United States v. Marin

635 F.Supp.3d 565

UNITED STATES of America, Plaintiff, v. Daniel MARIN, Defendant.

Case No. 1:21-cr-20406-1

United States District Court, E.D. Michigan, Northern Division

Signed October 12, 2022

Jules M. DePorre, U.S. Attorney, United States Attorney's Office, Flint, MI, Tim M. Turkelson, U.S. Attorney, Department of Justice, Flint, MI, William J. Vailliencourt, Jr., Cassandra Resposo, U.S. Attorneys, DOJ-USAO, Detroit, MI, Katharine Hemann, U.S. Attorney, DOJ-USAO, Bay City, MI, for Plaintiff.

Jeffrey J. Rupp, William Brisbois & Associates, PLLC, Saginaw, MI, for Defendant.

Daniel Marin, Roscommon, MI, Pro Se.

OPINION AND ORDER DENYING DEFENDANT'S MOTIONS (1) TO DISMISS INDICTMENT UNDER FEDERAL RULES OF CRIMINAL PROCEDURE, (2) TO DISMISS BILL OF PARTICULARS AND FORFEITURE ALLEGATIONS, (3) TO DISMISS INDICTMENT UNDER MORRISON v. CALIFORNIA, (4) TO EXCLUDE EVIDENCE UNDER FOURTEENTH AMENDMENT AND FEDERAL RULES OF CRIMINAL PROCEDURE, (5) FOR INVESTIGATIVE SERVICES UNDER 18 U.S.C. § 3006A, AND (6) TO DISMISS INDICTMENT UNDER SPEEDY TRIAL ACT

THOMAS L. LUDINGTON, United States District Judge

This matter is before this Court upon Defendant Daniel Marin's six pro se motions. Although five of the motions will be denied because he filed them while proceeding in a hybrid fashion, all six will be denied on the merits.

I.

In June 2021, a grand jury indicted Defendant for conspiracy to possess with intent to distribute and to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846. ECF No. 44.

On March 28, 2022, Defendant filed a pro se motion to terminate his Court-appointed counsel's representation, ECF No. 64, which was denied 13 days later because Defendant filed the motion pro se while represented by an attorney. United States v. Marin, No. 1:21-CR-20406, 2022 WL 1085678, at *1 (E.D. Mich. Apr. 11, 2022) (denying the motion for being filed "in a 'hybrid' fashion" (citations omitted)).

While represented by the same attorney, Defendant later filed six more pro se motions. ECF Nos. 72; 73; 74; 75; 81; 102. After a Faretta inquiry, Defendant's motion to remove court-appointed counsel and to proceed pro se was granted in part, allowing Defendant to proceed pro se but with Attorney Jeffrey Rupp as standby counsel. See generally ECF No. 104.

Proceeding pro se, Defendant has since filed two more motions to dismiss. ECF No. 106; United States v. Marin, No. 1:22-MC-51512 (E.D. Mich. Oct. 3, 2022), ECF No. 1.¹ The Government has responded to all but the latter two motions. See ECF Nos. 107-112.

II.

As a threshold matter, the five motions that Defendant filed pro se while represented by court-appointed counsel will be dismissed as improper hybrid motions. By simultaneously proceeding pro se and through counsel, Defendant was proceeding in a "hybrid" fashion. E.g., United States v. Dehar, No. CRIM. 07-20558, 2008 WL 4937855 (E.D. Mich. Nov. 14, 2008); see McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Although the Sixth Amendment guarantees defendants the right to conduct their own defense and even to represent themselves, see Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the right of self-representation does not include the right to proceed in a hybrid fashion, McKaskle, 465 U.S. at 183, 104 S.Ct. 944; see United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir. 1987). Because Defendant filed those five motions in a hybrid fashion, they will be denied. United States v. Trout, No. 1:17-CR-20854, 2022 WL 23289, at *2 (E.D. Mich. Jan. 3, 2022).

Yet the hybrid motions will be addressed on the merits because they have been fully briefed and Defendant is now proceeding pro se. See Miner v. Ogemaw Cnty. Rd. Comm'n, No. 1:21-CV-11192, 594 F.Supp.3d 912, 925-26 (E.D. Mich. Mar. 29, 2022) (excusing party's technical filing error because "Sixth Circuit policy 'values the disposition of cases on their merits' " (quoting Burrell v. Henderson, 434 F.3d 826, 832 (6th Cir. 2006))).

III.

Defendant has filed motions (1) to dismiss his indictment for lack of specificity and failure to state an offense under Federal Rules of Criminal Procedure 12(b)(3)(B); (2) to dismiss the first bill of particulars and the forfeiture allegations in the indictment under Federal Rule of Criminal Procedure 7(c)(2); (3) to dismiss the indictment under Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934); (4) to suppress evidence; and (5) for investigative services under 18 U.S.C. § 3006. Each will be addressed in turn.

A.

Defendant first seeks to dismiss his indictment for lack of specificity and failure to state an offense under Federal Rules of Criminal Procedure 12(b)(3)(B)(iii) and (v). ECF No. 72. Specifically, Defendant believes the indictment does not sufficiently state or allege the elements of 21 U.S.C. §§ 841(a)(1), 846. Id. The Government responds that Defendant's arguments "are without merit." ECF No. 107 at PageID.295.

An indictment is 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." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The indictment may "state[ ] the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense." United States v. Landham, 251 F.3d 1072, 1079 (6th Cir. 2001). And "it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887 (internal quotation marks and citation omitted). "Courts u[s]e a common-sense construction in determining whether an indictment sufficiently informs a defendant of an offense." United States v. Maney, 226 F.3d 660, 663 (6th Cir. 2000) (quoting Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989)). But courts should not consider the evidence on which the indictment is based. See Landham, 251 F.3d at 1080.

The indictment here is sufficient. First, the indictment contains all the elements of conspiracy to possess with intent to distribute and to distribute cocaine. Compare United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019) (requiring an agreement to violate the drug laws, the defendant's knowledge of the agreement, and the defendant's voluntary decision to join or to participate in it), with ECF No. 67 at PageID.168-69 (alleging that Defendant "knowingly conspired and agreed together and with other persons, both known and unknown to the grand jury, to possess with intent to distribute and to distribute cocaine, in violation of [21 U.S.C. § 841(a)]"). And the indictment specifically states the statutes at issue for this charge, thus giving Defendant fair notice of the charges against him. ECF No. 67 at PageID.168 (charging Defendant with "Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine" under "21 U.S.C. §§ 846 and 841(a)(1)" (emphases omitted)). Finally, the indictment gives the approximate time and place of the charged offense. Id. ("[S]ince at least August of 2020, to on or about September 2, 2020, in the Eastern District of Michigan."). Therefore, the indictment sufficiently charges Defendant under 21 U.S.C. §§ 841(a)(1), 846. United States v. Switzer, No. 21-20104, 2021 WL 4522309, at *3 (E.D. Mich. Oct. 4, 2021) (holding that an indictment is sufficient if it "identifies the statutes alleged to have been violated, sets forth the essential elements of the charged offenses tracking the relevant statutory language, identifies the victim and the location where the crime allegedly occurred, and provides the dates or time period of the alleged offenses") (collecting cases).

For these reasons, Defendant's Motion to Dismiss Indictment under Federal Rule of Criminal Procedure 12(b)(3)(B), ECF No. 72, will be denied.

B.

Defendant next seeks to dismiss the first bill of particulars and the forfeiture allegations in the indictment under Federal Rule of Criminal Procedure 7(c)(2). ECF No. 73. Specifically, Defendant alleges that the First Bill of Particulars should be dismissed, warranting the return of his property named in it, because the Government did not specifically identify the property in the indictments. Id.

Defendant's arguments lack merit because they are based on a superseded version of Rule 7(c) and the Government has complied with the applicable Rules. In 2009, Rule 7(c)'s "provision regarding forfeiture [became] obsolete." FED. R. CRIM. P. 7(c) advisory committee's note to 2009 amendment. That "language was repeated in [Rule 32.2(a)], which was intended to consolidate the rules dealing with forfeiture." Id. Now "[t]he indictment . . . need not identify the property subject to forfeiture or specify the amount of any forfeiture money judgment that the government seeks" but must "contain[ ] notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute" FED. R. CRIM. P. 32.2(a). The indictments provide such notice—albeit with some strain. See ECF No. 44 at PageID.63-64 (seeking forfeiture of "[1] any property constituting, or derived from, any proceeds obtained, directly or indirectly, as a result of such violation and or [2] any property used or intended to be used in any manner or part to commit or to facilitate the commission of such offense"); accord ECF No. 67 at PageID.170-71. Then, as noticed, the Government issued a bill of particulars that specified the property that it would seek. ECF No. 60 at PageID.112. Contrary to Defendant's interpretation, that Bill did not amend the forfeiture allegations in the indictment; it merely notified Defendant of the property that fell within the indictments' forfeiture allegations, which was...