United States District Court, D. Connecticut
RULING ON MOTIONS TO DISMISS, JOINT MOTION TO STRIKE,
MOTIONS TO SEVER, AND MOTIONS TO SUPPRESS
R. UNDERHILL, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
Motions to Dismiss
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).
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
all four motions to dismiss.
“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. 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.” 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.
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.”
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).
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, ” 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.”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.”).
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.
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.” Dixon, 509 U.S. at
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
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.
Failure to state an offense
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
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
(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.
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).
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 ...