United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTIONS (ECF NOS. 21, 37, 40, 41, 43, 44 AND
49)
JAMES
R. SWEENEY II JUDGE
Although
this case was initiated with a complaint (ECF No.
2), after Defendant filed his Motion to Dismiss Criminal
Complaint (ECF No. 21), an Indictment was returned
against him (ECF No. 24); the Indictment supersedes
the complaint. See, e.g., United States v.
Daniels, 387 F.3d 636, 638 (7th Cir. 2004) (motion to
dismiss Count of indictment found moot based on superseding
indictment). Therefore, Defendant's Motion to Dismiss
Criminal Complaint (ECF No. 21) is denied as
moot.
The
Government's Motion for Appointment of Standby Counsel
(ECF No. 37) is granted. Standby
counsel Charles Hayes was appointed on August 7, 2018. (See
ECF No. 60) and Mr. Hayes has entered his appearance
as standby counsel for Defendant (ECF No. 65).
Defendant
has moved for reconsideration of the Order on Discovery
entered by the Magistrate Judge on January 26, 2018.
(SeeECF No. 38). The Government filed a response.
(ECF No. 42.) Having considered the motion, which
failed to offer any authority in support of the request for
reconsideration; the response; the court Order on Discovery;
and Defendant's two discovery motions addressed in that
Order (see ECF Nos. 22 and 23), the Court finds that
Defendant's Motion to Reconsider (ECF No. 40)
should be denied.
Flick's
Motion for Discovery on Indictment (ECF No. 41),
filed February 2, 2018, pends. Discovery was addressed at the
August 7, 2018 status conference and the Government's
response to the motion for discovery represents that it
“has met all discovery required by the Court's
orders, statute, case law, and Department of Justice
policy” and that the materials Defendant requested that
were not contained in the discovery provided to standby
counsel were either “not possessed by the
government” or “do not exist.” (ECF No.
62.) Based on this representation, Flick's Motion
for Discovery on Indictment (ECF No. 41) is
denied.
Defendant's
Motion to Vacate Faulty, Duplicious (sic) and Illegal (sic)
Drawn Indictment (ECF No. 43), argues counts of the
indictment are duplicitous, that Defendant was denied due
process and equal protection in that he was not allowed to
appear at the Grand Jury, and that the evidence before the
Grand Jury was mischaracter-ized. “An indictment that
charges two or more distinct offenses within a single count
is duplicitous.” United States v. Miller, 883
F.3d 998, 1003 (7th Cir. 2018) (quoting United States v.
Hassebrock, 663 F.3d 906, 916 (7th Cir. 2011)). None of
the counts of the Indictment charges two or more distinct
crimes. Each count charges a separate offense. Further,
“[a] person under investigation by a grand jury has no
right to appear before the grand jury.” United
States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988).
And Flick has no personal knowledge of the evidence that was
presented to the Grand Jury; thus his claim that evidence was
mischaracterized is wholly unsupported by any facts or
evidence. Therefore, Defendant's Motion to Vacate Faulty,
Duplicious (sic) and Illegal (sic) Drawn Indictment (ECF
No. 43) is denied.
Defendant's
Motion for Return of Property (ECF No. 44) appears
to argue that at the time of Defendant's arrest evidence
was seized unlawfully and property that was “not
connected to this case” was also seized. The motion
also claims that the search warrant and arrest warrant were
obtained based on perjury. Rule 41(g) of the Federal Rules of
Criminal Procedure provides that “[a] person aggrieved
by an unlawful search and seizure of property or by the
deprivation of property may move for the property's
return.” Fed. R. Crim. P. 41(g). If there is a factual
issue necessary to decide the motion, the court must receive
evidence. Id.Rule 41(g), however, applies to
seizures before the return of an indictment. In re Search
of Office of Tylman, 245 F.3d 978, 980 (7th Cir. 2001)
(addressing Rule 41(e) before it was renumbered as 41(g)).
Where, as here, an indictment has been filed and criminal
proceedings are ongoing, the proper means for seeking return
of seized property and to challenge the constitutionality of
a search is a motion to suppress evidence. Id.For
this reason, Defendant's motion is
denied.
On
March 6, 2018, the Government's Motion for Protective
Order (ECF No. 49) was filed, requesting the Court
to enter a protective order concerning discovery that
contains protected personal identifiers. The motion was
addressed and granted at the August 7, 2018 status
conference. The docket should reflect that the Motion for
Protective Order (ECF No. 49) has been
granted.
On
December 20, 2018, Defendant filed a Motion for Fast and
Speedy Trial (ECF No. 72), requesting the Court to
“set jury trial promptly.” Defendant also filed a
Motion to Dismiss on December 20, 2018. Before these motions
were filed, however, the Government had moved for a
psychiatric examination of Defendant to determine his
competency to stand trial. (ECF No. 61.) That motion
was granted. (ECF No. 66.) After receiving a report
of Defendant's mental competency, (ECF No. 73),
the Court held a competency hearing on January 14, 2019, and
found that Defendant was capable of understanding the nature
and consequences of the proceedings against him and assisting
properly in his defense. (ECF No. 77.) At that
hearing the Court allowed the Government 20 days within which
to file a response to Defendant's Motion to Dismiss.
(ECF No. 71.) The Court set this matter for a status
conference on March 12, 2019. The Court understands that
Defendant would like this matter set for trial, and the Court
will take up the matter of scheduling a trial date at the
upcoming status conference. Therefore, the Court
defers ruling on Defendant's Motion for
Fast and Speedy Trial (ECF No. 72).
To
recapitulate, the Court orders as follows:
(1) Defendant's Motion to Dismiss Criminal Complaint
(ECF No. 21) is denied as moot;
(2) Government's Motion for Appointment of Standby
Counsel (ECF No. 37) has been
granted;
(3) Defendant's Motion to Reconsider (ECF No.
40) is denied;
(4) Flick's Motion for Discovery on Indictment (ECF
No. ...