United States District Court, E.D. Washington
ORDER REGARDING DEFENSE MOTIONS
ROSANNA MALOUF PETERSON, Chief District Judge.
Before the Court are Defendant Mark Allen Person's Motion to Strike, ECF No. 30; Motion to Dismiss for Violation of Right to Speedy Trial, ECF No. 34; Motion for Notice of Government's Intent to Introduce Rule 404 Evidence at Trial, ECF No. 35; and Motion to Compel Grand Jury Transcripts, ECF No. 36. The Court heard argument and considered evidence regarding these motions at a pretrial conference held on March 19, 2015. Mr. Person, who is in custody, was present and represented by Robert R. Fischer. Assistant United States Attorney Stephanie A. Van Marter was present on behalf of the Government. The Court has reviewed the file, has heard from counsel, and is fully informed.
Mr. Person was indicted for mailing threatening letters to a victim identified as B.H., his former girlfriend. See ECF No. 1 at 4-5. The Indictment alleges that between October 2012 and December 2012, Mr. Person sent B.H. two letters that included the statements that he would "give [B.H.] the option of either being [his] friend or a victim" and that "one day [B.H.] will have to deal with [him]." ECF No. 1 at 4.
Although the letters that form the basis of Mr. Person's alleged offense were sent in 2012, under a section entitled "General Allegations, " the Indictment reflects that Mr. Person mailed threatening letters to B.H. beginning in January 2008. ECF No. 1 at 1, 4. The Indictment includes excerpts from letters written in 2008, in which Mr. Person recounts acts of violence that he committed against others. ECF No. 1 at 1-3.
Mr. Person was imprisoned for an unrelated conviction at the time when all of the letters allegedly were sent. According to the Government's briefing, B.H. reported the letters to the U.S. Marshals Service on October 24, 2012. ECF No. 45 at 2-3. However, Mr. Person was not indicted until August 19, 2014. ECF No. 1.
Mr. Person filed four pretrial motions, which the Court will discuss in turn.
1. Motion to Strike Surplusage
Mr. Person moves to strike from the Indictment the excerpts from the 2008 letters, which he characterizes as irrelevant and highly prejudicial. ECF No. 30. Alternatively, Mr. Person requests the Court to ensure that the Indictment is not given or read to the jury.
The Court may strike surplusage from an indictment pursuant to Fed. R. Crim. P. 7(d). "The purpose of a motion to strike under Fed. R. Crim. P. 7(d) is to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges.'" United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988) (quoting United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir. 1983)).
The 2008 letters are relevant to the case against Mr. Person. In order to prove that Mr. Person mailed threatening communications in violation of 18 U.S.C. § 876, the Government must demonstrate that Mr. Person had the specific intent to threaten. United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988). Although not part of the charged conduct, the detailed accounting of prior violent acts that is recorded in the 2008 letters is relevant to the Government's assertion that Mr. Person intended to threaten B.H. in the later letters.
Mr. Person compares the Indictment in this matter to the facts of United States v. Fuchs, 218 F.3d 957 (9th Cir. 2000). In Fuchs, the Ninth Circuit set aside the jury's general verdict because only some of the overt acts asserted in the indictment occurred within the statute of limitations. 218 F.3d at 961. Thus, the jury could have based its guilty verdict on a legally inadequate ground. Id.
Fuchs is distinguishable. Here, although the Indictment refers to the 2008 letters within its "General Allegations, " the charged conduct included in Count 1 of the charging document refers to only the 2012 letters. ECF No. 1. To the extent that Mr. Person is concerned that the jury would return a conviction based on the 2008 letters, which the parties agree are beyond the statute of limitations, Mr. Person may propose a jury instruction specifying that, in order to convict, the jury must find that the prohibited acts occurred within the statute of limitations. See Fuchs, 218 F.3d at 961 ("[T]his defect in the indictment could have been ...