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UNITED STATES v. ROMAN

November 14, 1986

UNITED STATES OF AMERICA,
v.
MARTIN ROMAN, Defendant



The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

Indictment 86 Cr. 388, filed May 6, 1986, charged defendant Martin Roman, among others, with conspiracy to violate the narcotics laws as well as possession with intent to distribute heroin. Defendant was arraigned on May 15, 1986. On September 5, 1986, Superseding Indictment S 86 Cr. 388 was filed, restating the charges of the original indictment against Roman and charging him for the first time with managing a Continuing Criminal Enterprise ("CCE") to distribute heroin in violation of 21 U.S.C. § 848. *fn1" The CCE charge, Count Two of the superseding indictment, incorporates as predicate acts the conspiracy and distribution charges. Defendant moves to dismiss Count Two on the ground that 70 days have passed without the commencement of trial. 18 U.S.C. § 3161(c)(1).

Speedy Trial Act

 Defendant asserts that he was entitled to be tried on the CCE charge within 70 days following arraignment on the original indictment. *fn2" The Government, on the other hand, contends that the speedy trial clock with respect to the CCE count did not begin to run until the filing of the superseding indictment. In United States v. Ramos, 588 F. Supp. 1223 (S.D.N.Y. 1984), aff'd, 779 F.2d 37 (2d Cir. 1985) the Court addressed this issue without deciding it. Following local guidelines, the Court stated that the key issue is whether the subsequent filing contains "'the same offense or any offense required to be joined with' the offense charged in the original filing." Id. at 1226-27. See "Guidelines Under the Speedy Trial Act" for the Court of Appeals for the Second Circuit (the "Guidelines"), PII(L)(1)(c); "Plan for Prompt Disposition of Criminal Cases" for the Southern District of New York (the "Plan"), P4(d)(2). "[I]f the subsequent filing does charge the same offense or one required to be joined therewith . . . then the speedy trial period commenced with the original filing." Id. at 1227. *fn3"

 In Ramos, the Government argued that the requirements of the Double Jeopardy Clause of the Fifth Amendment determine whether the subsequent filing charges the same offense or an offense required to have been joined with the charges of the original indictment. *fn4" 588 F. Supp. at 1227. In this case, defendant admits that double jeopardy standards govern. Reply Memorandum at 2. As the Ramos court noted, the Second Circuit has yet to construe the term "same offense or [one] required to be joined with that offense." 588 F. Supp. at 1227. The same language, however, appears in the section of the Speedy Trial Act providing for circumstances involving a subsequent indictment. § 3161(h)(6). *fn5" The Speedy Trial Act does not define the term, but the legislative history makes clear that it refers to joinder required by "the constitutional doctrine of double jeopardy." S. Rep. No. 96-212, 96th Cong., 1st Sess. 10 (1979) ("[J]ust as the defendant should not profit from delay he can create for his own tactical advantage, neither should the Government."). Accord United States v. Novak, 715 F.2d 810, 817 (3d Cir. 1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1293, 79 L. Ed. 2d 694 (1984). Thus, the question is whether, within the meaning of the Double Jeopardy Clause, the charge contained in the superseding indictment is the same as, or required to be joined with, charges contained in the original indictment. 715 F.2d at 817. *fn6" See also United States v. Simms, 508 F. Supp. 1175, 1177 (W.D. La. 1979) (Superseding indictment charged substantially the same offenses, and therefore defendant must still be tried within the period of time required from the date of the original indictment.); United States v. Bergdoll, 412 F. Supp. 1308, 1320 (D. Del. 1976) (Additional charge of CCE in the superseding indictment does not alter speedy trial rights of defendant; "[o]therwise, the government, by manipulating the grand jury process, could defeat defendants' speedy trial rights by the mere charade of new indictments."). *fn7"

 The one Court that has reached a directly contrary conclusion on this issue clearly overlooked the legislative history discussed above. United States v. Hencye, 505 F. Supp. 968, 971 (N.D. Fla. 1981).

 In stating that it would be "absurd" to start the speedy trial clock on a charge required to be joined in the original indictment before such charge was in fact "returned by the grand jury," Government's Memorandum at 4, the Government ignores the prosecutor's relationship to the grand jury. "The contemporary grand jury investigates only those whom the prosecutor asks to be investigated, and by and large indicts those whom the prosecutor wants to be indicted." M. Frankel & G. Naftalis, The Grand Jury: An Institution on Trial 100 (1977).

 The Double Jeopardy Clause offers a defendant two basic protections: It protects against multiple prosecutions for the same offense after acquittal or conviction, and it protects against cumulative punishment for the same offense. Ohio v. Johnson, 467 U.S. 493, 498, 81 L. Ed. 2d 425, 104 S. Ct. 2536 (1984) (citations omitted). In this case, defendant contends that the CCE charge should be considered the same offense as, or required to be joined with, both the distribution and conspiracy counts of the original indictment. See Defendant's Memorandum of Law at 5. Thus, in resolving the speedy trial issue here according to double jeopardy principles, there are four distinct questions.

 Is the CCE charge considered the same as, or required to be joined with, the original indictment's charge of:

 (1) distribution, under the protection against

 (a) multiple prosecutions? or

 (b) cumulative punishment?

 (2) conspiracy, under the ...


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