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United States v. Scott

United States District Court, Eastern District of Michigan, Southern Division

April 22, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON LAMONT SCOTT (D9), Defendant.

ORDER DENYING MOTION TO DISMISS COUNTS FOUR AND SIX OF THE THIRD SUPERSEDING INDICTMENT

DENISE PAGE HOOD UNITED STATES DISTRICT JUDGE

I. BACKGROUND

Defendant Aaron Lamont Scott was indicted, along with several co-defendants, of conspiracy to distribute cocaine and other charges in October 2010. (Doc. No. 60) Scott entered a plea of guilty on July 23, 2013 as to Counts One (conspiracy to distribute more than 500 grams of cocaine) and Two (possession of firearms in furtherance of a drug trafficking crime) of the First Superseding Information. On October 24, 2014, the Court allowed Scott to withdraw his plea of guilty to the First Superseding Information. (Doc. No. 473)

The October 24, 2014 Order also provided that the Government may exercise its right to move for reinstatement of the Second Superseding Indictment which was filed on November 6, 2012. On January 8, 2015, a Third Superseding Indictment was filed. (Doc. No. 483) Scott filed a Motion to Dismiss or Consolidate Counts 4 and 6 of the Third Superseding Indictment on February 17, 2015. (Doc. No. 486) The Government filed a response indicating the motion was moot since a Fourth Superseding Indictment was filed on February 19, 2015 which addressed Scott’s concerns in his Motion to Dismiss. (Doc. Nos. 488, 494). No reply by Scott was filed to the Government’s response.

The Fourth Superseding Indictment filed February 19, 2015 as to Scott alleges: Conspiracy to Distribute and to Possess with Intent to Distribute More than 5 Kilograms of Controlled Substance-Cocaine, 21 U.S.C. §§ 846; 841(a)(a) (Count One); Maintaining a Drug-Involved Premises, 21 U.S.C. § 856(a)(1) (Count Two); Possession of Cocaine Base With Intent to Distribute, 21 U.S.C. § 841(a)(1) (Count Three); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, 18 U.S.C. § 924(c)(1)(A) (Count Four); Unlawful Use of a Communication Facility, 21 U.S.C. § 843(b) (Count Five); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, 18 U.S.C. § 924(c)(1)(A) (Count Six); Maintaining a Drug-Involved Premises, 21 U.S.C. § 856(a)(1) (Count Seven); and, Conspiracy to Distribute and to Possess with Intent to Distribute a Controlled Substance-Marijuana (Count Eight). (Doc. No. 488)

This matter is before the Court on Scott’s Third Motion to Dismiss involving the same two firearm charges. (See, previous Orders Denying Motions to Dismiss, Doc. Nos. 332 and 481)[1] A response brief has been filed by the Government.

II. ANALYSIS

A. Absence of Conspiracy to Distribute Marijuana Charge

The Sixth Circuit has held that a superseding indictment “supplants the earlier indictment and becomes the only indictment in force.” United States v. Goff, 187 F. App’x 486, 491 (6th Cir. June 27, 2006). However, a superseding indictment does not moot a pending motion to dismiss where the superseding indictment “did not materially alter the nature [and] scope” of the charged offense. Id. The Court reviews both the Third and Fourth Superseding Indictments.

In his current Motion to Dismiss, Scott claims that Counts Four and Six of the Third Superseding Indictment are fatally flawed in that there is no allegation of “conspiracy to distribute and possess with intent to distribute marijuana.” Count Four of the Third Superseding Indictment alleges a violation of 18 U.S.C. § 924(c)(1)(A), Possession of a Firearm in Furtherance of a Drug Trafficking Crime:

That on or about July 9, 2010, in the Eastern District of Michigan, Southern Division, on Yonka Street in Detroit, Michigan, the defendant, AARON LAMONT SCOTT, did knowingly and unlawfully possess a firearm, that is, a ROMARM/CUGER, Model SAR-1, 7.62 caliber rifle, bearing serial S1-12321-99, which is a semi-automatic assault weapon, in furtherance of the drug trafficking crimes of conspiracy to distribute and possess with intent to distribute marijuana, or possession of a cocaine base with intent to distribute as alleged in Count Three of this indictment, in violation of Title 18, United States Code, Section 924(c)(1)(A).

(Doc. No. 483, Count Four)(italics added). Count Six in the Third Superseding Indictment alleges:

That on or about July 9, 2010, in the Eastern District of Michigan, Southern Division, on Wexford Street in Detroit, Michigan, the defendant, AARON LAMONT SCOTT, did knowingly and unlawfully possess a firearms, that is, one .25 caliber Taurus Handgun, bearing serial number DRL24482, one Olympic Arms semi-automatic AR-15 rifle, bearing serial number T3294, and one Hawk Industries 12-gauge shotgun, bearing serial number 0000391, in furtherance of the drug trafficking crimes of conspiracy to distribute and possess with intent to distribute marijuana, or conspiracy to distribute and possess with intent to ...

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