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United States v. Coleman

United States District Court, M.D. Alabama, Northern Division

January 22, 2019

UNITED STATES OF AMERICA
v.
KELVIS JERMAINE COLEMAN

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         This case is before the court on defendant Kelvis Jermaine Coleman's motion to dismiss the superseding indictment. A hearing was held on the motion on November 26, 2018. For the reasons set forth below, the court finds that the motion should be denied.

         I.

         Whether the superseding indictment should be dismissed requires an understanding of the somewhat complex chronology of this case.

         June 27, 2018: A grand jury returned a one-count indictment charging Coleman, under 21 U.S.C. § 841(a)(1), with having distributed on or about June 12, 2018, over 50 grams of "a mixture and substance containing a detectable amount of methamphetamine." Original Indictment (doc. no. 20). Trial was set for November 5, 2018.

         October 22: Court-appointed defense counsel filed a motion in limine contending, among other things, that, because the government had not yet turned over the scientific test results and the summary of the expert testimony as to the composition and weight of the drug substance that Coleman allegedly distributed on June 12, the test results and any expert testimony on the subject would be inadmissible at trial. The import of the motion was that the government should be barred from putting on the evidence needed to support the charge in the indictment.

         October 23: Government counsel informed defense counsel that the reason the toxicology report had not been provided was because the government did not have the report and that Coleman would soon be facing a superseding indictment with an additional charge.

         October 26: Government counsel provided defense counsel the toxicology report on the new charge, in Count 2, of the soon-to-be filed superseding indictment. The report did not cover the single charge in the original indictment.

         October 29: On Monday, a week before trial, two important events occurred. (1) In a joint report of a court-ordered meeting of the parties, the parties represented that (a) Coleman was refusing to communicate with his court-appointed defense counsel and that, as a result, it was “very difficult if not impossible” for counsel to represent him, Report of Court Ordered Meeting of the Parties (doc. no. 54) at 1-2; (b) a newly retained defense attorney had contacted both court-appointed counsel and government counsel stating that he intended to file a notice of appearance to represent Coleman; and (c) government counsel had advised court-appointed counsel that the government was seeking a superseding indictment that might be returned before trial on Monday, November 5. (2) Newly retained defense counsel entered a notice of attorney appearance for Coleman and filed a written motion to continue the trial.

         October 30: On the Tuesday before the trial was to begin the following Monday, the court held an on-the-record telephone conference with court-appointed defense counsel, newly retained defense counsel, and government counsel. Court-appointed counsel stated that Coleman was still not communicating with him and that it would be impossible to continue to represent him. Government counsel revealed that, while trial was only three business days away, it was still seeking a superseding indictment that, if returned the next day as expected, would add a charge with a mandatory life sentence. After learning of this new charge and that Coleman would possibly be subject to a mandatory life sentence, retained counsel orally moved to withdraw as attorney and orally moved to withdraw his written motion to continue the trial. Retained counsel recognized that, in light of the likelihood that the government would not be ready to proceed on the one-count original indictment for the reason raised in the motion in limine, a continuance might actually work to Coleman's disadvantage.

         October 31: As expected, on the Wednesday before trial, the grand jury returned a superseding indictment reasserting the charge in the original indictment and adding a count under 21 U.S.C. § 841(a)(1) that, on or about March 1, 2018, Coleman had distributed in excess of 50 grams of methamphetamine. See Superseding Indictment (doc. no. 61). This second count differed from the first count in two important ways: first, the alleged events occurred on March 1, 2018--while the first count alleged events in June 2018--and, second, Coleman's mandatory-minimum sentence increased from ten years (for the first count) to life imprisonment.

         November 1: On the Thursday before trial, a number of events occurred: (1) The court entered a written order granting retained defense counsel's oral motion to withdraw. (2) Court-appointed defense counsel filed a motion to dismiss the superseding indictment, the motion that is now before the court for resolution. He made the very serious allegation that the superseding indictment, which had been returned the day before, was retaliatory. He asserted that, because he had filed a motion in limine contending that the government had not furnished in a timely manner the expert evidence needed for a conviction on count one of the original indictment (and now reasserted as count one in the superseding indictment), the government retaliated by securing, at the eleventh hour, a superseding indictment and a new charge, count two, with a much more serious charge, and that, in so doing, the government also was retaliating for his choice to exercise his right to a trial on November 5. Defense counsel also contended that the late-filed superseding indictment put Coleman in the untenable position of having to choose between, on the one hand, not going to trial on November 5 and forgoing the exercise of his speedy trial rights on count one (for which the government had arguably failed to furnish the essential drug tests results needed for a conviction) and, on the other hand, going to trial and forgoing his Sixth Amendment right to counsel as to count two (for there was no way he could be ready to go to trial in just a couple of business days, on November 5, on a whole new charge with different factual allegations for which the sentence exposure was mandatory life). Perhaps most importantly, defense counsel alleged that the government knew about, and even had, the expert evidence to support count two as far back as June 2018 but did not seek and secure a superseding indictment until three business days before the November 5 trial date. Thus, the issue was not just one of delay--it was an allegation of delay strategically timed to hurt Coleman and his ability to defend himself. (3) Court-appointed defense counsel also renewed his motion to withdraw, contending that his relationship with Coleman was even worse. He added that, in light of the government's filing just before trial of a totally new charge which he could not possibly be prepared to defend, "It is understandable why Mr. Coleman feels that this process is unfair and that everyone is out to get him." Motion to Dismiss (doc. no. 70) at 4. He explained that Coleman "was told the rules when he was indicted and then right before his trial the rules change." Id. (4) The government orally moved to continue the November 5 trial date.

         November 2: The court orally informed defense and government counsel that the trial would be delayed until December 3, and that a formal opinion and order would follow.

         November 5: The court entered a written order granting Coleman's retained counsel's oral motion to withdraw his written motion to continue. The court, based on the government's November 1 oral motion, ...


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