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U.S. v. BROWN
United States District Court, N.D. Illinois, Eastern Division
August 13, 2004.
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
This matter came before the court on defendant's motion to
dismiss indictment or, alternatively, to strike surplusage from
indictment, and defendant's alternative motion to bifurcate
proceedings, along with the government's motions in limine and
other pretrial matters. For the reasons stated in open court this
date, the court makes the following rulings:
1. The court grants the government's motion in limine
regarding uncharged drug activity based on Federal
Rule of Evidence 404(b).
2. The court denies the government's motion in limine
regarding obstruction of justice. Further, the court
will not permit the government to introduce, either
in its case in chief or in a bifurcated sentencing
proceeding, any evidence of obstruction of justice
based on defendant's flight prior to the scheduled
retrial of Count 1 of the indictment.
3. The court grants defendant's motion to dismiss
indictment or, alternatively, to strike surplusage
from indictment in part. The "sentencing allegations"
of the superceding indictment dated July 27, 2004,
are stricken. 4. In addition, the court will allow a special
interrogatory to the jury with respect to item no. 2
in the "sentencing allegations" concerning the 17
kilograms of cocaine alleged to have been possessed
by defendant during the course of the commission of
the conduct on November 15, 200, alleged in the
indictment. However, although in granting the
government's first motion in limine the court will
allow evidence of uncharged drug activity under
Evidence Rule 404(b), the court will not allow the
jury to consider, for sentencing purposes, the
possession or distribution of any quantity of cocaine
above the 17 kilograms at issue in the charged
conduct involving the November 15, 2000, transaction.
5. The court grants the oral motion by the government
to continue the trial date from August 16, 2004, to a
date in the future after the court receives guidance
from the United States Supreme Court in United
States v. Booker and United States v. Fanfan. In
addition, for the same reasons, the court grants the
government's motion to exclude time under the Speedy
Trial Act. See 18 U.S.C. §§ 3161(h)(8)(A), (B)(ii).
The court notes that defendant vigorously objected to
the continuance of the trial and answered ready for
trial on the charged count involving the November 15,
2000, transaction. The court nevertheless determines
that the interest of justice compels a continuation
of the trial because of the uncertainty of the law
involving the Supreme Court's decision in Blakely v.
Washington, ___ U.S. ___, 2004 WL 1402697 (June 24,
2004), which the Supreme Court is likely to clarify
in its expected expeditious rulings in Booker and
Fanfan. In addition, defendant will suffer no
prejudice as a result of this continuation of the trial because he has already been
convicted in the initial trial of this case of the
money laundering counts (Counts 2 and 3) and was in
state custody when he was located by the United
States Marshal. Thus, the terms of his custody will
not be increased as a result of the continuance. In
addition, the government informed the court that if a
continuance of the trial was not granted, the
government had determined to appeal the rulings of
this court as noted above, which would automatically
stay for the proceedings in this court.
6. This matter is continued for a report on status to
October 26, 2004, at 9:30 a.m. If the government
determines to take a course of action that would
avoid the problems that caused the court to continue
the trial, the United States attorney is requested to
inform the court at the earliest possible date so
that a trial date can be set.
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