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United States v. Boston

United States District Court, E.D. Michigan, Southern Division

February 14, 2018



          Nancy G. Edmunds United States District Judge

         This 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.

         I. Statement of Facts

         On July 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).

         On July 10, 2014, search warrants were executed at S&B Computers (and other locations) and Boston Jr. and several of his co-defendants were arrested.

         On 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.

         About a 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.

         Finally, 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.

         After 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 guilty.

         Over 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.

         II. Analysis

         1. Boston Jr. Is Not Entitled To Hybrid Representation

         As the 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).

         2. Boston Jr.'s Post-Plea Motion is Untimely

         Boston 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).

         Here, 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 ...

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