FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 517-479,
SECTION "B" Honorable Tracey Flemings-Davillier,
Cannizzaro, District Attorney Donna Andrieu, Chief of Appeals
Kyle Daly, Assistant District Attorney ORLEANS PARISH
DISTRICT ATTORNEY'S OFFICE COUNSEL FOR APPELLANT/ STATE
Hall Thomas COUNSEL FOR DEFENDANT/APPELLEE.
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Paula A. Brown.
Rosemary Ledet Judge.
criminal appeal, the State seeks review of the district
court's judgment granting the motion to quash filed by
the defendant, Robert Ioveniti. We affirm in part; reverse in
part; and remand.
OF THE FACTS AND CASE
August 4, 2013, Mr. Ioveniti returned to New Orleans,
Louisiana from a cruise to Belize. While disembarking the
cruise ship, a drug-sniffing canine alerted to Mr.
Ioveniti's crotch. Customs officers searched Mr.
Ioveniti's person and discovered 498 pills of
Hydrocodone, 85 pills of Alprazolam, 9 pills of Clonazepam,
23 pills of Diazepam, 25 pills of Sildenafil, and 1.9 grams
of marijuana. As a result, New Orleans Police Department
officers arrested Mr. Ioveniti for violating the Uniform
Controlled Dangerous Substances Law, La. R.S. 40:961, et
seq. (the "UCDSL").
September 17, 2013, the State filed a bill of information
charging Mr. Ioveniti as follows:
Count 1: Possession with the intent to distribute
Hydrocodone, a felony violation of La. R.S. 40:967(A)(1);
Count 2: Possession with the intent to distribute Alprazolam
(also known as "Xanax"), a felony violation of La.
Count 3: Possession of marijuana, a misdemeanor violation of
La. R.S. 40:966(E)(1);
Count 4: Possession of Clonazepam, a felony violation of La.
Count 5: Possession of Diazepam (also known as
"Valium"), a felony violation of La. R.S.
Count 6: Possession of a Sildenafil (also known as
"Viagra"), a felony violation of La. R.S.
February 11, 2014, Mr. Ioveniti moved to quash Counts 1, 2,
and 6, alleging that he had valid prescriptions for
Hydrocodone, Alprazolam, and Sildenafil. The State filed a
written opposition, arguing that Mr. Ioveniti had produced no
admissible evidence to support his motion. Following a
hearing, the district court granted the motion and issued a
written judgment. The State appealed.
State's prior appeal, this court reasoned as follows:
The record fails to show that a contradictory hearing was
held on Mr. Ioveniti's motion to quash. La. C.Cr.P. art.
537 mandates that "[a]ll issues, whether of law or fact,
that arise on a motion to quash shall be tried by the court
without a jury." (emphasis added). Louisiana
jurisprudence has previously held that La. C.Cr.P. art. 537
mandates a contradictory hearing on motions to quash.
State in Interest of M.J., 14-0622, p. 15, fn. 10
(La.App. 4 Cir. 2/4/15), 160 So.3d 1040, 1049 (noting trial
court erred in failing to hold a hearing on the merits of a
motion to quash); State v. Nguyen, 14-639, p. 17
(La.App. 3 Cir. 11/5/14), 150 So.3d 562, 572 (granting a
motion to quash without a hearing was improper); State v.
Sensat, 07-425, p. 4 (La.App. 3 Cir. 11/7/07), 969 So.2d
1274, 1276 (State was entitled to a contradictory hearing on
motion to quash); State v. Stewart, 02-0196 (La.App.
3 Cir. 10/2/02), 827 So.2d 1277, 1281-82 (art. 537 implicitly
mandates a hearing); State v. Lowry, 00-107, p. 6
(La.App. 5 Cir. 6/27/00), 762 So.2d 1275, 1278 (citing art.
537 and remanding for hearing on motion to quash).
In this case, the trial court accepted the filing of Mr.
Ioveniti's motion to quash as well as the State's
brief in opposition to the motion. However, the October 9,
2015 proceeding does not constitute a contradictory hearing
pursuant to La. C.Cr.P. art. 537. The State was not afforded
an opportunity to address the merits or present argument
relating to Mr. Ioveniti's motion to quash. Thus, the
record fails to show that a contradictory hearing was held on
the merits of the motion to quash. For this reason, we find
the trial court erred.
State v. Ioveniti, 15-1356, pp. 2-3 (La.App. 4 Cir.
4/20/16), 194 So.3d 1144, 1145- 46 ("Ioveniti I
"). We therefore "order[ed] that the case
be remanded for a contradictory hearing on the motion to
quash pursuant to La. C.Cr.P. art. 537." Id.,
15-1356 at p. 3, 194 So.3d at 1146.
contradictory hearing on remand, which took place on March
28, 2017, Mr. Ioveniti called no witnesses; instead, he
offered the following exhibits:
• Defense Exhibit 1,  consisting of:
o a one-page document purporting to be a copy of a
prescription for Kodone (presumably, Hydrocodone) and Viagra
and a prescription for Valium and Xanax, both allegedly
written for Mr. Ioveniti by an unidentified physician (the
o a two-page document, entitled "Affidavit of Pharmacist
Authenticating Records of Prescription Medications He
Dispensed, " purporting to have been signed by Raul
Acevedo, allegedly a pharmacist with Free-Town Drug Store in
Belize City, Belize, and purporting to authenticate the
Prescriptions (the "Affidavit");  and
• Defense Exhibit 2: a one-page document, undated,
purporting to be a letter from Mr. Acevedo to the district
court setting forth the circumstances under which Mr. Acevedo
allegedly dispensed a four-month supply of Kodoneto Mr.
Ioveniti on August 1, 2013, pursuant to "a prescription
issued by a doctor [that Mr. Ioveniti] saw at K.H.M.H.[, ]
our local public hospital (the
State offered the following exhibits:
• State's Exhibit 1: a page from the Belize Drug
Formulary and Therapeutics Manual, purporting to set forth
the formal requirements of a prescription in Belize; and
• State's Exhibit 2: a World Health Organization
publication, entitled "Management of Drugs at Health
Center Level, " purporting to set forth the formal
requirements of prescriptions in foreign countries.
conclusion of the hearing, the district court granted Mr.
Ioveniti's motion, stating as follows:
The Court sees no difference in the information previously
provided by the State [sic], that led to this Court's
ruling on October 13, 2015. So, by that very nature the Court
is ruling in the same manner in which it ruled on October 13,
district court then read its previous written judgment into
the record. Subsequently, the district court issued another
written judgment, again granting the motion to quash. This
January 11, 2018, this court, on its own motion, ordered the
district court to "supplement the record on appeal with
all exhibits entered into evidence at the March 28, 2017
hearing on Mr. Ioveniti's motion to quash." In
response, the district ...