Opinion
No. 03 Cr. 906 (RPP).
September 17, 2004
David N. Kelly, U.S. Attorney Southern District of New York ATTN: Katherine A. Lemire, A.U.S.A., Brian R. Michael, A.U.S.A. New York, NY, Counsel for Windzer Fleurissaint.
OPINION AND ORDER
On September 7, 2004, Defendant Windzer Fleurissaint moved to dismiss Count Three of the Indictment "on the ground that the grand jury was provided with insufficient evidence to support that Count and had to have been misled about the applicable law." (Letter from Tai Park, Counsel for Defendant, to the Court, dated Sept. 7, 2004 ("Def.'s Letter").) This motion is denied for the reasons that follow.
BACKGROUND
In Count Three of the Indictment, the Defendant is charged with a substantive firearm offense in violation of 18 U.S.C. § 924(c) and aiding and abetting the same in violation of 18 U.S.C. § 2. Specifically, prior to the Court's striking of certain portions of the Indictment pursuant to Fed.R.Crim.P. 29, Count Three charged:
On or about May 28, 2003, in the Southern District of New York and elsewhere, WINDZER FLEURISSAINT, a/k/a "Juicy," the defendant, unlawfully, willfully, and knowingly, during and in relation to a crime of violence and drug trafficking crime for which he may be prosecuted in a court of the United States, used, carried, brandished, and discharged a firearm, and aided and abetted the use, carrying, brandishing, and discharging of a firearm, and possessed, and aided and abetted the possession of, a firearm in furtherance of such crime, to wit, FLEURISSAINT, the defendant, together with others known and unknown, used, carried, brandished, and discharged a firearm, and aided and abetted the use carrying, brandishing, and discharging of a firearm, during and in relation to the conspiracy to commit robbery and the attempted robbery charged in Counts One and Two of this Indictment.
(Indictment S5 03 Cr. 906 ¶ 3.)
The Defendant's motion to dismiss contains excerpts of the grand jury minutes supplied by the government, including the testimony of Detective Vincent G. Flynn of the New York City Police Department, which the Defendant maintains is all the relevant testimony presented to the grand jury. (See Def.'s Letter, Exs. 1-4.) The government has not claimed additional evidence was submitted to the grand jury, nor has it confirmed that all of the relevant grand jury testimony is before the Court.
On the first day of testimony, July 24, 2003, Detective Flynn described the alleged May 28, 2003 attempted robbery, some of the guns involved in that attempted robbery, and the gun shots fired by Mark Lee during the attempted robbery, but made no mention of Defendant or a second car. (See Def.'s Letter, Ex. 1, Tr. of Grand Jury, dated July 24, 2003.) On November 20, 2003, Detective Flynn testified about the Defendant's role in the alleged May 28, 2003 attempted robbery by identifying him as the driver of the second car and stating that the role of the second car was "to block the exit of the car wash, so the victim, Desmond Shaw, could not exit the car wash." (Def.'s Letter, Ex. 2, Tr. of Grand Jury, dated Nov. 20, 2003, at 28.) Additionally, Detective Flynn testified that the Defendant had a 9 millimeter handgun and that "all occupants of the second car were armed." (Id. at 32.) On April 23, 2004, Detective Flynn testified that Defendant, along with Mark Lee, Kevin Miller and Kevin Moore, committed alleged three robberies in Houston, Texas, in which they robbed three separate marijuana dealers of guns and marijuana. (Def.'s Letter, Ex. 3, Tr. of Grand Jury, dated Apr. 24, 2004, at 32.) The presentation focused on these alleged Texas robberies and the alleged transportation of the marijuana and guns to New York. There was no mention of the alleged May 28, 2003 attempted robbery during this grand jury testimony. Finally, on August 5, 2004, the testimony centered on the alleged attempts to rob "Bruce" prior to May 28, 2003, and identified the Defendant as a participant in one of those attempts. (See Def.'s Letter, Ex. 4, Tr. of Grand Jury, dated Aug. 5, 2004.) The alleged May 28, 2003 attempted robbery was only discussed in relation to the identity of the intended target of that robbery. (Id. at 5.)
DISCUSSION
The Defendant requests that this Court exercise its supervisory power and dismiss Count Three of the Indictment on the ground that the grand jury had insufficient evidence to find probable cause to support that Count, and therefore, the government must have misled the grand jury as to the applicable law. The government responds that sufficient evidence was presented to the grand jury to support the charges in Count Three, highlighting that a grand jury must only find probable cause to support a charge. Although the excerpts of the grand jury testimony do not demonstrate sufficient evidence to support all of the grand jury's charges in Count Three, the testimony does support the charge that Defendant was armed and participated in the alleged attempted robbery on May 28, 2003, and that, as a member of the group that had participated in alleged robberies and attempted robberies, he would have understood that it was reasonably foreseeable that a member of the group would have brandished or discharged a firearm. See Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Masotto, 73 F.3d 1233, 1239 (2d Cir. 1996) ("Under the Pinkerton theory of liability, a conspirator 'can be held responsible for the substantive crimes committed by his co-conspirators to the extent those offenses were reasonably foreseeable consequences of acts furthering the unlawful agreement, even if he did not himself participate in the substantive crimes.'" (citing United States v. Romero, 897 F.2d 47, 51 (2d Cir. 1990))). There was no evidence to support the Indictment's charge that the Defendant aided and abetted the using, brandishing, or discharging of a firearm. See United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994) (stating that "the language of [ 18 U.S.C. § 924(c)] requires proof that [the defendant] performed some act that directly facilitated or encouraged the use or carrying of a firearm" for a conviction for aiding and abetting the use or carrying of a firearm). However, this Court reluctantly declines to dismiss this Count entirely or in part. Instead, it determined to strike the inappropriate aiding and abetting charges pursuant to Rule 29 of the Fed.R.Crim.P., after the government completed its case.
The government maintained that the evidence at trial would support those charges but did not present evidence during the trial which supported these charges.
Under the standard from Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), a court may dismiss an indictment only '"if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256 (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986)). A court may not, however, dismiss an indictment because it is not "supported by adequate or competent evidence."Costello v. United States, 350 U.S. 359, 364 (1956); see also id. at 363 ("An indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for a trial of the charge on the merits."). A court may also dismiss an indictment if it has evidence that the grand jury was misled or misinformed. United States v. Brito, 907 F.2d 392, 394 (2d Cir. 1990); United States v. Hogan, 712 F.2d 757, 761 (2d Cir. 1983); see also Bank of Nova Scotia, 487 U.S. at 256. However, the Supreme Court's decision in United States v. Williams, 504 U.S. 36 (1992), calls into question a court's ability to dictate standards of prosecutorial conduct before a grand jury, specifically when that misconduct did not violate the Constitution, an applicable statute, or one of the Federal Rules of Criminal Procedure. United States v. Orjuela, 809 F. Supp. 193, 199-200 (E.D.N.Y. 1992) (finding that "after serious consideration of the interplay between Mechanik, Bank of Nova Scotia and Williams, [the] court could not in good conscience grant" the defendant's motion to dismiss his indictment post conviction based on prosecutor's failure to reconvene the grand jury to correct the misleading and inaccurate information that served as the support for the indictment).
The Supreme Court distinguished cases requesting dismissal where the error in question was "fundamental," and the previously described standard, which requires an assessment of the prejudicial impact of the error on the defendant, would be inapplicable to those motions for dismissal. Bank of Nova Scotia, 487 U.S. at 256-57 (citing as examples of fundamental error racial discrimination in the selection of grand jurors and the exclusion of women from the grand jury).
In this case, there is serious doubt that the government presented sufficient evidence to the grand jury to support the aiding and abetting charges in Count Three, particularly the aiding and abetting in the using, brandishing, and discharging of a firearm. This leads to the inference that the grand jury was not properly advised by the government as to the law on aiding and abetting as it applies to 18 U.S.C. § 924(c). However, this Court declines to dismiss this Count pursuant to its supervisory powers.
As the government notes, Defendant may be held liable under aPinkerton theory of liability for the substantive crimes of using, carrying, brandishing and discharging a firearm in violation of 18 U.S.C. § 924(c), even if he did not personally perform these actions. This theory holds a defendant guilty of a § 924(c) violation if: (1) the defendant conspired to commit a crime involving violence or drug trafficking; (2) the § 924(c) offense was committed in furtherance of the conspiracy; and (3) the [§ 924(c)] offense was a reasonably foreseeable consequence of an act furthering the unlawful agreement. Rosario v. United States, 164 F.3d 729, 734 (2d Cir. 1998) (citing, inter alia,United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996)).
Thus, the evidence presented to the grand jury of the Defendant's and the other alleged conspiracy members' possession of firearms and involvement in the alleged attempted robbery on May 28, 2003, and the evidence of the use, brandishing and discharging of firearms during earlier alleged robberies and attempted robberies support the 18 U.S.C. § 924(c) charge contained within the Indictment.
However, a different standard is used when determining whether a defendant is guilty of aiding and abetting a 18 U.S.C. § 924(c) offense in violation of 18 U.S.C. § 2. In the Second Circuit, it has long been the law that a conviction as an aider or abettor requires that a defendant "consciously assisted the commission of the specific crime in some active way." United States v. Dickerson, 508 F.2d 1216, 1218 (2d Cir. 1975). Thus, under 18 U.S.C. § 924(c), a defendant may not be convicted as an aider and abettor "merely because he knew that a firearm would be used or carried and, with that knowledge, performed an act to facilitate or encourage the robbery itself. Rather, the language of [ 18 U.S.C. § 924(c)] requires proof that he performed some act that directly facilitated or encouraged the use or carrying of a firearm." United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994). The same rule is applicable when the charge is brandishing or discharging a firearm. See U.S. v. Bailey, 516 U.S. 143, 148 (1995) (defining the use of a firearm as including "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm").
The government argues that this Court should adopt the Sixth Circuit's standard for aiding and abetting in the context of the discharge of a firearm in the case of an attempted murder. Under this standard, the government must show that: "(1) the shooter committed the alleged underlying crime; (2) the shooter knowingly used a firearm during and in relation to the shooter's commission of that crime; (3) the defendant 'helped, commanded, induced, or encouraged' the shooter to commit the underlying crime; and (4) the defendant intended to help the shooter commit the underlying crime." (See Letter from Government to the Court, dated Sept. 9, 2004, at 2 (citing United States v. Cope, 312 F.3d 757, 768 (6th Cir. 2002)).) However, as Defendant notes, the importation of this standard would circumvent the clear rule from the Second Circuit that the aider or abettor must directly facilitate or encourage the use, in this case the brandishing and discharging, of a firearm. See Medina, 32 F.3d at 45. The Defendant's knowledge that guns would be used and his participation in the robbery are not sufficient under Medina to establish his liability as an aider or abettor in the brandishing or discharge of the firearm. The Sixth Circuit's standard is inapplicable.
The evidence presented to the grand jury indicated that Defendant was the driver of the second car in the alleged attempted robbery on May 28, 2003, and that the role of the second car was to block the victim's exit from the car wash to facilitate the robbery. Also, the testimony supported the Defendant's alleged carrying of a firearm and the possession of firearms by all of the occupants in the second car, which the Defendant drove to the scene of the alleged crime. Thus, sufficient evidence existed before the grand jury to support its finding that the defendant aided and abetted in the carrying of a firearm in violation of 18 U.S.C. § 924(c). However, no evidence was presented indicating that Defendant aided and abetted the using, brandishing or discharging of a firearm by any other co-conspirator as charged in the Indictment.
The grand jury is supposed to "serve the invaluable function in our society of standing between the accuser and the accused."Wood v. Georgia, 370 U.S. 375, 390 (1962). The Assistant United States Attorney is supposed to act "as an officer of the court . . . ensur[ing] that justice is done." United States v. Hogan, 712 F.2d 757, 760 (2d Cir. 1983). Here, the prosecution drafted the Indictment for the grand jury's approval and advised the grand jury as its lawyer. The testimony at trial has shown that the charge in Count Three that the defendant aided and abetted the using, brandishing, and discharging of a firearm was not warranted. The Second Circuit has stated an indictment may be dismissed for prosecutorial misconduct if the grand jury was misled or misinformed. Brito, 907 F.2d at 394. Although this Court has not reviewed all of the grand jury minutes, it seems almost certain that the grand jury was misled and that overindictment resulted. Nevertheless, in view of the Court's Rule 29 disposition of the unfounded aiding and abetting charges, it concludes that the Defendant has not been prejudiced and, following Supreme Court precedent, it denies Defendant's motion to dismiss Count Three.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss Count Three of the Indictment is denied.
IT IS SO ORDERED.