Opinion
Criminal No. 01-169
April 16, 2003
FACTUAL FINDINGS AND CONCLUSIONS OF LAW
Based upon the arguments of counsel and testimony produced on March 10 and March 14, 2003 I make the following findings:
1. On February 1, 2001, defendant Marcellas Hoffman, a/k/a Moe, was charged by Complaint and Warrant with conspiracy to possess with intent to distribute heroin, in violation of Title 21, United States Code, Section 846 and carrying and discharging a firearm during and in relation to a drug trafficking crime, in violation of Title 18, United States Code, Section 924(c)(1)(A)(iii), all for conduct occurring on or about January 20, 2001. The affidavit of probable cause for the Complaint and Warrant was sworn to by Detective Andrew Callaghan before Magistrate Judge Faith Angell. The Complaint and Warrant was docketed in the District Court for the Eastern District of Pennsylvania at case number 01-103M. (See Notes of testimony, March 13, 2003 at 68-69, 76).
2. The federal complaint and warrant was lodged as a detainer with the State of New Jersey where defendant Hoffman was being held on other charges. (See Notes of testimony, March 13, 2003 at 82-85).
3. On March 28, 2001, an indictment was returned by the federal grand jury against defendant Gary Oliver which was placed under seal and docketed in the Eastern District of Pennsylvania at Criminal No. 01-CR-169.
4. On April 18, 2001, the federal grand jury superseded the indictment returned on March 28, 2001 against Gary Oliver and added charges against defendant Marcellas Hoffman. Although this Indictment is entitled Superseding Indictment, it is the first Indictment against Marcellas Hoffman. The criminal docket number remained the same.
5. Defendant Hoffman is charged in Count One of the Superseding Indictment with Conspiracy to distribute and to possess with the intent to distribute in excess of 100 grams, that is, approximately 390 grams of heroin, in violation of Title 21, United States Code, Section 846. Defendant is charged under Title 18, United States Code, Section 924(c) in Count Two with carrying, Count Three with carrying and brandishing, and in Count Four with carrying and discharging of firearms during and in relation to a drug trafficking crime. Count Five charged defendant with possessing a firearm having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of Title 18, United States Code, Section 922(g). This superseding indictment also included a notice of forfeiture.
6. On April 30, 2001, defendant Hoffman was released from the Camden County Prison and taken into federal custody on the federal charges, thus starting the "clock" under the Speedy Trial Act.
7. Defendant Hoffman first appeared in Federal Court the next day, on May 1, 2001, before Magistrate Judge Hart. At his Initial Appearance, held pursuant to Rule 5 of the Federal Rules of Criminal Procedure, the Court denied bail, and granted the Government's Motion for temporary detention.
8. On May 7, 2001, Magistrate Judge Caracappa appointed the Federal Defenders as counsel for defendant Hoffman, accepted defendant's plea of not guilty, and held a detention hearing at which time defendant was ordered detained until trial.
9. On May 18, 2001, Ramy I. Djerassi was appointed as new counsel for defendant Hoffman.
10. On June 14, 2001, defendant Hoffman filed a Motion for Enlargement of Time to File Pre-Trial Motions and for a Trial Continuance. The Government did not oppose the motion, but had an agreement with defense counsel that if the new trial date conflicted with any essential witness' vacation schedule, defense counsel would agree to a further postponement in order to avoid any prejudice to the government.
11. On June 25, 2001, the Court signed an Order for Speedy Trial Act Delay, as to defendant Hoffman, until such time as a hearing on defendant Hoffman's motion is concluded or other prompt disposition is made.
12. On June 27, 2001, the Court granted defendant Hoffman's Motion for a Trial Continuance and scheduled trial for July 30, 2001.
13. On July 10, 2001, the Government filed a Motion for a Trial Continuance based upon the unavailability of essential witnesses.
14. On July 18, 2001, the Court granted the Government's Motion for a Trial Continuance and scheduled trial for October 29, 2001. On this same date, the Court granted a motion of defendant Hoffman for additional time to file pre-trial motions.
15. On October 25, 2001, the Court granted defendant Hoffman's motion to have Ramy I. Djerassi relieved as counsel, admitted new counsel Ronald B. Thompson to practice Pro Hac Vice, and granted defendant Hoffman's motion for a sixty day trial continuance to allow new counsel time to prepare for trial. Trial was then scheduled for January 7, 2002. The appropriate Speedy Trial Act delay was entered.
16. On January 7, 2002, defendant Hoffman again filed a Motion for a Trial Continuance, which was granted by the Court on January 9, 2002, and the appropriate Speedy Trial Act delay was entered.
17. On January 9, 2002, the Court scheduled trial for February 25, 2002.
18. Trial commenced on February 25, 2002, but a mistrial was declared on February 26, 2002. An appropriate delay under the Speedy Trial Act was entered.
19. At a status conference on March 8, 2002, defense counsel advised that he would file a motion to dismiss based on double jeopardy grounds. A new trial date was scheduled for May 20, 2002, in the event the motion was not granted.
20. On March 18, 2002, defendant Hoffman filed a pro se motion for a stay and moved to remove trial counsel and to represent himself.
21. On April 3, 2002, the Court denied defendant's pro se motion and directed Ronald B. Thompson to remain as counsel of record.
22. On May 1, 2002, defendant Hoffman through counsel filed a motion to dismiss the indictment on double jeopardy grounds, which was denied by the Court on May 14, 2002.
23. On May 20, 2002, the Court continued the May 20th trial date finding that the case could not proceed to trial because the Court had been advised that the defendant would be filing a Notice of Appeal of the Court's denial of his double jeopardy motion. Again, the appropriate Speedy Trial Act delay was entered.
24. On June 5, 2002, the Notice of Appeal was filed by defendant Hoffman.
25. On June 26, 2002, the record was certified as complete for purposes of Appeal.
26. On October 29, 2002, while the case was still on appeal and while the District Court had no jurisdiction to act, defendant Hoffman filed pro se a motion to dismiss the indictment for Speedy Trial Act violations.
27. On January 22, 2003, the Court of Appeals for the Third Circuit issued its mandate, and jurisdiction on this case returned to the District Court.
28. On January 27, 2003, the Court issued a Notice scheduling the trial for March 10, 2003.
29. On February 24, 2003, the Government filed a Motion for Continuance of Trial Date due to the unavailability of Assistant United States Attorney Curtis Douglas, who was trying a lengthy trial. Mr. Douglas had been assigned the Hoffman case when the government counsel who prosecuted the original trial left the United States Attorney's Office.
30. After the Court denied the Government's Motion for a Continuance, the United States Attorney's Office assigned this case to Assistant United States Attorney Tina W. Gabbrielli to try on March 10, 2003.
31. On March 6, 2003, the federal grand jury returned a Second Superseding Indictment against defendant Hoffman.
32. Defendant Hoffman is charged in Count One of the Second Superseding Indictment with Conspiracy to distribute and to possess with the intent to distribute in excess of 100 grams of heroin and in excess of 500 grams of cocaine, in violation of Title 21, United States Code, Section 846. Defendant is charged in Count Two with attempting to possess with intent to distribute in excess of 100 grams, that is, approximately 390 grams, of heroin, in violation of Title 21, United States Code, Section 846. Count Three charges under Title 18, United States Code, Section 924(c) the use and carrying of a firearm during and in relation to a drug trafficking crime. Count Four charges a Hobbs Act Robbery, in violation of Title 18, United States Code, Section 1951(a)(b)(1) and (b)(3). Count Five charges use and carrying of a firearm during and in relation to a violent crime, in violation of Title 18, United States Code, Section 924(c). Count Six charges defendant with possessing a firearm having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of Title 18, United States Code, Section 922(g). In keeping with the new charging format for the United States Attorney's Office, the Second Superseding Indictment also included a citation in Count Six to Title 18, United States Code, Section 924(e). The original charging indictment as to Hoffman did not include this cite, yet the provisions of Section 924(e) still applied to him since his past criminal convictions qualify him as an Armed Career Criminal. The Second Superseding Indictment also included a notice of prior convictions and a notice of forfeiture.
33. On March 10, 2003, the defendant was arraigned on the Second Superseding Indictment. The government was prepared to proceed to trial, but defendant Hoffman requested additional time to prepare for trial on the new charges. After conducting a balancing test, the Court granted defendant's motion and entered the appropriate Speedy Trial Act delay.
34. On March 10, 2003, defense counsel adopted defendant Hoffman's two previously filed pro se Motions to Dismiss the Indictment based on Speedy Trial Act grounds. The Court ordered the Government to respond to these motions by March 11, 2003 at 3:00 pm, which the Government did. The Court further scheduled an evidentiary hearing on these motions for March 13, 2003.
35. On March 13, 2003, defendant filed through counsel a Memorandum in Support of the Motions to Dismiss Indictment. After an evidentiary hearing, the Court ordered counsel to submit Proposed Findings of Fact and Conclusions of Law.
A. Defendant's Speedy Trial Contention, at the March 10, 2003 Hearing, Based on the Date the Mandate was Issued by the Third Circuit Court of Appeals.
36. The Speedy Trial Act provides:
If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final, except that the court retrying the case may extend the period for retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within seventy days impractical. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section.18 U.S.C. § 3161(e). The provision of Section 3161(h), referenced in this passage provides that "delay resulting from any interlocutory appeal" shall be excluded in calculating time under the Act. § 3161(h)(1)(E).
37. The "date the action occasioning the retrial becomes final," which is the date on which the 70-day post-appeal period begins, is the date on which the Court of Appeals issues its mandate. United States v. Felton, 811 F.2d 190, 198 (3d Cir. 1987) (en banc). See also United States v. Rivera, 844 F.2d 916, 920 (2d Cir. 1988) (stating consistent position of seven other circuits); United States v. Russo, 550 F. Supp. 1315, 1318 (D.N.J. 1982), aff'd mem., 722 F.2d 736 (3d Cir. 1983).
38. I find that the time it takes for the mandate to issue from the Court of Appeals is irrelevant to the Speedy Trial Act. The Act excludes any period of time in which the district court cannot proceed with the case due to the pendency of an appeal, and in this case that period lasted until January 22, 2003. In Felton, the Third Circuit, sitting en banc, stated: "The purpose of § 3161(e) and subsection (E) is to remove from the Speedy Trial Act calculation periods when the district court justifiably cannot try the defendant's case. When the matter is on appeal, the district court lacks power to proceed, and logically that time is excluded." 811 F.2d at 198.
39. I find that for purposes of the Speedy Trial Act, the 70-day period for retrial of defendant Hoffman did not begin to run until the mandate was actually issued, on January 22, 2003. That period has not yet expired. There has been no violation of the Act in this case.
B. Defendant Contends that the Obtaining of the Second Superceding Indictment was for an Improper Purpose.
40. The Grand Jury's jurisdiction stems from that of the district court. Therefore, if the district court lacks the power to proceed, the Grand Jury would be prevented from proceeding on the superseding indictment. "A grand jury has no existence aside from the court which calls it into existence and upon which it is attending." State of Nevada v. Glickman, 179 F.R.D. 301, 302 (D.NV 1998). "A grand jury does not become, after it is summoned, impaneled, and sworn, an independent planet, as it were, in the judicial system, but still remains an appendage of the court on which it is attending . . . It is and remains a grand jury attending on the court, and does not, after it is organized, become an independent body." Id.
41. Post-indictment action is permitted to identify or investigate other individuals involved in criminal schemes, see U.S. v. Sasso, 59 F.3d 341, 352 (2d Cir. 1995), or to prepare superseding indictments against persons already charged, see, e.g., United States v. Vanwort, 887 F.2d 375, 387 (2d Cir. 1989) (cited in U.S. v. Jones, 129 F.3d 718, 723 (2d Cir. 1997). A superseding indictment may be obtained by the government at any time prior to trial. U.S. v. Edwards, 777 F.2d 644, 649 (11th Cir. 1985); cert denied sub nom. Bolden v. U.S., 475 U.S. 1123 (1986) (cited in U.S. v. Bloom, 871 F.2d 444, 452 (3rd Cir. 1989).
42. Philadelphia Police Detective Andrew Callaghan, assigned to the DEA Task Force, continued to investigate Hoffman's criminal conduct and was able to identify other persons involved in the drug conspiracy and develop corroborative evidence. His investigation included interviewing witnesses, and corroborating information through document exploitation, including the examination of documents in other cases. Through his post-indictment investigation he was able to tie others into this conspiracy. (Notes of Testimony, March 13, 2003, at 71-72). One example of a separate case that Detective Callaghan determined was connected to this conspiracy was the arrest of Alejandro Rivera in Allentown. He recently determined that the drugs seized by the Allentown Police Department were drugs from the charged organization in this case in that they belonged to Juan Rosado, for whom Rivera worked. (Notes of testimony, March 13, 2003, at 80-81).
43. I find that there was no ill motive, negligence, nor deliberate intention to delay trial on behalf of the government in seeking a Second Superseding Indictment. To the contrary, I find that the filing of the new charges was because of additional evidence the government uncovered in its continuing investigation. This new evidence persuaded the government to seek criminal charges against defendant Hoffman in that it believed it could now meet the higher standard of proving guilt beyond a reasonable doubt.
C. Defendant's Allegation that His Rights to a Speedy Trial Were Violated Because the Act was Triggered by Defendants January 25, 2001 Arrest in Camden, New Jersey
44. In Barker v. Wingo, 407 U.S. 514 (1972), in finding for the government in a case involving a five year delay, the Supreme Court set forth a four-part balancing test to determine violations of speedy trial: length of delay, reason for delay, defendant's assertion of his right, and prejudice to the defendant. I find that defendant has failed to meet this test.
45. First, the defendant came into custody on the federal charges on April 30, 2001. The delays in the trial and retrial of this case have all been reasonable. Defendant has filed four motions for trial continuances, including the most recent March 10, 2003 motion. The government filed one motion which was granted because defendant's requested continuance resulted in a trial date on which essential government witnesses were unavailable. (The government's second motion due to unavailability of trial counsel was denied and therefore has no impact). The re-trial was further delayed by defendant's decision to appeal this court's double jeopardy ruling. This appeal also prevented the government from superseding the indictment during the time that the district court had no jurisdiction.
46. Finally, defendant has suffered no prejudice caused by the delay. Defendant's assertion in his pro se motion, but not argued by counsel in his written submission nor at the March 13, 2003 hearing in this matter, that his alibi witness has died, is refuted by the record where defense counsel at the first trial stated that he was not asserting an alibi defense. (Notes of testimony, February 25, 2002, 134-135; Notes of testimony, February 26, 2002, 5-8).
47. Defendant's allegation that he was prejudiced because the Second Superseding Indictment subjects him for the first time to being an Armed Career Criminal is incorrect as the first indictment also charged a violation of Title 18, United States Code, Section 922(g). Defendant has the requisite prior criminal record and has therefore been subject to the sentencing enhancement provisions of Title 18, United States Code, Section 924(e) since the original charges were filed against him.
48. Defendant asserts that a speedy trial violation has occurred due to a failure of the government to promptly provide defendant with his initial appearance and arraignment. I find no such violation as the Speedy Trial Act did not apply until defendant was taken into federal custody on April 30, 2001. According to the official court docket in this case, the defendant first appeared in Federal Court the next day, on May 1, 2001, before Magistrate Judge Hart. At his Initial Appearance, held pursuant to Rule 5 of the Federal Rules of Criminal Procedure, the Court denied bail, and granted the Government's Motion for temporary detention. On May 7, 2001, Magistrate Judge Caracappa appointed counsel for defendant Hoffman, accepted defendant's plea of not guilty, and held a detention hearing at which time defendant was ordered detained until trial.
49. Defendant also alleges that his January 25, 2001 local arrest in Camden, New Jersey was based on Federal charges against him and that the circumstances surrounding his arrest in Camden, New Jersey, should result in a dismissal of his federal indictment. I find no such violation.
50. Defendant was first arrested by Camden Police at approximately 12:45 am on January 21, 2001, mere hours after the shooting of David Vasquez and Juan Rosado which is charged in the federal indictment.
51. The January 21, 2001 arrest, was based on defendant Hoffman's failure to stop at a red light at the intersection of Lansdowne and Haddon Avenues in Camden, New Jersey and the taking of a .22 caliber firearm with hollow point bullets from Hoffman's vehicle. (Notes of testimony, February 21, 2002, at pages 101-107).
52. There was a second arrest of Mr. Hoffman on January 25, 2001, which occurred after he made bail on the January 21, 2001 arrest. Defendant Hoffman was arrested on January 25, 2001, based upon "stop and hold" or "pick up and hold" information contained in an NCIC printout entered by the Philadelphia Police Department, which stated in pertinent part as follows: "Felony vehicle — occupant(s) armed/hold for latents . . . caution armed-dang robbery" and provided the vehicle information for the vehicle defendant Hoffman had been driving when arrested by the Camden Police on January 21, 2001. Camden County Police Department ran the NCIC twice, once on January 23, 2001 and again on January 25, 2001. (Government Exhibits PH8A and PH 8B; Notes of testimony, March 13, 2003, at 35-39; 41-42; 48; 50-51; 58-61, 64-65).
53. Detective Marshall Dwayne Morgan, the assigned Camden County Police Department detective, conducted an investigation and ultimately determined what charges to bring against defendant Hoffman in two separate warrants he prepared after Hoffman's arrest on the evening of January 25, 2001. The first warrant charged Hoffman with resisting arrest, and the second charged him with being a fugitive from justice (Government exhibits PH5 and PH6; Notes of testimony, March 13, 2003, at 32-35, 39-40; 59-61).
54. The arrest of Hoffman and the resulting charges brought against Hoffman by the Camden County New Jersey Police Department on the evening of January 25, 2001, had nothing to do with any conversation with Detective Callaghan or any outstanding federal bench warrant. (Notes of testimony, March 13, 2003, at 40; 64-65).
55. Detective Callaghan spoke with Detective Repa from Camden County Police Department on or about January 21, 2001 and Detective Repa advised Detective Callaghan that Hoffman had been arrested but had made bail. Detective Callaghan testified that he did not know Detective Repa prior to that conversation. (Notes of testimony, March 13, 2003, at 70; 73-74).
56. There are current outstanding charges against defendant Hoffman in Camden County, New Jersey based on the events of January 25, 2001 for use of physical force or violence against Camden County Police officers while resisting arrest, as evidenced by the indictment returned by the grand jury and filed in the Superior Court of New Jersey Law Division Camden County at Indictment Number 1777-06-01. (Government Exhibit PH1; Notes of testimony, March 13, 2003, at 65-66).
57. Even if the Camden Police Officers erroneously believed there were pending federal charges against Mr. Hoffman, I find that once they determined there were no pending federal charges, they made their own local charging decisions with respect to Hoffman. The independent charging decisions of a separate jurisdiction do not affect the Speedy Trial Act in this case. Since the Speedy Trial Act does not begin to run until a defendant is taken into federal custody, 18 U.S.C. § 3161, no violation of the speedy trial act has occurred.
58. In United States v. Luna, 2002 WL 535514 (EDPA), the defendant filed a motion to dismiss the indictment alleging a twenty-month interval between his state arrest and his federal indictment. The district court held:
"[a]lthough the Third Circuit Court of Appeals has not ruled on the issue, at least three appellate courts have decided that the Speedy Trial Act, 18 U.S.C. § 3161(b), is not implicated until a defendant is either taken into federal custody on federal charges or indicted on them. See, e.g., United States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995) (the Act is triggered upon federal arrest that followed a state charge); United States v. Beede, 974 F.2d 948, 950-51 (8th Cir. 1992) (undisputed rule that a state arrest does not start the Speedy Trial Act's clock). "[R]egardless of the degree of federal involvement in a state investigation and arrest, only a federal arrest initiates the running of the time limitation established by the [Act]." United States v. Blackmon, 874 F.2d 378, 381 (6th Cir. 1989).Id. at 2.
59. In United States v. Beede, 974 F.2d 948 (8th Cir. 1992), the Eighth Circuit Court of Appeals held:
it is an "undisputed rule that a state arrest does not trigger the Speedy Trial Act's clock, even if the arrest is for conduct that is the basis of a subsequent indictment for a federal offense. United States v. Mills, 964 F.2d 1186, 1189-90 (D.C. Cir. 1992) (en banc). An arrest on state criminal charges is not turned into a federal arrest merely because the arrest is a product of a joint state-federal investigation or because federal officers participate in the arrest. See e.g. Mills, 964 F.2d at 1192. (It is a "well established principle that a state arrest does not start the clock no matter how extensive the federal involvement in the original arrest").Id. at 950-951.
60. I find that the defendant's allegation that the circumstances surrounding his arrest in Camden, New Jersey should result in a dismissal of his federal indictment is without merit. There has been no Speedy Trial Act violation in this case on the basis of defendant's New Jersey arrest.
Based upon the foregoing I enter the following Order.
ORDER
AND NOW, this 16th day of April, 2003 defendant's Motion to Dismiss the Second Superceding Indictment is hereby DENIED.