United States v. Dubose

1

UNITED STATES OF AMERICA v. ZUMAR DUBOSE ABDUSH DUBOSE KARIEM DUBOSE

Criminal Action No. 20-453-1-2-3

United States District Court, E.D. Pennsylvania

August 1, 2022

MEMORANDUM OPINION

WENDY BEETLESTONE, J.

Pro Se Defendant Zumar Dubose, along with his brothers and co-defendants Abdush and Kariem, are accused of engaging in a scheme to defraud the United States Postal Service (“USPS”) and the United Parcel Service (“UPS”). As a result of that scheme, the Government charged Zumar^[1] and his brothers with ten counts of mail fraud, in violation of 18 U.S.C. § 1341; five counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349; bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1344(2) and 2; and conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(h) and 1957(a). Zumar moves, through multiple motions, to: (1) challenge the time and manner of his upcoming trial; (2) dismiss the superseding indictment and, (3) “void” certain search warrants. For the reasons that follow, his motions will be denied.

I. BACKGROUND

As alleged in the Superseding Indictment, between October 2018 and July 2019, Defendants filed over 1,100 fraudulent claims with USPS and over 140 fraudulent claims with UPS. As part of this scheme, Defendants allegedly shipped packages using fictitious names and insured them with UPS tracking labels or USPS postage. Defendants then submitted claims for reimbursement, allegedly claiming that these packages were damaged or lost. As a result, USPS and UPS issued claims checks to the addresses of the fictious claimants, addresses which traced back to the Dubose brothers. Zumar then deposited the checks into fake business accounts at Citizens Bank.

According to the superseding indictment, USPS, UPS, and Citizens Bank eventually caught onto the scheme and took steps to curtail Defendants’ activities. USPS withheld some of the claim checks, and UPS voided claim checks and refused to pay some of the claims. Citizens Bank put a hold on an account and prevented withdrawals. In response, Defendants allegedly filed numerous lawsuits against USPS, UPS, and Citizens Bank, using fictitious plaintiff names and alleging that the companies were not paying them the money to which they were entitled. Defendants also allegedly moved the proceeds of the scheme into another fake business account of their father’s.

In due course, Zumar was arrested at a Citizens Bank in Philadelphia while he was allegedly withdrawing large sums of cash from one of the fake business accounts. Abdush and Kariem were arrested sometime thereafter. On February 16, 2022, Zumar made a motion to proceed in his case Pro Se, which was accepted. Since then, he has filed over 15 pro se motions,^[2]which overlap in subject matter and span numerous challenges to his prosecution.

The subject matter of Zumar’s motions fall into three categories: (1) motions attacking and/or seeking to alter the timing and manner of his upcoming trial; (2) motions seeking dismissal of the superseding indictment; and, (3) motions attacking the legitimacy of the search warrants executed in his case. Each of these motions, and the standards applicable to them, will be addressed in turn.^[3]

II. MOTIONS CONCERNING TIME AND MANNER OF TRIAL

A. Motion to Sever

Among his many motions, Zumar requests to have his trial severed from that of his brothers. Where defendants are joined in a criminal indictment, a defendant’s case may be severed from that of his co-defendant’s 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, or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (citing Zafiro v. United States, 506 U.S. 534, 539 (1993)); Fed. R. Crim. P. 14. Importantly, “[t]here is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro, 506 U.S. at 537. The Third Circuit has often described this principle as “fundamental.” See, e.g., United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005). The preference is based on the desire to “promote [judicial] efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Zafiro, 506 U.S. at 537 (internal quotations and citations omitted). It follows that “[p]articipants in a single conspiracy should ordinarily be tried together for purposes of judicial efficiency and consistency, even if the evidence against one is more damaging than that against another.” United States v. Ward, 793 F.2d 551, 556 (3d Cir. 1986).

Thus, to prevail on a Rule 14 motion, a defendant must “pinpoint clear and substantial prejudice resulting in an unfair trial” that outweighs the preference for joint trials. United States v. Riley, 621 F.3d 312, 335 (3d Cir. 2010) (quoting United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992)). “Mere allegations of prejudice are not enough.” United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981). Indeed, a defendant, properly joined with other defendants in a criminal indictment, has a “heavy burden in gaining severance.” United States v. Quintero, 38 F.3d 1317, 1343 (3d Cir. 1994).

Here, Zumar does not provide any basis whatsoever for his severance request, much less point to any “specific trial right” that would be compromised by a continuance. He thus fails to meet his “heavy burden” to defeat the preference for joint trials-especially here, where it appears that much of the evidence concerning the Defendants will be the same for each of them, and severance would likely result in duplicative proceedings. Zumar’s motion to sever will therefore be denied.

B. Request for a Bench Trial

Denial of Zumar’s severance motion affects analysis of his next request, which is one for a bench trial. Throughout his motions, Zumar repeats that he “consents to a bench trial,” (see, e.g., ECF 143) at times suggesting that he is entitled to one. He is not. Federal Rule of Criminal Procedure 23 provides that “[i]f the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” Fed. R. Crim. P. 23(a).

At first glance, it would appear that Zumar satisfies the first option of “waiv[ing] a jury trial in writing.” But because Zumar’s co-defendants have requested a jury trial, and Zumar’s motion to sever has been denied, all defendants must be tried together before a jury; otherwise, granting the request would deprive his brothers of their right to a jury trial under the Sixth Amendment. As to the second option, the Government has indicated that absent any waiver of a jury trial on the part of all three defendants, it does not plan to consent to a bench trial as to Zumar. Zumar’s request for a bench trial is thus denied at this time.

C. Right to a Speedy Trial

Throughout his motions, Zumar alleges a violation of his rights to a speedy trial under the Speedy Trial Act and the Sixth Amendment. Currently, his trial is scheduled for the first week of October. For the reasons that follow, Zumar’s rights to a speedy trial have not been violated.

i. The Speedy Trial Act

The Speedy Trial Act mandates that a criminal trial must commence within seventy days of the later of the filing of an indictment or a defendant’s initial appearance. 18 U.S.C. § 3161(c)(1). A superseding indictment commences a new 70-day speedy trial period when the superseding indictment adds “a new charge not identified in the criminal complaint or charged in the original indictment.” United States v. Komolafe, 246 F. App’x 806, 809 (3d Cir. 2007) (citing United States v. Lattany, 982 F.2d 866, 872 n.7 (3d Cir. 1992)).

Although the Act requires that trial commence within seventy days, it also provides for a number of situations in which delays can be excluded from this 70-day period. 18 U.S.C. § 3161(h). In cases involving the joinder of multiple defendants, an exclusion that applies to one defendant is applicable to all co-defendants, so long as it is reasonable. See United States v. Felton, 811 F.2d 190, 198-99 (3d Cir. 1987).

One period of time that is excludable under the Act is a delay caused by a continuance. In particular, a continuance is excludable “if the judge granted such continuance on the basis of h[er] findings that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). A defendant’s speedy trial claim can be rejected when the delay was caused by a continuance requested by the defendant, because defendants should not be permitted to “abuse the system by requesting . . . continuances and then argu[ing] that their [rights have been violated] because the continuances they acquiesced in were granted.” United States v. Fields, 39 F.3d 439, 443 (3d Cir. 1994) (quoting Lattany, 982 F.2d at 883).

In this case, Zumar’s rights under the Speedy Trial Act have not been violated because this action was subject to multiple excludable continuances requested by himself and his brother, Kariem.

a. Orders Granting Continuances

First Zumar’s Speedy Trial Act period began on August 26, 2021, which is the date the superseding indictment was issued.^[4] See Lattany, 982 F.2d at 872 n.7. Four days after the superseding indictment was issued, on August 30th, 2021, counsel for Zumar filed an unopposed motion to continue trial, which was granted a day later on August 31st, 2021. The order set February 7th, 2022 as the new date of trial. The order further set forth the reasons for finding that “the ends of justice served by granting th[e]...