United States District Court, E.D. North Carolina, Western Division
MALCOLM J. HOWARD JUDGE
matter is before the court on the following motions filed by
Motion to Dismiss Superseding Indictment for Violation of
Grand Jury Clause of the Fifth Amendment [DE #302];
Motion to Dismiss Superseding Indictment as Time-Barred [DE
Motion to Dismiss Superseding Indictment for Pre-Indictment
Delay [DE #304];
Motion to Dismiss Original and Superseding Indictments for
Destruction of Evidence [DE #305];
Motion to Dismiss the Original Indictment as Voided by the
Superseding Indictment [DE #306];
Motion to Dismiss Count Two of the Original Indictment [DE
Motion to Dismiss (Incorporating Prior Motions to Dismiss as
Effective against Superseding Indictment, including Motion to
Dismiss Superseding Indictment for Failure to State an
Offense) [DE #308].
government filed an omnibus response [DE #309] to
defendant's motions and defendant replied [DE #312].
These matters are ripe for adjudication.
25, 2014, defendant and co-conspirators Cleo Autry and Deric
Harper were charged by a duly empaneled grand jury with
Conspiracy to Commit Offenses against the United States and
Theft of Government Property, in violation of 18 U.S.C.
§§ 371, 641 and 2. [DE #1] . On October 6, 2014,
Autry and Harper pled guilty to counts one and two of the
indictment. [DE #41 and #43].
November 29, 2014, to November 18, 2015, defendant filed ten
pretrial motions [DE ## 44-47, 50-51, 93-96], which were
referred to United States Magistrate Judge Kimberly A. Swank
for review. On January 28, 2016, Judge Swank denied in
substantial part all ten motions. Defendant appealed, and
this court affirmed Judge Swank's rulings.
March 7, 2016, defendant filed a motion to dismiss the
indictment arguing it was deficient for failing to plead all
the essential elements of the offenses charged. [DE #132].
This court found the indictment sufficient and denied
defendant's request for a bill of particulars. [DE #147].
13, 2016, defendant filed another motion to dismiss, this
time arguing count two was duplicitous. By order filed
November 9, 2017, this court found count two duplicitous and
ordered the government to elect, within 21 days, whether it
intended to proceed under a theft of property or receiving
stolen property theory within Count 2. On November 29,
2017, another duly empaneled grand jury in the Eastern
District of North Carolina returned a three-count Superseding
Indictment, which charges the following crimes: (1)
Conspiracy to Commit Offenses against the United States in
violation of 1, 8 U.S.C. § 371 (count one); Theft of
$25, 000 from the Department of Defense in violation of 18
U.S.C. § 641 (count two); and Receipt of Stolen
Property, specifically receipt of what had been stolen from
the Department of Defense by the four other co-conspirators
in violation of 18 U.S.C. § 641 (count three).
January 3, 2018, defendant filed the seven instant motions
challenging the ...