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United States v. Petite

United States District Court, S.D. Alabama, Southern Division

April 7, 2017

UNITED STATES OF AMERICA
v.
ISAAC DAMON PETITE

          ORDER

          CALLIE V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         1. Timeliness of the Motion

         As to 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).

         Here, 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).

         Defendant 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.

         2. Double Jeopardy

         Even if Defendant could show good cause, the motion is still due to be denied because the double jeopardy argument lacks merit.

         The 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 statutory provisions.

         Title 18, United States Code, Section 2114(a) states, in relevant part:

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 …..

         Additionally, Title 18, United States Code, Section 1708 states, in ...


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