United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion to dismiss Count II of
the Indictment filed by Defendant Isaac Damon Petite
(“Defendant”) (Doc. 28) and a response in
opposition filed by the Government (Doc. 31). Defendant
contends that Count II of the Indictment is due to be
dismissed because it constitutes a lesser-included offense of
Count I, which violates the Double Jeopardy Clause of the
United States Constitution. The Government counters that
Defendant's motion is due to be denied because it was
filed after the pretrial motion deadline expired and,
furthermore, that the two crimes are distinct, which does not
run afoul of the Double Jeopardy Clause. The Court finds the
Government's arguments persuasive and, for the reasons
set forth below, denies Defendant's motion.
Timeliness of the Motion
the Government's first argument, Rule 12 of the Federal
Rules of Criminal Procedure addresses a court's power to
enact pretrial motion deadlines and the potential
consequences for not abiding by such deadlines. It is within
the purview of a court to set a deadline for such pretrial
motions. If a party fails to comply with a court ordered
deadline, any pretrial motion filed after the deadline's
expiration “is untimely.” Fed. R. Crim. P.
12(c)(3). A court may consider an untimely pretrial motion
“if the party shows good cause” for the
untimeliness. Fed. R. Crim. P. 12(c)(3). “Good
cause” is a “flexible standard that requires
consideration of all interests in the particular case.”
Fed. R. Crim. P. Advisory Comm. Notes (2014 Amendment).
the Court's Order on Arraignment, issued January 27,
2017, clearly spells out that any Rule 12(b) motion must be
filed “no later than February 10, 2017.” (Doc.
15, p. 2). A double jeopardy defense is raised under Rule
12(b)(3). United States v. Schropp, 829 F.3d 998,
1004 (8th Cir. 2016). Echoing the language of Rule 12, the
Order explains that a pretrial motion filed beyond this
deadline “must contain an explanation as to why [the
motion was] not timely filed and will be considered only if
good cause for the tardy filing has been shown.” (Doc.
15, p. 2).
filed the present motion more than a month and a half past
the ordered deadline. The motion provides no explanation of
the “good cause” justifying its tardiness.
Moreover, the contents of the motion show no good cause
exists. First, Defendant relies on United States v.
Mendez, 117 F.3d 480 (11th Cir. 1997), as grounds to
dismiss Count II. Mendez, however, was decided
almost twenty years ago. Therefore, it is not newly decided
precedent Defendant attempts to rely upon. Second,
Defendant's arraignment occurred on January 27, 2017. As
late as that date Defendant knew the separate counts for the
Indictment clearly charged him with violation of Title 18,
United States Code, Section 2114(a) in Count I and violation
of Title 18, United States Code, Section 1708 in Count II.
(Doc. 1). Since that time, the indictment has remained
unchanged. Thus, the basis for Defendant's argument has
been readily discernible from the face of the indictment all
along. Therefore, Defendant cannot show good cause for his
untimely pretrial motion.
Defendant could show good cause, the motion is still due to
be denied because the double jeopardy argument lacks merit.
Double Jeopardy Clause provides that no person shall
“be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V.
[W]here … two offenses for which the defendant is
punished … cannot survive the “same
elements” test, the double jeopardy bar applies. The
same-elements test, sometimes referred to as the
“Blockburger” test, inquires whether
each offense contains an element not contained in the other;
if not, they are the “same offense” and double
jeopardy bars additional punishment….
United States v. Dixon, 509 U.S. 688, 696 (1993)
(citations omitted); see also Blockburger v. United
States, 284 U.S. 299, 304 (1932); United States v.
Freyre-Lazaro, 3 F.3d 1496, 1507 (11th Cir. 1993)
(“[T]wo crimes are to be treated as the same offense
unless each crime requires proof of an additional element
that the other does not require.”), cert.
denied, 511 U.S. 1011 (1994). With this principle in
mind, it is necessary for the Court to lay out the applicable
18, United States Code, Section 2114(a) states, in relevant
A person who assaults any person having lawful charge,
control, or custody of any mail matter or of any money or
other property of the United States, with the intent to rob,
steal, or purloin such mail matter, money, or other property
of the United States, or robs or attempts to rob any such
person of mail matter, or of any money, or other property of
the United States, shall, for the first offense, be
imprisoned not more than ten years …..
Title 18, United States Code, Section 1708 states, in