover, under § 3161(h)(6), the 70-day speedy trial clock is tolled for "[a] reasonable period of delay when the defendant is joined for trial with a codefendant

Page 7

as to whom the time for trial has not run and no motion for severance has been granted." Pena, 793 F.2d at 489. Accordingly, while a defendant ordinarily has no obligation to take an affirmative step to ensure being tried within the 70 days allotted under the Act, see United States v. Bert, 814 F.3d 70, 82 (2d Cir. 2016), it is settled that is not the case when a defendant is joined with a codefendant for trial as to whom the time for trial has not run. United States v. Vasquez, 918 F.2d 329 (2d Cir. 1990). In Vasquez, the Second Circuit held that, although subsection (h)[6] requires that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT