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United States v. Cook

United States District Court, D. Connecticut

May 21, 2018

UNITED STATES OF AMERICA
v.
HAROLD COOK, GERUND MICKENS, TERRELL HUNTER, DOUGLAS LEE, and JESUS ASHANTI.

          RULING ON MOTIONS TO DISMISS, JOINT MOTION TO STRIKE, MOTIONS TO SEVER, AND MOTIONS TO SUPPRESS

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE.

         Defendants Harold Cook, Gerund Mickens, Terrell Hunter, Douglas Lee, and Jesus Ashanti are charged with crimes stemming from the kidnapping, robbery, and murder of Charles Teasley in Hartford, Connecticut on January 9, 2009. The indictment charges the defendants with kidnapping resulting in the death of a person, in violation of 18 U.S.C. § 1201(a)(1) & (2) (Count One); with firearm-related murder and kidnapping, in violation of 18 U.S.C. §§ 924(c), 924(j)(1) & (2), 1111(a), & 1201(a)(1) & (2) (Count Two); and with firearm-related murder and Hobbs Act robbery, in violation of 18 U.S.C. §§ 924(c), 924(j)(1) & (2), 1111(a), & 1951(a) (Count Three). The defendants have filed a number of pretrial motions, which include: (a) motions to dismiss the indictment (or various counts thereof) filed by defendants Gerund Mickens (Docs. Nos. 137, 139, & 143) and Douglas Lee (Doc. No. 148); (b) motions to sever trial filed by defendants Harold Cook (Doc. No. 145), Terrell Hunter (Docs. Nos. 136 & 151), and Douglas Lee (Docs. Nos. 120 & 146); (c) motions to suppress evidence filed by defendants Gerund Mickens (Doc. No. 102) and Terrell Hunter (Doc. No. 130); and (d) a joint motion to strike surplusage from the indictment filed by all defendants except Jesus Ashanti (Doc. No. 141). For the following reasons, I grant Lee's second motion to sever, Doc. No. 146; deny as moot his first motion to sever, Doc. No. 120; and deny all of the defendants' other motions.

         I. Background

         On January 12, 2009, the body of Charles Teasley was discovered by his friend, Desmond Wright, in a car parked on Colebrook Street in Hartford, Connecticut. Teasley, a known drug dealer, had been shot multiple times in the head.

         On March 30, 2017, Harold Cook, Gerund Mickens, Terrell Hunter, Douglas Lee, and Jesus Ashanti were all charged in a three-count indictment with Teasley's kidnapping, robbery, and murder. According to the allegations in the indictment, Lee set up Teasley to be robbed by arranging to buy cocaine from him and providing Cook with the details of the planned transaction. When Teasley went to meet Lee, he was ambushed by Cook, Mickens, Hunter, and Ashanti, who kidnapped Teasley by binding his hands with zip-ties and forcing him into the back of his car. Cook, Mickens, Hunter, and Ashanti then assaulted Teasley; forced him to telephone his girlfriend, who brought the defendants a safe hidden at Teasley's residence; and finally murdered Teasley by shooting him in the head at close range.

         On March 31, 2017, the court issued warrants for the defendants' arrest. Cook, Mickens, and Hunter were all arrested on April 4, 2017; Lee was arrested on April 6, 2017; and Ashanti was arrested on April 11, 2017. The case was transferred to me by Senior United States District Judge Alfred V. Covello on January 25, 2018.

         II. Discussion

         The defendants' motions fall into four categories. First, Mickens and Lee move to dismiss the indictment (or portions thereof) on grounds of preindictment delay, multiplicity of charges, or failure to state an offense. See Docs. Nos. 137, 139, 143, & 148. Second, all of the defendants except Ashanti move to strike surplusage from the indictment. Doc. No. 141. Third, Cook, Hunter, and Lee each move to sever trial from the other defendants. Docs. Nos. 120, 136, 145, 146, & 151. Fourth, Mickens and Hunter move to suppress evidence of statements and/or silences they made after their arrest. Docs. Nos. 102 & 130. I will address each category in turn.

         A. Motions to Dismiss

         Federal Rule of Criminal Procedure 12(b)(3) sets forth various defenses and objections that “must be raised by pretrial motion.” Those defenses include “defect[s] in instituting the prosecution, ” such as “preindictment delay, ” Fed.R.Civ.P. 12(b)(3)(A)(ii), as well as “defect[s] in the indictment, ” such as “charging the same offense in more than one count (multiplicity), ” Fed. R. Crim. P. 12(b)(3)(B)(ii), and “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v).

         Here, Mickens moves to dismiss the indictment pursuant to Rule 12(b)(3)(A)(iii) due to unjustified and prejudicial preindictment delay. He also moves to dismiss Count One of the indictment pursuant to Rule 12(b)(3)(B)(ii) as multiplicitous, and to dismiss Count Two of the indictment pursuant to Rule 12(b)(3)(B)(v) for failure to state an offense. In addition, Lee moves to dismiss Count Three pursuant to Rule 12(b)(3)(B)(v) for failure to state an offense.

         I deny all four motions to dismiss.

         1. Preindictment delay

         Because “the 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)), “actions brought within the limitations period will rarely be dismissed” for preindictment delay.[1] United States v. Lawson, 683 F.2d 688, 694 (2d Cir. 1982). In extreme cases, however, “‘[o]ppressive' prosecutorial delay may violate the Due Process Clause of the United States Constitution.”[2] Bierenbaum v. Graham, 607 F.3d 36, 51 (2d Cir. 2010) (quoting United States v. Lovasco, 431 U.S. 783, 789 (1977)). The defendant “carr[ies] a heavy burden to sustain a claim of violation of due process.” United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1974). He or she “must prove that the delay resulted in actual prejudice and that the prosecution's reasons for the delay were improper.” Bierenbaum, 607 F.3d at 51.

         Mickens has shown neither actual prejudice nor improper government conduct. In support of his claim of prejudice, Mickens vaguely speculates that “investigative pathways . . . have gone cold simply due to the passage of time, the fading of memories, and the scattering of those who might remember.” Mem. Supp. Mickens' Mot. Dismiss, Doc. No. 138, at 3. But although “actual prejudice” may be “demonstrated by the loss of documentary evidence or the unavailability of a key witness, ” Cornielle, 171 F.3d at 752, the simple fact that “witnesses' memories [have] dimmed . . . has not been considered the sort of actual substantial prejudice” that might violate due process. Elsbery, 602 F.2d at 1059. “Faded memories or unavailable witnesses are inherent in any delay, even if justifiable.” United States v. Delacruz, 970 F.Supp.2d 199, 202 (S.D.N.Y. 2013). Thus, to warrant dismissal, “a defendant must demonstrate a substantial, actual prejudice to his ability to defend himself.” Id.

         Mickens' only example of an unavailable “key witness” is Desmond Wright, the man who discovered Teasley's body and an early suspect in Teasley's murder. Wright died in 2015, which means that the defendants “had no opportunity ever to question [him]” and “will have no ability at trial to call him to the stand.” Mem. Supp. Mickens' Mot. Dismiss, Doc. No. 138, at 3. But Mickens' brief is extremely “light on details that support [Wright]'s label as a ‘key witness.'” Delacruz, 970 F.Supp.2d at 203. In fact, Mickens does not assert anything that Wright might have known that would have made him a significant witness for the defense. Cf. United States v. Guerra, 2012 WL 1899861, at *5 (E.D.N.Y. May 24, 2012) (“Defendant cannot provide definite evidence of prejudice by merely stating that unidentified people may have known and testified to unknown and unspecified evidence.”). Because there is “no way of knowing what [Wright's] testimony would have been, ” any prejudice from his absence is, at best, highly “speculative.” See United States v. Long, 697 F.Supp. 651, 657 (S.D.N.Y. 1988).

         Mickens also has not shown that “the delay was engineered by the government for an improper purpose, such as gaining a tactical advantage.” Lawson, 683 F.2d at 694; see also Lovasco, 431 U.S. at 790 (“[T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.”). Mickens argues that “there is no apparent legitimate reason why the Government let the case grow cold before bringing the present indictment, ”[3] and claims that the prosecution “intends to rely substantially on information it obtained seven years ago in early 2011 as well as material arising from the initial investigation of Teasley's death in 2009.” Mem. Supp. Mickens' Mot. Dismiss, Doc. No. 138, at 3-4. But “[t]here is no constitutional right to be arrested, ” Hoffa v. United States, 385 U.S. 293, 310 (1966), and “prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.”[4]Lovasco, 431 U.S. at 791. Absent any showing of an “improper purpose” on the part of the government, Cornielle, 171 F.3d at 752, even actual prejudice from a lengthy delay-which Mickens has not shown-would not violate due process. See Lovasco, 431 U.S. at 796. (“[T]o prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.”).

         To be sure, an eight-year delay between the crime and the indictment is “somewhat unusual.” See Delacruz, 970 F.Supp.2d at 203. But considerably longer delays have been held not to violate due process in the absence of government misconduct. See, e.g., id. (sixteen-year preindictment delay did not violate due process because defendant failed to “show[] that the preindictment delay was an intentional device designed by the Government to gain a tactical advantage”); Guerra, 2012 WL 1899861, at *5 (seventeen-year preindictment delay did not violate due process). Here, because Mickens has shown neither actual prejudice nor improper conduct by the government, I deny the motion to dismiss on the basis of preindictment delay.

         2. Multiplicity

         The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The provision “encompasses three distinct guarantees: ‘(1) It protects against a second prosecution for the same offense after acquittal. (2) It protects against a second prosecution for the same offense after conviction. (3) And it protects against multiple punishments for the same offense.'” United States v. Josephberg, 459 F.3d 350, 354-55 (2d Cir. 2006) (per curiam) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)). To determine whether two criminal charges constitute the same offense for purposes of double jeopardy, courts apply the “same-elements test” set forth in Blockburger v. United States, 384 U.S. 299 (1932). That test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence' and double jeopardy bars additional punishment and successive prosecution.”[5] Dixon, 509 U.S. at 696.

         “Where there has been no prior conviction or acquittal, ” however, “the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed.” Josephberg, 459 F.3d at 355 (emphasis added); see Ball v. United States, 470 U.S. 856, 860 n.7 (1985) (“[T]he Double Jeopardy Clause imposes no prohibition to simultaneous prosecutions.”). In other words, “a defendant's Double Jeopardy rights are only at risk after he is convicted on multiplicitous charges.” United States v. Ferguson, 478 F.Supp.2d 220, 233 (D. Conn. 2007) (Droney, J.) (emphasis added). Until such time as a conviction or an acquittal has entered, “the Double Jeopardy Clause's guarantee against multiple punishments for the same offense has not yet been triggered.” United States v. Polouizzi, 564 F.3d 142, 157 (2d Cir. 2009).

         Mickens moves to dismiss Count One of the indictment on the basis that it “contains no element not also contained in Count Two.” See Mickens' Mot. Dismiss Count One, Doc. No. 139, at 1. Mickens' motion is “premature, ” however, “for it is possible that the jury will convict [Mickens] on one count and acquit on all other allegedly multiplicitous counts.” See Josephberg, 459 F.3d at 356. In the event that the jury convicts Mickens on both Counts One and Two, his “right not to suffer multiple punishments for the same offense will be protected by having the court enter judgment on only one of the multiplicitous counts.” Id. at 355. Therefore, I deny Mickens' motion to dismiss Count One without prejudice to renewal should he be convicted on both allegedly multiplicitous counts.

         3. Failure to state an offense

         Mickens moves to dismiss Count Two (firearm-related murder/kidnapping) for failure to state an offense. Lee moves to dismiss Count Three (Hobbs Act robbery) for the same reason.

         a. Count Two

         Mickens claims that Count Two, which charges a violation of 18 U.S.C. § 924(j), fails to state an offense. Section 924(j) imposes additional penalties for certain violations of section 924(c). Section 924(c), in turn, “requires, as an element of the offense, that Defendants have committed a ‘crime of violence.'” Mem. Supp. Mickens' Mot. Dismiss Count Two, Doc. No. 144, at 1. Section 924(c)(3) defines a “crime of violence” as:

an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

         The Second Circuit has referred to clause (A) as the “force clause” and clause (B) as the “risk-of-force clause.” See United States v. Hill, ___ F.3d ___, 2018 WL 2122417, at *2 (2d Cir. 2018).

         Section 923(c)(3)'s risk-of-force clause is similar (though not identical to) the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which the Supreme Court held unconstitutionally vague in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). The Court recently decided Sessions v. Dimaya, in which it held that the Immigration and Nationality Act's definition of aggravated felony-which is identical to section 923(c)(3)'s risk-of-force clause-is unconstitutionally vague under Johnson. See U.S. ___, 138 S.Ct. 1204 (2018). Mickens ...


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