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United States v. Coleman

United States District Court, W.D. Virginia, Charlottesville Division

March 19, 2018

United States of America,
Jermel Coleman, Defendant.



         Judge Norman K. Moon This case is before the Court on Defendant's motions to dismiss Count One, to sever Count One from Count Two, and for a bill of particulars. (Dkts. 46, 47, 49). The superseding indictment in this case charged Defendant, in Count One, with conspiring to distribute cocaine hydrochloride and crack from 2009 until April 20, 2017. (Dkt. 34). Count Two charged Defendant with possessing cocaine hydrochloride with the intent to distribute on April 20, 2017. (Dkt. 34). For the reasons given below, the motions to dismiss and to sever will be denied; the motion for a bill of particulars will be granted in part and denied in part.

         I. Motion to Dismiss Count One

         In Defendant's motion to dismiss Count One, (dkt. 47), Defendant does not appear to challenge the facial validity of the indictment or argue there were any constitutional violations with the grand jury.[1] See dkt. 47; c.f. Campbell v. Louisiana, 523 U.S. 392, 394 (1998) (allowing a defendant to attack an indictment when there was evidence of an equal protection violation in the selection of the grand jury); United States v. Black, 133 F.3d 917 (4th Cir. 1997) (Table) (“We join our sister circuits in finding that a conspiracy indictment under 21 U.S.C. § 846 need not allege any overt acts or name unindicted co-conspirators; it is sufficient if the indictment alleges a conspiracy to distribute drugs, identifies the time period in which the conspiracy allegedly operated, and specifies the statute allegedly violated.”).[2] Instead, each of Defendant's arguments raises different challenges to the sufficiency or admissibility of the evidence the Government would present at trial. (See id. at 3 (“Evidence that [Defendant] was involved in a conspiracy . . . is insufficient to sustain a conviction . . . .”); at 4 (“The alleged sale of drugs . . . does not establish grounds for a charge of conspiracy[.]”); and at 7 (arguing certain statements are inadmissible hearsay)).

         But the longstanding rule in our criminal system is that “[a]n indictment returned by a legally constituted and unbiased grand jury . . ., if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363 (1956). “The Costello holding prohibits courts from reviewing the substance of evidence which produces an indictment[.]” United States v. Mills, 995 F.2d 480, 487 (4th Cir. 1993); see also United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (“A district court may dismiss an indictment under Rule 12 where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.”); United States v. Ilonia, 125 F.3d 849 (4th Cir. 1997) (Table) (“An indictment returned by a legally constituted grand jury may not be challenged on the ground of inadequate or incompetent evidence[.]”). Defendant's arguments about whether specific pieces of the Government's evidence would be sufficient to sustain a conviction are misplaced; the Government has not yet been required to marshal its case in chief.

         Of course, Defendant may later raise similar arguments about the sufficiency of the evidence to the jury or to the Court in a Rule 29 motion for acquittal. And Defendant is also entitled to argue about the admissibility of the various conversations mentioned in its motion to dismiss. But these arguments are premature at this point and are not the proper subjects of a Rule 12 motion to dismiss. Accordingly, Defendant's motion to dismiss Count One of the superseding indictment is denied.

         II. Motion to Sever Counts One and Two

         Defendant also moves to sever the conspiracy and possession counts. (Dkt. 46). The Court first examines whether the counts were appropriately joined, and then separately asks whether they should nonetheless be severed.

         A. Joinder

         Federal Rule of Criminal Procedure 8(a) states:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are [1] of the same or similar character, or [2] are based on the same act or transaction, or [3] are connected with or constitute parts of a common scheme or plan.

         The Fourth Circuit has “interpreted the latter two prongs of this rule flexibly, requiring that the joined offenses have a ‘logical relationship' to one another.” United States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005). “Such a relationship exists when consideration of discrete counts against the defendant paints an incomplete picture of the defendant's criminal enterprise.” Id.

         Three main factors counsel in favor of joinder. First, the Fourth Circuit frequently has found a logical relationship between similar counts and then found joinder of those counts appropriate. See, e.g., United States v. Mouzone, 687 F.3d 207, 219 (4th Cir. 2012) (affirming denial of motion to sever cocaine distribution and RICO conspiracy charges); United States v. Riley, 643 F. App'x 291, 294 (4th Cir.) (affirming denial of motion to sever conspiracy and possession with intent to distribute charges), cert. denied, 137 S.Ct. 257 (2016). Second, it is reasonable to infer a logical relationship between the two charges from the temporal overlap of the underlying conduct. The indictment reveals the alleged conspiracy continued until April 20, 2017, the same date Defendant is charged with possessing controlled substances that were the subject of the conspiracy charge. And third, the Government's allegations confirm the logical relationship between the offenses. The Government alleges the possession charge was based on “a valid traffic stop in which Defendant was found to be in possession of approximately 448 grams of cocaine, which the Government alleges Defendant intended to distribute in furtherance of the conspiracy.” (Dkt. 50). This episode and the resulting arrest are further described in the affidavit that the Government submitted in support of its arrest warrant. (Dkt. 1-1).[3]

         Defendant argues United States v. McLean, 166 F.3d 336 (4th Cir. 1998) (Table) counsels against joinder, but that case is not to the contrary. McLean did not address misjoinder or a motion to sever, but instead addressed whether the evidence presented at trial was sufficient to sustain a conviction for a conspiracy. The court's primary concerns centered on the length of the conspiracy alleged (twenty-six years) and the lack of evidence demonstrating a continuing conspiracy across that time span. Id. Here, alternatively, the alleged conspiracy was for a significantly shorter period of time (eight years). But most importantly, the Government is not yet required to put forward its evidence of the alleged ...

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