United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
Now before the Court are two motions by the defendant and an oral motion by the government. This case previously reached the morning of trial before the Court granted a continuance at the defendant's request due to the government's recent disclosure of discovery. Subsequently, the government superseded the indictment, making two changes. First, it enlarged the time-frame encompassed by the 924(c) count, and second, it added a witness tampering count. The defendant filed two motions in response, the first of which sought to dismiss the superseding indictment, at least as to the 924(c) count, and the second of which requested a bill of particulars. At a subsequent pretrial hearing, the government orally moved to amend the indictment to correct a typographical error in the dates of the witness tampering count. The Court addresses each motion in turn, and for the following reasons, the Court denies the defendant's motion to dismiss, grants the government's motion to amend, and takes the defendant's motion for a bill of particulars under advisement.
A. Mr. Forbes' Motion to Dismiss
Mr. Forbes first seeks to dismiss the superseding indictment, at least as it relates to the 924(c) count, as a sanction for a discovery violation and because the superseding indictment was the product of a vindictive prosecution. By way of background, the original indictment charged Mr. Forbes with seven counts. Count 1 alleged that Mr. Forbes distributed cocaine on or about September 10, 2013; Counts 2-5 alleged that Mr. Forbes distributed crack cocaine on four separate dates in October 2013; Count 6 alleged that Mr. Forbes possessed a firearm in furtherance of a drug trafficking crime in or around October 2013; and Count 7 alleged that Mr. Forbes possessed a firearm in or around October 2013, despite having previously been convicted of a felony. After several initial continuances, trial was set to begin on August 25, 2014.
During the week prior to trial, while interviewing witnesses in preparation for trial, the government learned that after Mr. Forbes' arrest in this matter, he asked an individual to claim that the gun found in his living area was hers, not his. The government believed that this evidence should be admitted against Mr. Forbes because it demonstrated his consciousness of guilt. It thus filed a trial brief on August 20, 2014, outlining relevant law on the admissibility of conscious-of-guilt evidence, and it set about tracking down recordings of the phone calls to document those conversations. Because Mr. Forbes was detained, the phone calls during which he made these statements were recorded, so the government secured about 12 hours of phone calls from the jail and began reviewing them. It also attempted to arrange for defense counsel to pick up a copy of the recordings in the days before trial, but was unable to actually deliver the recordings to counsel until the morning of trial.
Also during its trial preparation, the government discovered a recording of an interview Mr. Forbes had given with law enforcement officers in 2009 in which he stated that a drug trafficker might possess a firearm for protection. The government disclosed this interview to defense counsel on August 21, 2014, along with an outline of the testimony by which it intended to introduce this evidence. Because of the government's eleventh-hour disclosure of the 2009 interview, the alleged witness tampering, and the recorded phone calls, Mr. Forbes requested a continuance to allow him to review the evidence and investigate possible responses. The Court heard argument on the motion on August 25, 2014, which was set to be the first day of trial. The government did not object to the continuance and conceded that it was appropriate under the circumstances, so the Court granted Mr. Forbes' motion and reset trial for October 20, 2014.
During the August 25, 2014 hearing at which it continued the trial, and at other prior pretrial conferences, the Court raised several potential evidentiary issues in an effort to minimize interruptions and delay during trial. One of those issues was whether the consciousness of guilt evidence should still be admitted given that Mr. Forbes no longer contested, and in fact was willing to stipulate to, his possession of the gun, which he had allegedly asked the witness to lie about. See United States v. Calabrese, 572 F.3d 362, 268 (7th Cir. 2009) (noting that the possibility that the defendant was trying to influence witness testimony as to other crimes not at issue made the consciousness of guilt evidence "incrementally less relevant, " as his consciousness of guilt may have only been as to those other crimes). The Court also raised a question about the dates in the indictment in the 924(c) count. The indictment charged one drug transaction in September 2013 and four transactions in October 2013, but the 924(c) count was only alleged to have occurred in or around October 2013, suggesting the government may have meant to exclude the September 2013 transaction as a basis of the 924(c) count. However, the government also intended to introduce statements Mr. Forbes made during the September 2013 transaction in support of the 924(c) count, so the Court inquired as to whether that evidence would be admissible and on what ground. After discussing the issue with counsel for the government, the Court asked defense counsel for his position. Defense counsel stated that he did not concede the admissibility of the September statements as to the 924(c) count, and that he intended to object at trial as to the admissibility of that evidence. However, given the continuance, the Court did not make any rulings on these matters at that time.
After the trial was continued, the government returned to the grand jury and superseded the indictment to attempt to moot these evidentiary concerns. It modified the 924(c) count to allege that it took place "in or around September - October 2013, " apparently in an effort to cure the latter concern. It also added a witness tampering charge, Count 8, alleging that Mr. Forbes attempted to corruptly persuade another person and engaged in misleading conduct toward another person with the intent to influence the testimony of another person in an official proceeding, which provided an independent basis for admitting the evidence that Mr. Forbes asked an individual to lie about his possession of the gun.
These modifications prompted Mr. Forbes' motion to dismiss the indictment. Mr. Forbes argues that had trial gone forth as scheduled on August 25, 2014, the government would have been unable to secure a superseding indictment and the evidence at issue would have been excluded. Because the reason for the continuance was the government's own conduct, namely its production of evidence on the eve of trial, Mr. Forbes argues that the Court should not allow those benefits to accrue to the government and should dismiss the 924(c) count of the superseding indictment as a sanction for the government's violation of its discovery obligations.
Under Rule 16 of the Federal Rules of Criminal Procedure, the government has an obligation to disclose certain materials to the defendant, including a defendant's statement in response to interrogation by law enforcement and any recorded statements by the defendant. Fed. R. Crim. P. 16(a). This obligation continues through to the conclusion of trial: "A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party." Fed. R. Crim. P. 16(c). Where a party fails to comply with its discovery obligations, a Court may: "(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances." Fed. R. Crim. P. 16(d)(2). In deciding which among the spectrum of available sanctions to impose for a discovery violation, a court "should take into account whether the government acted in bad faith and whether any unfair prejudice to the defendant can be cured by a less severe alternative." United States v. Herrera, 366 F.Appx. 674, 676 (7th Cir. 2010).
Here, Mr. Forbes' request to dismiss the superseding indictment is not well-taken. The only prejudice Mr. Forbes cites in support of his motion is the government's ability to supersede the indictment due to the continuance, but that continuance was not caused by a discovery violation. A primary reason for granting the continuance was Mr. Forbes' need to review the 12 hours of recorded phone calls that the government had produced on the morning of trial. However, the government had itself just received those recordings in the preceding days, and it promptly disclosed their existence to defense counsel and attempted to make arrangements to produce them. Although the Court had issued a discovery order on April 21, 2014 ordering the government to provide any such items within 10 days, the government did not yet possess these recordings at that time, and thus did not violate that order. Since the government later discovered this additional evidence, its duty was to "promptly disclose its existence" to Mr. Forbes, and it did so. Fed. R. Crim. P. 16(c). Thus, the continuance upon which Mr. Forbes' argument of prejudice is based was not caused by a discovery violation, so sanctions under Rule 16 are not warranted.
Second, even if there was a discovery violation, Mr. Forbes did not suffer any cognizable prejudice. Initially, Mr. Forbes argues that because the government was able to supersede the indictment, it will be able to introduce evidence that would have been excluded had trial commenced under the original indictment. It is not certain, however, that the superseding indictment actually affected the admissibility of any of the government's evidence, as the Court did not make any evidentiary rulings as to the first indictment, nor has it done so yet as to the superseding indictment. More importantly, though, having to face a superseding indictment- even one that adds charges or expands the possible bases for conviction-does not establish the sort of prejudice that could justify dismissal of the indictment or exclusion of evidence.
Although this appears to be a unique circumstance in the context of alleged discovery violations, the Seventh Circuit has often rejected similar arguments in the speedy trial context: "[W]e have repeatedly stated that the fact that the government increased the number of crimes a defendant is charged with does not give rise to prejudice." United States v. Taylor, 196 F.3d 854, 862 (7th Cir. 1999); see also United States v. Gearhart, 576 F.3d 459, 463 (7th Cir. 2009) ("Although Gearhart argues that he was prejudiced because the government was able to strengthen its case against him during the delay between indictment and trial, this fact is not relevant to the prejudice analysis."); United States v. Salerno, 108 F.3d 730, 738 (7th Cir. 1997) (rejecting the defendant's argument that the delay prejudiced him because it "permitted the government to hone its trial strategies and perfect its evidence"). As the Seventh Circuit explained in United States v. Tedesco,
A continuance granted to allow the Government to obtain a witness does not cause a defendant "prejudice" in the manner meant by the term in this context. Obviously [the witness'] appearance worked to the disadvantage of [the defendant], but so did the introduction of other incriminating evidence. "Prejudice" is not caused by allowing the Government properly to strengthen its case, but rather by delays intended to hamper defendant's ability to present his defense. A defendant is ...