United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO QUASH SUPERSEDING INDICTMENT
MATTER comes before the Court upon Defendant's Motion to
Quash Superseding Indictment, filed September 12, 2018
(Doc. 36). Having reviewed the parties'
briefs and applicable law, the Court finds that the
Defendant's Motion is not well-taken and, therefore, is
was indicted on February 14, 2018 for “unlawfully,
knowingly, and intentionally possessed with intent to
distribute a controlled substance, 500 grams and more of a
mixture and substance containing a detectable amount of
methamphetamine”, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A). On January 27, 2018, Defendant was
traveling on a Greyhound bus that stopped in Albuquerque for
a layover. DEA Special Agent Jarrell W. Perry boarded the bus
and approached Defendant. The Government alleges that
Defendant consented to speaking with Agent Perry, and
consented to a subsequent search of his neck pillow. Agent
Perry allegedly found bundles of methamphetamine in this neck
pillow, apparently weighing .55 kilograms.
Government argues that a subsequent lab test on August 1,
2018 indicated that the net weight of the substance was
443.8g, and the substance's purity is around 99%, with
the weight of the resulting pure substance at 439.3g.
Doc. 41. Defense counsel received the lab
result on August 3, 2018, and was notified about the new
superseding indictment on September 4, 2018.
superseding indictment was filed on September 12, 2018. The
only apparently change being a lowering of the amount charged
from 500 grams to “50 grams and more of
methamphetamine.” Doc. 35. Another
arraignment is set for September 18, 2018, and trial is set
for October 1, 2018.
argues that the superseding indictment should be quashed, as
he will be arraigned within thirty days of the trial, in
violation of 18 U.S.C. § 3161(c)(2). Section 3161(c)(2)
provides that the “trial shall not commence less than
thirty days from the date on which the defendant first
appears through counsel…”
this thirty day period is not restarted upon the filing of a
superseding indictment. United States v.
Rojas-Contreras, 474 U.S. 231, 234-37, 106 S.Ct. 555,
557-58, 88 L.Ed.2d 537 (1985) (section 3161(c)(2) does not
prohibit a trial within 30 days of arraignment on a
superseding indictment). Defendant was originally arraigned
on February 22, 2018. Trial is not set until October 1, 2018.
This more than satisfies the requirements of §
3161(c)(2). Therefore, dismissal of the superseding
indictment is not appropriate. United States v.
Lopez, 252 Fed.Appx. 908, 914 (10th Cir. 2007) (denying
motion to dismiss superseding indictment for violation of
§ 3161(c)(2), where superseding indictment was filed
adding new charges seven days before trial). Moreover,
“in general  a superseding indictment may be returned
any time before trial on the merits of an earlier
indictment.” United States v. Smith, 24 F.3d
1230, 1234 (10th Cir. 1994).
appropriate remedy where Defendant thinks he is prejudiced or
needs additional time to prepare is a continuance. United
States v. Lopez, 252 Fed.Appx. 908, 914 (10th Cir.
2007), citing United States v. Rojas-Contreras, 474
U.S. at 240-41 (Blackmun, J., concurring in the judgment)
(“[A] continuance should be granted where there is a
meaningful possibility that a superseding indictment will
require an alteration or adjustment in the planned
defense.”), and United States v. Smith, 24
F.3d 1230, 1234-35 (10th Cir. 1994) (holding that there was
no violation of defendant's Speedy Trial Act rights where
the district court granted a continuance due to a superseding
indictment returned five days before trial which added new
charges based on “recently acquired
information”), and United States v. McKinnell,
888 F.2d 669, 675-76 (10th Cir. 1989) (the proper remedy if
the superseding indictment prejudices a defendant is a
continuance), abrogated on other grounds, United
States v. Wacker, 72 F.3d 1453 (10th Cir. 1995).
district court “has broad discretion to grant a
continuance where it is necessary to ensure trial counsel are
adequately prepared.” United States v. Gore,
129 Fed.Appx. 709, 711 (3d Cir. 2005) (Defendant was not
prejudiced when superseding indictment was filed 20 days
before trial). The Court should grant a continuance if
Defendant would be prejudiced or needs additional time to
prepare because of changes in the superseding indictment.
United States v. Rojas-Contreras, 474 U.S. 231,
234-37, 106 S.Ct. 555, 557-58, 88 L.Ed.2d 537 (1985).
has not requested a continuance. At this time, it is unclear
how Defendant is prejudiced by the changes in the superseding
indictment, or why he would need additional time to prepare.
The sole change in the superseding indictment was a reduction
of the amount of methamphetamine charged from 500 grams to 50
grams. The Government did so to conform the indictment to the
laboratory results. Defense counsel knew about the lab
results as early as August 3, 2018, and knew about a pending
superseding indictment by September 4, 2018. Moreover, it
does not appear that the superseding indictment will
materially change the proof to be put on at trial.
pretrial/scheduling conference is already set for
September 24, 2018. If Defendant wishes to
continue the trial, a Motion to Continue should be filed
before the pretrial conference, although counsel and the
Defendant are hereby put on notice that even if a motion for
continuance is not filed, the Court may have to move the
trial from October 1 to the middle part of October.
Consequently, counsel should be prepared to discuss which
days in October of 2018 that this case can be tried and how
much time will be needed.
IS ORDERED that the Defendant's Motion to Quash
Superseding Indictment (Doc. 36) is hereby
DENIED for reasons ...