United States District Court, D. Connecticut
RULING ON GOVERNMENT'S MOTIONS FOR
RECONSIDERATION AND DEFENDANT'S MOTION TO
DISMISS
JANET
BOND ARTERTON, U.S.D.J.
The
Government moves for reconsideration [Docs. # 528, 540] of
the Court's order [Doc. # 527] granting Defendant's
Motion to Dismiss Counts One and Five of the indictment in
the absence of opposition [Doc. # 361]. For the reasons that
follow, the Government's motions are granted, the order
granting dismissal is vacated, and the Defendant's motion
to dismiss is denied.
I.
Background
On June
3, 2018, the Defendant moved to dismiss Counts One and Five
of the indictment, arguing that the Government acted in bad
faith when it entered into a plea agreement with him in a
separate case (3:16cr52 (JCH)) while “preparing to
indict the defendant in separate narcotics conspiracy
offenses, ” i.e. the charges of the indictment in this
case. (Defs.' Mot. to Dismiss [Doc. # 361] at 1.)
Pursuant to the Court's Scheduling Order [Doc. # 369],
the Government's response to that motion was due by
October 12, 2018. The Court granted [Doc. # 458] the
Government's motion to extend that deadline to November
9, 2018, but the Government filed no response to
Defendant's motion by that extended deadline.
The
Court then contacted the Government, who represented that a
response was forthcoming and would be filed by March 29,
2019. When no such response had been filed by close of
business on that day, the Court granted Defendant's
motion to dismiss, absent objection [Doc. # 527].
The
Government then moved for reconsideration of that ruling,
apologizing “to the Court, counsel and the defendant
for failing to file its response” in a timely fashion,
and attaching the Government's proposed opposition. (Mot.
for Reconsid. [Doc. # 528] at 1.) The Government followed up
with a second Motion for Reconsideration in order to assert
proper legal grounds for its request for reconsideration.
(Supp. Mot. for Reconsid. [Doc. # 540].) Defendant objects.
(Def.'s Obj. to Mot. for Reconsid. [Doc. # 531].)
II.
Motions to Reconsider
“The
major grounds justifying reconsideration are an intervening
change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest
injustice.” Virgin Atlantic Airways, Ltd. V.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (internal quotation omitted). The Government argues
that to dismiss two counts of the indictment based on
“the Government's failure to file a timely
response, ” rather than on “the merits of the
defendant's arguments” would amount to
“manifest injustice” such that reconsideration of
the Court's prior ruling is appropriate. (Supp. Mot. for
Reconsid. at 2.)
Because
the Court agrees that “its decision to grant or deny
the defendant's motion to dismiss should be based on the
substance and merit of the issues raised by the defendant in
his motion, ” (id.), the Government's
Motions for Reconsideration are granted. The Court's
prior ruling on Defendant's Motion to Dismiss is vacated,
and the merits of the Defendant's motion will now be
considered.
III.
Motion to Dismiss
Defendant
moves for dismissal of Count One, conspiracy to possess with
intent to distribute heroin from approximately June 2015
through approximately November 2015, and Count Five,
possession with intent to distribute cocaine on or about June
26, 2015, of the indictment in this case. (Defs.' Mem.
Supp. Mot. to Dismiss [Doc. # 361-1] at 1.) He argues that,
in light of his entry into a plea agreement and subsequent
conviction by guilty plea before Judge Hall of possession
with intent to distribute heroin on March 15, 2016,
“the successive prosecution of the charged conduct
amounts to a direct and unjustified penalty for criminal
activity that he previously admitted and has been sentenced
for.” (Id. at 2.)
Defendant
contends that the Government acted in bad faith when it
offered a plea agreement in March 2016 to resolve the matter
before Judge Hall, “knowing all the while that the
other shoe was about to drop, ” i.e. that Defendant
would eventually be indicted in this case as well.
(Id. at 3.) He argues that his plea agreement,
because it was a contract between himself and the Government,
included “an implied obligation of good faith and fair
dealing, ” which the Government violated by withholding
information about additional forthcoming charges during the
plea negotiations. (Id. at 4.) Defendant
“submits that he was hoodwinked into pleading guilty
and would never have done so if the government had acted in
good faith by sharing their prosecutorial plans with
him.” (Id.)
The
parties debated the merits of the motion to dismiss during
the Pretrial Conference on April 2, 2019. At that time,
defense counsel conceded that the Defendant's arguments
do not properly apply to Count Five of the indictment but
persisted in arguing that Count One should be dismissed
because of the government's alleged bad faith. Defense
counsel also argued that continued prosecution of Count One
is improper because the conduct underlying the 2016
conviction occurred on November 19, 2015, (see
Information, United States v. Sharpe, 3:16cr52
(JCH), Doc. No. 17 (D. Conn. March 11, 2016)), which falls
within the window of the alleged conspiracy in this case,
approximately June to November 2015.
The
Government responds that no conduct to which Defendant has
previously pleaded guilty is “encompassed by counts one
and/or five of the” indictment in this case.
(Gov.'s Resp. to Def.'s Mot. to Dismiss [Doc. #
528-1] at 3.) It argues that the “controlled purchases
of narcotics in November and December of 2015 from
Sharpe” which resulted in his conviction before Judge
Hall “were part of a separate investigation.”
(Id.) The Government makes clear that the
“conduct that served as the basis of the information in
the controlled purchase case is separate from the conduct
that serves as the basis of the superseding indictment in the
instant case, ” explaining that the charges pending
this case “arise from other evidence, including (1)
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