(“Were we to adopt [defendant’s] broad view, the government would be unable to return
to the grand jury afler obtaining a conspiracy indictment no matter how narrowly focused
its interrogation; most substantive crimes committed during the course of a conspiracy
also serve to further implicate the perpetrator in the conspiracy itself.”).

The defendant urges this Court to investigate the content of the post-indictment
subpoena’s as the court did in United States v. Flemmi, 245 F.3d 24 (1st Cir. 2001). We
find Flemmi distinguishable as it involved the addition of predicate acts, but no new
counts or defendants. Therefore, there is an even heavier presumption of regularity in this
case than there was in Flemmi, since the superseding indictment in this case adds new
counts to Avila’s previous indictment as well as new defendants. The Defendant has not
succeeded in rebutting this presumption with any particular showing that the
government’s primary or dominant purpose was to gather evidence to support the existing
indictment, Absent any such minimal showing, there is no need for the government to
justify the subpoenas it issued subsequent to the original indictment, and cven less

grounds for dismissing the indictment.

CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss the superseding

indictment [doc. no. 180] is denied.
4
7/26/67
ws y tA Y
HON. RONALD A. GUiMah

United States Judge

SO ORDERED.


purpose of collecting evidence to support an existing indictment. United States v.
Badger, 983 F.2d 1443, 1458 (7th Cir. 1993). However, there is a presumption of
regularity in grand jury proceedings. United States v. Mechanik, 106 §, Ct. 938, 944
(1986); United States v. Johnson, 319 U.S. 503, 513 (1943). Moreover, the Defendant
bears the burden of demonstrating that the government has abused the grand jury process.
United States v. Thompson, 944 F.2d 1331, 1337 (7th Cir. 1991). The inclusion of new
defendants or new charges in a superseding indictment undermines the suggestion that the
grand jury was used for the primary purpose of gathering evidence against a formerly
indicted defendant. See Badger, 983 F.2d at 1458; United States v. Scott, 784 F.2d 787,
792 (7th Cir. 1986).

Avila claims that the government improperly used the grand jury to investigate the
Miranda murder and Avila’s possible alibis, and urges the Court to dismiss the
superseding indictment for this reason. While the grand jury did hear evidence relevant
to existing charges, such as Lisctte Marrcro’s testimony about Avila’s behavior around
the time of the Miranda killing, Avila fails to demonstrate that the government used the
grand jury’s subpoena power for the exclusive, primary or dominant purpose of gathering
evidence to bolster the existing indictment. Not only does the superseding indictment
contain new counts, but it also adds two new defendants. For example, allegations that
Avila conspired to kidnap “Victim B” and that he murdered Miranda to increase his status
as a member of the Latin Kings were not included in the original indictment. Further,
two new defendants, Brown and Christopher, were added as a result of the post-
indictment testimony.

The defendant points out no specific examples of grand jury testimony regarding
his alibis or case in mitigation, but apparently characterizes as improper any questioning
pertaining to the already indicted murder and conspiracy. This reasoning would
unreasonably force the government to abruptly cease all investigation into undiscovered
or unindicted crimes committed in the furtherance of the conspiracy when an indictment

has been issued. See United States v. Thompson, 944 F.2d 1331, 1337 (7th Cir, 1991)


© Minute Onder Porm (06/97)
a

United States District Court, Northern District of Illinois

Name of Sitting Judge
or Magitrate Judge Ronald A. Guzman “than Avipoed Judge
CASE NUMBER 02 CR 464-8 DATE 7/26/2004
CASE USA vs. OMAR AVILA
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY:

qQ) oO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Qo Answer briefto motion due___. Reply toanswerbriefduc___.

(4) oO Ruling/Hearingon_ set fort

(5) oOo Status hearing[held/continued to] (set for/re-set for] on set for at

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at.

(7) im] Trial{set for/re-set for] on at.

(8) im} [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) OI FRCP41(a)(2).

ao ff [Other docket entry) . ENTER MEMORANDUM OPINION AND ORDER: This Court denies

Defendant’s motion to dismiss the superseding indictment [doc. no. 180].

No notices required, advised in open court.

(il)

(For further detail see order attached to the original minute order.]

‘No notices required. hutnber of notices

Notices mailed by judge's staff.

Notified counsel by telephone.

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Copy to judge/magiatrate judge.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

UNITED STATES OF AMERICA, } JUL 27 2008
Plaintiff, ) 02 CR 464-8
Vv. } Judge Ronald A. Guzman
OMAR AVILA, }
Defendant. }

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Omar Avila’s motion to dismiss the superseding
indictment on the grounds of prosecutorial abuse of the grand jury process. In the
alternative, Avila asks that the Court order the government to provide justification for all
subpoenas issued between the filing of the original and superseding indictments. For the

reasons below, the Court denies the motion in its entirety.’

BACKGROUND

On December 18, 2002, an indictment containing twenty-eight counts was
returned against nine defendants.’ Various defendants were charged with engaging in a
pattern of racketeering (“RICO”), a RICO conspiracy and an overlapping drug
conspiracy. Avila was charged with a single count of committing murder in the process
of committing a drug crime under 21 U.S.C. §§ 846, 848(c). Thereafter the government
continued to investigate the conspiracy through the grand jury process, and on March 26,
2003, a superseding indictment was returned, The new indictment adds two defendants,
Charles Brown and Reynaldo Christopher, one new count relating to the Miranda murder,

and also expanded the RICO charge by adding several racketeering acts.

' Richard Carman has moved to adopt Avila’s arguments in support of this motion, and that
motion is also denied in keeping with the Court’s previous rulings.

2 A detailed discussion of the allegations in the indictment is found in this Court’s Memorandum
Opinion and Order entered on July 14, 2004, denying several defendants’ motions for scverance.

1 337


In the superseding indictment, the charges against Avila were expanded. He is
now charged with murder with the intent of increasing or maintaining position in a
criminal enterprise in Count 5. He is also named in a second predicate act, namely
conspiracy to kidnap “Victim B,” which means he is also now charged with RICO, RICO
conspiracy, and the drug conspiracy.

During the grand jury proccedings Icading up to the superseding indictment, the
grand jury heard testimony from several individuals about their knowledge of the
activities of the Carman Brothers Crew. The defendant draws the Court’s attention to a
few examples:? (1) Lisette Marrero, a former girlfriend of Avila’s, was asked about
Avila’s conduct surrounding the time of the Miranda killing, (2) Jose Melendez, Cesar
Casiano, and Ely Martinez were asked to testify about the drug conspiracy already
charged in the original indictment, and (3) Glenda Santiago, a girlfriend of Rinaldo
Christopher, testified about certain statements Christopher had made about a kidnapping
he participated in, Christopher was charged in the superseding indictment, but had not

been indicted at the time Santiago testified at the grand jury.

ANALYSIS
Avila moves to dismiss the superseding indictment on the grounds of
prosecutorial abuse of the grand jury process. He argues that once the original indictment
was filed, it was improper for the government to compel grand jury witnesses to testify
about the drug conspiracy and the Miranda murder. He argues the government, in doing
50, was investigating his defense and otherwise engaging in improper post-indictment,
pre-trial discovery.

The government may not use the grand jury process for the sole or primary

3 Avila’s motion, filed in May of 2003, states that the defense has “not had the opportunity” to
review the entire contents of the grand jury testimony and predicts that the defense will
supplement the motion with additional information about specific instances of grand jury abuse
once a full review has been conducted. However, the Court has not received any supplement to
this motion.