U.S.A v. Holmes

• Decision Date: 19 March 2010
• Docket Number: Criminal Action No. 4:09cr85.
• Citation: 699 F.Supp.2d 818
• Parties: UNITED STATES of Americav.Darrell Walter HOLMES, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

699 F.Supp.2d 818

UNITED STATES of Americav.Darrell Walter HOLMES, Defendant.

Criminal Action No. 4:09cr85.

United States District Court,

E.D. Virginia,

Newport News Division.

March 19, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lisa Rae McKeel, Esq., United States Attorney's Office, Newport News, VA, for United States of America.

Larry Mark Dash, Esq., Office of the Federal Public Defender, Norfolk, VA, for Defendant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on several motions submitted by Defendant Darrell Holmes (“Holmes” or “Defendant”). Defendant's motions include: (1) Motion to Dismiss for Lack of Venue; (2) Motion to Dismiss for Lack of Jurisdiction; (3) Motion to Dismiss for Violation of the Military Statute of Limitations; and (4) Motion to Suppress Statements. The Government's Motion to Preclude Defendant from Re-litigating his Motion to Suppress or in the Alternative use Transcript at Motion to Suppress is also before the Court. Prior to oral argument, the Court advised counsel that they should be prepared to present live witness testimony at the suppression hearing, in essence denying the Government's motion. The reasons for denial are provided below. The Court heard oral argument and evidence regarding the remaining motions on February 23, 2010. The matter is now ripe for decision, and for reasons set forth below, the Court DENIES the parties' respective motions.

I. FACTUAL BACKGROUND

From 1999 to 2002, Holmes was an active duty member of the United States Air Force stationed at Yokota Air Base, a United States military installation in Japan. Holmes lived on base with his then-wife, also an active duty member of the Air Force, and their children, including Defendant's step-daughter Jane Doe. On occasion, Defendant cared for the couple's children while his wife attended school. It is now alleged that twice between 1999 and 2002, while alone with the children, Defendant sexually assaulted Jane Doe. At the time of the alleged assaults, Jane Doe was between five (5) and eight (8) years old.

The sexual abuse first became known sometime in 2003 when Jane Doe disclosed to her mother that Holmes had molested her during the time the family lived in Japan. When the mother confronted Holmes with the allegation, he denied any such event. Not long thereafter, Jane Doe recanted and denied any improper behavior on the Defendant's part. Apparently, because Jane Doe disavowed her earlier statements, her mother did not report the incident to authorities at that time. Later, in 2006, while Holmes' former wife was stationed at Holloman Air Force Base in New Mexico, Jane Doe again claimed that Holmes had sexually molested her while in Japan. On December 18, 2006, Defendant's former wife (Jane Doe's mother) contacted the Air Force Office of Special Investigation (“AFOSI”) to report the alleged sexual molestation. Jane Doe was interviewed on December 19, 2006, by members of the AFOSI at Holloman Air Force Base, at which time she described the alleged molestation to authorities.

Meanwhile, following his assignment in Japan, Holmes was stationed at Langley Air Force Base in Hampton, Virginia. Then, in January 2007, Holmes was deployed to Qatar. Holmes returned to Hampton in May 2007 following his deployment. His travel from Qatar to Langley Air Force Base took approximately seventy-seven (77) hours and his flight made multiple stops before arriving in Norfolk at approximately 10:00 p.m. on May 20, 2007. Holmes arrived at home at roughly 11:30 p.m. that evening. Around noon the next day, May 21, 2007, Holmes reported to his commander at Langley Air Force Base and was escorted to the AFOSI to be questioned in relation to the sexual molestation allegations made by Jane Doe. Prior to questioning, the investigating AFOSI agents notified Holmes of the allegations against him and advised him of his rights, including his right to remain silent and to have counsel present. After a nearly two-hour interrogation, Holmes made admissions consistent with the allegations of Jane Doe. At the conclusion of the interrogation, Holmes prepared and signed a statement in which he fully admitted to having sexually assaulted his step-daughter.

II. PROCEDURAL HISTORY

On July 19, 2007, the Air Force ordered a general court-martial of the Defendant for violating Article 125 of the Uniform Code of Military Justice (“UCMJ”). The investigating officer for the military alleged that Holmes had committed sodomy on Jane Doe sometime between January 1, 2000, and December 31, 2000. Defendant sought dismissal of the charge on the grounds that the military statute of limitations barred prosecution. At the time of the Defendant's alleged sexual misconduct, the statute of limitations was five (5) years. In 2003, however, Congress amended the statute of limitations, increasing it to the time when the child reached the age of twenty-five (25). In response to Defendant's motion to dismiss, the investigating officer argued that the recently-amended statute of limitations should be applied retroactively, thus permitting the military to prosecute Holmes for an offense that allegedly occurred more than five (5) years earlier, in 2000.

Sometime thereafter, the military judge learned that the Court of Appeals for the Armed Forces (“CAAF”) would be hearing argument on the question of whether the amendments increasing the statute of limitations for crimes of child sexual assault should be applied retroactively. Accordingly, the military judge held the court-martial in abeyance pending a decision from the CAAF. On February 26, 2008, in United States v. Lopez de Victoria, the CAAF held that the amendments to the statute of limitations do not apply retroactively. 66 M.J. 67 reh'g denied, 66 M.J. 369 (C.A.A.F.2008). Thus, if an individual is charged in a military court-martial with having committed an indecent act with a child prior to the 2003 amendments taking effect, the five (5) year statute of limitations would continue to apply. Following the CAAF's decision, Defendant filed a renewed motion to dismiss on March 12, 2008, which again argued that the statute of limitations had expired and that prosecution was barred. On March 13, 2008, the Convening Authority dismissed the charge against Holmes without prejudice. The dismissal letter was later amended on March 24, 2008, to clarify that the charges had been “ withdrawn and dismissed.” Nothing in the letter expressly explained why the Convening Authority had chosen to voluntarily dismiss Holmes' court-martial.

On April 15, 2008, the Defendant was indicted (“First Indictment”) by a federal grand jury in Newport News on two counts of aggravated sexual abuse of a child, in violation of 18 U.S.C. § § 2241(c) and 7. United States v. Holmes, No. 4:08-cr-34 (E.D.Va. filed April 15, 2008). Defendant was arrested on the First Indictment in the State of Virginia. Not long thereafter, the Government moved to dismiss the First Indictment, ostensibly upon realizing that it was precluded from prosecuting the Defendant because he was still a member of the armed forces, and thus subject to the UCMJ. Accordingly, on May 21, 2008, the First Indictment was dismissed by order of another judge of this Court, though nothing in the dismissal order explicitly explained the reasons for dismissal.

On October 24, 2008, the Defendant was discharged from the Air Force based on the allegations made by Jane Doe. On November 12, 2008, a federal grand jury indicted the Defendant for a second time (“Second Indictment”). United States v. Holmes, No. 4:08-cr-134 (E.D. Va. filed Nov. 12, 2008). The Second Indictment again charged Holmes with two counts of aggravated sexual abuse of a minor, in violation of 18 U.S.C. §§ 2241(c) and 7. Defendant subsequently was arrested in connection with the Second Indictment in Greenville, North Carolina, on November 17, 2008. On December 11, 2008, the U.S. Marshals Service transferred Holmes to the Eastern District of Virginia for prosecution.

On March 2, 2009, Defendant filed several motions, including a motion to dismiss for lack of venue and a motion to suppress statements made to AFOSI agents during his interrogation. On May 22, 2009, Defendant's motions were denied by another judge of this Court. United States v. Holmes, 618 F.Supp.2d 529 (E.D.Va.2009). Thereafter, Holmes entered a conditional plea of guilty and sentencing was scheduled for August 10, 2009. Prior to sentencing, and upon discovery of new information, the judge hearing the matter became concerned about possible res judicata, duplicity, and venue issues that might preclude prosecution. On November 24, 2009, after additional briefing by the parties, the Court from the bench, and by written opinion on December 4, 2009, vacated its earlier decision denying Defendant's motions and granted Defendant's motion to dismiss for lack of venue. United States v. Holmes, 672 F.Supp.2d 739 (E.D.Va.2009).

After the Court dismissed the Second Indictment, Holmes was returned to the U.S. Marshals holding cell on the first floor of the U.S. District Courthouse in Norfolk, Virginia, to be processed for release. While Holmes was still in custody, Federal Bureau of Investigation (“FBI”) Agent Kim Wright (“Agent Wright”) rearrested the Defendant based on probable cause to believe Holmes had sexually assaulted Jane Doe. Agent Wright detained the Defendant until a Magistrate Judge could hear argument on the Government's request for detention. Later that same day, Defendant was brought before the Court. The Court orally granted the Government's request to detain Holmes, and later issued a written order of detention on December 2, 2009. On December 7, 2009, Defendant was indicted by a federal grand jury for a third time (“Third Indictment”) and the case was assigned to the undersigned. The Third Indictment once again charged Holmes with two counts of aggravated sexual abuse of a minor, in...