Opinion
09 CR 168 (RPP).
January 10, 2011
OPINION AND ORDER
On or about December 7, 2010, Defendant Henry Franklin filed a letter application to Judge Jones for a "lawer [sic] and for [his] case to be investigated due to malicious prosecution." Defendant also requested that the indictment be dismissed because it was produced by "perjury" by "police and agents working on this conspiracy case."
On September 16, 2010, Judge McMahon authorized prior counsel for Defendant to engage the service of an investigator on Defendant's behalf. Prior counsel, however, was relieved as counsel on October 12, 2010, the trial date at that time, and CJA attorney Peter E. Brill was appointed as Defendant's counsel. Thereafter, a trial date of January 10, 2011 was set to afford sufficient time for Mr. Brill to become familiar with the discovery in this matter, Defendant's indictment, and to prepare adequately for trial. At a court conference on December 22, 2010, the Court ordered the Government to respond to Defendant's letter application to dismiss the indictment by December 28, 2010, and ordered that if Defendant intended to submit a motion for disclosure of the identity of the confidential informant, Defendant must do so by January 5, 2011. On December 23, 2010, the Government submitted a memorandum of law in opposition to Defendant's letter application of December 7, 2010. On January 5, 2011, no application for disclosure of the identity of the confidential informant was filed.
Defendant's motion to dismiss the indictment based on his allegations of perjury and other wrongdoing by the "police and agents working on this conspiracy case" is dismissed. Indictments which on their face state crimes committed by a defendant are presumed valid and are not subject to challenge based on broad allegations such as those made in Defendant's letter application.U.S. v. Tranquillo, 606 F.Supp.2d 370, 381 (S.D.N.Y. 2009) (denying a motion to dismiss indictment where defendant's allegations of false testimony before the grand jury were unsupported by "particularized allegations") (citing United States v. Mechanik, 475 U.S. 66, 75 (1986)). See also U.S. v. Teyibo, 877 F.Supp. 846, 864 (S.D.N.Y. 1995) (aff'd, 101 F.3d 681, 1996 WL 167868 (2d Cir. April 10, 1996) (in moving to dismiss an indictment, defendant's allegations must be more than conclusory allegations or speculation). Instead, factual allegations of specific wrongful conduct going to the heart of the charges against a defendant are required. Bank of Nova Scotia v. U.S., 487 U.S. 250, 261 (1988) (dismissal of indictment is appropriate "only `if it is established that the violation substantially influenced the jury's decision to indict.'").
Here, the Defendant is charged with conspiracy to violate the narcotics laws during 2008 and with personal sales of cocaine on March 11, 2008 and of crack cocaine on March 20, 2008. The letter application to Judge Jones does not contain allegations sufficient to justify dismissal of the indictment. Accordingly, Defendant's letter application to dismiss the indictment is denied.
The Defendant's allegation about the voice attribution in the recorded telephone calls are matters which his counsel can adequately address at trial. The allegation regarding a statement made by the brother of the confidential informant to Defendant's family can also be addressed at trial or could have been addressed, if necessary, in the papers Judge Jones required to be filed by January 5, 2011.
In sum, Defendant's letter application of December 7, 2010 is denied.
IT IS SO ORDERED.