Opinion
1:19-CR-00155 EAW
2021-08-19
UNITED STATES of America, v. Jariel COBB a/k/a Doobie a/k/a Black, James Reed a/k/a Fatts, Jahaan McDuffie a/k/a Wanka, Destenee Bell a/k/a K, Deandre Wilson a/k/a D, and Deshema Clark, Defendants.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America. Alan S. Hoffman, Buffalo, NY, for Defendants.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Alan S. Hoffman, Buffalo, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
On June 18, 2021, the Court issued a Decision and Order addressing certain aspects of the defendants’ pretrial motions, including the motions for bills of particulars filed by Jariel Cobb, Deandre Wilson, and Deshema Clark. (Dkt. 242 at 12-13; see also Dkt. 186; Dkt. 189; Dkt. 190). As further explained in the June 18, 2021 Decision and Order, the Court for the most part agreed with the government that the defendants had not met their burdens to establish the need for bills of particulars in this case. (Dkt. 242 at 14). However, the one exception to the Court's ruling was Cobb's request for a bill of particulars with respect to Count 4 and Count 7, on which the Court reserved decision. (See id. at 15).
On June 29, 2021, the Court granted in part Cobb's motion for a bill of particulars as to Count 4 and Count 7 of the second superseding indictment. (Dkt. 257). Specifically, the Court directed that the government provide to Cobb by July 13, 2021, "further particularization as to the conduct that serves as the basis for Count 7, including the specific location(s) where the conduct occurred, and how that conduct is different than the conduct serving as the basis for Count 4, including whether the location(s) and drugs that serve as the basis for the charges in Count 4 also serve as the basis for the charges in Count 7." (Id. at 7).
On July 13, 2021, the government filed a motion to dismiss Count 7 of the second superseding indictment. (Dkt. 265). The government further asserted that dismissal of Count 7 obviated the need for it to file a bill of particulars, as previously ordered by the Court. (Id. at ¶¶ 1, 7). The government submitted with its motion a proposed Order of Dismissal, dismissing "without prejudice" Count 7 of the second superseding indictment. (Dkt. 265-1).
On July 28, 2021, Cobb filed a response to the government's motion, stating that he did not oppose the request for dismissal (Dkt. 271 at ¶ 3) but arguing that any such dismissal should not be "without prejudice" (id. at ¶ 8). Specifically, Cobb argues:
Once a jury is empaneled in this case, it would subject Mr. Cobb to unconstitutional Double Jeopardy if he were to be re-prosecuted for the conduct alleged in current Counts 4 or 7. As 7 is multiplicitous of 4, granting the government's motion to dismiss Count 7 means that once jeopardy attaches as to Count 4, Mr. Cobb could not be re-prosecuted for either count (or any other to which jeopardy attaches).
Thus, ordering the dismissal of Count 7 "without prejudice" may cause confusion because, once jeopardy attaches, Mr. Cobb cannot be re-prosecuted for the conduct alleged in Count 7. To avoid any potential for confusion, the Court may want to simply order the dismissal of Count 7 without specifying whether it is "without prejudice."
(Id. at ¶¶ 7-8). Cobb further contends that dismissal of Count 7 does not negate the need for a bill of particulars, for the reasons raised in his original motion. (Id. at ¶ 9; see also Dkt. 190-2 at 4).
DISCUSSION
Turning first to Cobb's argument that dismissal without prejudice may cause confusion, the Court finds that dismissal of Count 7 without prejudice is appropriate at this juncture. Cobb's argument presumes that Count 4 and Count 7 are multiplicitous (see Dkt. 271 at ¶ 5 ("Because the government is seeking the dismissal of a count (Count 7) that is multiplicitous of another count (Count 4) ....")); however, the Court has not found, nor has the government conceded, that Count 4 and Count 7 are multiplicitous. Rather, by its motion, the government is simply agreeing to dismiss Count 7 of the second superseding indictment. At this stage of the case, jeopardy has not attached to either Count 4 or Count 7 and, in fact, the grand jury could return a third superseding indictment, which includes or does not include Count 7.
That a count is multiplicitous is not necessarily fatal to that count, particularly when the indictment is not multiplicitous on its face. See United States v. Miller , 26 F. Supp. 2d 415, 422-23 (N.D.N.Y. 1998). In such cases, the Court has discretion to allow the counts to proceed to the jury to see if the jury will convict on one count and acquit on the other count. See United States v. Reed , 639 F.2d 896, 904 n.6 (2d Cir. 1981) ("An indictment that is multiplicitous is not fatal and does not require dismissal. The defendant may move to have the prosecution elect among the multiplicitous counts, with all but the one elected dismissed. This is a matter for trial court discretion, and is most appropriate when the mere making of the charges would prejudice the defendant with the jury. The principal danger in multiplicity that the defendant will be given multiple sentences for the same offense can be remedied at any time by merging the convictions and permitting only a single sentence."). If the jury convicts on two multiplicitous counts, the court can enter judgment on only one of the two counts. As explained by the Second Circuit:
[i]f, upon the trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the jury as to the elements of each offense. If the jury convicts on no more than one of the multiplicitous counts, there has been no violation of the defendant's right to be free from double jeopardy, for he will suffer no more than one punishment. If the jury convicts on more than one multiplicitous count, the defendant's right not to suffer multiple punishments for the same offense will be protected by having the court enter judgment on only one of the multiplicitous counts. Or, if judgment of conviction has been entered on more than one such count, the district court should vacate the conviction on all but one.
United States v. Josephberg , 459 F.3d 350, 355 (2d Cir. 2006) (internal quotations and citations omitted) (concluding that "the district court's dismissal of Count 16 prior to trial was at best premature"); see also United States v. Chapline , No. 18-CR-235, 2020 WL 2092422, at *1 (W.D.N.Y. May 1, 2020) (denying defendant's motion to dismiss Counts 1 and 2 as multiplicitous without prejudice to his renewing motion after trial if the government failed to submit evidence of different underlying offenses for each count). The fact that dismissal is discretionary, and not required, at this stage of the litigation weighs in favor of dismissing Count 7 without prejudice.
In support of his position, Cobb cites United States v. Podde , 105 F.3d 813 (2d Cir. 1997), which states that "[i]t is undisputed that jeopardy attaches to the entire indictment as soon as a jury is empaneled." Id. at 816. Podde held that double jeopardy did not bar retrial on an original indictment after withdrawal of the defendant's guilty plea to a lesser included offense, but the government was not permitted to reindict the defendant on those original charges after the statute of limitations had expired. Id. at 814-15. Podde does not address multiplicity and does not otherwise support Cobb's position that dismissal without prejudice would not be appropriate given the procedural posture of this case.
Accordingly, the Court grants the government's motion to dismiss Count 7 of the second superseding indictment, and Count 7 is dismissed without prejudice. See United States v. Vest , 913 F. Supp. 1345, 1346 (W.D. Mo. 1995) (granting motion to dismiss homicide counts as multiplicitous, and directing government to "elect on which count for each alleged murder victim it will proceed against each defendant and that the count not selected will be dismissed without prejudice to proceeding on the selected count on each charge of murder as to each defendant"); see also United States v. Pac. Gas & Elec. Co. , 153 F. Supp. 3d 1084, 1094 (N.D. Cal. 2015) (granting without prejudice PG&E's motion to dismiss Counts 3, 7, 8, 10-14, 16-18, and 20-23 of the indictment as multiplicitous, and directing the parties to meet and confer on whether it was necessary for the government to amend the indictment).
The Court likewise agrees with the government that dismissal of Count 7 obviates the need for a bill of particulars as to Count 4 and Count 7. As explained in the June 29, 2021 Decision and Order, as Count 4 and Count 7 are currently pleaded, the conduct forming the basis for a conviction pursuant to Count 4 could also serve as the basis for a conviction under Count 7, as both counts involve possession of cocaine by the same individuals and during the same timeframe. (Dkt. 257 at 4). It is the similarity of the counts that necessitates the need for a bill of particulars. (See, e.g. , id. ("The Court will require the government to provide a bill of particulars to amplify the distinctions between Count 4 and Count 7 , beyond what is already provided in the second superseding indictment.") (emphasis added)). Indeed, in his original motion for a bill of particulars, Cobb argued that particularization of Count 7 and Count 4 was "essential so that, inter alia , Mr. Cobb is not prosecuted in multiple counts for the same conduct." (See Dkt. 190-2 at 7 n.2). However, if Count 7 is dismissed, the similarly between the counts is no longer an issue. While a bill of particulars as to Count 4 may be useful to Cobb, "[t]he ultimate test must be whether the information sought is necessary, not whether it is helpful," and where "[w]hat [the] defendant seeks is in the nature of the ‘wheres, whens and with whoms’ ... Courts have held [that information] to be beyond the scope of a bill of particulars." United States v. Mitlof , 165 F. Supp. 2d 558, 569 (S.D.N.Y. 2001) ; see also United States v. Jimenez , 824 F. Supp. 351, 363 (S.D.N.Y. 1993) ("The defendants ... request the ‘whens’ ‘wheres’ and ‘with whoms’ of acts and participation in the charged conspiracy. Pretrial motions for such information are routinely denied."). Accordingly, upon dismissal of Count 7, Cobb is not entitled to a bill of particulars as to Count 4.
CONCLUSION
For the foregoing reasons, the government's motion to dismiss Count 7 of the second superseding indictment is granted, and Count 7 is dismissed without prejudice. The government is not required to provide Cobb with a bill of particulars as to Count 4 and Count 7, as previously ordered by the Court, and to the extent the Court's Decision and Order entered June 29, 2021, required otherwise, it is hereby vacated.
SO ORDERED.