Opinion
Criminal Action No.: 09-601 (JLL).
September 6, 2011
ORDER
This matter comes before the Court on Defendant Juan Done's motions to dismiss, Defendants Juan and Enrique Done's Motion for severance and Defendants' pretrial omnibus motion. The Court has considered the submissions of the parties and the arguments made by counsel before the Court on August 15, 2011. For the reasons state in this Court's corresponding Opinion and on the record at oral argument,
IT IS on this 1st day of September, 2011,
ORDERED that trial will begin in this matter on November 7, 2011 at 9:30 A.M.; and it is further
ORDERED that the Government will turn over any 404(b) materials to Defendants as it becomes aware of them and no later than 20 days before trial begins; and it is further
ORDERED that Defendants' request for Jencks, Brady, and Giglio materials is denied as moot at this time. The Government shall provide these materials to Defendants as they become available and in a timely fashion; and it is further
ORDERED that counsel for the parties shall meet and confer regarding drafting a protective order for the cooperating witnesses. If the parties cannot resolve this dispute, the parties shall request a conference with the Court immediately; and it is further
ORDERED that Defendant's motion for a bill of particulars is DENIED; and it is further
ORDERED that Defendant's request for a pre-trial James hearing is DENIED; and it is further
ORDERED that Defendant's pro se motion to dismiss Count Three of the Indictment is DENIED; and it is further
ORDERED that Count One of the Indictment as it pertains to Juan Carlos Done is hereby dismissed without prejudice; and it is further
ORDERED that Defendants' motion for severance is DENIED.
SO ORDERED.
OPINION
This matter comes before the Court on Defendant Juan Carlos Done's motions to dismiss for violations of the Speedy Trial Act and Defendants Juan and Enrique Done's motion for severance. The court has considered the submissions of the parties and the arguments made by counsel before the Court on August 15, 2011. For the reasons set forth below, Count One of the Indictment as it pertains to Juan Done is dismissed without prejudice. Defendant Juan Done's pro se motion to dismiss Count Three of the Indictment is denied, and Defendants' joint motion for severance is denied.I. BACKGROUND
Defendant Juan Done was arrested on June 5, 2009 in Wilmington, North Carolina pursuant to an arrest warrant and complaint filed June 3, 2009 in the District of New Jersey. Defendant Juan Done was brought before the United States Court for the Eastern District of North Carolina on June 9, 2009. A hearing was held pursuant to Fed.R.Crim.P. 5 before the Honorable Robert B. Jones, U.S.M.J. Defendant Juan Done was assigned temporary counsel only for purposes of the appearance and signed a waiver in which he agreed to hold any preliminary or detention hearings in the prosecuting district.
Defendant Done was held at the New Hanover County (NC) Detention Center from June 6, 2009 through June 12, 2009. He was then transferred to Wilson County (NC) Jail on June 12, 2009 where he remained until July 1, 2009. On June 15, 2009, during his detention at Wilson County Jail, he was treated at the Wilson Medical Center and Carolina Radiology for an unknown medical condition or illness.
On or about July 1, 2009, Defendant Juan Done was transferred to the Wake County (NC) Jail where he was held until July 6, 2009. He was transported by air and arrived at the Essex County (NJ) Jail on July 8, 2009, approximately 33 days after his arrest.
On July 13, 2009, Defendant Juan Done made his initial appearance in this District before the Honorable Patty Schwartz, U.S.M.J. Defendant Juan Done requested a preliminary hearing and detention hearing. A detention hearing was scheduled for July 20, 2009 at 11:30 A.M. A preliminary hearing was set for July 22, 2009 at 11:30 A.M.
By letter dated and filed July 18, 2009, Defendant Juan Done's then attorney Craig V. O'Connor, notified the Court that defendant Juan Done wished to withdraw his previously requested detention and preliminary hearings with leave to bring a bail hearing on short notice.
The Government filed an Indictment on August 10, 2009 charging Defendant Juan Done with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and one kilogram of heroine.
The Government acknowledges that more than 30 days of chargeable time elapsed between the Defendant's arrest on June 5, 2009 and his Indictment on August 10, 2009. Specifically, the Government returned the indictment after 49 chargeable days. Pursuant to 18 U.S.C. § 3161(b), the Government has 30 days from the arrest to file an information or indictment. Thus, subtracting 30 days from the 49 chargeable days, the Government returned the indictment 19 days after the statutory deadline.
On May 9, 2010, Defendants Juan and Enrique Done were arraigned on a three count Superseding Indictment. Count One charges both Defendants with conspiring to distribute cocaine and heroine; Count Two charges Defendant Enrique Done with distributing cocaine base; and Count Three charges Defendant Juan Done with conspiring to launder proceeds of drug transactions.
A. Motions to Dismiss
On April 12, 2011, Defendant Juan Carlos Done filed a pro se motion to dismiss and on April 27, 2011 Defendant Juan Carlos Done's attorney filed a motion to dismiss on his client's behalf. Both motions seek to dismiss Count One of the Superseding Indictment as to Juan Carlos Done for violation of the Speedy Trial Act. Pursuant to the same Act, Juan Carlos Done's pro se motion also seeks to dismiss Count Three — the money laundering charge. Defendant alleges that the Government always intended to charge Defendant with money laundering, and therefore this charge should also have been brought within the specified time period.
1. Count Three — Money Laundering
Pursuant to United States v. Watkins, 339 F.3d 167 (3d Cir. 2003), the money laundering charge now pending against Defendant Juan Done cannot be dismissed for a violation of the Speedy Trial Act. In Watkins, the District Court determined that even though a complaint only explicitly charged Defendants with conspiracy to import cocaine, because the supporting affidavit also contained uncharged allegations of importation of cocaine, when the government committed a violation of the Speedy Trial Act, dismissal of both charges was proper (the "gilding exception"). Id. at 170. On appeal, the Third Circuit held that the District Court's ruling was clearly erroneous. Id.
The Court of Appeal wrote "even were we inclined to recognize the validity of a gilding exception to the Speedy Trial Act (a question left for another day) it would not prevent the prosecution of Defendants on the [previously uncharged offense] following the dismissal of the related [] charge." Id. Specifically, the Court held that where the conspiracy and substantive charges are separate offenses requiring proof of different elements, the gilding exception, if one exists, does not apply.
In this case, at the time of the Speedy Trial violation, Defendant had only been charged with conspiracy. Further, the conspiracy and substantive offense — money laundering — are distinct offenses requiring proof of different elements. As such, pursuant to the Court's ruling in Watkins, the money laundering charge cannot properly be dismissed for violation of the Speedy Trial Act. Accordingly, Defendant's motion to dismiss Count Three is denied.
2. Count One — Conspiracy to Distribute Cocaine and Heroine
Once a violation of the Speedy Trial Act has occurred, the remedy available to the Defendant is dismissal. 18 U.S.C. § 3162(a)(1). Thus, the question before this Court is whether to dismiss the charge with or without prejudice. The Act expresses no preference for either outcome. Section 3162(a)(1) lists three factors a court must consider to determine whether to dismiss a charge with or without prejudice: (1) the seriousness of the offense; (2) the facts and circumstances that led to the dismissal; and (3) the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice. The presence or absence of prejudice to the defendant is also relevant factor, although not dispositive. United States v. Taylor, 487 U.S. 326, 336 (1988). Analysis of these factors is "designed to promote compliance with the [Speedy Trial] Act without needlessly subverting important criminal prosecutions." Zedner v. United States, 547 U.S. 489, 499 (2006). After considering these factors, the determination is left to the discretion of the Court.
a. Seriousness of the Charged Offense
The Superseding Indictment charges Juan Done with conspiracy to distribute cocaine and heroine, and conspiring to launder the proceeds of drug transactions. According to the Government, Defendant Juan Done faces a mandatory minimum of 20 years in prison. The Government also notes that the penalties for these particular drug offenses are amongst the most serious, as reflected by a potential life sentence. Notably, other than a capital case, no other crime charged under federal law carries with it higher minium or maximum penalties. Defendant does not contest that these are serious charges.
The Court finds that the amount of narcotics distributed by this conspiracy, together with Defendant Juan Done's possession of an illegal firearm and his prior narcotics distribution convictions, compels the determination that the instant charges are serious. United States v. Giambrone, 920 F.2d 176, 180 (2d Cir. 1990) (approving a trial court determination that a narcotics offense is serious); United States v. Brown, 770 F.2d 241, 244 (1st Cir. 1985) ("The distribution of a substantial amount of a hard drug like cocaine is a serious and grave offense against society as a whole, and the district court properly found that the offense weighed heavily in favor of dismissal without prejudice."). Accordingly, because the charges contained in the Superseding Indictment can only characterized as serious, this factor weighs heavily in favor of dismissal without prejudice.
b. Circumstances Surrounding the Dismissal
The Court must next consider the facts and circumstances that caused these charges to be dismissed. 18 U.S.C. § 3162(a)(1);United States v. Taylor, 487 U.S. 326, 332-33 (1988). For a factor to weigh in favor of dismissal with prejudice, the Court must find that bad faith or intentional misconduct on the part of the Government occasioned the delay. Id. at 338-39. A Speedy Trial violation that occurs as a result of negligence is not sufficient to warrant dismissal with prejudice. United States v. Cano-Silva, 402 F.3d 1031, 1036 (10th Cir. 2005)
According to the Government, the nineteen day delay occurred, in part, because it wanted to ensure that Defendant Juan Done was represented by counsel in this District. Brief of the United States in Opposition to Defendants' Pretrial Motions ("Gov. Brief") at 8-9. However, the Government does not provide an explanation for the thirty-three days required for the Marshal's Service to transfer Defendant Juan Done from North Carolina to New Jersey; nor does it dispute that it could have sought an indictment before Juan Done arrived in the district. Defendant does not explicitly accept or reject the Government's contentions, but maintains that the nineteen day delay constitutes gross negligence that has substantially prejudiced him. Memorandum of Law in Support of Defendant Juan Carlos Done's Motion to Dismiss Pursuant to the Speedy Trial Act. ("Def. MTD Brief") at 3.
It is clear that the Government is responsible for the violation of the Speedy Trial Act. Nevertheless, Defendant does not point to any indications of bad faith or intentional misconduct on the part of the Government, nor does the record demonstrate otherwise. A mistake on the part of the Government does not warrant dismissal with prejudice, especially when the other § 3162(a)(1) factors demand the opposite result. United States v. Abdush-Shakur, 465 F.3d 458, 463 (10th Cir. 2006) (upholding dismissal without prejudice where Government made an inadvertent error); United States v. Archer, 984 F.Supp. 321, 323 (E.D. Pa. 1997) (dismissing indictment without prejudice where Speedy Trial Act violated resulted from a mistake by the Government and not bad faith or neglect). That the government is at fault for the delay is clear. However, as the record is devoid of any evidence of bad faith or intentional misconduct, and in light of the other § 3162(a)(1) factors, the second factor weighs in favor of dismissal without prejudice.
c. Impact of Reprosecution
The third Speedy Trial Act factor directs the Court to weigh "the impact of reprosecution on the administration of this chapter and on the administration of justice." 18 U.S.C. § 3162(a)(2). This factor "requires the district court to consider whether the delay has prejudiced the defendant . . . and whether dismissal with prejudice is warranted to ensure future compliance with the Act." United States v. Kottmyer, 961 F.2d 569, 573 (6th Cir. 1992). As the Supreme Court observed:
Dismissal without prejudice is not a toothless sanction: it forces the Government to obtain a new indictment if it decides to re-prosecute and it exposes the prosecution to dismissal on statute of limitations grounds . . . If the greater deterrent effect of barring reprosecution could alone support a decision to dismiss with prejudice, the consideration of the factors identified in 3162(a)(2) would be superfluous and all violations would warrant barring prosecution.Taylor, 487 U.S. at 342.
In this case, Defendant has not demonstrated that he has suffered any prejudice as a result of the nineteen day delay. Defendant claims that "the unreasonable delay in prosecution has impaired the Defendant's ability to properly present a defense." Def. MTD Brief at 5. As evidence of this Defendant alleges that documents and phone records have been lost or destroyed. For example, Defendant claims that this delay caused him to be unable to obtain cell site records to contradict the Government's interpretation of an April 17, 2009 phone call; also, that certain phone records and video recordings are no longer available to him. Id. at 6, n. 2 Similarly, Defendant claims he may be unable to call witnesses in his Defense and is a victim of his own failing memory. Id. at 6-7
It is well-settled that prejudice because of delay alone is generally not enough to warrant dismissal with prejudice. Taylor, 487 U.S. at 341, n. 13. Defendant bears the burden under the Speedy Trial Act of demonstrating that the prejudice he alleges directly resulted from the delay. In this case, Defendant has not demonstrated any adverse and material effect of this delay on his liberty interests or ability to present a proper defense. For example, Defendant has not pointed to any particular witness who is now unavailable as a result of the Speedy Trial violation. By making these arguments, Defendant is attempting to impute the passage of the past two years, rather than the nineteen non-excludable days, to the government.
As to the cell site records, the call in question was described in detail in the complaint that Defendant Juan Done received on July 13, 2009 at his Initial Appearance. Thus, Defendant and his counsel could have subpoenaed, with a court order, any records that would have aided in his defense as early as July 13, 2009. Instead, these records were not subpoenaed until November, 2009. Defendant's allegations of prejudice also ignore that discovery, including a complete set of telephone conversations, was turned over on or about September 30, 2009 — over a year and eight months ago. If Defendant has suffered any prejudice, it cannot be tied to the Speedy Trial violation. Thus, this final factor also weighs in favor of dismissal without prejudice.
In light of the foregoing, Defendant's motion to dismiss Count Three is denied, and Defendant's motion to dismiss Count One is granted without prejudice.
B. Motion for Severance
In his severance motion, Defendant Juan Done requests severance of his trial from Defendant Enrique Done's trial pursuant to Fed R. Crim P. 14 on grounds that joinder will prevent Defendant Enrique Done from providing exculpatory testimony on Defendant Juan Done's behalf. Enrique Done joins this motion.
Federal courts prefer joint trials for 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." United States v. Urban 404 F.3d 754, 775 (3d Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal citations and quotations omitted). The preference for joint trials is especially strong where defendants are charged in the same conspiracy. Id. Such joint trials protect the Government's case from premature disclosure, while also "aid[ing] the finder of fact in determining the `full extent of the conspiracy.'" United States v. Voight, 89 F.3d 1050, 1094 (3d Cir. 1996) (quoting United States v. Provenzano, 688 F.2d 194, 299 (3d Cir. 1982)). Furthermore, as "acts committed by one [co-conspirator] in furtherance of the conspiracy [would be] admissible against the other" co-conspirator in a separate trial, severance would serve little to no purpose except to waste public resources. United States v. Hart, 273 F.3d 363, 370 (3d Cir. 2001).
The Third Circuit has enumerated four factors that a district court should consider where a defendant seeks severance on grounds that a co-defendant may provide exculpatory testimony in a severed trial: "(1) the likelihood of the co-defendant testifying; (2) the degree to which such testimony would be exculpatory; (3) the degree to which the testifying co-defendant could be impeached; and (4) judicial economy." United States v. Gonzalez, 918 F.2d 1129, 1137 (3d Cir. 1990); United Stataes v. Boscia, 573 F.2d 827, 832 (3d Cir. 1978) (the "Boscia Factors"). Notably, the Third Circuit has never granted severance pursuant to the Boscia Factors in a reported opinion.
1. Likelihood of Co-Defendant Testifying
In order to satisfy this factor, Defendants must demonstrate that the co-defendant seeking to be severed would in fact testify at a separate trial. Severance is "not required when the co-defendant would testify only if his case came first." United States v. Reavis, 48 F.3d 763, 767-68 4th Cir. 1995). An offer to testify premised on the testifying co-defendant being tried first does not satisfy this requirement because it is premised on the co-defendant making a later determination of whether and how to testify after assessing his own interests and risks consequent to his own trial fate. See e.g., United States v. Spinelli, 352 F.3d 48, 56 (2d Cir. 2003). The Fourth Circuit in Reavis provides a most instructive analysis on this issue:
Were we to [grant Defendant's motion for severance, we would] create a situation where, following his own trial, the witness would be more inclined to `throw a bone' to his co-defendants by testifying favorably to them because his own case had been disposed of and he had little to lose by testifying . . . We will not grant a severance when doing so would allow co-defendants to `obtain benefits that they would not have but for their joint indictment'.Reavis, 48 F.3d at 767-68.
In an affidavit, Enrique Done claims he would provide exculpatory testimony on Defendant Juan Done's behalf if their trials were severed and it would not "compromise [Enrique Done's] constitutional rights. Enrique Done Aff. at 2. Juan Done's severance petition clarifies that Enrique Done's testimony is conditioned on his ability to be tried separately and first. The conditionality of Enrique Done's offer to testify fails to satisfy the first Boscia factor. As the Government points out, Enrique Done's offer "is no commitment at all, but merely an expression that he may testify if he later decides the rewards outweigh the risks to himself." Because the Defendants have failed to demonstrate that Enrique Done will testify at trial, the first Boscia factor weighs against severance.
2. Exculpatory Value of the Testimony and Impeachment of the Testifying Co-Defendant
Defendant Juan Done argues that Defendant Enrique Done would testify that the intercepted calls between the Defendants are mistranslated. Specifically, Enrique Done would testify that during an April 17, 2009 call the brothers were referring to "4th [Street] in Orange [New Jersey]," rather than Juan Done's alleged presence near a stash house on Orange Avenue in Newark in possession of four kilograms of cocaine. Gov. Brief at 23. Other than this example, Juan Done merely alleges that the recorded conversation are "mistranslated and misunderstood."
First and foremost, notwithstanding Defendant's citation of the April 17th call, Enrique Done's purported testimony amounts to nothing more than conclusory assertions of innocence and lacks the requisite exculpatory value to require severance. See United States v. Rogers, 925 F.2d 1285, 1287-88 (10th Cir. 1991) (holding that testimony that defendant did not sell cocaine or handle weapons at co-defendant's apartment "lacked substance" because it amounted "to little more than his assertion that [defendant] had no involvement in the charged crimes.").
Second, any testimony by Enrique Done, exculpatory or not, would be significantly undermined by impeachment evidence on cross-examination. It is well-settled that if a co-defendant's proposed testimony lacks sufficient exculpatory content or would suffer from serious credibility problems at trial, severance is not required. United States v. Powell, 982 F.2d 1422, 1433 (10th Cir. 1992) (affirming denial of a severance motion in part because co-defendant's proposed testimony stating that "neither he nor [defendant] had agreed to commit any crime" would have been impeached by virtue of overwhelming evidence of defendant's overwhelming involvement in marijuana distribution).
Enrique Done is Juan Done's brother and alleged co-conspirator. These relationships alone suggest bias and a motive to fabricate. Further, because Enrique Done's testimony will only occur if he is tried first, an additional motive to lie will be created by his awareness of his own trial's outcome. Lastly, Enrique Done has a criminal record that includes prior narcotics trafficking convictions, convictions for falsifying records, and a former fugitive status. This type of character evidence will certainly outweigh any exculpatory value that an already attenuated interpretation of the April 17th call would provide. See e.g.,United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir. 1984) (affirming denial of a severance motion in part because the government would impeach declarant with an "extensive list of prior convictions").
For these reasons, the second and third Boscia factors weigh against severance.
4. Judicial Economy
Severance of the Defendants' trials would result in substantial duplication of evidence including but not limited to: audio recordings, law enforcement witness testimony, expert witness testimony, cooperating witness testimony, presentation of seized physical evidence, narcotics sourcing transactions, and the predicate foundations for each. As such, severance would require the Court to expend time and resources presiding over two separate multi-week trials involving substantially the same issues and evidence. In light of the federal preference for the joint trial of co-conspirators, the lack of undue prejudice, the similarity of the relevant evidence, and the interest in judicial economy, this Court finds that the final Boscia factor weighs against severance.
IV. CONCLUSION
For the reasons set forth above, Count One of the Indictment as it pertains to Juan Done is hereby dismissed without prejudice. Defendant's motion to dismiss Count Three of the Indictment and Defendants' motion for severance are denied.
Dated: September 1, 2011