U.S. v. Iaquinta
| Decision Date | 22 March 1982 |
| Docket Number | Nos. 81-5167,81-5168,s. 81-5167 |
| Citation | 674 F.2d 260 |
| Parties | UNITED STATES of America, Appellant, v. Sam T. IAQUINTA, Velma E. Shine, Appellees. UNITED STATES of America, Appellant, v. Sam Thomas IAQUINTA, Jr., Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Betsy Steinfeld, Wheeling, W. Va. (Stephen G. Jory, U. S. Atty., Wheeling, W. Va., on brief), for appellant.
Franklin D. Cleckley, Morgantown, W. Va. (James A. Esposito, Fairmont, W. Va., on brief), for appellees.
Before RUSSELL, HALL and MURNAGHAN, Circuit Judges.
Indicted separately for both federal narcotics 1 and firearms violations, 2 the defendant Iaquinta moved to dismiss both indictments under the Speedy Trial Act. 3 The district court, 515 F.Supp. 708, after a hearing, granted the motion to dismiss. The Government has appealed. We reverse.
The prosecution of the defendant arose out of a coordinated state and federal investigation. The investigation was triggered by information supplied by an informer to two federal agents. The informer had been introduced to the federal agents by a member of the West Virginia Department of Public Safety. As a result of the information furnished by the informer, state and federal officers began an investigation the first part of August, 1980, focusing on the narcotics activities of the defendant. 4 However, before the state officers agreed to the investigation, Officer Lucas, who appears to have been the senior state officer involved, sought approval of state participation from the state prosecuting attorney. The state prosecuting attorney was reluctant to give approval in the absence of an understanding that the investigation was to be treated, and any prosecution which resulted from it handled, as a "state case." When officer Lucas assured the state prosecuting attorney that it was understood that "it was going to be a state case," 5 the state prosecuting attorney gave his authorization for state participation. From this point the investigation proceeded as a cooperative effort in which five state officers and two or three federal officers were involved.
A few days after the investigation began the officers developed a plan for the purchase, through an informer accompanied by a state undercover officer, of narcotics from the defendant. Under the plan, the defendant was to be arrested by the state undercover officer at the time of the purchase. The state undercover officer who was to make the purchase was officer Plantz. Before proceeding with the plan, however, officer Lucas again sought authorization from the state prosecuting attorney for implementing the plan. After receiving that authorization the officers proceeded. An arrangement was made between the informer and the defendant for a meeting on the early afternoon of August 7, 1980, with officer Plantz at an apartment in Fairmont, West Virginia. The meeting was had as arranged; the purchase was attempted; and officer Plantz sought to arrest the defendant at the time. The defendant resisted. He and Plantz began to scuffle. During the scuffle both fell to the floor. At this point officer Lucas, who, with other state and federal officers, were maintaining surveillance of the house, rushed into the room where the defendant and Plantz were scuffling and Lucas arrested the defendant. When searched the defendant was found to be armed.
After his arrest the defendant was retained at the house for about two hours until the officers, armed with a search warrant issued by a state magistrate on the basis of an affidavit by a state officer, searched the defendant's residence, which was but a few doors from the dwelling where the defendant had been arrested. As a result of the search conducted under the supervision of officer Lucas, narcotics were seized by the state officers, who dispatched the seized contraband to the state laboratory for analysis. The seized contraband has since been retained in the custody and control of the state authorities and was in such custody at the time of the hearing in the district court on this motion. At the time of the search six firearms were also discovered and taken by the federal officers.
Following the completion of the search, the defendant was taken by a single state trooper in a state car to the state police barracks where the defendant remained for a short time. State and federal officers made some inquiries of the defendant during this time. The only inquiries directed at the defendant by the federal officers sought the identity of the defendant's source of supply in Florida. After an hour or so, the defendant was taken from the state police barracks to the chambers of a state magistrate, where he was served with a state arrest warrant issued on the affidavit of a state officer which warrant charged a violation of state narcotics law. Bond was fixed by the state magistrate. The defendant did not make bond immediately and was continued in state custody. A day or so later he did make bond before the state magistrate and at the same time requested a preliminary hearing before the magistrate.
A preliminary hearing before the magistrate was set on three occasions. The first time the State's witnesses were unavailable and the case was apparently "generally continued" without objection. Counsel who represented the defendant at such hearings was uncertain about whether the State's witnesses were present or not on the second occasion but, in any event, the hearing was again continued without objection. The State's witnesses were available on November 5, 1980, at the third hearing but that hearing was aborted by the defendant's motion to disqualify the sitting magistrate, which motion was granted.
On November 10, 1980, a few days after the preliminary hearing had been aborted by the defendant's motion, the first session of the state grand jury subsequent to the defendant's arrest convened. The state prosecuting officer testified that he was prepared at that time to submit the case for narcotics violation under state law against the defendant to that jury. However, before he could submit the case the state prosecuting officer was telephoned by the United States Attorney. In this telephone conversation the United States Attorney told the state prosecutor that certain information had come into his possession indicating that the further prosecution of the narcotics case against the defendant should be in the federal rather than the state court. He requested an opportunity to discuss the matter with the state prosecutor and that, until such discussion, further steps in the state case be deferred. The state prosecutor agreed.
The meeting of the two prosecutors took place on December 5. The United States Attorney pointed out that, when the defendant had been searched, a paper had been found with a number of telephone numbers written on it. Among such telephone numbers was the office phone number and the unlisted home phone number of the state prosecutor's successor, who was shortly to take office. The federal prosecutor suggested that, under those circumstances, it would be prudent for the state prosecutor "to waive" in favor of a federal prosecution. The state prosecutor testified that, after reflection, he agreed. 6 The United States Attorney proceeded immediately to present to the federal grand jury on December 10 an indictment of the defendant on the federal narcotics charge. The grand jury returned a "true bill" on the same day and the defendant was then arrested by federal officers.
Sometime after the defendant was arrested by federal officers under the federal indictment on narcotics charges, the defendant was indicted on the firearms charges. While the violations on which this indictment was based occurred during the cooperative state and federal investigation, this prosecution was not intended as a part of that cooperative investigation, but was a prosecution for which there was a basis only in federal law.
Such was the status of the case when the defendant moved to dismiss both indictments under the Speedy Trial Act. It was the defendant's position that his arrest on August 7, 1980, by state officers, who were accompanied at the time by federal officers, constituted an "arrest" under the Speedy Trial Act of 1974, and that the failure of the Government to indict him within thirty days of such arrest mandated dismissal of the federal indictments. He, however, makes no contention of a violation of his Fifth or Sixth Amendment rights in connection with any delay in his federal prosecution. 7 The reason for such failure is manifest. The delay in federal prosecution has not caused him any substantial prejudice; and, while he has suggested that the delay was an intentional device to gain a tactical advantage, he has offered no credible evidence to support such a claim nor did the district court make any finding to such effect.
After a hearing, which included testimony in favor of and against the motion, the district court granted the defendant's motion, finding "that the arrest of defendants on August 7, 1980 set into motion the applicable time periods of the Speedy Trial Act with respect to all federal offenses that resulted from or were 'in connection' with the circumstances bringing about the arrest." It based this finding primarily on its conclusion that "the federal involvement in (the investigation and arrest) in August, 1980 was far reaching and much more extensive than would be normally undertaken by federal agents in merely assisting a state prosecution." By way of reinforcement of this conclusion, it said that "the pendency of state proceedings" did not place "a cloud over the federal government's timely prosecution of the defendants ..." nor was the federal government under any "duty or compulsion to delay its prosecution until after the State indicated its intention not to proceed further on the state arrest." It, also, adverts in the...
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