United States District Court, N.D. Illinois, Eastern Division
S. SHAH U.S. DISTRICT JUDGE
Masoud's motion to suppress  is denied as moot.
Defendant's motion to dismiss the superseding indictment
 is denied, and to the extent defendant renews the
arguments raised in his motion to dismiss the original
indictment  that motion is denied.
superseding indictment, filed in February 2019, charges
defendant Fouad Masoud with one count of drug conspiracy,
three counts of distribution, one count of possession with
intent to distribute, and two counts of attempted possession
with intent to distribute. The original indictment, filed in
April 2018, charged one count of conspiracy and one count of
distribution. The superseding indictment added charges and a
sentencing enhancement against Masoud for the alleged bodily
injury that resulted from the use of the controlled
substances he allegedly distributed.
moves to suppress evidence seized by a DEA Task Force Officer
on March 23, 2018. The government says it will not offer that
evidence at trial and will move to dismiss Counts 3 and 4 of
the superseding indictment that depend on that evidence.
. Defendant's motion to suppress is
moot. United States v. Quintana, No. 15 CR 552-1,
2016 WL 6277435, at *1 (N.D. Ill. Oct. 27, 2016); United
States v. Robinson, 102 Fed. App'x 47, 50 (7th Cir.
moves to dismiss the superseding indictment because he
believes the addition of the sentencing enhancement for
bodily injury is the product of prosecutorial vindictiveness.
“A prosecution based solely on vindictiveness, such as
one to penalize a person for pursuing his legal rights,
violates the Due Process Clause of the Constitution.”
United States v. Ribota, 792 F.3d 837, 839 (7th Cir.
2015). A vindictive prosecution is one “motivated by
some form of prosecutorial animus, such as a personal stake
in the outcome of the case or an attempt to seek
self-vindication.” United States v. Falcon,
347 F.3d 1000, 1004 (7th Cir. 2003) (quoting United
States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996)).
is no suggestion of such vindictiveness here. At the
detention hearing a few days after Masoud's arrest, the
prosecutor explained that enhanced penalties were a
possibility. [158-1] at 7. The first indictment did not
include the enhancement, , but within a few months (in
September 2018), the government publicly disclosed its intent
to seek a superseding indictment to include the enhancement.
[158-1] at 39. Masoud argues that the government would not
negotiate a plea agreement with him unless he admitted that
the seized drugs contained brodifacoum (rat poison); when he
refused, the government enhanced the charges against him.
 at 3. Although the superseding indictment was not filed
until February 2019, see , the record
demonstrates that the government was considering enhanced
charges at the outset of the prosecution, independently of
Masoud's expressed desire to go to trial. “[T]he
spectre of vindictiveness is lacking where the challenged
charge is independent of the one that formed the basis of the
exercise of the legal right.” Ribota, 792 F.3d
at 841. But even if the decision were tied to pre-trial plea
bargaining, the court of appeals has “not recognized
any circumstances in which a presumption of vindictiveness
has been deemed appropriate regarding events that occurred
before trial.” Id. at 840. The tactics
described by Masoud are permissible and are not considered
vindictive: “a prosecutor may threaten a defendant with
increased charges if he does not plead guilty, and follow
through on that threat if the defendant insists on his right
to stand trial.” United States v. Tingle, 880
F.3d 850, 856 (7th Cir. 2018). Defendant's motion to
dismiss is denied.
moved to dismiss the original indictment, before the grand
jury returned a superseding one. . Masoud has not
expressly raised those arguments against the superseding
indictment, and so apparently waives them. To the extent the
failure to renew his first motion was a forfeiture on his
part, the motion is denied on the merits.
offenses allegedly occurred in March 2018. By that time,
FUB-AMB had been placed on Schedule I for several months,
through the attorney general's delegated authority to
temporarily schedule substances. 82 FR 51154 (Nov. 3, 2017);
21 U.S.C. § 811(h); 28 C.F.R. 0.100(c). The superseding
indictment properly alleges that FUB-AMB was a Schedule I
conspiracy charge tracks the statutory elements of the
offense and alleges approximate dates and duration, without
describing how the conspiracy worked or the roles of the
conspirators. No more is required. United States v.
Vaughn, 722 F.3d 918, 926 (7th Cir. 2013). The
superseding indictment alleges that Masoud “did
conspire … to knowingly and intentionally possess with
intent to distribute and distribute a controlled substance,
”  at 1; it states an offense and is not dismissed
under Fed. R. Crim. P. 12(b)(3)(B)(v). Masoud earlier argued
that the government cannot prove a conspiracy because the
evidence is simply that his employees sold drugs. This is a
sufficiency of the evidence argument. See  at 5-6
(“in evaluating the sufficiency of the evidence
[…], ” “the evidence in this case …
shows, ” “[t]here is no corroborating
evidence…”);  at 2 (discussing sufficiency
of the criminal complaint). A pretrial motion to dismiss the
indictment is not the means to challenge the government's
proof. United States v. Moore, 563 F.3d 583, 586
(7th Cir. 2009).
that drug dealers who have a superior with whom they have
partnered to sell drugs are in a conspiracy with that
superior. United States v. Cruse, 805 F.3d 795, 816
(7th Cir. 2015) (the relationship between middlemen and their
superiors is per se conspiratorial). If Masoud agreed with
his employees to sell drugs, he was in a conspiracy with
them. If the employees were merely buying drugs from Masoud
in arm's length transactions with Masoud, for later
resale by them with Masoud having no interest in their
drug-selling activities, then there was no conspiracy.
See United States v. Bradford, 905 F.3d 497, 506
(7th Cir. 2018) (conspiracy requires evidence of a shared
stake in the illegal venture). Whether the alleged
conspirators had a shared stake in the venture is an issue
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