The opinion of the court was delivered by: SCHEINDLIN
Shira A. Scheindlin, U.S.D.J.:
Defendant Eddy J. Carrasco ("Carrasco") moves for dismissal or for severance. For the reasons set forth below, the motion to dismiss is denied but the motion to sever is granted.
On February 6, 1997, a grand jury sitting in this district returned Indictment 97 Cr. 89 (SAS), charging 12 defendants with conspiring to distribute heroin. The indictment was sealed the same day it was returned. On February 11, 1997, a grand jury sitting in this district returned Indictment 97 Cr. 103 (MBM), which charged Eddy J. Carrasco, then known as "Raymond Carrasco", with conspiring to distribute heroin. That indictment was also sealed the day it was returned. Both indictments were unsealed on February 13, 1997, following the arrest of Carrasco and eleven of the twelve defendants named in 97 Cr. 89.
On February 20, 1997, both cases were randomly assigned to two different judges. On February 24, 1997, the parties in 97 Cr. 103 appeared before Judge Mukasey. At that appearance, the Government informed the Court that it intended to seek a superseding indictment the next day to add defendant Carrasco to 97 Cr. 89. The Government conceded that both indictments charged the same conspiracy. On February 25, 1997, the grand jury returned the superseding indictment, adding Carrasco as a defendant in 97 Cr. 89 and extending the charged conspiracy to and including February 13, 1997. Finally, on March 31, 1997, Judge Mukasey ordered a nolle prosequi of Indictment 97 Cr. 103. As a result, defendant no longer faces a risk of multiple punishments for the same offense.
III. The Motion to Dismiss
Defendant filed his motion to dismiss on March 19, 1997, on the ground that defendant was twice indicted for the same offense, in violation of the Fifth Amendment to the United States Constitution. By the time the Government responded on April 4, 1997, it had moved to dismiss one of the two indictments, which was so ordered on March 31, 1997. Nonetheless, defendant still maintains that the pending indictment is "multiplicitous".
Multiplicity occurs when a single crime is separated into two or more indictments. Multiplicitous indictments are prohibited by the double jeopardy clause of the Constitution, which prohibits multiple punishments for the same offense. See generally, United States v. Maldonado-Rivera, 922 F.2d 934, 969 (2d Cir. 1990); United States v. Nakashian, 820 F.2d 549 (2d Cir. 1987). The gist of defendant's argument is that after he was indicted on February 11, 1997, there was no basis for indicting him again on the same charges on February 25, 1997. While the Government refers to the second indictment as "superseding", Carrasco challenges this term, noting that he was not named in the original indictment.
Indeed, other than adding Carrasco as a defendant, the only change in the original indictment was a three-day extension of the termination date of the charged conspiracy from February 10 to February 13.
Defendant concedes that under the usual circumstances, "multiplicitous counts of an indictment require the government to select the count upon which to proceed." Greenfield Aff. at P 14. However, defendant argues that because the Government created the problem by intentionally filing a multiplicitous indictment, dismissal of one of the indictments is not a cure. Defendant believes that there was some "sinister" motive in not originally indicting him together with the 12 defendants named in the multiple-defendant indictment. Although defendant declines to specify what the Government's improper motive may have been,
he argues that whatever the motive the Government's action involved an abuse of the grand jury which should be sanctioned by this Court. The sanction urged by defendant is dismissal of the pending Indictment.
The defendant relies on a single case in support of his motion. Carrasco cites United States v. Ottley, 439 F. Supp. 587 (S.D.N.Y. 1977), for the proposition that the Government abused its prosecutorial discretion by twice-indicting the defendant for the same crime. The defendant also argues that he was unable to find any case discussing or sanctioning the procedure employed here by the Government. In its response, the Government cites no case approving of its procedure. Rather, it argues that it always intended to supersede the first indictment by adding defendant Carrasco, without explaining why it did not do so in the first instance. See Govt. Let. at 4.
Because defendant places heavy reliance on the Ottley case, the facts of that case are instructive. Ottley was originally indicted in August, 1973. At the trial, he was acquitted of 20 counts and convicted of three counts, including a count of failing to keep records during a part of 1972 as required by the Landrum-Griffin Act. His conviction was reversed on appeal. The mandate issued on January 21, 1975. On November 1, 1976, the government filed a nolle prosequi and the court dismissed the 1973 indictment. Ottley was then indicted again in 1977 in a two count indictment, the first of which charged him again with failing to file the required reports in 1972. The trial judge noted that the second indictment was based on the identical information available to the government at the time of the first indictment. The court held that because the second indictment placed the defendant in jeopardy a second time for the same offense, that count of the indictment should be dismissed. In that case, however, the defendant had stood trial on the charge four years prior to the second indictment. In addition, the second indictment was returned two years after the Court of Appeals reversed the conviction. At that time, the Rules of this Court required that a retrial occur within 90 days of the issuance of the mandate. Id. at 589 n.1. The indictment was not dismissed until more than a year after that deadline expired, and the new indictment was not returned until a year and a half after the deadline expired. Under those circumstances, dismissal was the only appropriate remedy.