Opinion
04 Cr. 858 (LMM).
May 24, 2005
MEMORANDUM AND ORDER
1.
On June 13, 2002, defendant (who had, in 1995, been convicted in New York State for criminal possession of a weapon in the first degree, a Class B felony punishable by imprisonment for a term exceeding one year) was arrested in North Carolina in possession of, among other things, 200 rounds of ammunition for a.39 caliber rifle, 60 rounds for a .308 caliber rifle and 68 rounds for a .45 caliber handgun. On or about July 16, 2002, he was indicted in the United States District Court for the Eastern District of North Carolina for violating 18 U.S.C. § 922(g), on the allegation that, "[o]n or about June 13, 2002, within the Eastern District of North Carolina and elsewhere, [he], having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did possess in and affecting commerce ammunition which had been shipped and transported in interstate and foreign commerce." (Indictment, E.D.N.C., July 16, 2002.)
On June 19, 2002, an agent of the Federal Bureau of Investigation ("FBI") in New York, on the basis of information learned from the FBI in North Carolina as a result of defendant's arrest there, obtained a search warrant for a bedroom which defendant rented in a New York City apartment, upon execution of which, on June 19, 2002, agents seized, among other things, 88 rounds of ammunition for various types of firearms. On August 10, 2004, defendant was indicted in this district for violation of 18 U.S.C. § 922(g)(1), on the allegation that
[o]n or about June 19, 2002, in the Southern District of New York, [he], after having been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, to wit, a November 2, 1995 conviction for criminal possession of a weapon in the first degree, a Class B felony, in the New York State Supreme Court, Bronx County, unlawfully, willfully, and knowingly did possess in and affecting commerce, ammunition, to wit, approximately 88 rounds of various types of ammunition, that were produced with cartridge cases that had previously been shipped and transported in interstate commerce.
(Indictment, S.D.N.Y. Aug. 10, 2004.)
On December 3, 2002, defendant pleaded guilty to the Eastern District of North Carolina indictment, without a plea agreement. On April 17, 2003, he was sentenced principally to 18 months of imprisonment. After serving his sentence, he was placed on supervised release in October of 2003.
Defendant moves for dismissal of the Southern District of New York indictment pursuant to the Double Jeopardy clause of the Fifth Amendment to the Constitution, or because of pre-indictment delay in violation of the Due Process Clause of the same Amendment.
2.
The Court first considers the double jeopardy issue. The protection against double jeopardy is enshrined in the Fifth Amendment of the United States Constitution, which provides that never "shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. V. "Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense."
The Double Jeopardy Clause confers its protections in three different situations — where there is a second prosecution for the same offense after acquittal of that offense; where there is a second prosecution for the same offense after conviction of the offense; and where there are multiple punishments for the same offense. The purposes served by the constitutional prohibition against double jeopardy include protection against the hazards of trial and possible conviction more than once for the same offense; preservation of the finality of judgments; and deprivation of an opportunity for the prosecution to supply evidence at a successive trial that it failed to present the first time around.
A double jeopardy claim cannot succeed unless the charged offenses are the same in fact and in law.United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003) (quoting Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003); other citations omitted).
On the face of the two indictments, the double jeopardy clause would seem to apply: the Eastern District of North Carolina indictment charged possession on or about June 13, 2002 within that district, and elsewhere, of unidentified ammunition; the Southern District of New York indictment charges possession on or about June 19, 2002 (six days later, during all of which defendant was detained in North Carolina), within this district, of various types of ammunition not otherwise specified. Defendant was surely, on June 13 and 19, 2002, in constructive possession,see United States v. Hall, 77 F.3d 398, 402 n. 4 (11th Cir. 1996), of the ammunition in the New York apartment, and New York certainly qualifies as "elsewhere" in relation to North Carolina. Both indictments charge the violation of the same statute. Subject to a venue objection, if one were made (venue can be waived, see Singer v. United States, 380 U.S. 24, 35 (1965)), the Eastern District of North Carolina prosecutor could have proved all of the conduct alleged in the Southern District of New York indictment in a trial of the Eastern District of North Carolina indictment.
The government surmises that the words "and elsewhere" in the Eastern District of North Carolina indictment are "obviously erroneous" (Gov't Mem. at 7), but offers no evidence of that.
In arguing that the present indictment does not represent "a second prosecution for the same offense after conviction of the offense," Estrada, 320 F.3d at 180, the government citesBlockburger v. United States, 284 U.S. 299 (1932), where the Court found that sales on two successive days to the same purchaser of morphine hydrochloride not in or from the original stamped package, were not, as the petitioner-defendant contended, a single offense, but rather "separate sales made at different times." Id. at 301. In reaching that conclusion, the Supreme Court reiterated the "`distinction . . . laid down in adjudged cases and in textwriters between an offence continuous in its character, . . . and a case where the statute is aimed at an offence that can be committed uno ictu.'" 284 U.S. at 302 (quoting In re Snow, 120 U.S. 274, 286 (1887)). InBlockburger, the Court said, "the first transaction, resulting in a sale, had come to an end. The next sale was not the result of the original impulse, but of a fresh one — that is to say, of a new bargain." 284 U.S. at 303. Blockburger is not dispositive here, because it does not resolve the issue turning on the distinction between an offense, such as a sale of drugs, which can be committed repeatedly within a few days and an offense, such as possession of contraband, which appears on its face to be a continuous offense.
The government also relies on two Ninth Circuit cases, United States v. Szalkiewicz, 944 F.2d 653 (9th Cir. 1991) (per curiam), and United States v. Wiga, 662 F.2d 1325 (9th Cir. 1981), cert. denied, 456 U.S. 918 (1982).
In Wiga, the defendant (previously convicted of a felony) had been found in possession of a revolver and a shotgun, and was charged, inter alia, in two counts, one for each weapon, with violating former 18 U.S.C. App. § 1202(a). One of the counts had been "dismissed by the district court on its own initiative, concluding that `the government may not treat each of several firearms simultaneously possessed as a separate unit of prosecution under 18 U.S.C. App. § 1202(a)(1).'" 662 F.2d at 1334. The Ninth Circuit concluded that "[t]he general rule . . . is that `only one offense is charged under terms of § 1202(a)(1) regardless of the number of firearms involved, absent a showing that the firearms were stored or acquired at different times and places." Id. at 1336 (quoting United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976); other citations omitted). Uncontroverted evidence showed that the two firearms were acquired in different states on different dates, and the indictment so alleged with particularity. Id. at 1337. The court concluded that "[t]he mere fact that these separately acquired weapons ended up simultaneously in the possession of Wiga in Nevada does not preclude separate prosecutions for possession," and reversed. Id.
In Szalkiewicz, the Ninth Circuit agreed with a defendant who had been found, on a single date, in possession of five machine guns, five silencers and nine pistols and revolvers, that he was improperly convicted of multiple counts under 18 U.S.C. § 922(g)(1). 944 F.2d at 653. The court distinguished Wiga, where, it said, it had affirmed "not only because the evidence demonstrated that the weapons were purchased at different times and different places, but also because the indictment alleged `the separate and distinct acts of acquisition' and because the separate and distinct acquisitions were presented to the jury."Id. at 654 (quoting Wiga, 662 F.2d at 1337). "Because the jury made no finding of fact as to separate acquisition or possession," 944 F.2d at 654, the 18 U.S.C. § 922(g)(1) convictions were vacated.
In United States v. Pelusio, 725 F.2d 161 (2d Cir. 1983), the Second Circuit, faced with the argument that defendants could not be found guilty of two counts each of the violation of 18 U.S.C. § 922(h), one for having received a shotgun and one for having received five rounds of ammunition, vacated the convictions on the ammunition counts. The court was "persuaded that, absent any evidence that the defendants received the .12 gauge shotgun and the five rounds of ammunition on separate occasions, they could not lawfully be found guilty of receipt of the gun and the ammunition as separate crimes forming the subject of multiplicitous counts." Pelusio, 725 F.2d at 168. In its qualification of its conclusion ("absent any evidence that the defendants received [the gun and the ammunition] on separate occasions," id.), the Second Circuit appears to endorse a rule much like that of Wiga (which, however, it does not cite).
United States v. Yednak, 187 F. Supp. 2d 419 (W.D. Pa. 2002), cited by defendant, as well as the Court of Appeals cases cited therein — United States v. Jones, 533 F.2d 1387 (6th Cir. 1976), United States v. Horodner, 993 F.2d 191 (9th Cir. 1993), and United States v. Rivera, 77 F.3d 1348 (11th Cir. 1996) (per curiam) — do not apply here, because they all involve possession of the same firearm possessed on several occasions without any intervening interruption of that possession.
While the issue is not free from doubt, this Court is of the view that the Second Circuit would resolve the issue as the Ninth Circuit did in Wiga. Going behind the actual language of the Eastern District of North Carolina and Southern District of New York indictments, it seems clear that the ammunition referred to in those respective indictments must have been acquired at least on different dates.
Insofar as defendant's motion is premised on the Double Jeopardy Clause, it is denied for the reasons set forth above.
3.
The Court next considers the speedy trial issue.
"[T]he statute of limitations is `"the primary guarantee against bringing overly stale criminal charges."'" United States v. Cornielle, 171 F.3d 748, 751 (2d Cir. 1999) (quoting United States v. Marion, 404 U.S. 307, 322 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122 (1966))). Here, there is no claim that the Southern District of New York indictment was not returned within the statute of limitations. That indictment therefore "has a strong presumption of validity." Id. at 752.
Neither side identifies a limitations period specifically applicable to 18 U.S.C. § 922(g), and the Court accordingly assumes that the five year period of id. § 3282(a) applies. The Southern District of New York indictment was returned a little less than 26 months after the date on which defendant is there alleged to have possessed ammunition.
An indictment brought within the time constraints of the statute may nevertheless violate due process where pre-indictment delay has been shown to cause "substantial prejudice" to the defendant's ability to present his defense and "the delay was an intentional device to gain [a] tactical advantage over the accused." As the Supreme Court further has explained, where delay prejudices the presentation of a defense and is engaged in for an improper purpose it violates the Due Process Clause because such conduct departs from fundamental notions of "fair play." A defendant bears the "heavy burden" of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose.Id. (quoting Marion, 404 U.S. at 324, and United States v. Lovasco, 431 U.S. 783, 795 (1977); other citations omitted) (emphasis added). Thus, "[p]roof of prejudice is a necessary element in stating a valid due process claim, though it is not sufficient by itself since the inquiry focuses not only on prejudice to the accused but also on the reasons for the claimed oppressive delay." United States v. Birney, 686 F.2d 102, 105 (2d Cir. 1982) (citations omitted).
Defendant cites two sorts of prejudice as a result of the delay in returning the Southern District of New York indictment until after he had pleaded guilty to and been sentenced on the Eastern District of North Carolina indictment, and then served that sentence. The first is the "disruption of [his] life," including a loss of liberty prior to meeting bail conditions, lost time at work, embarrassment, stress and anxiety. (Def. Mem. at 10.) The second is being put at risk for additional punishment. The first reason does not add up to the sort of legal prejudice that is required under the case law. The second is troublesome.
This Court, of course, cannot say with any certainty what another judge might have done in sentencing defendant had the prosecutor in the Eastern District of North Carolina made known to that judge and defendant, prior to sentencing, the fact of the seizure of 88 rounds of ammunition from defendant's New York apartment.
The record does reveal, however, that the applicable guidelines range was found by the sentencing Eastern District of North Carolina judge to be 12-18 months of imprisonment (Sentence Transcript, Apr. 17, 2003, at 8), and that defendant was sentenced to the top of that range, 18 months. (Id. at 20.) The applicable guideline for offenses under 18 U.S.C. § 922(g) is U.S.S.G. § 2K2.1, and, at his sentencing, since defendant was assigned an offense level of 14 (Sentencing Transcript, Apr. 17, 2003, at 8), he was no doubt sentenced under § 2K2.1(a)(6). What is here noteworthy about the applicable guideline is that, while the number of firearms possessed may affect the guidelines range, see § 2K2.1(b)(1), there is no similar provision in the case of varying amounts of ammunition. Thus, had the 88 rounds referred to in the Southern District of New York indictment been included in the Eastern District of North Carolina case, defendant's sentence (absent an upward departure) would have been no greater than it was. For defendant to face further punishment, in the circumstances, entails cognizable prejudice.
The government cites U.S.G. § 5G1.3 (Gov't Mem. at 10 n. 3), presumably to point out that sentencing inequities can be resolved at the time of sentence. That provision does not apply, however, here, because it is premised on the existence of an undischarged term of imprisonment. Due to the delay in the return of the Southern District of New York indictment, the term of defendant's imprisonment is discharged, and the delay has deprived him of any benefit under id.
Even if the Southern District of New York indictment had been filed prior to defendant's sentence on April 17, 2003 in the Eastern District of North Carolina (about ten months after the seizure from the New York apartment), defendant might have avoided the additional punishment which he now faces as a result of the delay in filing the Southern District of New York indictment though a transfer of the latter case to the Eastern District of North Carolina pursuant to Fed.R.Crim.P. 20 to be disposed of there by plea.
The government, citing United States v. Schorr, No. 97 Cr. 264, 1997 WL 598444, at *2 (S.D.N.Y. Sept. 25, 1997), argues that "[a]lthough the Second Circuit has not addressed whether a missed opportunity to receive a concurrent sentence amounts to definite and non-speculative prejudice, other courts have held that the loss of the chance to receive a concurrent sentence is too speculative to satisfy the `substantial prejudice' requirement." (Gov't Mem. at 9-10.) The government's argument, however, reads too much into Schorr. There, Judge Mukasey denied the defendant's due process claim as speculative because:
Even if Schorr had been charged and sentenced before the Sentencing Guidelines were revised to direct a consecutive sentence for an offense committed after imposition of an earlier sentence, the likelihood is that his sentence would have been consecutive, consistent with the common-sense rule that a sentence should not confer immunity for later criminal conduct.1997 WL 598444, at *2 (citing United States v. Vega, 11 F.3d 309, 315 (2d Cir. 1993)). Here, on the other hand, for the reasons set forth above, the likelihood is that defendant's sentence would have been the same as it was even had the conduct alleged in the Southern District of New York case been included in the Eastern District of North Carolina case.
Schorr cites, and the government (Gov't Mem. at 10) repeats the citations to, cases from the First, Seventh and Ninth circuits, all of which are concerned with claims that a defendant was deprived of the possibility of concurrent state and federal sentences, a situation which gives rise to issues not present here.
For the foregoing reasons, the Court finds that defendant has been prejudiced by the delay in the filing of the Southern District of New York indictment.
The government — turning to the second prong of the test, the reason for the delay — argues that "Olmeda has . . . failed to establish that the Government intentionally delayed indicting him for some improper purpose." (Gov't Mem. at 10.) That is not surprising, since it is difficult to discern how the defendant would know why the indictment was delayed. Cf. United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990) ("the government provides specific, convincing reasons why the prosecution was not ready to try this case until the spring of 1988").
The government, however, has not given any explanation at all for the delay in the filing of the Southern District of New York indictment.
The Court will hold a hearing at which the government will be allowed to show, if that be the case, that it had an appropriate reason to delay that filing.
Chambers will contact counsel to arrange a date.
SO ORDERED.