United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
15, 16, 18]
Y. Pearson United States District Judge.
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
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. 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.
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
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.
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. Upon reviewing Simms' driver's
license, Inspector Brogan positively identified Simms as the
person who took the package from him on April 7, 2017.
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.
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.
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.
Law & Analysis
Motion to Dismiss for Pre-Indictment Delay
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.
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.
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.
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.
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.
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 ...