The opinion of the court was delivered by: LEWIS A. KAPLAN
LEWIS A. KAPLAN, District Judge.
Defendant moves to dismiss the superseding indictment or, in the alternative, for a continuance of the trial, which now is scheduled to begin on September 5, 1995.
The defendant was arrested on February 16, 1995 on a complaint that charged a conspiracy to possess and distribute cocaine covering the period January 1995 through February 16, 1995, a period of no more than six weeks. The complaint described only events relating to the seizure of twelve kilograms of cocaine from couriers for an alleged co-conspirator of the defendant.
Defendant alleges, and the government does not deny, that (a) shortly after the complaint was filed, the prosecutor mentioned to defense counsel that the government had information that the defendant had been involved also in a second transaction involving nine kilograms of cocaine, and (b) the prosecutor refused to provide the defense with details concerning the alleged nine kilogram transaction.
The original indictment in this case, which was returned on April 13, 1995, charged the defendant with a single count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Consistent with the complaint, the conspiracy charged in the indictment allegedly began in January 1995 and continued through February 16, 1995. Also consistent with the complaint, it described, among the alleged overt acts, a single transaction involving twelve kilograms of cocaine. The nine kilogram transaction was not mentioned.
On August 10, 1995, twenty six days prior to the scheduled start of the trial, the government filed a superseding indictment which, like the original, charges the defendant with a single count of conspiracy to distribute cocaine. The new indictment, however, alleges that the conspiracy started three months earlier than the original and the alleged overt acts include the alleged nine kilogram transaction, which supposedly took place in October 1994. Moreover, the superseder mentions for the first time certain alleged co-conspirators who are not identified in the instrument.
Defendant argues that he improperly has been put to a Hobson's choice by the superseding indictment. He must choose, he argues, between his right to a speedy trial and his right to an adequate opportunity to prepare his defense given the expansion of the charge against him. He lays responsibility for this alleged dilemma at the foot of the government, which concededly was aware of the nine kilogram transaction long before the superseding indictment was filed. And since the government's delay in superseding has put him to this choice he seeks dismissal for alleged violation of his constitutional rights or, alternatively, a postponement of the trial. In the Court's view, defendant has overstated his position.
The essence of the defendant's position on the motion to dismiss is that the government refused to disclose the details of the alleged nine kilogram transaction and then deliberately and unjustifiably delayed the superseder until shortly before trial, thus supposedly placing defendant in the quandary described above. The argument is without merit.
The government was under no obligation to disclose the details of the nine kilogram transaction to the defendant at the time the request was made, which was before the original indictment was returned. Following the return of the original indictment, the defendant moved for disclosure of similar act evidence. The Court directed disclosure and the government complied with the Court's order. Indeed, there is no claim to the contrary.
As far as the superseding indictment is concerned, defendant overlooks the fact that the government has the right to determine what charges to seek from the grand jury and when to seek them. Such decisions may be influenced by a host of factors, not least of them the prosecutor's estimate of whether the evidence at hand at any given time warrants presentation to the grand jury and is likely to result in an indictment and a conviction.
Here defendant alleges that the government advised counsel prior to the original indictment that the government had information that the defendant had also been involved in the nine kilogram transaction. While the defendant asserts that the government delayed bringing the expanded allegations to secure a tactical advantage, he offers no evidence to support that claim. There is, for example, no proof that the government had evidence sufficient to indict before it obtained the superseder or, if it did, that it delayed seeking the superseding indictment for a constitutionally proscribed or otherwise ...