U.S. v. Porchay
Decision Date | 29 August 2011 |
Docket Number | No. 10–1997.,10–1997. |
Citation | 651 F.3d 930 |
Parties | UNITED STATES of America, Plaintiff–Appellee,v.Jackie E. PORCHAY, Defendant–Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Larry Edward Jarrett, argued, Richardson, TX, Terrence Cain, on the brief, Little Rock, AR, for appellant.Angela Sue Jegley, AUSA, argued, Little Rock, AR, for appellee.Before MURPHY, BYE, and MELLOY, Circuit Judges.MURPHY, Circuit Judge.
This case has a long history. Jackie E. Porchay was indicted in October 2007 for conspiracy to possess with intent to distribute cocaine, conspiring to conduct a financial transaction involving illegal proceeds, and six counts of money laundering. After two mistrials, a jury convicted Porchay of seven of the eight counts in December 2009. The district court 1 sentenced Porchay to concurrent 150 month sentences on each count. Porchay appeals the denial of her motions to dismiss, to suppress, for a mistrial, and for a bond pending appeal, alleging violations of the Fourth and Sixth Amendments, the Speedy Trial Act, and Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). After a thorough review of the record and applicable law, we affirm.
In February 2006 an officer with the Texas Department of Public Safety stopped a white Chevrolet Monte Carlo for speeding. He learned that Harold Kelley was the driver, then checked the registration of the vehicle and discovered that the car was registered to Porchay at 10005 Bradley Drive in Little Rock, Arkansas. A subsequent search of the vehicle revealed $1,700 in cash on Kelley, cocaine powder and a crack pipe in the purse of a passenger named Theresa Speed, $2,600 in the center console, and over $200,000 in the trunk.
After Kelley and Speed were arrested, Kelley agreed to cooperate. He confessed that he had been transporting the money to Dallas to pay $158,000 towards the purchase of 20 kilograms of cocaine. The remainder of the money found in the car, $51,000, was intended for a coconspirator named Frederick Coleman to settle a previous drug transaction. Kelley agreed to lure Coleman to a motel parking lot in a sting operation where federal agents arrested him. Federal agents then executed a search of Coleman's home in Benton, Arkansas and found financial records documenting a number of drug transactions.
In March, FBI agent James Woodie interviewed Coleman regarding the drug distribution scheme. Coleman explained that the Monte Carlo registered in Porchay's name had been modified to contain compartments to conceal drugs. At Kelley's suggestion, Coleman fortified his Benton home with steel security bars and doors. Coleman also told Woodie that Porchay and Kelley lived together at the Bradley Drive address in Little Rock, and that Kelley carried firearms on his person and kept them at the Bradley Drive location.
Woodie then attempted to confirm this information. Public records searches revealed that Porchay had recently purchased a $118,000 home in Benton with metal bars on the inside of the windows. A search of the Pulaski County Assessor's database showed that Porchay also owned four vehicles, including the Monte Carlo in which Kelley and Speed were stopped. The address on each of their registrations was Porchay's home on Bradley Drive. Despite these significant expenditures, Arkansas income tax records showed that Porchay had not filed tax returns in 2005 and had only declared income of roughly $13,000 per year for 2003 and 2004. Based on this information and the statements that Coleman provided, Woodie prepared an affidavit supporting a search warrant for the Little Rock house. A magistrate judge authorized the search, which yielded over $190,000 in cash and some small caliber hand guns licensed to Porchay. Police also seized money counting machines and two vehicles.
The government indicted Porchay in August 2006 on charges of conspiring to possess with intent to distribute cocaine, conspiring to conduct a financial transaction involving illegal proceeds, and numerous counts of money laundering. After the indictment was dismissed due to a misnomer, Porchay was charged in a second superseding indictment. When the government decided to indict an additional codefendant, Yolanda Summons, it filed a third superseding indictment. Porchay was later indicted a fourth time in October 2007 along with a new codefendant, Michelle McBride.
Porchay's first trial began in November 2008. The jury could not reach a unanimous verdict on seven counts of the indictment charging her with drug and money laundering offenses. It acquitted her on one count of illegal use of drug proceeds. The district court declared a mistrial on December 1 and scheduled a second trial on the remaining charges for December 9, just over one week later.
The government moved for a continuance on December 3, 2008 in part because it would be “physically impossible” to produce some witnesses held by the Bureau of Prisons by December 9. It explained that because the witnesses were incarcerated, the United States Marshal required three weeks notice to produce them and it “would plainly be impossible to provide such notice given the current trial date.”
On December 8 the district court granted the government's motion to continue the December 9 trial date on the ground that “essential witnesses, who are incarcerated in the Bureau of Prisons, cannot be made available by the trial date because the U.S. Marshal requires three weeks to produce incarcerated witnesses.” The court granted the motion “[f]or good cause shown,” and found that “[a]ny delay commencing the trial of this case occasioned by this continuance will be excludable under the provisions of the Speedy Trial Act, as provided by 18 U.S.C. § 3161(h)(3)(A).” The court also ordered the trial to begin on May 12, 2009.
After waiting more than seventy days, Porchay moved on April 26, 2009 to dismiss the indictment for lack of a speedy trial. She argued that the government had “failed to identify any essential witness” and that the court had “failed to make a factual determination of whether any witness was essential over Porchay's objections, [so] this case must be dismissed.” On April 30 the government filed its opposition to Porchay's motion to dismiss, stating that its December continuance motion had been grounded on the “unavailability of witnesses, including two witnesses, Fred Coleman and Dondrick James, who were housed at FCI Forrest City, Arkansas,” and that Coleman and James were both essential witnesses because their testimony was “material” to the prosecution's case. It added that the district court had been well “aware of the policy of the United States Marshal requiring three weeks advance notice to transport incarcerated witnesses for trial” because it had granted writs to produce those witnesses for Porchay's first trial.
The district court denied Porchay's motion to dismiss on May 4, 2009. Its order stated that it had “already ruled on this issue [excludable time due to the unavailability of an essential witness] when [it] granted the Prosecution's Amended Motion to Continue Trial Date” on December 8, 2008. Trial began on May 12, 2009 as scheduled, but two days into it the court granted another mistrial because the government had failed to disclose impeachment information about two witnesses. It set the date for a new trial to start the next week in May, but Porchay's counsel moved for a continuance because of other professional and personal conflicts at the time.
Porchay's third trial began on December 10, 2009 and ended with the jury convicting her of the remaining seven counts of the indictment. The district court sentenced Porchay to 150 months in prison. It is from this final judgment that Porchay now appeals. First, she alleges that the district court erred in denying her motion to dismiss for violations of the Speedy Trial Act and the Sixth Amendment. Second, she argues that the court erred in denying her motion to suppress evidence seized in a search of the Bradley Drive home because the affidavit supporting the search warrant contained material misstatements in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Third, she argues that the court abused its discretion in denying her motion to dismiss after the government allegedly committed Brady violations. Fourth, she argues that the court abused its discretion at trial by denying her motion for a mistrial when her former codefendant Kelley invoked the Fifth Amendment in the presence of the jury. Finally, she argues that the court clearly erred in denying her motion for bond pending appeal.
Porchay first contends that the district court erred in denying her motion to dismiss because the government violated her rights under the Speedy Trial Act and the Sixth Amendment. In the context of Speedy Trial Act rulings, we review a district court's legal conclusions de novo, its factual findings for clear error, and its ultimate determination for an abuse of discretion. United States v. Lucas, 499 F.3d 769, 782 (8th Cir.2007) (en banc), cert. denied, 552 U.S. 1281, 128 S.Ct. 1702, 170 L.Ed.2d 515 (2008).
Under the Speedy Trial Act, a defendant must be brought to trial within seventy days from the indictment or the first appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). If the defendant is not brought to trial within this period, the indictment must be dismissed on the defendant's motion. Id. § 3162(a)(2). Excluded from the seventy day limit are delays granted for certain specific reasons. Id. § 3161(h). As relevant here, excludable periods include delays resulting from the filing of pretrial motions, § 3161(h)(1)(D), the unavailability of an essential witness, § 3161(h)(3)(A), the joinder of a codefendant for whom the Speedy Trial Act clock has not yet run, § 3161(h)(6), and a finding by the district court that “the ends of justice ... outweigh the best interests of...
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