U.S. v. Falcon

• Decision Date: 24 February 1997
• Docket Number: No. 88-327-CR.,88-327-CR.
• Citation: 957 F.Supp. 1572
• Parties: UNITED STATES of America, Plaintiff, v. Augusto FALCON, Defendant.
• Court: U.S. District Court — Southern District of Florida

957 F.Supp. 1572

UNITED STATES of America, Plaintiff, v. Augusto FALCON, Defendant.

No. 88-327-CR.

United States District Court, S.D. Florida.

February 24, 1997.

Michael Patrick Sullivan and Christopher Clark, Asst. U.S. Attorneys, Miami, FL, for Plaintiff.

Albert J. Krieger, Scott A. Srebnick, Miami, FL, L. Mark Dachs, Miami, FL, for Defendant.

ORDER

MARCUS, District Judge.

THIS CAUSE comes before the Court upon the Defendant's "Post-Trial Motion to Dismiss Indictment and for Judgments of Acquittal or, in the Alternative, for a New Trial" and "Motion to Exceed Page Limit," both filed October 28, 1996. These motions are ripe for resolution. After a thorough review of the record and pleadings, and being otherwise advised in the premises, the Defendant's motion to dismiss, for judgment of acquittal and/or for new trial must be and is DENIED. The Defendant's motion to exceed page limitation is GRANTED.

I.

On September 25, 1996, after a trial before this Court, a jury convicted the Defendant of three counts of making a false statement on an application for acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6), and three counts of receipt of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(h)(1) (the "gun case"). These charges related to conduct alleged to have taken place in 1983 and 1984. Falcon was indicted for the offenses on May 13, 1988, although he was not arraigned on the charges until February 20, 1996. In an Order dated April 19, 1996, the Court denied the Defendant's motion to dismiss the indictment for violation of his constitutional right to a speedy trial. United States v. Falcon, 930 F.Supp. 1510 (S.D.Fla. 1996). The Defendant is to be sentenced for his convictions on February 24, 1997.

With the pending substantive motion, Falcon seeks at least one of three forms of relief. First, he essentially asks this Court to reconsider its ruling on the motion to dismiss in light of developments during the trial. Second, he asks the Court to enter a judgment of acquittal on all counts, based on insufficient evidence. Third, he requests a new trial based on the Court's (1) admission of hearsay testimony concerning the ATF Form 4473's signed in the name of Falcon's alleged alias, Wilfredo Fernandez; (2) incomplete and/or erroneous jury instructions concerning the statutory "likely to deceive" element of the section 922(a)(6) offenses; and (3) incomplete and/or erroneous jury instructions concerning the statute of limitations.

The Court considered, and rejected, all of these arguments during or immediately after the Defendant's trial. In each instance, the Court explained its rulings at some length. For the reasons stated on the record at the close of the Government's case-in-chief and again at the close of the evidence, and upon an independent review of the file, the Court finds that the evidence was sufficient to sustain Falcon's conviction on all of the counts pled in the indictment. The Court also finds no error in its admission of the ATF Form 4473's. That being said, Falcon's other objections require some additional discussion, so we address them in turn.

II.

In its April 19th Order, the Court rejected the Defendant's argument that the indictment should be dismissed based on the Government's failure to arraign and try him on these charges during the over 4½, years between his arrest in October, 1991 and the Spring of 1996.¹ The Court provided the following background to its ruling:

On May 12, 1988, a federal grand jury in the Southern District of Florida returned [the instant] indictment.... A warrant for the Defendant's arrest was issued in conjunction with the return of the indictment.

Between 1988 and October of 1991, the Defendant was a fugitive from justice on these firearms charges, as well as a drug trafficking conviction in the Dade Circuit Court and a separate drug trafficking charge before a California state court. While Falcon was a fugitive, on July 19, 1990, a federal grand jury in the Middle District of Florida returned a superseding indictment charging Falcon with participation in a money laundering conspiracy (the "Jacksonville case"). Ten months later, on April 10, 1991, a federal grand jury in this District returned an indictment charging the Defendant, among others, with multiple narcotics offenses (the "drug case"). Arrest warrants for these federal charges were issued in conjunction with the return of the indictments.

On October 15, 1991, a joint task force of federal and state agents under the direction of the United States Marshals Service located the Defendant in Fort Lauderdale, where he was residing under an assumed name. At the time of his apprehension, the Defendant was wanted on the federal charges documented above, as well as the separate non-federal narcotics cases in Florida and California. On October 16, 1991, members of the Warrants section of the Miami office of the Marshals Service executed the arrest warrant for the drug case and took Falcon into detention. The warrant for the gun charge was not executed at that time. According to James Tassone, Chief Deputy United States Marshal for the Southern District of Florida, the Marshals Service arrested Falcon on the drug charge alone due to a "memorandum of understanding" between the Service and the United States Drug Enforcement Administration ("DEA"), which gave the United States Marshal primary responsibility for the execution of outstanding arrest warrants on DEA fugitives. [However,] the Marshals Service did not have a memorandum of understanding with the Bureau of Alcohol, Tobacco and Firearms ("ATF"), which typically took responsibility for the execution of arrest warrants on fugitives wanted for firearms offenses....

The arraignment [on the drug case] took place before United States Magistrate Judge Ted E. Bandstra on October 16, 1991. The case was then assigned to United States District Judge Federico A. Moreno. Thereafter, the Defendant moved for a trial continuance until November of 1992, again for a continuance of trial from October 19, 1992 until April 19, 1993 and still again (on December 11, 1992) sought a continuance of the April 1993 setting, all of which the Court granted. On September 29, 1993, the Defendant again moved to continue the drug trial. Judge Moreno denied the application, but, on September 30, 1993, granted a defense motion to suppress evidence, prompting an interlocutory appeal by the Government and resulting in an extensive delay of the trial proceedings while the matter was pending before the Court of Appeals. The Eleventh Circuit issued its Order on the interlocutory appeal on February 21, 1995, at which time the district court set the drug case for trial on October 16, 1995. Thereafter the Defendant sought still another continuance. After more than four months of trial, a jury acquitted the Defendant of all charges on February 16, 1996. On the next business day (February 20, 1996) the Marshals Service executed the outstanding arrest warrant for the gun charge along with a separate arrest warrant for the Jacksonville money laundering case. Falcon was arraigned on the firearms charge on February 20, 1996, and thereafter the case was re-assigned to this Court.

930 F.Supp. at 1511-12 (footnotes and citations omitted). After summarizing these facts, the Court applied the four-part test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the United States Supreme Court identified four factors that are pertinent to a speedy trial analysis: (1) the length of the delay; (2) the reason for the delay; (3) the Defendant's assertion of his speedy trial rights; and (4) the amount of prejudice suffered by the Defendant as a result of the delay. 407 U.S. at 530-32, 92 S.Ct. at 2192-93. Initially, the Court found that the length of the delay was "presumptively prejudicial" and weighed in favor of dismissal. 930 F.Supp. at 1513. Next, the Court found that "the delay was not the product of [bad faith or] carelessness on the part of law enforcement officials. Rather, it was the result of a reasonable decision (supported by the tacit agreement of all of the parties involved) to focus attention on the far more complex and serious drug proceeding." Id. at 1513-14. The Court also noted that "the Defendant himself must accept much of the responsibility for the halting pace of the drug case, in light of his frequent motions for continuance." Id. at 1514. Accordingly, we agreed that this Barker factor weighed in favor of Falcon, "although not to the extent that the Defendant would have us accept." Id. Third, the Court found that Falcon had essentially acquiesced in the Government's delay:

The Supreme Court and the Eleventh Circuit have recognized that a defendant has the "responsibility to assert a speedy trial claim" and that "the failure to assert the right will make it difficult for a Defendant to prove that he was denied a fair trial." United States v. Hayes, 40 F.3d 362, 366 (11th Cir.1994) (quoting Barker, 407 U.S. at 529, 532, 92 S.Ct. at 2191, 2193), cert. denied, ___ U.S. ___, 116 S.Ct. 62, 133 L.Ed.2d 24 (1995); see also Doggett [v. United States], 112 S.Ct. [2686] at 2691 [120 L.Ed.2d 520 (1992)] (indicating that if the defendant had been aware of the indictment years before he was arrested, this fact "would be weighed heavily against him"). There is no dispute that Falcon and his counsel never attempted to invoke his speedy trial rights, or otherwise bring the gun charge to the attention of prosecutors or a court [even though he was aware of the charges against him perhaps as early as 1988]....

Falcon's failure to invoke his speedy trial rights in this proceeding is all the more telling in light of his behavior with regard to the charges pending against him in other jurisdictions. For example, on June 4, 1993 and again on February 10, 1994, Falcon filed a petition for writ of habeas corpus ad prosequendum in the Jacksonville...