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United States v. Simms

United States District Court, N.D. Ohio, Eastern Division

December 23, 2019



          Benita Y. Pearson United States District Judge.

         Pending are Defendant's Motion to Suppress Unduly Suggestive Identification (ECF No. 15), Defendant's Motion for Revocation of Magistrate Judge's Order of Detention (ECF No. 16), and Defendant's Motion to Dismiss for Pre-Indictment Delay or Exclude Evidence (ECF No. 18). The Government has replied to each motion (addressed respectively, ECF Nos. 24, 22, 23). The Court has considered the parties' briefing, evidence, oral argument, and applicable law. For the reasons explained below, Defendant's motions are denied.

         I. Factual Background

         On April 6, 2017, United States Postal Inspectors identified a package which was en route from California to 19021 Raymond Street in Maple Heights, Ohio. After obtaining a search warrant for the package, Inspectors searched the contents and found it contained one kilogram of a mixture and substance containing fentanyl.[1] Postal Inspectors prepared the package for a controlled delivery the next day, equipping the package with electronic monitoring that would alert Inspectors when the package was opened.

         On the morning of April 7, 2017, Postal Inspector Sean Brogan, acting in an undercover capacity, conducted a controlled delivery of the package to the Raymond Street residence. Before making the delivery, he viewed the driver's license photographs of two individuals associated with the address. After knocking on the front door, Inspector Brogan witnessed an African-American male wearing a dark colored sweatshirt partially open the door and receive the package. The interaction between Inspector Brogan and the African-American male lasted roughly fifteen seconds. Approximately six minutes after the package was delivered, the electronic alarm signaled, indicating the package had been opened. Postal Inspectors and local law enforcement then approached the house to execute an anticipatory search warrant. As they were approaching, an African-American male, wearing clothes similar to the individual whom received the package from Inspector Brogan minutes before, fled the area on foot. Officers were unable to catch him, despite their efforts.

         After the unsuccessful pursuit, officers executed an anticipatory search warrant at the Raymond Street residence. During the search, officers recovered the parcel which had been opened and was on the kitchen table. On the kitchen counter, within close proximity of the parcel, officers found a knife which they deduced had been used to open the package. Officers seized the knife along with two cell phones, a small amount of marijuana, a cigar filter tip, and a lighter all of which were recovered from the basement.

         On April 20, 2017, the knife, lighter, and cigar filter tip were submitted for DNA examination. On May 6, 2017, the Ohio Bureau of Criminal Investigation (BCI), informed law enforcement that DNA found on all three of the items contained a mixture DNA matching multiple individuals, including the defendant, Michael Simms. BCI issued a lab report of its findings on May 8, 2017. After the DNA results indicated that Simms' DNA was on the items, Postal Inspector Sean Brogan was presented a driver's license photo of Simms.[2] Upon reviewing Simms' driver's license, Inspector Brogan positively identified Simms as the person who took the package from him on April 7, 2017.

         During the investigation, inspectors learned of other USPS parcels that had been shipped from southern California to the Cleveland, Ohio area. These other parcels were connected through historical shipping records to the seized parcel that inspectors delivered to the Raymond Street address. One of those parcels was mailed from Lakewood, California, on March 15, 2017 to an E. Schaaf Road address, in Brooklyn Heights, Ohio. In the course of the investigation, law enforcement learned that in January 2017, Michael Simms' driver's license listed his address as E. Schaaf Road . ECF No. 24 at PageID #: 195.

         On July 22, 2019, Defendant was arrested at his apartment in Sandy Springs, Georgia by federal agents pursuant to an indictment. The Indictment charges Simms with Attempted Possession with Intent to Distribute Fentanyl in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). ECF No. 1. As federal officers were arresting Defendant, he attempted to flee. On the day of his arrest, Defendant appeared in the United Stated District Court for the Northern District of Georgia for an initial appearance. The Government moved for detention, arguing that Defendant was a flight risk.

         On July 24, 2019 a detention hearing was held before Magistrate Judge Linda T. Walker. ECF No. 16-1. The Magistrate Judge concluded that there were no conditions or combination of conditions that would assure Defendant's appearance at trial or the safety of the community, and remanded him to federal custody.

         II. Law & Analysis

         A. Motion to Dismiss for Pre-Indictment Delay

         Defendant moves the Court to dismiss the indictment, alleging that the Government's pre-indictment delay violated his due process rights under the Fifth Amendment. ECF No. 18. Defendant asserts that despite identifying Defendant as a suspect in the April 6, 2017 controlled delivery of narcotics, an indictment in the case was not sought until July 2019, more than two years later. Id. at PageID #: 164. Defendant claims the delay has “severely hampered [his] ability to defend himself against the charges.” Id. at PageID #: 165. The Government counters that Defendant has not made the required showings of substantial prejudice or that the Government intentionally delayed the indictment to gain a tactical advantage. ECF No. 23 at PageID #: 188-89.

         1. Substantial Prejudice

         The Due Process Clause of the Fifth Amendment only requires dismissal for pre-indictment delay when the defendant shows: (1) substantial prejudice to his right to a fair trial; (2) and that delay was an intentional device by the Government to gain a tactical advantage. United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009). Both parts of the test must be met before a defendant is entitled to have the indictment dismissed. See United States v. Duncan, 763 F.2d 220, 222 (6th Cir. 1985); United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992) (citing United States v. Brown, 667 F.2d 566, 568 (6th Cir. 1982)).

         The Court finds Defendant has failed to demonstrate substantial prejudice. Defendant has made only broad assertions that he would be unable to pinpoint where he was on April 7, 2017 and that “it is nearly impossible for him to present an alibi” given the passage of time. ECF No. 18 at PageID #: 165. These broad assertions do not meet the high burden of establishing actual prejudice. The Supreme Court has held that general assertions of prejudice are insufficient to satisfy the two-part test necessary to warrant the dismissal of an indictment because “‘the applicable statute of limitations…is…the primary guarantee against bringing overly stale criminal charges.'” United States v. Marion, 404 U.S. 307, 322 (1971) (quoting United States v. Ewell, 383 U.S. 116, 121 (1966)). The Sixth Circuit reiterated this holding in Schaffer. See 586 F.3d at 425 (“Moreover, ‘the acceptability of a pre-indictment delay is generally measured by the applicable statute of limitations.'”) (quoting United States v. Atisha, 808 F.2d 920, 928 (6th Cir. 1986), cert. denied, 479 U.S. 1067). Defendant failed to specify an alibi witness. Nor has he articulated how delay may have affected his witness's testimony. United States v. Wright, 343 F.3d 849, 860 (6th Cir. 2003) (stating that because defendant does not articulate witnesses that are unavailable, he cannot establish prejudice). Defendant's assertion that his alibi defense would be stronger if he were indicted sooner is thus unavailing.

         Defendant also asserts that he has suffered prejudice because the items seized from the Raymond Street residence have been destroyed and, therefore, cannot be retested. While the Court recognizes the importance of access to evidence for the Defendant to mount his defense, this concern is assuaged by the availability of the DNA swabs for retesting. That the source evidence was destroyed after two years does not amount to “substantial injustice” to Defendant's right to a fair trial, contemplated by Schaffer. 586 F.3d at 424. Further, in light of the destroyed source evidence, Defense is welcome to make argument on destruction at trial.

         Because Defendant has not shown actual prejudice he has not established the first part of the two-part test to warrant dismissal of the Indictment for pre-indictment delay.

         2.Government's Intent[3]

         As the Sixth Circuit held in Schaffer, “the burden is on the defendant to show ‘that the delay between the alleged incident and the indictment was an intentional device on the part of the Government to gain a decided tactical advantage in its prosecution.'” Id. at 425-26 (citing Greene, 737 F.2d at 574). It is well-established that a delay resulting from investigative efforts “does not deprive [a defendant] of due process, even if his defense may have been ...

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