Opinion
04 Cr. 297 (DAB).
December 22, 2004
Memorandum Order
Defendants Manuel Collazo ("Collazo") and Efrain Perez ("Perez") (collectively "Defendants") have each filed pre-trial motions. Both Defendants seek to dismiss the Indictment on the ground that pre-indictment delay violated the Due Process Clause of the Fifth Amendment. Defendant Perez moves to dismiss the Indictment as facially insufficient and barred by the general federal statute of limitations. Perez also moves for production of a bill of particulars, preclusion of evidence the Government failed to produce, and severance.
For the reasons that follow, Defendants' Motions are DENIED.
I. FACTUAL BACKGROUND
On March 30, 2004, Defendants Rafael Rivera ("Rivera"), Collazo and Perez were indicted by a federal grand jury on a single count of narcotics conspiracy. Specifically, the Indictment charges Defendants with distributing and possessing with the intent to distribute one kilogram or more of heroin from approximately 1999 to the time the Indictment was filed. (Indictment ¶¶ 1-2.) The Indictment alleges two overt acts: two separate heroin sales by Collazo to an undercover police officer, on December 9, 1999 and December 16, 1999, within 1000 feet of a schoolhouse in the Bronx. (Id. ¶ 3.)At the July 26, 2004 conference before the Court, the Government and Defense Counsel indicated that discovery had been received by Defense Counsel, consisting of two audiotapes in Spanish of the sale to the undercover, a videotape and phone records. (July 26, 2004 Trans. at 2-5.)
II. DISCUSSION
A. Dismissal of Indictment
Defendant Perez moves to dismiss the Indictment, claiming it is barred by the statute of limitations. Alternatively, in the event that the statute of limitations has not been violated, Defendants Perez and Collazo both move for dismissal of the Indictment under the Due Process Clause for alleged prejudicial pre-indictment delay. Defendant Perez also moves to dismiss the Indictment for facial insufficiency.
1. Violation of Statute of Limitations
Defendant Perez moves to dismiss the Indictment for violating the general federal statute of limitations. Title 18, United States Code, Section 3282 states that the statute of limitations applicable to indictments charging narcotics conspiracies is five years.
A proper indictment for a general criminal conspiracy must allege an overt act. That act must have occurred within five years of the filing of the indictment. See Grunewald v. United States, 353 U.S. 391, 396-97 (1957); see also United States v. Brasco, 516 F.2d 816, 818 (2d Cir. 1975), cert. denied, 423 U.S. 860 (1975). In contrast with the general conspiracy statute, narcotics conspiracies require that overt acts "need be neither pleaded nor proven." United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980) (citing United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970 (1976)). The "criminal agreement itself is the actus reus and has been so viewed sinceRegina v. Bass, 11 Mod. 55, 88 Eng. Rep. 881, 882 (K.B. 1705)." United States v. Shabani, 513 U.S. 10, 16 (1994).
In a motion to dismiss pursuant to Fed.R.Crim.P. 12(b), a court must accept all factual allegations in the indictment as true. See United States v. Martinez, No. S1 94 CR 219, 1995 WL 10849, at *2 (S.D.N.Y. Jan. 12, 1995) (citing Costello v. United States, 350 U.S. 359 (1956)). Hence, a motion to dismiss based on the statute of limitations may be premature. Id.
As the Indictment in this case was filed on March 30, 2004, the offense charged would be time-barred by the statute of limitations if it took place prior to March 29, 1999. Defendant Perez sets forth the argument that "in the event Defendant's involvement in the conspiracy ended on or prior to March 29, [1999], the indictment could be subject to dismissal as being barred by the statute of limitations." (Perez Mem. of Law at 7.) At the time he submitted the memorandum, Perez had not received any disclosures from the Government of Perez's specific offense conduct.
In its response, the Government states that prior to filing its memorandum of law, the Government provided Perez with discovery that includes (1) a DVD with a video clip of Perez receiving heroin from Rivera, in or about August 2003, in the vicinity of Prospect Avenue, in the Bronx, and (2) records of telephone calls between Rivera's phone and Perez's phone during the time charged in the Indictment, up to and including in or about 2004. (Gov't.'s Resp. at 17.)
The additional information provided to Defendant Perez by the Government appears to moot Defendant's argument. Therefore, the Court finds that the statute of limitations has not been violated. Defendant's Motion to Dismiss the Indictment because it is time-barred by the statute of limitations is DENIED.
2. Due Process Clause
If the Indictment is not barred by the statute of limitations, Defendant Perez moves to dismiss the Indictment for prejudicial pre-indictment delay under the Due Process Clause. Defendant Collazo also makes the same motion.
Whether an indictment should be dismissed due to pre-indictment delay depends upon the type of prejudice that results from such delay. See United States v. Marion, 404 U.S. 307, 321-22 (1971) (distinguishing actual and potential prejudice and characterizing the passage of time that may impair memories, cause evidence to be lost, and deprive the defendant of witnesses as "a possibility of prejudice"). For claims of potential prejudice, the applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges. Id. at 322. Where actual prejudice is alleged (i.e., actual loss of evidence or the unavailability of witnesses), the Due Process Clause of the Fifth Amendment may provide protection to a criminal defendant even when an indictment is filed within the applicable statute of limitations. Id. at 324.
The Due Process Clause requires dismissal of the indictment where the defendant demonstrates that the pre-indictment delay caused substantial prejudice to the defense and that the delay was an intentional device to gain a tactical advantage over the accused. Id. This kind of delay violates the Due Process because "such conduct departs from fundamental notions of `fair play.'" United States v. Cornielle, 171 F.3d 748, 752 (quoting United States v. Lovasco, 431 U.S. 783, 795 (1977)). The burden of the Defendant to prove both elements is a heavy one. Cornielle, 171 F.3d at 752; see also United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990). In sum, "timely brought criminal prosecutions are only rarely dismissed." Cornielle, 171 F.3d at 752; see also Lovasco, 431 U.S. at 789 (1977) (stating that Due Process Clause has only "a limited role to play in protecting against oppressive delay"). In order to state a Due Process claim, the proof of actual prejudice must be definite and not speculative. See United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982) (stating that defendant must "`demonstrate how [the loss of evidence] is prejudicial'") (quoting United States v. Mays, 549 F.2d 670, 677 (9th Cir. 1977)); see also United States v. Wallace, No. 97 Civ. 975, 1998 WL 401534, at * 12 (S.D.N.Y. July 17, 1998) (characterizing the actual prejudice standard as "fairly stringent").
a. Defendant Collazo
Following an arrest by New York City Police for the criminal sale of heroin on September 28, 2000, Defendant Collazo pled guilty to Criminal Sale of a Controlled Substance in the Third Degree on October 23, 2001. He was sentenced to 4 to 12 years imprisonment, and was released on parole on January 22, 2004. He was arrested for the instant offense on April 29, 2004. (Collazo Mem. of Law at 2.)
The indictment charging him with the September 28, 2000 sale, was consolidated with a second indictment of Criminal Sale of a Controlled Substance in the First Degree. Collazo pled to this consolidated indictment.
Defendant claims that he was prejudiced by the 52-month delay in obtaining the Indictment. In support of this argument, Defendant asserts that the 52-month delay was "unexplained . . . where it is clear the federal and state authorities knew where defendant Collazo was located", that there was "no logical reason for the 52 month delay", and that though it is "difficult to spell out the substantial prejudice to the defendant," the fact that he probably would have received concurrent sentences if the federal indictment had been filed when Collazo was in state custody "greatly prejudiced the defendant." (Id. at 3-4.)
Collazo concedes that the indictment filed in this matter did not violate the statute of limitations. (Collazo Mem. of Law at 2.)
The Government argues that Collazo points to no facts that the Government intentionally delayed the Indictment, and instead relies on unsupported allegations. In addition, the Government asserts that Collazo has failed to show his right to a fair trial is substantially prejudiced by the pre-indictment delay. (Gov.t's Resp. at 5-6.)
The Court agrees with the Government. The heavy burden of showing substantial prejudice and intentional delay by the Government falls upon the Defendant and Defendant Collazo has failed to meet this burden. He alleges no actual substantial prejudice or any facts supporting a claim that the Government delayed the filing of the Indictment for its own tactical advantage. In his reply, Collazo again points to facts asserted in his original memorandum that "The government does not deny they knew" — such as the fact that he was in state custody up until January, 2004. (Collazo Letter dated December 2, 2004.) However, the sole fact that the Government knew of Collazo's state arrest, plea and subsequent incarceration, does not amount to a showing of intentional delay by the Government for tactical advantage.
Defendant Collazo submitted a letter in lieu of a formal reply.
Defendant Collazo's Motion to Dismiss the Indictment due to prejudicial pre-indictment delay is DENIED.
b. Defendant Perez
Defendant Perez sets forth similar assertions to support his Motion to Dismiss the Indictment for violation of the Due Process Clause. He argues that because there has been "no demonstration of a legitimate reason for delay in bringing the herein prosecution," and "[a]bsent a showing of justifiable reason for delay, Defendant is left to conclude the delay in this case was intentional in order to prejudice defendant." (Perez Mem. of Law at 8.) The prejudice Perez refers to is the fact that he is almost seventy years old and is in poor health. As such, he states that it will be difficult for him to assist in his defense. (Id.)
The Government counters Perez with many of the same arguments it asserted against Collazo's motion. Perez, according to the Government, has made blanket assertions that there has been an intentional delay, and has failed to show any prejudice.
The Court also DENIES the Motion to Dismiss the Indictment for prejudicial pre-indictment delay in violation of the Due Process filed by Defendant Perez. The prejudice alleged is speculative and there has been no showing of intentional delay by the Government. Accordingly, the Court finds that a hearing is not necessary for either Defendant.
3. Facial Insufficiency of Indictment
Defendant Perez also moves to dismiss the Indictment for facial insufficiency.
According to Rule 7(c) of the Federal Rules of Criminal Procedure, "[t]he indictment . . . must be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . ." Fed.R.Crim.P. 7(c)(1). An indictment is considered sufficient if it
first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.Hamling v. United States, 418 U.S. 87, 117 (1974) (internal citations and quotations omitted); see also United States v. Bailey, 444 U.S. 394, 414 (1980).
It is well-settled law that "[t]o satisfy the pleading requirements of Fed.R.Crim.P. 7(c)(1), `an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002) (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992); see also United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). Generally, the indictment "is not subject to dismissal on the ground that there was `inadequate or incompetent' evidence before the grand jury." United States v. Myers, 635 F.2d 932, 941 (2d Cir. 1980) (quoting Costello v. United States, 350 U.S. 359, 362 (1956)).
Defendant Perez claims that the Indictment is facially insufficient because it lacks "any factual specificity as to Defendant's role or acts performed as an alleged member of the conspiracy." (Perez Mem. of Law at 4.) "The Indictment merely tracks statutory language. . . ." (Id.)
As the Government correctly points out, the Indictment need do little more than track the statutory language. In addition, as stated previously, an indictment for narcotics conspiracy does not require overt acts to be pleaded. The Indictment lays out all the elements of the charged offense as well as approximate statements of time and place. Defendant Perez has also been provided with additional factual detail of his alleged involvement in the conspiracy, which further abates concerns of notice to the Defendant and his ability to make an adequate defense.
The Court finds that the Indictment is facially sufficient and Defendant Perez's Motion to Dismiss the Indictment on this ground is DENIED.
B. Bill of Particulars
Pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, Defendant Perez moves for a bill of particulars.
As a preliminary matter, the Government is correct in pointing out that the requirement set forth in Local Criminal Rule 16.1 has not been met. This rule provides that
The Local Criminal Rule referred to here is found in the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
No motion addressed to a bill of particulars . . . shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court and has been unable to reach such an agreement.
This Court has previously recognized that such an affidavit is required.See United States v. Beeman, No. 01 CR 1141, 2003 WL 22047871 (S.D.N.Y. Aug. 29, 2003); see also United States v. Guevara, No. 99 CR 445, 1999 WL 639720, at *2 (S.D.N.Y. Aug. 23, 1999) (holding that failure to file an affidavit pursuant to Local Rule 16.1 merits denial of motion to compel discovery).
Although Defendant Perez's motion is procedurally deficient, this Court will examine the merits of his motion.
"Rule 7(f) permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. . . . Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (stating same standard and noting that "[t]he principles governing requests for a bill of particulars are well settled").
A "bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989), cert. denied, 493 U.S. 834 (1989)); see also United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). "Acquisition of evidentiary detail is not the function of a bill of particulars." Torres, 901 F.2d at 234 (citation omitted). Indeed, the Second Circuit has "consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973) (citations omitted).
In deciding a motion for a bill of particulars, "[t]he important question is whether the information sought is necessary, not whether it is helpful." United States v. Facciolo, 753 F.Supp. 449, 451 (S.D.N.Y. 1990). Courts have been highly reluctant to require a bill of particulars when a defendant has asked for specific identities of co-conspirators or others allegedly involved. So long as an indictment and discovery sufficiently enable a defendant to avoid surprise and prepare for trial, a bill of particulars is not warranted. See Torres, 901 F.2d at 233-234 (upholding district court's denial of a bill of particulars where "a wealth of evidentiary detail from the discovery to date, including electronic intercepts, search evidence and exhaustive supporting affidavits" was supplied); United States v. Rodriguez, No. 99 CR 367, 1999 WL 820558 at *2 (S.D.N.Y. Oct. 13, 1999) (denying motion for a bill of particulars identifying known co-conspirators where the indictment coupled with discovery allowed a defendant "both to prepare his defense and to avoid prejudicial surprise at trial"). Finally, the granting of "a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
Defendant Perez argues that the Indictment is "devoid of any factual allegations which describe Mr. Perez's role in the conspiracy charged in the Indictment and the offense conduct in furtherance of the charged conspiracy." (Perez Mem. of Law at 5.) Perez requested of the Government dates and places of any acts of the conspiracy, quantities of heroin involved, names of co-conspirators, location of any and all sales of heroin and the name of the school alleged to have been within 1000 feet of any heroin sales. (Id.)
The Court disagrees with Defendant's assessment of the Indictment. Count One of the Indictment advises Defendant, with sufficient detail, of the illegal acts he has been charged with committing, including the dates of the alleged conspiracy. The Indictment, coupled with the discovery materials the Government has already provided to Defendant, adequately enable Defendant Perez the opportunity to prepare a defense and avoid unfair surprise at trial.
The Second Circuit and courts in the Southern District have routinely denied requests of this nature. Indeed, courts have denied requests for bills of particulars concerning the "wheres, whens, and with whoms" of the crime. See, e.g., United States v. Mitlof, 165 F.Supp. 2d 558, 569 (S.D.N.Y. 2001) (denying request for bill of particulars where defendant sought details of the "wheres, whens and with whoms" that courts have held to be beyond the scope of a bill of particulars) (citations omitted); United States v. Bin Laden, 92 F.Supp. 2d 225, 242 (S.D.N.Y. 2000) (denying request for bill of particulars where the defense sought detailed information on how the conspiracy was formed, when each participant was alleged to have joined, and the "when, where, how, and with whom" of the conspiracy); United States v. Jimenez, 824 F.Supp. 351, 363 (S.D.N.Y. 1993) (motions in conspiracy cases for the "whens," "wheres," and "with whoms" are routinely denied because the Government should not be compelled to provide a preview of its evidence and give away its case before trial).
The Court finds therefore that the Indictment is not deficient here. The discovery produced clearly enables Defendant to mount an adequate defense.
Accordingly, the Defendant Perez's Motion for a Bill of particulars is DENIED.
C. Preclusion of Evidence Not Produced as Discovery
Defendant Perez also moves to preclude evidence that has not been produced by the Government as discovery. The discovery Defendant is referring to relates to the drugs involved in the drug sales by Collazo, such as scientific test results.
However, as the Government has submitted in its memorandum, "Upon the review of Perez's motion and the Government's case file, the Government determined . . . [it] had inadvertely failed to produce [vouchers and lab reports relating to Collazo's sales of heroin in December 1999] to Perez. Thus, the Government produced the identical vouchers and lab reports to Perez on November 19, 2004. . . ." (Gov't.'s Resp. at 21.) As the Government states, this production was "well in advance of any potential trial in this matter." Defendant Perez has not submitted a reply addressing this portion of the Government's memorandum. The Court concludes that Perez suffered no prejudice by this delayed production of discovery.
Accordingly, Perez's Motion to Preclude Evidence relating to the drug sales is DENIED.
D. Severance
Defendant Perez moves, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, for severance.
Rule 14 states in pertinent part: "If the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed.R.Crim.P. 14(a).
Defendants seeking severance have a difficult standard to meet. As the Supreme Court has noted,
[t]here is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. . . .
[A] district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants. . . . Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. . . .
When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.
[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. Rules 8(b) and 14 are designed to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.Zafiro v. United States, 506 U.S. 534, 537-40 (1993) (internal citations and quotations omitted).
The district court enjoys broad discretion in determining whether to sever a criminal proceeding, see, e.g., United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993), and that decision is, as the Second Court has noted, "virtually unreviewable." United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992).
Defendant Perez argues that, "as an exercise of caution, Defendant's trial should be severed from the trial of co-defendants." In support of his motion for severance, Perez raises possible defenses that the other co-defendants may assert.
The Court is not persuaded by Defendant Perez's arguments. Defendant Perez has asserted no claims of actual prejudice if severance is not granted; he has not made out an adequate case to the Court for severance.
Defendant Perez's Motion to Sever is DENIED.
III. CONCLUSION
For the reasons stated above, the pre-trial motions filed by Defendants Collazo and Perez are DENIED.
The Court finds that in the interests of justice, time is excluded until January 31, 2004 at 11:00 a.m. The next status conference in this case shall take place at that time.
SO ORDERED.