U.S. v. O'Neill

• Decision Date: 07 April 1999
• Docket Number: No. 97-CR-98.,97-CR-98.
• Parties: UNITED STATES of America, Plaintiff, v. Kevin P. O'NEILL, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

52 F.Supp.2d 954

UNITED STATES of America, Plaintiff, v. Kevin P. O'NEILL, et al., Defendants.

No. 97-CR-98.

United States District Court, E.D. Wisconsin.

April 7, 1999.

COPYRIGHT MATERIAL OMITTED

Eric J. Klumb, Paul L. Kanter, Milwaukee, WI, for plaintiff.

James C. Reiher, von Briesen, Purtell & Roper, Milwaukee, WI, for Johnson F. Blake.

Robert J. Penegor, Cameron & Penegor, Brookfield, WI, for James E. Hanson.

Mark S. Rosen, Rosen & Holzman, Waukesha, WI, for David A. Kadlec.

Pamela Pepper, Cubbie & Pepper, Ltd., Milwaukee, WI, for Allen J. McVay.

Franklyn M. Gimbel, Gimbel, Reilly, Guerin & Brown, Milwaukee, WI, for Randall E. Miller.

Thomas Halloran, The Schoreder Group, S.C., Waukesha, WI, for William B. Brock.

Charles W. Giesen, Giesen Law Offices, Madison, WI, for Leslie J. Jensen.

Daniel Resheter, Attorney at Law, Milwaukee, WI, for Robert A. Kruppstadt.

Robert G. LeBell, Styler, Kostich, LeBell & Dobroski, Milwaukee, WI, for James E. Meinen, Jr.

Edward J. Hunt, Hunt Law Office, Milwaukee, WI, for Raymond L. Morgan, Jr.

Michael R. Barth, Burlington, WI, for Richard E. Mroch.

Christopher T. Van Wagner, Van Wagner Law Office, Madison, WI, for Harvey E. Powers.

Lew A. Wasserman, Wasserman Law Office, Milwaukee, WI, for James W. Schneider.

William O. Marquis, Milwaukee, WI, for Kevin P. O'Neill.

Dean A. Strang, Fitzgerald & Strang, Milwaukee, WI, for James C. Rostron.

Ann T. Bowe, Bowe Law Offices, Milwaukee, WI, for Carl J. Warneke.

ORDER

STADTMUELLER, Chief Judge.

If wishes were Harleys, defendants, members of the Outlaws motorcycle gang, might ride into the sunset, leaving this case behind ... but wishes are not Harleys, nor do most of defendants' latest objections, which amount to little more than wishes, entitle them to relief. Defendants raise a host of challenges to Magistrate Judge William E. Callahan, Jr.'s November 23, 1998 orders and February 3, 1999 recommendation and order in this, the fourth and final round of motions ("Round IV"), few of which bear fruit. The court will address the issues in the same order as presented by the magistrate where possible.

I. MAGISTRATE CALLAHAN'S NOVEMBER 23, 1998 ORDERS

On November 23, 1998, Magistrate Callahan issued two orders, an "Order Re: Robert G. Lebell's Motion to Withdraw As Counsel" ("LeBell Order"), in which the magistrate denied James E. Meinen, Jr.'s counsel Robert LeBell's motion to withdraw, and an "Order Re: Government's Motion to Confirm and Continue Release and Detention Status of Defendants" ("Detention Order"), in which the magistrate granted the government's motion and ordered that the detention orders and bond conditions previously set under the original indictment shall remain in effect and unchanged under the superseding indictment. Defendants O'Neill, Meinen, McVay, Kruppstadt, Mroch, Hanson, Miller, Morgan, and Blake appeal from the Detention Order (and/or adopted others' appeals), and LeBell appeals from the LeBell Order. The government responds to the defendants' appeals from the Detention Order.

This court postponed ruling on these appeals while the Seventh Circuit contemplated similar issues on the defendants' appeals from this court's October 19, 1998 and November 2, 1998 orders. On December 24, 1998, the Seventh Circuit dismissed the appeals. On February 5, 1999, the Seventh Circuit issued an opinion explaining the reasons for its dismissal, but it declined to address the defendants' central argument, which is the same argument they raise in their appeals from the Detention Order, that the current indictment is not a superseding indictment but rather a new indictment:

The defendants argue vociferously that this was a "new" indictment, because the old one had been dismissed, while the government labels it a "superseding" indictment. While there may be a difference between these two animals, we do not find it important for the matter presently before us, and we therefore decline the invitation to enter this part of the fray. Whatever type of indictment it was, the defendants were arraigned under it on November 19 and 20, 1998.

United States v. Powers, 168 F.3d 943, 945-46 (7th Cir.1999).

The Seventh Circuit also explicitly avoided ruling on the Detention Order, holding that the defendants' notices of appeal "do not suffice to bring before this court any challenge to the magistrate judge's later order of November 23 continuing their detention under the November 10 indictment." Id. at 948-49. The Seventh Circuit thus reserved the consideration of this order for this court:

It is true that the magistrate judge construed that indictment to be a superseding indictment and he concluded that it was not necessary for him to hold new detention hearings. Whether or not the judge properly interpreted the new indictment has nothing to do with the defendants' alleged rights under the October 19 order, which is the only one before us.... [B]oth parties will have ample opportunity before the district court to raise any points they have about the November 10 indictment, the continued detentions, or the merits.

Id. at 948-49. The mandate from these appeals issued on March 18, 1999 after the defendants elected not to file a petition for rehearing. Therefore, this court will now rule on the issues presented by the magistrate's November 23, 1998 orders.

A. The Detention Order

1. "New" Versus "Superseding" Indictment

The defendants first raise the largely semantic issue of whether the November 10 indictment is a "superseding" indictment, as this court, the magistrate, and the government has referred to it, or a "new" indictment, as the defendants wish to call it. The defendants do not rely on any authority in support of their argument other than a single sentence from the dicta of a concurring U.S. Supreme Court opinion stating that "[t]he term `superseding indictment' refers to a second indictment issued in the absence of a dismissal of the first." United States v. Rojas-Contreras, 474 U.S. 231, 237, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring); see also United States v. Hoslett, 998 F.2d 648, 657 n. 11 (9th Cir.1993) (citing the same sentence from Rojas-Contreras); United States v. Long, 900 F.2d 1270, 1275 n. 4 (8th Cir.1990) (same). The defendants, however, neglect to put this dicta into its proper context — Justice Blackmun added in the next sentence that "the [Speedy Trial] Act nowhere refers to a superseding indictment, and seems to assume that dismissal of the first indictment will precede issuance of the second. See 18 U.S.C. §§ 3161(d)(1) and 3161(h)(6)." 474 U.S. at 237, 106 S.Ct. 555 (emphasis added). The point of Blackmun's distinction was simply that he believed that these Speedy Trial Act provisions did not apply to the situation the court faced in that case, not that criminal defendants are entitled to a "get out of jail free" card when indictments captioned as "superseding" indictments are issued after dismissals of original indictments, as defendants argue. Cf. United States v. Duque, 62 F.3d 1146, 1149 (9th Cir.1995) (rejecting contention that because of Rojas-Contreras dicta, second indictment issued before dismissal of first indictment must be a "superseding" indictment).

More importantly, the Seventh Circuit, in discussing the same Speedy Trial Act provisions at issue in Rojas-Contreras, referred to an indictment returned after dismissal of an original indictment as a "superseding" indictment: "[S]ubsection 3161(h)(6) controls a situation where there is an interval between the time the original indictment is dismissed ... and the superseding indictment is returned." United States v. Horton, 676 F.2d 1165, 1170 (7th Cir.1982) (emphasis added); see also United States v. Menzer, 29 F.3d 1223, 1228 (7th Cir.1994) (same); United States v. Badalamenti, No. S.S. 84 Cr. 236(PNL), 1985 WL 2572, at *10 (S.D.N.Y. Sept. 19, 1985) (referring to a second indictment that would be returned after dismissal of a first indictment because of section 2517(5) violations, the same situation as in this case, as a "superseding" indictment). Therefore, the court holds that the second indictment in this case can properly be referred to as a "superseding" indictment.

The superseding-versus-new-indictment issue might have been an interesting and relevant debate if the Speedy Trial Act or the statute of limitations were the focus of defendants' appeals from the Detention Order, because those are the only situations in which it matters whether an indictment is a superseding indictment or a new indictment. See, e.g., Rojas-Contreras, Hoslett, Long. However, defendants fail to present any reason why the semantics of naming an indictment as "new" or "superseding" has any other relevance and instead offer fatuous and totally unsupported contentions such as that this court has no jurisdiction over the defendants if the indictment is called a new indictment rather than a superseding one. Unless the defendants raise statute of limitations or Speedy Trial Act objections in their appeals of the Detention Order, however, which they have not, the second indictment is valid whether it is called the "superseding" indictment, the "new" indictment, or the "blue," "red," or "purple" indictment. As the Seventh Circuit held, "[w]hatever type of indictment it was, the defendants were arraigned under it on November 19 and 20, 1998," 168 F.3d 943, 945-46, and the court thus has jurisdiction over the defendants. Cf. United States v. Marzano, 537 F.2d 257, 271 (7th Cir.1976) (holding that "[o]nce the defendant is before the court, the court will not inquire into the circumstances surrounding his presence there").¹

2. New Detention and/or Bond Hearings

The defendants also argue that they are entitled to new detention and/or bond hearings. Again, even if the court called the second indictment the "new" indictment instead of the "superseding" indictment, which the court does not believe is the required course of action,...