United States v. Roman, No. S 86 Cr. 388 (PKL).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtBobick, Joelson & Rochkind, New York City (Kenneth Joelson, of counsel), for defendant Roman
Citation646 F. Supp. 1568
PartiesUNITED STATES of America, v. Martin ROMAN, Defendant.
Docket NumberNo. S 86 Cr. 388 (PKL).
Decision Date13 November 1986

646 F. Supp. 1568

UNITED STATES of America,
v.
Martin ROMAN, Defendant.

No. S 86 Cr. 388 (PKL).

United States District Court, S.D. New York.

November 13, 1986.


646 F. Supp. 1569

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (Charles G. Labella, Asst. U.S. Atty., New York City, of counsel), for U.S.

Bobick, Joelson & Rochkind, New York City (Kenneth Joelson, of counsel), for defendant Roman.

LEISURE, District Judge:

Indictment 86 Cr. 388, filed May 6, 1986, charged defendant Martin Roman, among others, with conspiracy to violate the narcotics laws as well as possession with intent to distribute heroin. Defendant was arraigned on May 15, 1986. On September 5, 1986, Superseding Indictment S 86 Cr. 388 was filed, restating the charges of the original indictment against Roman and charging him for the first time with managing a Continuing Criminal Enterprise ("CCE") to distribute heroin in violation of 21 U.S.C. § 848.1 The CCE charge, Count Two of the superseding indictment, incorporates as predicate acts the conspiracy and distribution charges. Defendant moves to dismiss Count Two on the ground that 70 days have passed without the commencement of trial. 18 U.S.C. § 3161(c)(1).

Speedy Trial Act

Defendant asserts that he was entitled to be tried on the CCE charge within 70 days following arraignment on the original indictment.2 The Government, on the other hand, contends that the speedy trial clock with respect to the CCE count did not begin to run until the filing of the superseding indictment. In United States v. Ramos, 588 F.Supp. 1223 (S.D.N.Y.1984), aff'd, 779 F.2d 37 (2d Cir.1985) the Court addressed this issue without deciding it. Following local guidelines, the Court stated that the key issue is whether the subsequent filing contains "`the same offense or any offense required to be joined with' the offense charged in the original filing." Id.

646 F. Supp. 1570
at 1226-27. See "Guidelines Under the Speedy Trial Act" for the Court of Appeals for the Second Circuit (the "Guidelines"), ¶ II(L)(1)(c); "Plan for Prompt Disposition of Criminal Cases" for the Southern District of New York (the "Plan"), ¶ 4(d)(2). "If the subsequent filing does charge the same offense or one required to be joined therewith ... then the speedy trial period commenced with the original filing." Id. at 1227.3

In Ramos, the Government argued that the requirements of the Double Jeopardy Clause of the Fifth Amendment determine whether the subsequent filing charges the same offense or an offense required to have been joined with the charges of the original indictment.4 588 F.Supp. at 1227. In this case, defendant admits that double jeopardy standards govern. Reply Memorandum at 2. As the Ramos court noted, the Second Circuit has yet to construe the term "same offense or one required to be joined with that offense." 588 F.Supp. at 1227. The same language, however, appears in the section of the Speedy Trial Act providing for circumstances involving a subsequent indictment. § 3161(h)(6).5 The Speedy Trial Act does not define the term, but the legislative history makes clear that it refers to joinder required by "the constitutional doctrine of double jeopardy." S.Rep. No. 96-212, 96th Cong., 1st Sess. 10 (1979) ("Just as the defendant should not profit from delay he can create for his own tactical advantage, neither should the Government."). Accord United States v. Novak, 715 F.2d 810, 817 (3d Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984). Thus, the question is whether, within the meaning of the Double Jeopardy Clause, the charge contained in the superseding indictment is the same as, or required to be joined with, charges contained in the original indictment. 715 F.2d at 817.6 See also

646 F. Supp. 1571
United States v. Simms, 508 F.Supp. 1175, 1177 (W.D.La.1979) (Superseding indictment charged substantially the same offenses, and therefore defendant must still be tried within the period of time required from the date of the original indictment.); United States v. Bergdoll, 412 F.Supp. 1308, 1320 (D.Del.1976) (Additional charge of CCE in the superseding indictment does not alter speedy trial rights of defendant; "otherwise, the government, by manipulating the grand jury process, could defeat defendants' speedy trial rights by the mere charade of new indictments.").7

The Double Jeopardy Clause offers a defendant two basic protections: It protects against multiple prosecutions for the same offense after acquittal or conviction, and it protects against cumulative punishment for the same offense. Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984) (citations omitted). In this case, defendant contends that the CCE charge should be considered the same offense as, or required to be joined with, both the distribution and conspiracy counts of the original indictment. See Defendant's Memorandum of Law at 5. Thus, in resolving the speedy trial issue here according to double jeopardy principles, there are four distinct questions.

Is the CCE charge considered the same as, or required to be joined with, the original indictment's charge of:

(1) distribution, under the protection against
(a) multiple prosecutions? or
(b) cumulative punishment?
(2) conspiracy, under the protection against
(a) multiple prosecutions? or
(b) cumulative punishment?

(1)(a) Regarding the double jeopardy protection against multiple prosecutions, the critical inquiry is whether the CCE offense is considered the "same offense" as one or more of its predicate offenses. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 2415, 85 L.Ed.2d 764 (1985); cf. United States v. Persico, 620 F.Supp. 836, 844 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir.1985). Roman argues that both the distribution and conspiracy predicate charges are lesser included offenses under the CCE count, and that the Government would thus be prohibited from trying defendant for the greater offense after convicting him of the lesser one. Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977). In Garrett, 105 S.Ct. at 2415-19, however, the Supreme Court clearly rejected precisely this argument with respect

646 F. Supp. 1572
to substantive offenses such as possession with intent to distribute, 21 U.S.C. § 841(a)(1). The Court stated that Congress' intent to create the CCE as a separate offense "could hardly be clearer." Id. at 2413. Moreover, the Court stated that it would be "illogical" to construe the statute to require the Government to choose between prosecuting the predicate offenses and the CCE violation. Id. at 2415. "Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the `same' offense as one of the predicate offenses." Id.

(1)(b) Garrett also resolves the second issue. The Court stated that "logic supports the conclusion, also indicated by legislative history, that Congress intended separate punishments for the underlying substantive predicates and for the CCE offense." Id. at 2420. Accord United States v. Mourad, 729 F.2d 195, 203 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984).

(2)(a) The third issue concerns the relationship between the conspiracy charge, 21 U.S.C. § 846, and the CCE count for the purpose of the double jeopardy protection against multiple prosecutions. It was unnecessary for the Court in Garrett to decide this issue, as the defendant there challenged only the use as a predicate offense of his prior conviction for marijuana importation and his consecutive sentences for that substantive offense and the CCE charge. 105 S.Ct. at 2411. An earlier plurality opinion also failed to reach this issue. Jeffers v. United States, 432 U.S. 137, 155, 157, 97 S.Ct. 2207, 2218, 2219, 53 L.Ed.2d 168 (1977).

One Circuit Court of Appeals, however, has interpreted the Garrett opinion as extending to cases involving conspiracy as a predicate offense. United States v. Grayson, 795 F.2d 278, 285 (3d Cir.1986) (Rationale and conclusions of Garrett are equally applicable to predicate conspiracy offense.) Other circuits have rejected this interpretation of Garrett, however. United States v. Burt, 765 F.2d 1364, 1368-69 (9th Cir.1985) (distinguishing between predicate substantive offenses and conspiracy); United States v. Erwin, 793 F.2d 656, 669 & n. 20 (5th Cir.1986) (same); United States v. Boldin, 772 F.2d 719, 730-31 (11th Cir.1985), modified on other grounds, 779 F.2d 618 (11th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986) (same); United States v. Schuster, 769 F.2d 337, 341, 344 (6th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986) (same). The Court of Appeals for the Second Circuit has yet to apply Garrett in the CCE context, cf. United States v. Persico, 774 F.2d 30, 32 (2d Cir.1985), but its prior decisions indicate that it would reject the Third Circuit's expansive view of Garrett.

Prior to Garrett, the Second Circuit clearly distinguished between conspiracy and substantive predicates for a CCE charge. Mourad, 729 F.2d at 202-03. Moreover, it has repeatedly been held in the Second Circuit that conspiracy is a lesser included offense under a CCE charge. United States v. Young, 745 F.2d 733, 749-50 (2d...

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2 practice notes
  • U.S. v. Roman, No. 948
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 1987
    ...pursuant to 18 U.S.C. Sec. 3731, from an order of the United States District Court for the Southern District of New York, Leisure, J., 646 F.Supp. 1568 (1986), dismissing with prejudice, on speedy trial grounds, one count of a superseding indictment charging appellee Martin Roman with manag......
  • US v. Roman, No. S 86 CR. 388 (PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 29, 1991
    ...granted defendant's motion, dismissing the continuing criminal conspiracy count in the superseding indictment. United States v. Roman, 646 F.Supp. 1568 (S.D.N.Y.1986). Thereafter, the Second Circuit reversed this Court's decision and remanded for further proceedings. United States v. Roman,......
2 cases
  • U.S. v. Roman, No. 948
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 1987
    ...pursuant to 18 U.S.C. Sec. 3731, from an order of the United States District Court for the Southern District of New York, Leisure, J., 646 F.Supp. 1568 (1986), dismissing with prejudice, on speedy trial grounds, one count of a superseding indictment charging appellee Martin Roman with manag......
  • US v. Roman, No. S 86 CR. 388 (PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 29, 1991
    ...granted defendant's motion, dismissing the continuing criminal conspiracy count in the superseding indictment. United States v. Roman, 646 F.Supp. 1568 (S.D.N.Y.1986). Thereafter, the Second Circuit reversed this Court's decision and remanded for further proceedings. United States v. Roman,......

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