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United States v. Rupp

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

January 3, 2019

GAGE RUPP, Defendant.


          Leonard T. Strand, Chief Judge

         This matter is before me on a Report and Recommendation (R&R) (Doc. No. 133) in which the Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge, recommends that I deny defendant Gage Rupp’s motion (Doc. No. 94) to dismiss charges of possession of a firearm by a prohibited person (Count 4) and carrying a firearm in relation to a crime of violence (Count 7) based on an alleged violation of Federal Rule of Criminal Procedure 48(a). Rupp and the Government have filed objections.[1] See Doc. Nos. 146 and 147. Neither party has responded to the other’s objections. The objections are fully submitted and ready for decision.

         I. BACKGROUND

         Judge Mahoney provided the following background in her R&R:[2]

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 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[3] 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 as 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), charging Rupp only with Hobbs Act robbery. Doc. 38. The second superseding indictment also contained charges against codefendant Ford for the first time. Id. I entered an order on May 9, 2018, indicating that the time until the plea hearing was excluded from the time within which trial must commence under the Speedy Trial Act. Doc. 33.
On May 10, 2018, the Government confirmed by email with Rupp’s counsel that Rupp was not interested in a plea agreement as previously outlined. Doc. 94-4. Counsel for Rupp responded that “given the evidence, [his] client is only willing to plead to the Hobbs Act count.” Id. When he sent this email, Rupp’s counsel had not yet seen the second superseding indictment (it had been returned, but not filed).
Rupp’s change-of-plea hearing and arraignment on the second superseding indictment were held on May 15, 2018. Doc. 43. Rupp pleaded guilty to Hobbs Act robbery before a magistrate judge, who recommended the district court judge accept Rupp’s plea. Docs. 43-44. Before Rupp’s plea had been accepted, on May 17, 2018, the initial appearance and arraignment were held for Rupp’s codefendant Ford, and the court entered a trial management order setting Ford’s trial for the two-week trial setting beginning on July 16, 2018. Docs. 47-48, 50. The docket also indicates that codefendant Wright had been taken into federal custody, but in Illinois, not the Northern District of Iowa. See Docs. 45, 51. On May 22, 2018, the district court accepted Rupp’s guilty plea and, noting “[t]here [were] no counts left to be resolved,” canceled Rupp’s trial scheduled for May 31, 2018. Docs. 54-55.
With no charges pending against Rupp in the second superseding indictment (he merely awaited sentencing) and Wright out of the district, the case proceeded with Ford. Rupp did not participate in a status conference held on June 18, 2018, with the Government and counsel for Ford. Doc. 57. Ford indicated his intent to plead pursuant to a plea agreement on June 19, 2018. Doc. 58. The plea hearing was held on June 26, 2018, and Ford’s plea was accepted by the district court on July 16, 2018. Docs. 70, 85. The plea agreement that was filed indicates that Ford signed it on June 14, 2018. Doc. 71.
The Northern District of Iowa gained custody of Wright, and on June 22, 2018, the court held Wright’s initial appearance and arraignment and set his trial for the two-week setting beginning on August 20, 2018. Docs. 63, 65. Nearly two months after Rupp had filed his notice of intent to plead, on July 11, 2018, the Government filed a third superseding indictment charging him (as it had in the original indictment) with Hobbs Act robbery, which Rupp had already pleaded to (now labeled count 5), possession of a firearm by a prohibited person (now labeled count 4), and carrying a firearm in relation to a crime of violence (now labeled count 7). Doc. 80. For the first time, Rupp was also charged with conspiracy to commit Hobbs Act robbery (count 6). Id. The Government does not dispute Rupp’s representation in the current motion that the evidence presented to the grand jury to obtain the third superseding indictment did not materially differ from the evidence before the grand jury when it issued the original and first superseding indictments. Doc[.] 94 at 2; Doc. 94-1 at 6; Doc. 113-1.[4]
On July 16, 2018, I held an arraignment on the third superseding indictment and status conference with all defendants and their counsel. Doc. 87. The Government explained that it included charges that the defendants had already pleaded to in the superseding indictment because it understands that a superseding indictment technically replaces the prior indictment, which is the reason it is called “superseding.” I inquired whether the Government intended for Rupp to go to trial on count 5 (the Hobbs Act robbery count that he had already pleaded guilty to), and the Government indicated it did not, and Rupp’s counsel stated he had nothing to add. Therefore, when I arraigned Rupp, I asked how he pleaded to the counts in the third superseding indictment with the exception of count 5. I noted that “[p]rior to the Third Superseding Indictment, Defendant Rupp was pending sentencing and was not scheduled for trial with Defendant Wright, who had a trial date of August 20, 2018.” Doc. 88. Wright indicated that “he had intended to request a continuance of the August 20, 2018[] trial date to allow adequate time to prepare for trial,” and I found that he “would be entitled to a new trial date based on the Third Superseding Indictment,” so I “scheduled a trial date for both Defendants for the two-week period beginning September 10, 2018.” Doc. 88. I found “any delay between August 20, 2018, to September 10, 2018, for Defendant Wright should be excluded from speedy trial calculations to allow him to be joined for trial with Defendant Rupp as the case has not been severed.” Doc. 88 (emphasis omitted).
Rupp filed a motion to dismiss the § 924(c) firearm count on August 6, 2018 (which I have addressed by a separate report and recommendation), and he filed the current motion to dismiss on August 8, 2018, arguing that the Government’s use of superseding indictments to dismiss counts abused the grand jury process. Docs. 91, 94. A fourth superseding indictment issued on August 8, 2018, containing the same charges (with the same count numbers) against Rupp as the third superseding indictment. Doc. 99. On August 14, 2018, Wright filed a motion to continue trial, which neither Rupp nor the Government resisted. Doc. 109. Given Wright’s need for additional time to review discovery, as well as the pending motions to dismiss (Rupp’s current motion, as well as Rupp’s and Wright’s motions to dismiss the § 924(c) firearm counts), I granted the motion and continued Wright and Rupp’s trial to the two-week period beginning November 19, 2018, excluding time for purposes of the Speedy Trial Act from August 14, 2018, to the time of the November trial. Doc. 116.
I held a hearing on the motion to dismiss on September 11, 2018, at which Leon Spies, who is codefendant Ford’s attorney, and Cedar Rapids Police Officer John O’Brien testified. Doc. 119. Their testimony indicated that shortly after the robbery, Ford had implicated Rupp in the offense conduct, and the Government had been attempting to work out a deal with Ford in exchange for his testimony against Rupp. In mid-April 2018, neither the Government nor Ford’s attorney could find Ford, and they remained unable to locate Ford until his arrest on May 16, 2018. At the hearing, I also admitted Plaintiff’s exhibits 1-5 (Docs. 113, 121) and Defendant’s exhibits A, B, C-1 to C-3, and D-F (Docs. 94, 95, 120). Doc. 119. I questioned the Government at the hearing on the Speedy Trial Act implications of its argument that the firearm counts in the original indictment had never been dismissed and remained pending through June 2018. At my request, the parties submitted supplemental briefing on this and other issues. Docs. 122, 123.

Doc. No. 133 at 2-8 (footnotes in original).


         A district judge must review a magistrate judge’s R&R under the following standards:

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.

         Any portions of an R&R to which no objections have been made must be reviewed under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court judge] would only have to review the findings of the magistrate judge for clear error”).

         As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

         III. THE R&R

         Judge Mahoney summarized Rupp’s argument as follows:

[T]he Government abused the grand jury process and circumvented Federal Rule of Criminal Procedure 48(a) by charging him with these counts originally, dismissing them through a superseding indictment that omitted these counts, and then, after he had pleaded guilty to the Hobbs Act robbery count and his plea had been accepted, charging him with the firearm counts again through another superseding indictment.

Doc. No. 133 at 8. She then considered three issues in determining whether the firearm counts against Rupp should be dismissed:

• Whether the Government dismissed the firearm counts by superseding indictment
• Whether Rule 48(a) applies to the dismissal of some, but not all, of the counts in an indictment
• Whether Rule 48(a) requires dismissal of the firearm ...

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