United States v. Felton

Decision Date18 May 1984
Docket NumberCrim. No. 83-49.
Citation592 F. Supp. 172
PartiesUNITED STATES of America v. Dean K. FELTON, Nancy E. Bruce, John Zorak a/k/a Johnny, Anthony Serrao a/k/a Buddy, Richard Cox a/k/a Ricky, James Thurman, John Hathorne.
CourtU.S. District Court — Eastern District of Pennsylvania






Linda Kelly, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.

W. Thomas McGough, Jr., Pittsburgh, Pa., for Dean K. Felton.

Kim William Riester, Pittsburgh, Pa., for Nancy E. Bruce.

Robert C. Gallo, Pittsburgh, Pa., for John Zorak.

Charles F. Scarlata, Pittsburgh, Pa., for Anthony Serrao.

Stephen M. Sokol, Pittsburgh, Pa., for Richard Cox.

Dennis Clark, Pittsburgh, Pa., and William Schiller, Atlanta, Ga., for James Thurman.

Robert Eddins, Pittsburgh, Pa., for John Hathorne.


DIAMOND, District Judge.

Presently before this Court are a number of pretrial motions filed by the several defendants in the above-captioned case. The motions will be considered by defendant, although some overlap does exist.


Defendant Dean K. Felton has moved to dismiss the following counts on the following grounds: (1) Counts One and Two as violative of his statutory right to a speedy trial; (2) Counts One through Ten as violative of his constitutional right to a speedy trial and as unconstitutionally vague; and (3) all but one of Counts Three through Seven and Ten as impermissibly multiplicitous.

After reviewing the defendant's motions, the two indictments involved, and the briefs of the defendant and the government, this court concluded that the defendant had made a prima facie nonfrivolous claim that Counts One and Two of the instant indictment at Criminal No. 83-49 were the same as, or required to be joined with, those contained in Count One of an earlier indictment filed at Criminal No. 79-121. In order to resolve the genuine issues raised under the Speedy Trial Act of 1974 (hereinafter sometimes the "Act"), 18 U.S.C. §§ 3161-3174 (1982), a hearing was held. See United States v. Novak, 715 F.2d 810 (3d Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984); United States v. Inmon, 568 F.2d 326 (3d Cir.), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1977). From that hearing held on July 14 and 15, 1983, the following facts appear.

On June 4, 1979, federal agents executed a search warrant at the premises of Antiques International in Plum Borough, Pennsylvania, and recovered quantities of marijuana from the premises and from two vehicles found there. Seven people were arrested at that time: Dean Felton, Keith Felton, Angelica Felton, Gary Golden, Robert Wilson, John Bokros, and Patricia Dick.

On June 28, 1979, a federal grand jury sitting in this district returned a four count indictment against those individuals at Criminal No. 79-121. Count One charged a conspiracy among the seven defendants in violation of 21 U.S.C. § 846, which allegedly began on or about May 24, 1979, and which continued up to the date of the arrest, June 4, 1979. Seven overt acts were specified, and it was alleged that the named defendants also had conspired with "others to the grand jury unknown." Counts Two and Three charged Keith Felton, Angelica Felton, John Bokros, and Gary Golden with possession with intent to distribute the marijuana which had been seized from the automobiles. And Count Four charged Dean Felton, Robert Wilson, and Patricia Dick with possession with intent to distribute the marijuana found on the business premises of Antiques International.

On January 9, 1980, the Honorable Paul A. Simmons of this court, to whom that case had been assigned, entered orders disposing of all pretrial motions, including orders suppressing the evidence seized from the vehicles on June 4, 1979.

The government appealed from the suppression orders, but when the orders were affirmed on appeal, it moved to dismiss Counts One, Two, and Three of the indictment at 79-121 "for the reason that the interests of justice no longer necessitate further prosecution" on those counts. That motion was granted, leaving Count Four outstanding, which named only Dean Felton, Patricia Dick and Robert Wilson as defendants. On May 11, 1981, Robert Wilson1 and Patricia Dick pleaded guilty to the remaining count, and a jury trial commenced as to Dean Felton. That trial ended on May 21, 1981, with a verdict of guilty.

On May 13, 1981, Pennsylvania state police executed two search warrants, one at a warehouse leased to Dean Felton in Pittsburgh, Pennsylvania, at a place known as the Kutz Industrial Park, and the other at a residence located at 225 Sagamore Avenue, Pittsburgh, Pennsylvania. The state police found and seized 12,410 lbs. of marijuana in a truck at the warehouse and 947 lbs. of marijuana in the basement of the home on Sagamore Street.

On May 14, 1981, during the trial at Criminal No. 79-121, Dean Felton was arrested by state authorities. He was charged by the Commonwealth of Pennsylvania with possession of marijuana, possession of marijuana with intent to distribute, and conspiring with one James Constantine to distribute marijuana. These charges related to the marijuana seized at the Kutz Industrial Park. Also charged on that day were James Constantine and Alma and Emily McCaffery, occupants of the Sagamore Avenue house.

On July 1, 1981, Judge Simmons sentenced Dean Felton at Criminal No. 79-121 to five years in the custody of the Attorney General, fined him $10,000, imposed a special parole term of twenty years, and revoked his bond pending appeal.

On July 15, 1981, the Allegheny County, Pennsylvania, District Attorney filed criminal informations against Dean Felton, James Constantine, Alma McCaffery and Emily McCaffery. All four defendants were charged with possession of marijuana and possession of marijuana with intent to deliver, and Dean Felton and James Constantine also were charged with conspiring, on or about May 13, 1981, to possess 12,410 lbs. of marijuana. All four informations were scheduled for a joint trial to commence on September 21, 1981.

On September 17, 1981, however, the District Attorney moved to continue the impending trial, stating:

The Commonwealth of Pa., at the request of the U.S. Attorney's Office has transferred this investigation and subsequent prosecution to the U.S. Attorney's Office but as of this date indictments have not been returned against these defendants by the Federal Grand Jury. The Federal Government is actively pursuing this investigation and will prosecute the above named individuals for the same criminal conduct as charged by the Commonwealth.

The motion was granted and trial was rescheduled to commence on October 29, 1981, but on October 23, 1981, all four informations were dismissed on motion of the District Attorney. In support of those motions, the District Attorney stated that "prosecution in this case is being assumed by the United States Attorney's Office."

Dean Felton, who was in custody, learned of the dismissal of the state charges on October 30, 1981, and promptly filed an objection to that dismissal. In his objection, he alleged that the dismissal of the state charges in anticipation of federal prosecution violated his state and federal rights to a speedy trial. He demanded that the court vacate the dismissal and order those charges to proceed to trial. The motion was denied.

On March 31, 1983, shortly after Dean Felton had been released from federal custody under the sentence imposed on July 1, 1981, the instant ten-count indictment was returned. Count One of that indictment charges that Dean Felton, Nancy E. Bruce, John Zorak, Anthony Serrao, Richard Cox, James Thurman, John Hathorne, "and others to the grand jury known and unknown," conspired "from on or about the beginning of 1979 through on or about May 13, 1981," to distribute marijuana in violation of 21 U.S.C. § 846. Count Two charges that in violation of 21 U.S.C. § 848 Dean Felton, "in concert with at least five other persons," engaged in a "continuing criminal enterprise" over the same time period as the conspiracy charged in Count One.

Counts Three through Seven charge Dean Felton with possession with intent to distribute unspecified quantities of marijuana at various times from "in or about the spring of 1979" to on or about the "early part of 1980."

Count Eight charges that on or about October 31, 1980, Dean Felton and Anthony Serrao unlawfully did use an interstate communication facility in furtherance of the conspiracy charged in Count One, in violation of 21 U.S.C. § 843(b). Count Nine is identical to Eight, except that Nine charges Dean Felton and Richard Cox as defendants.

Finally, Count Ten charges Dean Felton and Nancy Bruce with possessing with intent to distribute the 12,000 pounds of marijuana (apparently that allegedly found at the Kutz Industrial Park on May 13, 1981) in violation of 21 U.S.C. § 841(a)(1).

Speedy Trial Act

The defendant Felton contends that Counts One and Two of the instant indictment charge the "same offense or one that was required to be joined with" the conspiracy count earlier charged at Criminal No. 79-121, and that under § 3161(h)(6) of the Speedy Trial Act the time which elapsed under the first indictment prior to its dismissal must be "tacked" on to the present indictment. If this is done, the defendant argues, the statutory period of seventy days within which trial must commence on the instant indictment will have passed, and, therefore, Counts One and Two should be dismissed.

The government responds that the first indictment was returned in June of 1979, prior to the effective date of the mandatory dismissal sanctions of the Act which applied only to those indictments filed on or after July 1, 1980, 18 U.S.C. § 3163(c). Therefore, the government argues, since the mandatory dismissal sanctions did not apply to the...

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