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United States v. Rupp

United States District Court, N.D. Iowa, Cedar Rapids Division

October 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GAGE RUPP, Defendant.

          REPORT AND RECOMMENDATION

          KELLY K.E. MAHONEY CHIEF UNITED STATES MAGISTRATE JUDGE.

         TABLE OF CONTENTS

         I. INTRODUCTION ............................................................................. 1

         II. BACKGROUND ............................................................................... 2

         III. DISCUSSION ................................................................................. 8

         A. Whether the Government dismissed the firearm counts by superseding indictment .......................................................................................... 9

         B. Whether Rule 48(a) applies to the dismissal of some, but not all, of the counts in an indictment ................................................................................ 13

         C. Whether Rule 48(a) requires dismissal of the firearm counts ..................... 14

         IV. CONCLUSION ............................................................................. 23

         I. INTRODUCTION

         Defendant Gage Rupp moves to dismiss two firearm charges (possession of a firearm by a prohibited person and carrying a firearm in relation to a crime of violence) based on a violation of Federal Rule of Criminal Procedure 48(a). Doc. 94. Rupp was charged with these counts originally, but after the Government filed a superseding indictment dropping them, Rupp pleaded guilty to the only charge contained in that indictment (Hobbs Act robbery). After his guilty plea was accepted, the Government obtained another superseding indictment, once again charging Rupp with the firearm charges. Rupp argues that this conduct warrants dismissal of the firearm counts. Doc. 94. The Government resists. Doc. 113. Rupp filed a reply (Doc. 114), and the parties filed supplemental briefs after a hearing (Docs. 119, 122, 123). I recommend denying the motion to dismiss (Doc. 94).

         II. BACKGROUND

         The original indictment contained charges against Rupp and codefendant Cedric Antonio Wright (but not Derrick Ford, who was added as a codefendant later). Doc. 3. It charged Rupp with three counts: possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(3), 922(g)(9), and 924(a)(2) (count 2); Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and 1951 (count 3); and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (count 4). Doc. 3.

         Rupp was arrested on March 27, 2018, and the next day, he appeared before me for his initial appearance and arraignment, where the Government moved for detention. See Docs. 10-11. The trial management order set trial for the two-week period beginning on May 29, 2018, and imposed a deadline of May 8, 2018, to inform the court of an intent to plead guilty. Doc. 14. I ordered Rupp remain detained pending trial after a detention hearing on March 29, 2018. Docs. 16, 18. On April 5, 2018, Rupp was charged in the first superseding indictment[1] with the same counts as in the original indictment, and he waived personal appearance at the arraignment that same day. Docs. 21, 24-26.

         The case proceeded without Rupp's codefendant Wright, who had not yet been arrested. At a status conference on April 25, 2018, Rupp's counsel indicated Rupp was “considering[, ] as an option, pleading guilty to the Hobbs Act charge and going to trial on the firearm counts, ” but counsel asked the court to consider the case as set for trial. Doc. 30. The Government noted that Wright had been arrested on state-law charges in Illinois and that it would seek a writ to gain custody of Wright, and “if that happens soon, that would affect the trial date and the Government would request . . . a joint trial.” Id. The court noted the May trial setting was firm in the absence of new filings. Id.

         In the face of the impending notice-of-plea deadline, on Monday, May 7, 2018, the Government and counsel for Rupp exchanged emails about whether Rupp intended to plead or go to trial. See Doc. 94-2. The Government indicated that it “intend[ed] to return to the grand jury this week (Wednesday) to seek a superseding indictment” adding a conspiracy charge against Rupp, but it “would not do that if [Rupp] plans to plead guilty.” Doc. 94-2 at 2. The Government also noted it was “contemplating dropping the 924(c) given some uncertainty about the gun [and] the need to try to figure which version is accurate.” Doc. 94-2 at 3. Rupp's counsel responded that “we have always stated we would plead to the robbery[] [i]f that is the offer.” Doc. 94-2 at 2. The Government inquired about Rupp pleading “straight up” (without a plea agreement) to the firearm possession charge in addition to the Hobbs Act robbery charge, leaving “[o]ther issues” to “be sorted out later.” Id. Rupp's counsel noted hesitancy “plead[ing] straight up absent some agreement that [the Government] would dismiss the 924(c) [charge].” Id. The Government outlined an informal potential plea agreement that the Government would need to seek approval to offer in which Rupp would plead to robbery and firearm possession in exchange for the dismissal of the § 924(c) firearm count. Id. As an alternative to the agreement, the Government noted:

[I]f [the Government] remove[s] Rupp from the 924(c) in the superseding indictment to be presented to the grand jury this week, as [it is] presently inclined to do, it could theoretically be refiled at a later date, but that is not a certainty. If [Rupp] does not want to agree to any adjustments [related to the firearm as the Government's potential plea agreement outlined], he could then plead to the remaining superseding indictment without a plea agreement.

         Doc. 94-2 at 1.

         The next morning, on May 8, Rupp's counsel informed the Government that he intended to plead “to the Hobbs Act count and go to trial on the firearm counts.” Id. He filed a “Notice of Intent to Plead Guilty to Count 3” (the Hobbs Act robbery charge) “without the benefit of a plea agreement, ” noting that his plea “will still leave counts 2 and 4 [the firearm charges] unresolved.” Doc. 31. Shortly thereafter, the district court filed a trial scheduling order setting trial to begin on May 30, 2018. Doc. 32. Meanwhile, due to upcoming scheduling issues, my chambers had contacted the parties about the status of the case and whether they thought it would proceed to trial as scheduled or whether they would move to continue or resolve the charges by plea. Doc. 94-3. The Government responded that a second superseding indictment would be returned the next day and that “[i]n light of the notice of intent to plead guilty and the anticipated changes in the superseding indictment, [it] do[es] not expect any charges will remain for trial against [Rupp] at this time.” Doc. 94-3 at 1. True to the Government's word, the grand jury returned the second superseding indictment on May 9, 2018 (it was filed on May 10, 2018), ...


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