U.S. v. Worthy

755 F.Supp.2d 226

UNITED STATES of America

v.Hasan WORTHY, DefendantUnited States of America

v.Shareef Nash, Hasan Worthy, Kevin Stuckey, John Palaia, Defendants.

Nos. 2:10cr135–DBH, 2:10cr136–DBH.

United States District Court, D. Maine.

Dec. 20, 2010.

Edward S. MacColl, Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., Sarah A. Churchill, Strike, Goodwin & O'Brien, Stanley W. Norkunas, Lowell, MA, Peter E. Rodway, Rodway & Horodyski, Lawrence B. Goodglass, Robinson, Kriger & McCallum, Jonathan M. Goodman, Troubh Heisler, Michael Whipple The Hallett Law Firm, Jeffrey W. Langholtz, Biddeford, ME, Robert M. Napolitano, Thomas S. Marjerison, Norman Hanson & DeTroy, Thomas A. Dyhrberg, Luke Riouz, Fairfield & Associates, Portland, ME, John E. Geary Lewiston, ME, Joseph Stanley Mekonis Saco, ME, for Defendants.Daniel J. Perry Assistant United States Attorney, Office of the United States Attorney District Of Maine, Portland, ME, for United States of America.

DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND GOVERNMENT'S MOTION TO DISMISS AND FOR DETENTION

D. BROCK HORNBY, District Judge.

These motions to dismiss require me to apply the Speedy Trial Act in the context of a succession of superseding indictments. Although the outcome is not readily apparent from the language of the Act, precedents in this Circuit resolve the issues unambiguously. The government's motion to dismiss without prejudice in No. 2:10cr135–DBH is Granted Without Prejudice. The defendants' motions to dismiss in No. 2:10cr136–DBH are Denied. Moreover, I Overrule the defendant Worthy's objection to his continued detention and Grant the government's motion for detention in No. 2:10cr136–DBH.

Government's Motion to Dismiss Without Prejudice

The government has moved to dismiss the original indictment against the defendant Hasan Worthy in Docket No. 2:10cr135–DBH. Mot. to Dismiss, No. 2:10cr135–DBH (Docket Item 39). Worthy does not object to dismissal, but he does object to the government's request that dismissal be without prejudice. Worthy expresses concerns about alleged misuse of the grand jury process and the government's use of the statutory presumption in favor of detention, concerns expressed in his motion to dismiss a superseding indictment naming him in No. 2:10cr136–DBH. I will consider those arguments in connection with that motion and in connection with his challenge to detention. He also asks for a “clearer understanding” about the “nature of and relationship between the two indictments,” and claims a “right to plead guilty to the original Indictment should he choose to do so.” Def. Worthy's Opp'n to Gov't Mot. to Dismiss at 2, No. 2:10cr135–DBH (Docket Item 40). Worthy's confusion over the relationship between the two Indictments is not a reason for dismissal with prejudice. He provides no authority for the asserted right to plead guilty to the original Indictment in preference to the superseding indictment, and I know of none. I therefore Grant the government's motion to dismiss the original indictment without prejudice.

Defendant Worthy's Motion to Dismiss all Indictments

In addition to the original complaint (No. 2:10–mj–00139–JHR) and the original indictment (No. 2:10cr135–DBH), the government has filed three successive superseding indictments in No. 2:10cr136–DBH against Worthy and others. Worthy has moved to dismiss with prejudice all three superseding indictments. ¹ His ground for dismissal is violation of the Speedy Trial Act. He requests that dismissal be with prejudice because of misuse of the grand jury process and government motions for detention “to hold defendants on charges the government has no intention of taking to trial.” Def. Worthy's Mot. to Dismiss Superseding Indictment at 1, No. 2:10cr136–DBH (Docket Item 117); Defendant Worthy's Mot. to Dismiss Second Superseding Indictment at 1, No. 2:10cr136–DBH (Docket Item 167). Because I find no violation of the Speedy Trial Act, the defendant Worthy's motions to dismiss are Denied.

The Succession of Charges

Worthy was first arrested and charged on August 6, 2010.² The criminal complaint on that date charged him with conspiracy to possess cocaine with intent to distribute on July 16–17, 2010. Compl., No. 2:10cr135–DBH (Docket Item 1). Less than two weeks later on August 17, 2010, the Grand Jury issued an indictment charging the same crime—conspiracy to possess cocaine with intent to distribute—but adding a day to the charged conspiracy (July 16–18, 2010). Indictment (Docket Item 18). The government filed a motion for detention and on August 18, 2010, Worthy was ordered detained pending trial. See Minute Entry of August 18, 2010 (Docket Item 26); Detention Order Pending Trial (Docket Item 45). Then on September 22, 2010, the Grand Jury issued a superseding indictment under a different docket number,³ charging Worthy with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, cocaine and heroin, and aiding and abetting. Superseding Indictment, No. 2:10cr136–DBH (Docket Item 51). This superseding indictment also expanded the timeframe of the conspiracy, now June through August 6, 2010, and added five co-defendants: Shareef Nash, Sasha Phillips, Dereck Berryan, Kevin Stuckey and Veronica Brown. On October 6, 2010, the Grand Jury issued a second superseding indictment. Again it expanded the timeframe of the original conspiracy, now August 28, 2007 through August 6, 2010, and added eight more co-defendants. Second Superseding Indictment, No. 2:10cr136–DBH (Docket Item 94). The second superseding indictment also added three new charges against Worthy—possession with intent to distribute cocaine on July 18, 2010, and aiding and abetting (Count 10); possession with intent to distribute 28 grams or more of cocaine base on August 6, 2010, and aiding and abetting (Count 13); and using a communication facility for cocaine base distribution on July 16, 2010, and aiding and abetting (Count 21). A third superseding indictment was issued on November 17, 2010, which omitted the quantities alleged in Counts 1 and 13 of the second superseding indictment and changed the type of drug in Count 13 from cocaine base to cocaine. Third Superseding Indictment, No. 2:10cr136–DBH (Docket Item 232).

Speedy Trial Act

The basic structure of the Speedy Trial Act is familiar to judges and lawyers who deal with criminal cases: no more than 30 days from arrest until formal charge; no more than 70 days from formal charge until trial. 18 U.S.C. § 3161.

The following two provisions of the Speedy Trial Act bear specifically upon Worthy's arguments in this case:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested ... in connection with such charges.

18 U.S.C. § 3161(b).

If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) ..., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.

18 U.S.C. § 3162(a)(1). As I said in United States v. Davis, 721 F.Supp.2d 59 (D.Me.2010), “[i]t is reasonable to read these two provisions as together requiring dismissal of a charge that was leveled against a defendant in the complaint that occasioned his arrest, but that was not contained in an indictment or information filed within 30 days of the arrest.”

But despite Worthy's reliance upon Davis, that is not the situation here. In Davis, a charge, although contained in the complaint upon which the defendant was arrested, was omitted from the indictment that was filed within 30 days of the arrest. Then it reappeared in a superseding indictment after the 30–day limit. That, I concluded, clearly violated § 3161, and I dismissed the superseding indictment.⁴ Here, in contrast, the original indictment was filed on August 17, 2010, within the 30–day limit and was identical to the charge in the Complaint except for enlarging the charged conspiracy by one day. Therefore, unlike Davis, the original indictment satisfied the Speedy Trial Act requirements.⁵

The next event, the first superseding indictment, however, was outside the 30–day limit. It repeated the conspiracy count, but enlarged the dates to June through August 6, 2010, identified and charged certain co-conspirators, ⁶ and identified the controlled substances as heroin, cocaine, and 50 grams or more of cocaine base. Because of the charge of 50 grams or more of cocaine base, this superseding indictment charged that the penalty was now higher, an (A) offense (by statute a maximum of life and a minimum of 10 years). 21 U.S.C. § 841(b)(1)(A). This first superseding indictment was permissible against Worthy because the First Circuit has made clear that under the Speedy Trial Act, the government can file new charges outside the 30–day limit that are not contained in the original complaint: “the statute says nothing about barring the institution of a new charge for a different offense based on some or all of the underlying transaction.” United States v. Grullon, 545 F.3d 93, 97 (1st Cir.2008).

This was a new charge because, in Apprendi v. New Jersey, 530 U.S. 466, 490, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that any fact that increases the maximum authorized statutory sentence “is the functional equivalent of an element of a greater offense,” which must be charged in an indictment and proved beyond a reasonable doubt. That occurred here, and Worthy agrees that the superseding indictment “change[s] the crime charged in Count One of the initial Indictment.” Def. Worthy's Mot. to Dismiss Second Superseding Indictment at 10 (Docket Item 167).⁷ Therefore, because of the new charge, the first superseding indictment is not subject to dismissal.⁸

Worthy argues as to both this first Superseding...