United States v. Remarque

UNITED STATES, Plaintiff, v. JEAN BUTEAU REMARQUE, Defendant.

Criminal No. SAG-19-0039

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 12, 2021

MEMORANDUM OPINION

Defendant Jean Buteau Remarque, who faces charges of receipt and possession of child pornography, has now filed a number of pending motions: a Motion to Quash the Indictment for Lack of Sufficiency, ECF 174, a Motion to Dismiss for Arbitrary Multiplication of Offenses, ECF 175, and a Motion to Dismiss for Bad Faith Prosecution and Abuse of the Grand Jury Process, ECF 176 (collectively "the Motions").¹ The Government has opposed the Motions, ECF 177, and Mr. Remarque has replied, ECF 179, 180, 181. Following a telephone conference in which the Court provided the parties with its initial views on the merits of the Motions, ECF 183, Mr. Remarque filed an Opposition to the Government's forthcoming third superseding indictment. ECF 184. The Government also filed a Motion to Stay Ruling as to Count Three on Defendant's Motion to Quash. ECF 187. Upon review of those filings, for the reasons stated below, the Motion to Quash will be granted in part, although implementation of the ruling will be deferred to permitthe Government to supersede the indictment, and the Motions to Dismiss will be denied. The Government's Motion to Stay will also be denied.

I. Factual and Procedural Background

A review of this case's procedural history is central to several facets of the Court's analysis. Mr. Remarque's initial appearance in federal court, on a one-count indictment charging possession of child pornography, occurred on January 30, 2019. ECF 6. The Federal Public Defender's office entered its appearance on Mr. Remarque's behalf, ECF 14, and filed two suppression motions thirteen days later, on February 12, 2019. ECF 16, 17. The early months of the case were marked by several changes in attorney for Mr. Remarque, as well as his withdrawal from a plea agreement. ECF 19, 22, 27, 33, 36, 42. During that time, Mr. Remarque filed a motion for discovery. ECF 30. Judge Paula Xinis, the then-presiding judge in this case, held a telephone conference on September 25, 2019, and subsequently entered the case's initial pretrial scheduling order. ECF 46. The scheduling order set, inter alia, a December 2, 2019 deadline for Mr. Remarque to file or supplement pretrial motions, a motions hearing date of January 3, 2020, and a trial date of March 25, 2020. ECF 46.

During this entire period, while Mr. Remarque was repeatedly replacing his counsel, the motions filed on Mr. Remarque's behalf by the assistant Federal Public Defender remained pending. On or before the December 2, 2019 deadline, Mr. Remarque's then-counsel, Michael Montemarano, Esq., filed six additional pre-trial motions. ECF 56, 57, 59, 60, 61, 64. A motions hearing occurred on February 4, 2020, at which Judge Xinis denied Mr. Remarque's various pre-trial motions. ECF 74, 75.

On March 11, 2020, Chief Judge James K. Bredar issued the first of a long series of orders restricting access to Court facilities in light of the COVID-19 pandemic. See Standing Order No.2020-02. During this time, Mr. Remarque once again sought to change his counsel. ECF 83. His previous counsel continued to work on his behalf, filing a motion seeking Mr. Remarque's release from custody for health and safety reasons, citing the pandemic. ECF 86. On June 11, 2020, Mr. Remarque's current counsel, Donald LaRoche, Esq., entered his appearance. ECF 102.

On July 18, 2020, Mr. LaRoche filed a motion to withdraw the motion in limine that had been filed by Mr. Montemarano. ECF 104. Judge Xinis entered a new scheduling order, which set a pre-trial conference for September 15, 2020 and a trial date for September 21, 2020. ECF 109. While the deadline for pretrial motions had long-since passed, Judge Xinis authorized Mr. LaRoche to file a renewed motion to suppress. ECF 112. On August 17, 2020, the case was reassigned from Judge Xinis to my docket. Extensive scheduling efforts ensued in hopes of safely proceeding ahead with Mr. Remarque's trial despite the pandemic, during which time Mr. Remarque filed numerous additional motions covering a wide range of topics. He sought reconsideration of the Court's previous denial of his request for pretrial release on bail, ECF 114, and filed a renewed motion to suppress, ECF 116. He then moved to dismiss Counts One and Two of the indictment on multiplicity grounds, ECF 121, sought review of his detention order, ECF 127, moved to dismiss on the grounds of prosecutorial vindictiveness, ECF 135, and moved to dismiss due to unnecessary delay, ECF 139. In the lead up to the then-target November 16, 2020 trial date, he moved to suppress several statements, ECF 151, and also filed several additional motions in limine, ECF 155, 159, 160. The trial was, unfortunately, again delayed multiple times until its currently scheduled date of March 1, 2021. ECF 173. Without seeking further leave of court, Mr. Remarque has continued to file motions. He filed a speedy trial motion in early December, ECF 169, before ultimately filing the instant motions in early January, ECF 174, 175, 176.

In light of the approaching trial date, upon review of Mr. Remarque's most recent motions, the Court scheduled a February 5, 2021 conference call to provide both parties with ample notice of its forthcoming rulings. On the call, the Court stated that it would be issuing this written opinion in due course, but that it intended to deny the Motions, with the exception of the Motion to Quash, ECF 174, as it pertained to Count Three of the second superseding indictment. It stated that it would give the Government the opportunity, if desired, to file a third superseding indictment in an attempt to remedy the defects the Court had identified in Count Three, see Section II(A) infra. Mr. Remarque, meanwhile, was given the option of continuing the trial should he wish to do so in light of the Government's impending third superseding indictment. This written opinion provides more detail regarding the basis for those oral rulings.

II. Analysis

A. Motion to Quash for Lack of Sufficiency and Specificity

"A valid indictment must: (1) allege the essential facts constituting the offense; (2) allege each element of the offense, so that fair notice is provided; and (3) be sufficiently distinctive that a verdict will bar a second prosecution for the same offense." United States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003). Here, all three counts of the second superseding indictment track the language of the statutes charged. Such tracking of statutory language is sufficient if the words "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Hamling v. United States, 418 U.S. 87, 117 (1974) (internal citation omitted); United States v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999); United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). However, "[w]hen the words of a statute are used to describe the offense generally, they must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, comingunder the general description, with which he is charged." Brandon, 298 F.3d at 310 (internal citations omitted).

Counts One and Two of the indictment, while not overly descriptive, satisfy these standards. Not only do the counts track the statutory language and thus expressly set out all the elements necessary to constitute the offense of receipt of child pornography, but they also include "essential facts" distinctive enough to allow preparation of the defense and to bar a second prosecution for the same offense—namely the inclusion of a precise date and time when the child pornography was allegedly received. For a charge centering on the receipt of images, such date and time details are sufficient to allow the defendant to identify what conduct and images the government are alleging violated the statute, particularly given that the dates and times align with the filenames of screenshots of the alleged child pornography found here.² While Mr. Remarque challenges the validity of the Government's "filenames-as-timestamps" theory, that question will be determined by the jury. For notice and double jeopardy purposes, the specific date and time sufficiently protect Mr. Remarque as to Counts One and Two.

Count Three, by contrast, supplements its recitation of the statutory language with only a date, providing no "essential facts" regarding what pornography was allegedly possessed, such that it is merely a generic reformulation of the elements rather than a sufficiently distinctive charge.Nothing in the indictment protects Mr. Remarque from being charged for the same possession crime at some point in the future, because there is no information specifying the alleged child pornography being charged. As such, the indictment is deficient, per Bolden, 325 F.3d at 490. The Government need not detail the evidence it intends to use to prove Mr. Remarque's guilt, nor is it cabined to any particular type of facts that must be included in order to satisfy the indictment's notice requirements, whether it be the inclusion of image file names, reference to particular devices on which the pornography was stored, or some other avenue entirely. Whatever route the prosecution chooses, however, must involve sufficient inclusion of "essential facts" to allow Mr. Remarque to prepare a defense and to ensure that he cannot again be charged for possession of the same alleged pornography at a later date. That concern is particularly acute where, as here, the date alleged in the indictment represents a search of a defendant's home, where multiple items are often seized and could potentially undergird the charge.

The question, then, is the appropriate remedy in this unique situation. The Court has no concerns about actual notice to Mr....