United States District Court, E.D. Louisiana
ORDER AND REASONS
LANCE M. AFRICK, District Judge.
The Court has pending before it a motion filed by defendant, Andre Addison ("Addison"), to dismiss and/or to sever his trial from that of his co-defendants. The government has filed an opposition,  and Addison has filed a reply. This matter is now ripe for decision.
These motions implicate both the above-captioned matter and an earlier-filed criminal case pending in this district against Addison. See United States v. Byron Evans, et al., No. 13-137 (filed May 30, 2013) (Milazzo, J.) (" Evans "). In Evans, Addison was initially charged in a superseding indictment filed on August 2, 2013, with one count of conspiracy to distribute and to possess with the intent to distribute one (1) kilogram or more of heroin and 500 grams or more of cocaine hydrochloride in violation of 21 U.S.C. § 846,  and two counts of using a communication facility in committing, causing, and facilitating the commission of a drug offense, in violation of 21 U.S.C. § 843(b). Subsequently, a one-count second superseding bill of information was issued on July 8, 2014, charging Addison with a single count of possession with the intent to distribute one hundred grams or more of a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
On July 8, 2014, Addison pleaded guilty to the one-count second superseding bill of information. The factual basis for Addison's plea stated as follows:
Count 1 - Drug Trafficking Conspiracy
From on or about January 4, 2013, to on or about January 6, 2013, ADDISON communicated via cell phone with Byron Evans in order to coordinate the purchase and receipt of approximately nine (9) ounces of heroin from Byron Evans. On or about January 6, 2013, ADDISON received nine (9) ounces of heroin in the Eastern District of Louisiana from a drug courier sent by Byron Evans. ADDISON intended to distribute the nine (9) ounces of heroin.
Addison pleaded guilty pursuant to a plea agreement which stated that in exchange for his guilty plea, the government would "request that the Court dismiss any and all remaining charges currently pending against the defendant at the time of sentencing." However, the agreement also stated that it "does NOT preclude the Government from charging the defendant with additional violations of Federal Law, including but not limited to violations of the Controlled Substances Act."
At his rearraignment on July 8, 2014, Addison at first expressed his intent to plead guilty to count one of the second superseding bill of information. During the colloquy conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Assistant U.S. Attorney ("AUSA") J. Collin Sims explained the plea agreement:
MR. SIMS: Yes, Your Honor. In exchange for the Defendant's agreement to plead to Count 1 of the Second Superseding Bill of Information, the Government will request that the Court dismiss any and all remaining charges currently pending against the Defendant at the time of sentencing.
This Plea Agreement does not preclude the Government from charging the Defendant with additional violations of federal law, including, but not limited to, the violation of the Controlled Substances Act.
Later, in response to the court's questions, Addison asked about the plea agreement provision reserving the government's right to bring additional charges:
THE COURT: Do you have any questions?
THE DEFENDANT: Yes, ma'am, I have a question for you. Dealing - dealing with this case, can the Government come back and indict me on any other charges contained in this case?
MR. SIMS: Contained in this case?
THE DEFENDANT: Yes.
MR. SIMS: The Government, by way of -
THE COURT: Mr. Sims, I think what he wants you to make a representation to him, instead of - he was charged with multiple counts in the initial Indictment, and he's now pleading guilty to a Second Superseding Indictment, but there is language in it that says that you can bring other charges.
I think what he's asking you to represent to him in court is whether or not there is any indication that you will bring charges that were perhaps identified in the initial Indictment or First Superseding Bill of Information.
MR. SIMS: Any charges that the Government would bring against Mr. Addison, if we brought additional charges, would be on a different conspiracy and different violation.
To be very clear, the Government does not agree not to charge him with any other violations of federal law, including violation of the Controlled Substances Act.
So outside of this possession with the intent to distribute charge, the Government is free to, by way of this Plea Agreement, free to charge him with any other violations of federal law. The Government does not agree not to do that.
THE COURT: Mr. Sims, I think the question is whether the Government intends to charge him with any violations that were included in the initial Indictment in the First Superseding Bill of Information.
MR. SIMS: That's too generic of a question to answer. The only way I could answer is to say that the Government will not charge this Defendant of a conspiracy with the individuals listed in that Indictment.
MR. SHLOSMAN: Judge, to be perfectly candid with the Court, the way I answered that question when he posed it to me yesterday afternoon was that the Government is not going to be charging him with another crime stemming out of the same set of facts as this case.
MR. SIMS: Correct. The violations are the same. I'm talking about a controlled substances conspiracy is still on the table, just not with these particular defendants out of these particular facts and circumstances.
THE COURT: Does that answer your question.
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you satisfied with that response?
THE DEFENDANT: No.
THE COURT: What is it that you're not clear about?
THE DEFENDANT: I had - I had discussed with my lawyer over at the jailhouse when he come to see me about what I wanted in my Plea Agreement, and we discussed that, and that's why I asked you a question before - before I went over it with my lawyer and Mr. Sims. So that's what I wanted to know about the bringing additional charges on me.
THE COURT: Okay. I just want to make sure we're not talking in so much legalese that we're losing you.
As I appreciate what Mr. Sims has represented to the Court and what the Plea Agreement clearly states is that he can bring charges against you for violation of federal laws, including the controlled substances law, but there was no intent or they will not bring charges related to the facts of this case, that is, the initial conspiracy charged in this Indictment.
THE DEFENDANT: Right.
THE COURT: All right. Is that not satisfactory? THE DEFENDANT: Yes, ma'am. Yes, ma'am.
THE COURT: All right. Do you understand?
THE DEFENDANT: Yes, ma'am.
THE COURT: Sir, you were charged in this Indictment with conspiracy to distribute heroin with Mr. Byron Evans and others, and there are some detailed facts laid out in that initial Indictment.
What I'm understanding, I'm going to ask Mr. Sims to represent that on the record so that we're all on the same page, there is no intent to charge you with violation of controlled substances that come from that set of facts that is identified in the Indictment of this case in the First Superseding Bill of Information, but all bets are off related to any other criminal activity, including controlled substances law.
Have I correctly represented what I understand the agreement to be?
MR. SIMS: Yes, the Government agrees not to charge him with a controlled substances conspiracy arising out of the same facts that ...