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August 23, 1995


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. ยง 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.

  Defendant moved, pursuant to FED. R. EV. 404(b), for notice of any prior bad acts that the government intended to offer at trial. The Court granted the motion to the extent that it directed the government to provide such information not less than three weeks prior to trial, which was scheduled for September 5, 1995.

 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 Motion to Dismiss

 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 improper purpose. Hence, defendant's position rests only on his assertion that the effect of the timing of the superseding indictment will be prejudicial.

 Defendant cites no authority for the proposition that dismissal of the superseding indictment is appropriate in these circumstances. In consequence, the Court looks to cases dealing with other species of alleged prosecutorial misconduct by analogy.

 Dismissal of an indictment on the basis of prosecutorial misconduct is justified only in extreme cases and is used to achieve one of two objectives: (i) to eliminate prejudice to a defendant or (ii) "'to help translate the assurances of the United States Attorneys into consistent performances by their assistants.'" United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978), cert. denied, 442 U.S. 917, 61 L. Ed. 2d 284, 99 S. Ct. 2838 (1979) (quoting United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972)). For example, an indictment may be dismissed when a prosecutor knowingly withholds from the grand jury "substantial evidence negating guilt" such that it reasonably might be expected that the grand jury would not indict, United States v. Romano, 706 F.2d 370, 374 (2d Cir. 1983), when the grand jury is "misled or misinformed," by the government, United States v. Brito, 907 F.2d 392, 394 (2d Cir. 1990), or when the history of prosecutorial misconduct is so "systematic and pervasive as to raise a substantial doubt and serious question about the fundamental fairness of the process." Id. There is no basis whatever for finding any impropriety on the part of the government in this case. The motion to dismiss the indictment therefore is denied.

 The Motion for a Continuance

 Defendant's alternative application for a continuance is addressed to the Court's discretion. E.g., United States v. Rojas-Contreras, 474 U.S. 231, 236, 88 L. Ed. 2d 537, 106 S. Ct. 555 (1985); United States v. Skinner, 946 F.2d 176, 178 (2d Cir. 1991); United States v. Guzman, 754 F.2d 482 (2d Cir. 1985), cert. denied, 474 U.S. 1054, 88 L. Ed. 2d 766, 106 S. Ct. 788 (1986); United States v. Love, 867 F. Supp. 260, 261 (S.D.N.Y. 1994). The informed exercise of that discretion requires consideration of the impact of the second indictment on the defense and the time that remains available to deal with the changes effected by the superseder.

 The superseding indictment is likely to have some impact on the preparation of the defense. The time period covered by the alleged conspiracy has increased from six to nineteen weeks. A second cocaine transaction is alleged, one in which this defendant allegedly was involved more directly than the twelve kilogram deal. New alleged co-conspirators have been added.

 The impact of the addition of the nine kilogram transaction is mitigated in part by the fact that the defendant has been aware since prior to the return of the original indictment that the government had information concerning such a transaction. Although the government disclosed no details, the defendant thus has been on notice throughout the case that this second transaction might be injected and, indeed, he sought disclosure of Rule 404(b) evidence "to be on the safe side" in view of the government's refusal to provide those details. Moreover, inasmuch as the government did not disclose to defendant the date of the alleged nine kilogram transaction, defendant was obliged to proceed on the assumption that the nine kilogram transaction might be alleged to have occurred during the period of the conspiracy alleged in the original indictment and thus might have been proved under that instrument, either as an uncharged overt act or as background. United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990), cert. denied, 499 U.S. 940 (1991); see United States v. Rosa, 11 F.3d 315, 333-34 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 211, 114 S. Ct. 1565 (1994); United States v. Read, 658 F.2d 1225, 1239 (7th Cir. 1981).

 In addition to the fact that the impact of the superseding indictment on the defense is something less than overwhelming, the Court must consider the time available for trial preparation. As noted, the superseding indictment was filed on August 10 and the trial is set for September 5, an interval of twenty six days. While defendant correctly contends that the superseder expands the relevant time period and requires further investigation, he has not persuaded the Court that a proper defense cannot be mounted in these circumstances, a conclusion supported by the stark contrast between this case and those relied upon by the defendant.

 Defendant places principal reliance on Guzman, 754 F.2d 482, in which the Second Circuit reversed a conviction where the defendant was forced to trial only one day after the filing of a superseding indictment that expanded the scope of the conspiracy from two days to almost two years. See also United States v. Torres-Rodriguez, 930 F.2d 1375 (9th Cir. 1991). But Guzman is a far cry from this case in view of (i) the far longer period here prior to trial, (ii) the far shorter increase of the duration of the conspiracy alleged here, and (iii) the fact that the defendant had at least some notice of the prospect that a nine kilogram transaction would be injected into the case.

 Closer to the facts of this case is Word v. United States, 616 F. Supp. 695 (S.D.N.Y. 1985), aff'd, 795 F.2d 1006 (2d Cir. 1986)(table). The defendant there was indicted on a single count of conspiracy to possess heroin with intent to distribute. The period of the alleged conspiracy was thirty eight days, and the indictment alleged seven overt acts. The government later filed a superseding indictment that enlarged the period of the alleged conspiracy to one year, four months and six days and added three alleged overt acts. The case went to trial twenty five days later and the defendant was convicted.

 Judge Pollack later denied a Section 2255 motion based in part on the assertion that the defendant was forced to trial less than thirty days after the filing of the superseder. While there are some differences between Word and this case -- including the fact that the continuance denied in Word was sought for the purpose of changing counsel rather than for preparation to meet the new allegations -- the similarities are more persuasive. The fundamental point of Word is that a continuance in these circumstances lies in the discretion of the trial court and that the Court is well within proper bounds in denying such an application absent a showing that more time is required to mount a proper defense. 616 F. Supp. at 698.

 This Court is not persuaded that the time remaining to defendant upon the filing of the superseding indictment was insufficient to prepare adequately given all the circumstances of this case. Accordingly, the motion for a continuance is denied.


 Dated: August 23, 1995

 Lewis A. Kaplan

 United States District Judge


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