United States District Court, D. Minnesota
S. Doty, Judge
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 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.
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.
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.
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).
Motion to Dismiss the Indictment
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.”).
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.
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
Motion to Suppress