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United States v. Taylor

United States District Court, N.D. Georgia, Atlanta Division

January 28, 2019

UNITED STATES OF AMERICA
v.
DERECK TAYLOR (13)

          FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation addresses the following motions filed by Defendant Dereck Taylor:

- Taylor's Second Motion for Bill of Particulars [Doc. 1941];
- Taylor's Motion to Strike Surplusage From Count One of the Second Superseding Indictment [Doc. 1942]; and
- Taylor's Motion to Dismiss Based on Double Jeopardy and Lack of Venue [Doc. 1957].

         For the reasons that follow, it is RECOMMENDED that these motions be DENIED

         I. BACKGROUND

         On April 28, 2016, a grand jury seated in the Northern District of Georgia returned a 55-page indictment charging Taylor and twenty-eight co-defendants in Count One with Racketeer Influenced and Corrupt Organizations Act (“RICO”) conspiracy, 18 U.S.C. § 1962(d). [Doc. 1.] On September 26, 2018 the government obtained a superseding indictment [Doc. 1586], and on October 24, 2018, it obtained a second superseding indictment [Doc. 1750]. The substantive allegations against Taylor, which remain largely unchanged from the initial indictment, are as follows:

         The indictment alleges, among other things, that Taylor was a member of the Gangster Disciples (the alleged RICO enterprise) and provided security for co-defendant Vertuies Wall, another alleged Gangster Disciples member. [Doc. 1750 at 32 (Overt Act 82).] The indictment further alleges that on December 12, 2014, Taylor, Wall, and other Gangster Disciples members met outside a nightclub in Macon, Georgia, known to be frequented by rival Crips gang members. [Id. (Overt Act 81).] Taylor allegedly retrieved a firearm from Wall [id. (Overt Act 82), and then Wall, Taylor, and other Gangster Disciples entered the nightclub and provoked an altercation with the Crips [id. at 33 (Overt Act 83)]. Allegedly, Crips gang members retaliated, and during the exchange, a Gangster Disciples member shot and killed a Crips member. [Id. at 33 (Overt Act 84).] More gunfire was exchanged, killing two other individuals and injuring three more. [Id.] The next day, Wall allegedly told Taylor to arrange for a false police report to be filed stating that Wall's handgun had been stolen before the shooting, when in fact he possessed that firearm during the shooting. [Id. at 33 (Overt Act 85).] The indictment additionally alleges that at a separate event on March 1, 2015, Taylor “and another Gangster Disciples member shot at individuals in a vehicle after getting into an altercation with them at a nightclub.” [Id. at 34 (Overt Act 90).]

         The deadline for Taylor to file pretrial motions was July 26, 2017. [See Doc. 936 (setting deadline to file pretrial motions).] Nevertheless, following the return of the second superseding indictment in October 2018, Taylor filed three additional pretrial motions. Specifically, on November 21, 2018, Taylor filed a Second Motion for Bill of Particulars, in which he seeks additional information concerning the overt acts in the second superseding indictment that mention him. [Doc. 1941.] The following day, on November 22, 2018, he filed a Motion to Strike Surplusage From Count One of the Second Superseding Indictment, urging the Court to strike large swaths of Count One of the second superseding indictment on the grounds that the language is prejudicial to him and irrelevant. [Doc. 1942.] Finally, on November 29, 2018, Taylor filed a Motion to Dismiss Based on Double Jeopardy and Lack of Venue, in which he maintains that his federal prosecution violates the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and that venue is improper in this Court. [Doc. 1957.] On January 10, 2019, these motions were referred to me for a report and recommendation. [See Dkt. Entry dated Jan.10, 2019.] The government has responded to the motions. [See Docs. 2100 (response to second motion for bill of particulars), 2101 (response to motion to strike), 2102 (response to motion to dismiss).]

         II. SECOND MOTION FOR BILL OF PARTICULARS

         In his second motion for a bill of particulars, Taylor contends that he “needs more information about the overt acts that he allegedly committed to adequately prepare his defense” and specifically requests detail concerning some of the Overt Acts in which he is mentioned-namely Overt Acts 81, 82, and 90. [Doc. 1941.] Taylor also argues that he needs clarification concerning Overt Acts 81 and 82 because he entered a plea under North Carolina v. Alford, 400 U.S. 25 (1970), in the Superior Court of Bibb County, Georgia, to charges arising out of the events giving rise to Overt Acts 81 and 82-namely, the shooting at the nightclub in Macon, Georgia.[1] [Id. at 5.] He maintains that additional detail concerning those Overt Acts “will allow [him] to further evaluate the merits of a double jeopardy motion and whether he should receive a concurrent sentence if he is convicted of his alleged role in this federal RICO conspiracy.” [Id. at 6.]

         As a threshold matter, this motion is due to be denied as untimely. All the arguments that Taylor raises in his second motion for a bill of particulars could have been raised before the pretrial motions deadline of July 26, 2017. [See Doc. 936 (setting deadline to file pretrial motions).] The overt acts at issue in Taylor's motion were included in the initial indictment as Overt Acts 75, 76, and 84. [Compare Doc. 1 at 31-32 (Overt Acts 75, 76, 84), with Doc. 1750 at 32, 34 (Overt Acts 81, 82, 90).] Indeed, Taylor's first motion for a bill of particulars, which has been ruled on, requested detail (albeit slightly different detail) concerning those very overt acts. [See Doc. 1026.] His Alford plea argument could also have been raised by the motions deadline. Taylor entered the plea on August 5, 2016, nearly a year before filing his first motion for a bill of particulars in July 2017. [See Doc. 1941-2 (state court judgment).] Taylor gives no reason for the delay, nor has he requested leave to file an out-of-time motion. Accordingly, the motion should be denied as untimely.

         But even considering the merits of Taylor's motion, the motion should still be denied. As discussed in this Court's ruling on Taylor's first motion for a bill of particulars, he is not entitled to particularized detail about these or any other overt acts because overt acts are not elements of a RICO conspiracy. See United States v. Taylor, No. 1:16-CR-145-TWT-JKL-13, 2018 WL 5091915, at *2 (N.D.Ga. Mar. 23, 2018), report and recommendation adopted, 2018 WL ...


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