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United States v. Oliver

United States District Court, D. Minnesota

January 17, 2017

United States of America, Plaintiff,
v.
Houston Oliver, Defendant.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the objections by defendant Houston Oliver to the December 28, 2016, report and recommendation of Magistrate Judge Becky R. Thorson (R&R). In her report, the magistrate judge recommends denying Oliver's motions to dismiss the indictment, suppress evidence, and for a Franks hearing. Oliver objects to certain portions of the R&R. Based on a de novo review of the file, record, and proceedings herein, the court overrules the objections and adopts the R&R.

         BACKGROUND

         The background of this motion is fully set out in the R&R. Because defendant does not challenge the factual statements contained in the R&R, the court will not repeat them here except as necessary to resolve Oliver's objections.

         On May 20, 2015, Oliver was indicted on the charge of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. United States v. Oliver, Crim. No. 15-164, ECF No. 1. On the government's motion under Fed. R. Crim. P. 48(a), the court dismissed the indictment without prejudice before trial. See id., ECF Nos. 188, 189. Before doing so, the court denied Oliver's motions to suppress and for a Franks hearing. Id., ECF No. 146.

         On September 27, 2016, the instant case commenced after Oliver was again indicted for the same offense. Oliver moved to suppress evidence and for a Franks hearing, making the same arguments raised in the previous case. Oliver also moved to dismiss the indictment. The magistrate recommends that the court deny the motions.[1]

         DISCUSSION

         The court reviews the report and recommendation of the magistrate judge de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b); D. Minn. LR 72.2(b).

         I. Motion to Dismiss the Indictment

         Oliver first objects to the magistrate judge's recommendation that his motion to dismiss the indictment be denied. He argues, incorrectly, that the court did not specify whether the first indictment, pursuant to Fed. R. Crim. P. 48(a), was dismissed with or without prejudice. To the contrary, the dismissal order expressly stated that “the Indictment ... is dismissed without prejudice.” United States v. Oliver, Crim. No. 15-164, ECF No. 189. Indeed, indictments are typically dismissed without prejudice under Rule 48(a). See DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir. 1973) (“[Rule] 48(a) has been regularly interpreted to mean that a dismissal of an indictment at the request of the government prior to trial does not bar subsequent prosecution for criminal acts described in that indictment.”).

         Oliver also argues that the court erred in dismissing the indictment because the record was insufficient to establish that the government did not act in bad faith or in violation of his due process rights in moving to dismiss the indictment. Neither Rule 48 nor case law requires the government to prove such a negative. Further, there is no suggestion of either bad faith motivating, or a due process violation resulting from, the dismissal.

         Finally, Oliver argues that he has been prejudiced by the delay in bringing the second indictment. The court disagrees. The six-month gap between cases is insufficient to warrant dismissal, particularly given that Oliver provides no specific instances of alleged prejudice beyond the mere fact that he was again indicted. Oliver's objection is overruled.

         II. Motion to Suppress

         A. Fr ...


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