U.S. v. Fullwood, 863

• Decision Date: 11 June 1996
• Docket Number: D,No. 863,863
• Citation: 86 F.3d 27
• Parties: UNITED STATES of America, Appellee, v. Gerald FULLWOOD; Michael Moore, also known as Mike; Richard Austin, also known as Roy Rich; Akali Dennie, also known as Kali; William Penn, also known as Juicey; Anthony Harris, also known as Moonie; Lexus, 1992, ES 300(8), serial number J8VK13T3N0019787, last seen bearing North Carolina license plate number FTR6270, Defendants, Melvin Poindexter, also known as Mel, Defendant-Appellant. ocket 95-1270.
• Court: U.S. Court of Appeals — Second Circuit

Page 27

86 F.3d 27

UNITED STATES of America, Appellee, v. Gerald FULLWOOD; Michael Moore, also known as Mike;

Richard Austin, also known as Roy Rich; Akali Dennie, also

known as Kali; William Penn, also known as Juicey; Anthony

Harris, also known as Moonie; Lexus, 1992, ES 300(8),

serial number J8VK13T3N0019787, last seen bearing North

Carolina license plate number FTR6270, Defendants,

Melvin Poindexter, also known as Mel, Defendant-Appellant.

No. 863, Docket 95-1270.

United States Court of Appeals, Second Circuit.

Argued Feb. 13, 1996.

Decided June 11, 1996.

Steven D. Jacobs, Jacobs, Jacobs & Shannon, P.C., New Haven, Connecticut, for Defendant-Appellant.

Nora Dannehy, Assistant United States Attorney, New Haven, Connecticut (Christopher F. Droney, United States Attorney for the District of Connecticut; H. Gordon Hall, Assistant United States Attorney, of counsel), for Plaintiff-Appellee.

Before: MAHONEY, WALKER, and CALABRESI, Circuit Judges.

WALKER, Circuit Judge:

Defendant Melvin Poindexter appeals from a judgment of conviction for possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 entered in the United States District Court for the District of Connecticut (Ellen Bree Burns, District Judge ) following the return of a jury's guilty verdict. The principal issue on appeal is whether the district court (Jose A. Cabranes, then-Chief Judge ) should have suppressed Poindexter's post-arrest inculpatory statements in light of the government's delay in presenting him before a magistrate judge or other judicial officer. Poindexter also contends that Judge Cabranes erred in denying his motion to suppress his pre-arrest statement. Poindexter claims that Judge Burns, to whom this case was transferred, erred in denying his pre-trial motion to produce an original audio tape; admitting into evidence at trial a copy of the court's order extending authorization for the interception of wire communications; and precluding him from offering the testimony of a trial witness at sentencing. We affirm.

BACKGROUND

During the late summer and early fall of 1993, the New Haven Drug Gang Task Force (the "Task Force"), a joint federal and state law enforcement task force comprised of local police officers and federal special agents, investigated a major cocaine distribution ring operated by the defendants in the western sections of New Haven, Connecticut. As part of the investigation, on October 29, 1993, Special Agent Michael Wardrop, Detective John Bashta, and Sergeant William White of the New Haven Police Department executed a search warrant at Poindexter's home at 73 Orchard Place, New Haven. During the search, Poindexter was handcuffed and kept in the kitchen for between fifteen and twenty minutes. The agents then took him to an upstairs bedroom where the handcuffs were removed. After being given his Miranda warnings, Poindexter waived in writing his right to remain silent and to consult with an attorney. Poindexter then gave a taped statement in which he admitted involvement with the cocaine distribution scheme. Poindexter was released from custody without being charged.

On March 2, 1994, a federal grand jury returned an indictment charging Poindexter and several others in various counts with conspiracy and substantive cocaine possession and distribution violations. Although most of the defendants named in the indictment were arrested promptly, Poindexter could not be located. On the afternoon of Saturday, March 19, 1994, four members of the Task Force arrested Poindexter pursuant to a federal arrest warrant based on the indictment. None of the officers questioned Poindexter at the time of his arrest. Poindexter was taken to the State of Connecticut Department of Correction lockup at the New Haven Police Department. Later that day, Special Agent Williams informed an Assistant United States Attorney of Poindexter's arrest.

Despite the availability of a magistrate judge during the weekend, Poindexter was not brought before a judicial officer until 10:30 a.m. on Monday, March 21, 1994. The previous morning, Sunday, March 20, 1994, Poindexter contacted corrections staff and asked to speak with members of the Task Force. Two hours later, Poindexter met with Detective Bashta, Detective David Kendall, and Special Agent Wardrop. Poindexter was advised of his Miranda rights and signed a waiver of rights form. During this interview, Poindexter made several statements implicating himself and several co-defendants in the drug conspiracy scheme.

On January 18, 1995, following a five-day trial at which Poindexter's statements from October 29, 1993 and March 20, 1994 were received in evidence, the jury returned a guilty verdict. On April 13, 1995, Poindexter was sentenced principally to a term of 360 months of incarceration, to be served consecutive to a state sentence that he was serving at the time. Judgment was entered accordingly.

DISCUSSION

I. Motion to Suppress

Findings of fact by the district court are reviewed on appeal for clear error. See United States v. Cropper, 42 F.3d 755, 758 (2d Cir.1994). In reviewing rulings on motions to suppress, the evidence before the district court is viewed in the light most favorable to the government, United States v. Hernandez, 5 F.3d 628, 633 (2d Cir.1993), and factual findings of the court are to be disturbed only where they are clearly erroneous, id. at 632; United States v. Brown, 52 F.3d 415, 420 (2d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 754, 133 L.Ed.2d 701 (1996). We review questions of law de novo. United States v. Moore, 968 F.2d 216, 221 (2d Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992).

A. October 29, 1993 statement

Poindexter contends that the district court erred in denying his motion to suppress his pre-arrest statement of October 29, 1993. We reject Poindexter's claim that the statement was the fruit of an illegal seizure of his person by officers of the Task Force. As the officers arrived to execute the warrant, Poindexter was outside the residence and was entering a vehicle. It was permissible for the officers to require Poindexter

                to reenter his home and to detain him while they conducted a search of the premises pursuant to a valid search warrant.   See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595-96, 69 L.Ed.2d 340 (1981);  Rivera v. United States, 928 F.2d 592, 606 (2d Cir.1991).   It was also prudent for the officers to handcuff Poindexter until they could be certain that the situation was safe.   Once the residence had been secured, the officers removed the handcuffs.   We find that the district court did not clearly err in finding that Poindexter's subsequent statement, given after he had been advised of his Miranda rights, was knowing and voluntary.   See United States v. Caba, 955 F.2d 182, 185 (2d Cir.)  (waiver of Miranda rights valid only if product of knowing and voluntary choice), cert. denied, 506 U.S. 843, 113 S.Ct. 130, 121 L.Ed.2d 84 (1992)
                

B. March 20, 1994 Statement

Poindexter's strongest claim is that the district court should have suppressed his post-arrest statement of March 20, 1994. Poindexter argues that this statement was obtained by the government during an unreasonable delay between his March 19 arrest and his March 21 presentment before a magistrate judge for arraignment. Although we are troubled by the delay in Poindexter's arraignment, we affirm because his statement was wholly voluntary.

At the suppression hearing, the district court learned that the arresting officers had believed Poindexter was in state custody. Their reasoning was that Poindexter's arrest on a federal warrant was also a violation of his state supervised home release status on a prior state conviction, which would have authorized his detention by the state. In particular, one officer testified that because a "Do Not Release" sticker was put on Poindexter's file so that he would be held without bond pending the next state hearing for the violation, the Task Force believed that there was no duty to arraign him promptly. At the conclusion of the hearing, the district court found that the government did not purposefully delay bringing Poindexter before a judicial officer. The district court additionally found that Poindexter knowingly and voluntarily waived his Miranda rights and that his statements were made knowingly and voluntarily and were not the product of "coercive interrogation." Ultimately, the district court denied the motion to suppress on the ground that Poindexter's arrest and detention were reasonable "based on the defendant's status as a state prisoner."

Poindexter maintains that the government's failure promptly to present him for arraignment violated Fed.R.Crim.P. 5(a), which states in pertinent part:

[A]n officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge or, if a federal magistrate judge is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. § 3041.

However, Rule 5(a) is inapplicable because it applies only where the arrest was made either without a warrant or under a warrant issued upon a complaint, and Poindexter's arrest was made under a federal warrant issued upon indictment.

Although not cited by either party, Fed.R.Crim.P. 9(c)(1) applies to the present case. This provision, applicable to persons arrested pursuant to an arrest warrant, states in pertinent part:

The officer executing the warrant shall bring the arrested person without unnecessary delay before the nearest available federal magistrate judge or, in the event that a federal magistrate judge is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C....