United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS THE INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT
G. Edmunds United States District Judge
matter comes before the Court on Defendant Sylvester Boston
Jr.'s Motion to Dismiss the Indictment Due to
Prosecutorial Misconduct. The Court held a hearing on this
matter on February 8, 2018. The Court finds, for the reasons
stated below, Boston Jr.'s post-plea claims lack merit
and are dismissed.
Statement of Facts
1, 2014, a Grand Jury in this District (Grand Jury 14-1)
returned an indictment against Defendant Sylvester Boston Jr.
("Boston Jr.") and several other defendants. The
indictment charged Boston Jr. with conspiracy to possess with
intent to distribute, to distribute and to manufacture BZP
(Count 1); possession with intent to distribute BZP, based on
an August 7, 2013 pill transaction (Count Six); and
conspiracy to possess with intent to distribute and to
distribute heroin (Count Seven).
10, 2014, search warrants were executed at S&B Computers
(and other locations) and Boston Jr. and several of his
co-defendants were arrested.
February 10, 2015, a different Grand Jury (Grand Jury 14-4)
returned a Superseding Indictment against Boston Jr. and
others. The government presented the case to Grand Jury 14-4
because Grand Jury 14-1's term had expired. During its
presentation, the government republished the prior grand jury
transcript by reading material portions of the prior
testimony into the record. Some additional testimony was
intermixed (primarily addressing the July 10, 2014 search
warrant executions and arrests), and questions from Grand
Jury were answered. Of relevance to Boston Jr., the
Superseding Indictment added an 18 U.S.C. § 924(c) count
(Count Two) based on weapons found at S&B Computers and
another weapon found in Boston Jr.'s car.
year later, on February 18, 2016, Grand Jury 14-4 returned a
Second Superseding Indictment (SSI). (See Dkt. 176.)
The SSI clarified the Superseding Indictment for an
anticipated trial of the remaining defendants-Boston Jr., his
father, Sylvester Boston Sr., and Nikito Merchant-relying
upon on the prior grand jury testimony. Of relevance to
Boston Jr., the SSI added a new count (new Count 2), which
addressed Boston Jr.'s July 8, 2013 distribution of
ecstasy (BZP) pills to co-defendant Broaden (who, in turn,
delivered the pills to co-defendant Burt). The SSI also
altered the charge that dealt with the August 7, 2013 pill
delivery (Count 4), changing it from a PWID (possession with
intent to distribute) count to a straightforward distribution
count as it related to Boston Jr.
on May 3, 2016, a Third Superseding Indictment (TSI) was
returned by Grand Jury 14-4. (See Dkt. 196.) The TSI
added co-defendant Merchant to the 18 U.S.C. § 924(c)
count; it changed nothing with respect to Boston Jr.
more delays (all but one attributable to Boston Jr. and his
co-defendants), trial was finally set to begin on July 11,
2017. The day before trial-July 10, 2017-Boston Jr. pled
four-and-a-half months later, Boston Jr. filed the instant
pro se motion to dismiss the indictment. The motion
claims that the indictment was procured by prosecutorial
misconduct, specifically that the government: (a) presented
materially false testimony to the Grand Jury; and (b) allowed
the case agent to mislead the Grand Jury and/or testify
falsely. Boston Jr. also appears to claim that the government
improperly presented unspecified testimony derived from an
unlawful search warrant.
Boston Jr. Is Not Entitled To Hybrid Representation
government submits, there is no right, constitutional or
otherwise, to “hybrid representation - the
representation at the same time by counsel and pro
se.” United States v. Trapnell, 638 F.2d
1016, 1027 (7th Cir. 1980); United States v. Cromer,
389 F.3d 662, 682 n.12 (6th Cir. 2004). Boston Jr. has two
attorneys, although one he has accused of ineffective
assistance of counsel. (Dkt. 321.) Neither were willing to
file the instant motion because it is legally unjustified and
appears to be an attempt by Boston Jr. to delay (yet again)
the proceedings (while he remains free on bond).
Boston Jr.'s Post-Plea Motion is Untimely
Jr.'s motion is untimely. Motions to dismiss based on
“an error in the grand jury proceeding”-including
allegations that the prosecutor presented false testimony to
the grand jury-must be made pretrial as long as the motion
was reasonably available. Fed. R. Crim. P. 12(b)(3)(A)(v);
United States v. Edmond, 815 F.3d 1032, 1042 (6th
Cir. 2016), rev'd on other grounds 137 S.Ct.
1577 (2017); United States v. Rowe, 2014 WL 1577012,
at *2 (E.D. Ky Apr. 16, 2014) (motion untimely after
defendant pled guilty); United States v. Garza, 2016
WL 1594375, at *1 (E.D. Mich. Apr. 21, 2016).
Boston Jr. filed his motion over four months after he pled
guilty and he cannot (and does not) claim that the basis of
his motion was not reasonably available before he pled
guilty. The grand jury transcripts were turned over to Boston
Jr. two weeks before he pled guilty. During this time period,
Boston Jr. had two attorneys working on his case.
See June 30, 2017 D/E (documenting that attorney
James Howarth had accepted the Court's CJA appointment);
see also United States v. Baty, 2015 WL 6470955, at
*1 (E.D. Mich. Oct. 27, 2015) (concluding that the
defendant's post-trial motion to dismiss the indictment
was untimely where, like here, the recording that provided
the basis for the post-trial motion was turned over to
defendant's counsel several weeks before trial). And, the
video-recorded telephone call that Boston Jr. submitted in
support of ...