Author: LegalEase Solutions 

Superseding indictments

Superseding indictments are successive indictments for the same offense.  An indictment may be impermissibly duplicitous if (1) it charges two or more distinct crimes in a single count, and (2) the defendant is prejudiced thereby. Fed. Rules Cr. Proc. Rule 8(a), 18 U.S.C.A. United States v. Awan, 459 F. Supp. 2d 167 (E.D.N.Y. 2006) aff’d, 384 F. App’x 9 (2d Cir. 2010).  Courts have stated that if the defendant is not prejudiced, a superseding indictment may be filed at any time before trial. United States v. Wilks, 629 F.2d 669 (10th Cir. 1980).

Therefore, as a general rule, “a prosecutor may seek a superseding indictment at any time prior to a trial on the merits.” United States v. Cole, 755 F.2d 748, 757 (11th Cir.1985). However, a superseding indictment adding new charges that increase the potential penalty would violate due process if the prosecutor obtained the new charges out of vindictiveness.   Vindictiveness, in this context, means the desire to punish a person for exercising his rights.  Those rights must be “protected” and arise from statue or the Constitution. United States v. Castronuovo, 10-80149-CR, 2013 WL 2329964 (S.D. Fla. May 28, 2013).  The issue of prosecutorial vindictiveness is generally raised in the post-trial context.  The Supreme Court has held that where a defendant brings a successful appeal, a prosecutor’s decision to later bring heightened charges for the same conduct is presumptively vindictive. Id.  In determining whether a prosecution was vindictive, a court examines the totality of the objective circumstances to determine whether it is likely that a superseding indictment was sought in retaliation for defendant’s exercise of his legal rights. United States v. Sattar, 314 F. Supp. 2d 279 (S.D.N.Y. 2004) aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009).

In United States v. Rutkoske, 394 F. Supp. 2d 641 (S.D.N.Y. 2005), it was held that a court must consider whether the charges in the superseding indictment allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence than charges in the original indictment, for purpose of determining whether superseding indictment relates back to original indictment.  According to the court, in order to relate back to a validly pending original indictment, a superseding indictment must not materially broaden or substantially amend the charges made in the first indictment.  In the Circuit, a superseding indictment does not necessarily broaden an original indictment by adding overt acts and altering the relevant period of a conspiracy. United States v. Gengo, 808 F.2d 1, 2-4 (2d Cir.1986) (finding superseding indictment that offered a new substantive count, added an overt act, and altered commencement date of conspiracy did not broaden original indictment).  Therefore, a court must consider whether the charges in the superseding indictment “allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence.” United States v. Rutkoske, 394 F. Supp. 2d 641, 646 (S.D.N.Y. 2005).

Therefore, the court had to determine whether or not the superseding indictment “broadened or substantially amended the charges” that were made in the original indictment. United States v. Culbertson, 08 CR 30 (SJ), 2008 WL 2185912 (E.D.N.Y. May 23, 2008).  ).  However, in People v. Gonzalez-Rodriguez, 245 A.D.2d 1051, 667 N.Y.S.2d 583 (1997), it was held that People are authorized, even without leave of court, to obtain new indictment to supersede pending indictment, and may do so during pendency of motion to dismiss first indictment.

Probable cause

In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion; however, the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification. United States v. Awan, 459 F. Supp. 2d 167 (E.D.N.Y. 2006) aff’d, 384 F. App’x 9 (2d Cir. 2010).  To avoid even the appearance of vindictiveness in prosecutorial decisions, a rebuttable presumption of vindictiveness arises when the circumstances of a case create a realistic likelihood of vindictiveness. United States v. Sattar, 314 F. Supp. 2d 279 (S.D.N.Y. 2004).

In order to overcome the presumption that a prosecutor has not violated equal protection, as required to sustain a claim of selective prosecution, a criminal defendant must present clear evidence that the prosecution had a discriminatory effect and was motivated by a discriminatory purpose; such purpose may be demonstrated through circumstantial or statistical evidence. Id.

Where presumptive vindictiveness is not found, a defendant may still make a claim for vindictive prosecution if he can demonstrate actual vindictiveness, which requires direct evidence showing that (1) the prosecutor harbored genuine animus toward defendant, or was prevailed upon to bring the charges by another with animus, and (2) defendant would not have been prosecuted except for the animus. United States v. Awan, 459 F. Supp. 2d 167 (E.D.N.Y. 2006) aff’d, 384 F. App’x 9 (2d Cir. 2010).

Double jeopardy

The double jeopardy cases have been used to explain whether a charge in a superseding indictment relates back to a charge in an earlier indictment. United States v. Gigante, 982 F.Supp. 140, 155–58 (E.D.N.Y.1997), aff’d, 166 F.3d 75 (2d Cir.1999).  The Court of Appeals for the Second Circuit has found that it would violate the Double Jeopardy Clause to indict a defendant on a smaller conspiracy that is wholly contained in a larger one after the defendant was acquitted on the larger conspiracy charge.  According to the Court of Appeals: “the second conspiracy is simply a small component of the prior larger conspiracy.  This is not technically an instance of a lesser included offense, because the larger conspiracy does not require proof of a discrete element not required for proof of the smaller conspiracy.  But the essential factors identifying the scope of the smaller conspiracy are all “lesser included” within the larger conspiracy. United States v. Viertel, S2 01 CR. 571 (JGK), 2002 WL 1560805 (S.D.N.Y. July 15, 2002).  Further, if a defendant makes a non-frivolous showing that two indictments in fact charge only one conspiracy, as would violate the Double Jeopardy Clause, burden shifts to prosecution to show, by a preponderance of the evidence, that there are two distinct conspiracies. U.S.C.A. Const.Amend. 5. United States v. Awan, 459 F. Supp. 2d 167 (E.D.N.Y. 2006) aff’d, 384 F. App’x 9 (2d Cir. 2010).

It is also held that an indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of facts. United States v. Sattar, 314 F. Supp. 2d 279 (S.D.N.Y. 2004) aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009).  Moreover, a conspiracy, as in the present case, and the substantive offense are separate crimes that may be charged separately in an indictment. Id.  Also an indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed. Id.  An indictment is considered to be validly pending, so that an untimely superseding indictment may relate back to it, until it is dismissed. United States v. Rutkoske, 394 F. Supp. 2d 641 (S.D.N.Y. 2005)

Right to speedy trial

A defendant may file a motion to dismiss superseding indictment on the basis of right to speedy trial.  In People v. Cruz, 111 A.D.2d 725, 491 N.Y.S.2d 330 (1985), the New York Supreme Court, Appellate Division, has held that defendant was entitled to dismissal of charges added by superseding indictment on the basis of right to speedy trial, but not of original charges retained by superseding indictment.   The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that a trial commence within 70 days of the indictment or arraignment thereon, whichever occurs later. 18 U.S.C. § 3161(c)(1).  This provision of the Act is intended both to protect the defendant from undue delay in his or her trial and to benefit society by ensuring a quick resolution of criminal trials. United States v. Blackwell, 12 F.3d 44, 47 (5th Cir.1994).  The Act does, however, provide for the exclusion of certain periods of delay from the computation of the 70-day limit. 18 U.S.C. § 3161(h). United States v. Kelly, 45 F.3d 45, 47 (2d Cir. 1995).

Prosecution of the newly added charges in the superseding indictment was barred by the speedy trial provisions of CPL 30.30.  The court in People v. Rodriguez, 150 A.D.2d 265, 266, 541 N.Y.S.2d 423, 424 (1989) held that although there is a continuity between the original and the superseding indictment as to the original charges, such continuity does not extend to the additional charges and the defense motion to dismiss the superseding indictment on speedy trial grounds should have been granted as to those counts.

In another case People v. Lewis, 49 A.D.2d 912, 373 N.Y.S.2d 404 (1975), it was held that where the prosecution offered no explanation for an 18-month delay and did not oppose defendant’s motion to dismiss indictment on speedy trial grounds, hearing should have been held to determine cause for delay and whether such delay was reasonable.

Violation of federal constitutional due process rights

A decision to prosecute violates due process when the prosecution is brought in retaliation for the defendant’s exercise of legal rights. U.S.C.A. Const.Amend. 5. United States v. Sattar, 314 F. Supp. 2d 279 (S.D.N.Y. 2004) aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009).

In People v. Rozell, 143 A.D.2d 690, 533 N.Y.S.2d 15 (1988), court held that the defendant’s motions to dismiss indictment charging bail jumping, on ground he was denied state and federal constitutional due process rights based on delay in prosecuting him, should not have been summarily denied, in view of allegations in defendant’s motion papers, which indicated significant delay between commission of crime of bail jumping in 1976 and indictment on that charge in 1983; proper balancing of relevant factors demanded that hearing be conducted to determine reasons, if any, for prosecutorial hiatus, and degree to which defense or defendant’s right to fair trial might have been prejudiced by the delay. U.S.C.A. Const.Amends. 5, 6, 14; McKinney’s Const. Art. 1, § 6.

In addition, CPL 210.45(5) provides that a court may deny a motion to dismiss the indictment pursuant to CPL 210.20 without conducting a hearing if  (a) the moving papers do not allege any ground constituting legal basis for the motion …; or (b) the motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all the essential facts; or (c) an allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof.  Therefore, if the court does not deny the motion pursuant to CPL 210.45(5), it must either grant the motion without conducting a hearing under circumstances specified in CPL 210.45(4), or it must conduct a hearing and make findings of fact essential to the determination thereof (CPL 210.45[6] ). People v. Washington, 82 A.D.3d 1675, 1676, 919 N.Y.S.2d 668, 669 (2011).

Dismissal of an indictment

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 and  (ii)  to help translate the assurances of the United States Attorneys into consistent performances by their assistants. United States v. Montoya-Echeverria, 896 F. Supp. 148, 150 (S.D.N.Y. 1995).  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.

The court has held that Defendant was entitled to dismissal, pursuant to McKinney’s CPL § 30.30, governing right to speedy trial, of charges added by superseding indictment, despite continuity between two indictments as to initial charges, and fact that action on original indictment did not violate speedy trial right. People v. Cruz, 111 A.D.2d 725, 491 N.Y.S.2d 330 (1985).

In United States v. Awan, 459 F. Supp. 2d 167 (E.D.N.Y. 2006) aff’d, 384 F. App’x 9 (2d Cir. 2010), it was stated that count of indictment charging defendant with provision of material support and resources for acts of terrorism, was not impermissibly duplicitous; despite its reference to the conspiracy statute as an element of the charged offense.  According to the court, the count did not charge defendant with a violation of that statute and so the court held that, in any case, defendant was not prejudiced thereby since he had notice of the charge against him and jury would be instructed to ensure that defendant would be convicted only on a unanimous decision that each of the essential elements of the charged offense had been proved. 18 U.S.C.A. §§ 956(a), 2339A; Fed.Rules Cr.Proc.Rule 8(a), 18 U.S.C.A.

It is held that superseding indictment would not be dismissed, absent any impropriety on part of the government. United States v. Montoya-Echeverria, 896 F. Supp. 148 (S.D.N.Y. 1995).  Further, absent prejudice to the defendant, a superseding indictment may be filed at any time before trial. United States v. Herbst, 565 F.2d 638, 643 (10th Cir. 1977.  In People v. Rozell, 143 A.D.2d 690, 533 N.Y.S.2d 15, 16 (1988) the court held that it was error to summarily deny the defendant’s motions to dismiss the indictment to the extent that such motions raised the issue of the denial of his State and Federal constitutional due process rights arising from a delay in prosecuting him.

Conclusion

A defendant may file a motion to dismiss indictment on the grounds of violation of his constitutional rights to due process, right to speedy trial and on the basis of double jeopardy.  Motion to dismiss on the basis of numerous superseding indictments may be filed only if it causes actual prejudice to defendant.