The opinion of the court was delivered by: Chief Judge Kane
Before the Court are Defendant Earl Sampson's ("Sampson") motions to dismiss counts of the indictment (Doc. No. 1082), and suppress physical evidence (Doc. No. 1127). These motions are ripe for disposition. For the reasons that follow, the motions will be denied.
On September 27, 2007, the Government filed an indictment charging Earl Sampson and other individuals with various drug trafficking crimes. (Doc. No. 1.) Specifically, Sampson was charged in Count One of the indictment with conspiring with co-defendants to distribute and possess with intent to distribute more than five grams of crack cocaine and more than five hundred grams of cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(ii), 841(b)(1)(B)(iii), and § 860(a). Counts 19 and 21 charged Sampson and co-defendant Dorothy Robinson with the substantive offenses of distribution and possession with intent to distribute crack cocaine in a protected zone within 1000 feet of public housing, and aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), and 18 U.S.C. § 2. On August 14, 2008, a third superseding indictment was filed, which included additional defendants and charges and expanded the time frame of the alleged conspiracy, but essentially realleged the same charges against Sampson in the same numbered counts. (Doc. No. 435.)
Defendant Sampson's part of this case was recently reassigned to this Court from Judge Thomas Vanaskie. During the course of these proceedings, Sampson has filed numerous pre-trial motions through his various attorneys, including a motion to suppress evidence (Doc. No. 302) that was denied by Judge James McClure, Jr. over two years ago (Doc. No. 373). Trial in this matter is currently set for June 28, 2010.
II. MOTION TO DISMISS COUNTS IN THE INDICTMENT
Sampson contends that Counts of the indictment should be dismissed or that the Government be forced to choose which Counts to proceed under because the offenses alleged in Counts 19 and 21 of the indictment are multiplicitous to Count 1. Sampson appears to make two arguments for dismissal in his brief in support. As the Government did in its opposition to the motion, the Court will address these arguments separately.
A. Personal Transfer of Controlled Substance
Sampson first argues that a drug distribution charge under 21 U.S.C. § 841 is intended "to punish the actual person who physically transfers possession of a controlled substance to another person." (Doc. No. 1084 at 2.) He suggests that the Government's proof in this case "shows a complete absence of any evidence that Defendant, EARL SAMPSON, physically delivered any controlled substances to anyone on the dates listed in those counts." (Id. at 3.) The Government argues that it is clear that Sampson did not have to personally distribute a controlled substance in the Counts against him because he can also be guilty as an aider and abettor in these offenses. (Doc. No. 1093 at 3-5.)
The Court agrees with the Government. Counts 19 and 21 charge Sampson and his co-defendant Dorothy Johnson with violations of 21 U.S.C. § 841. It also charges a violation of 18 U.S.C. § 2, which provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever, willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Clearly, Sampson can be charged as a principal for drug distribution under this statute if he aided and abetted the offense, as charged in the indictment. As the Government points out, the indictment does not have to specify whether a defendant was the aider and abettor or the principal; a defendant indicted as a principal may be convicted upon proof that he aided and abetted and vice versa. See e.g., United States ...