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United States v. Medina

United States District Court, S.D. New York

July 7, 2014

UNITED STATES OF AMERICA,
v.
ROBERT MEDINA, a/k/a

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

Defendant Robert Medina is charged in Count One of Indictment S3 13 Cr. 272 with conspiring to distribute, and to possess with intent to distribute, marijuana and 280 grams or more of crack cocaine, in violation of 21 U.S.C. § 846; in Count Two, with using and carrying a firearm "[i]n or about 2012, " during and in relation to the narcotics conspiracy charged in Count One, and on occasions other than the July 28, 2012 murder of Gary Clark, in violation of 18 U.S.C. § 924(c); and in Count Four, with using and carrying a firearm on or about July 28, 2012, in connection with the narcotics conspiracy charged in Count One, and causing the death of Gary Clark through the use of a firearm, in violation of 18 U.S.C. § 924(j). (S3 Indictment (Dkt. No. 111))

Medina has moved to dismiss Count Two, arguing that (1) it is a lesser included offense of Count Four, and that charging Count Two as a separate offense violates the Double Jeopardy Clause of the Fifth Amendment; and (2) Count Two and Count Four are part of the same "unit of prosecution, " and dismissal of Count Two is required under United States v. Lindsay , 985 F.2d 666, 674 (2d Cir. 1993). (Dkt. Nos. 135, 149) For the reasons stated below, Defendant's motion to dismiss Count Two will be denied.

BACKGROUND

Medina's arrest arose from a New York City Police Department ("NYPD") investigation of two shootings in the Bronx on July 28, 2012. (Suppression Hearing Transcript (Dkt. No. 24) at 16, 142) The first shooting took place at about 1:00 a.m. near 222nd Street and White Plains Road, and resulted in a non-fatal injury to a bystander outside Scotty Pump Ups Tavern ("Scotty's"). (Id. at 142, 231-32) The second shooting took place at about 5:00 a.m. near 228th Street and White Plains Road, and resulted in the death of Gary Clark. (Id. at 16, 18, 196)

The S3 Indictment includes the following charges against Medina:

COUNT ONE
...
1. In or about 2012, in the Southern District of New York and elsewhere, ROBERT MEDINA, a/k/a "Pops, " RUBEN ESTRADA, a/k/a "Mafia, " and JOHN JONES, a/k/a "Doe, " a/k/a "Doughboy, " the defendants, and others known and unknown, intentionally and knowingly did combine, conspire, confederate and agree together and with each other to violate the narcotics laws of the United States.
2. It was a part and an object of the conspiracy that ROBERT MEDINA, a/k/a "Pops, " RUBEN ESTRADA, a/k/a "Mafia, " and JOHN JONES, a/k/a "Doe, " a/k/a "Doughboy, " the defendants, and others known and unknown, would and did distribute and possess with intent to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1).
3. The controlled substances that ROBERT MEDINA, a/k/a "Pops, " and RUBEN ESTRADA, a/k/a "Mafia, " the defendants, conspired to distribute and possess with the intent to distribute were: (a) 280 grams and more of mixtures and substances containing a detectable amount of cocaine base, in violation of Title 21, United States Code, Section 841(b)(1)(A); and (b) mixtures and substances containing a detectible amount of marijuana in violation of Title 21, United States Code, Section 841 (b)(1)(D).
4. The controlled substance that JOHN JONES, a/k/a "Doe, " a/k/a "Doughboy, " the defendant, conspired to distribute and possess with the intent to distribute was 280 grams and more of mixtures and substances containing a detectable amount of cocaine base, in violation of Title 21, United States Code, Section 841 (b)(1)(A).
(Title 21, United States Code, ...

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