United States v. Holman
Decision Date | 01 March 1980 |
Docket Number | Crim. No. 79-139. |
Citation | 490 F. Supp. 755 |
Parties | UNITED STATES of America v. John HOLMAN a/k/a "John Jacobs", Petro Williams, John Bernard a/k/a "John Norman", James Hutchinson a/k/a "Smack", Timothy Jenkins, Benny Stevenson, Ismael Pagan Quinones a/k/a "Izzy", William Antonio Quinones a/k/a "Chengo" a/k/a "Willie", Jessie Montero, Miriam Rios a/k/a "Miriam Gonzales", Candida Figueroa, John Doe a/k/a "Moses". |
Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Edward Dennis, Steven V. Wehner, Philadelphia, Pa., for plaintiff.
Gerald A. Stein, Philadelphia, Pa., for Holman.
Gilbert J. Scutti, Philadelphia, Pa., for Williams.
Oscar N. Gaskins, Philadelphia, Pa., for Norman.
Max Meshon, Philadelphia, Pa., for Hutchinson.
Louis W. Fryman, Philadelphia, Pa., for Jenkins.
Alan B. Epstein, Philadelphia, Pa., for Stevenson.
Charles B. Burr, II, Philadelphia, Pa., for W. A. Quinones & Figueroa.
Gordon Gelfond, Philadelphia, Pa., for Montero.
Ronald A. White, Philadelphia, Pa., for Rios.
John Holman, Ismael Pagan Quinones, and ten other persons were indicted for conspiring to engage in the unlawful traffic of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), 843(b) and 952(a). Holman and Ismael Quinones were also charged with engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. In addition, there were nine counts of aiding and abetting the possession of heroin with the intent of distributing it in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, brought against various defendants. On September 6, 1979, I ordered Charles B. Burr, II, Esquire, to discontinue his representation of either Candida Figueroa or William Antonio Quinones, both of whom he was attempting to represent at the time. An appeal was taken, and the order was affirmed on January 17, 1980. After another attorney replaces Mr. Burr in the representation of one of Mr. Burr's clients, and has an opportunity to become familiar with the case, trial ought to commence promptly. Wherefore, it seems appropriate at this time to proceed to the disposition of numerous pending pre-trial motions.1
John Holman has moved to dismiss count two of the indictment on the ground that 21 U.S.C. § 848, which provides particularly severe penalties for those engaging in a "continuing criminal enterprise" as defined by the section, is unconstitutionally vague. The defects pointed to by the defendant are the requirements, among other things, that a person violating the provision shall have committed a narcotics felony as part of "a continuing series of violations of this subchapter" and shall have obtained "substantial income" from such violations. 21 U.S.C. § 848. Although the constitutionality of this provision has not been expressly ruled on by our Court of Appeals, it has been upheld by the Second, Fifth, Sixth, Eighth and Ninth Circuits. United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Cravero, 545 F.2d 406 (5th Cir. 1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977); United States v. Collier, 493 F.2d 327 (6th Cir.), cert. denied, 419 U.S. 831, 95 S.Ct. 56, 42 L.Ed.2d 57 (1974); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979). Conceivably there might be situations in which this statute would be unconstitutional as applied. See United States v. Valenzuela, 596 F.2d at 1367-8. But I agree with the great weight of the case authority that the provision is not unconstitutionally vague on its face.
Defendant Hutchinson argues that he has already been tried for overt act # 20 by the Commonwealth of Pennsylvania and that retrial would violate the double jeopardy provision of the Fifth Amendment. However, pursuant to the principle of dual sovereignty, the Fifth Amendment does not preclude trial by both state and federal governments of the same individual for the same offenses. Abbate v. United States, 359 U.S. 187, 193-96, 79 S.Ct. 666, 669-71, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 383, 43 S.Ct. 141, 143, 67 L.Ed. 314 (1922).2
Defendants Holman, Hutchinson and Stevenson have moved to dismiss the indictment on the grounds that delays prior to their indictment have denied them speedy trials in violation of the Sixth Amendment or, in the alternative, have denied them Fifth Amendment due process. The facts giving rise to these speedy trial/due process claims are summarized by the Government as follows:
Benny Stevenson was arrested by the Philadelphia Police on August 18, 1976 for delivery of a controlled substance, 2 counts of manufacturing of a controlled substance, 3 counts of possession with intent to manufacture controlled substance, 3 counts of possession with intent to deliver a controlled substance and 3 counts of criminal conspiracy. John Holman and Petro Williams were also arrested on August 18, 1976 on similar charges. An arrest warrant was issued for James Hutchinson, but was never executed. All arrest warrants were dismissed by the local authorities when the United States Attorney's office agreed to conduct an investigation into the matter.
Government's Answer to Defendants' Motion to Dismiss, at p. 1 n.1.
The speedy trial/due process arguments are these: The Sixth Amendment right to a speedy trial attaches only to those who have been "accused." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). The speedy trial rights of these defendants should be held to have attached at the time of the 1976 state arrests, since they were arrests for the same offenses as this indictment and thus, defendants were then first "accused" of these offenses. United States v. Cabral, 475 F.2d 715 (1st Cir. 1973). Even if the court concludes that the Sixth Amendment rights did not attach at that time, however, the indictment should be dismissed because of the prejudicial delay between the time the federal government first could have indicted and the time that they actually did so—that delay denying due process. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, supra.
The Ninth Circuit recently summarized the legal context for this kind of argument:
Arnold v. McCarthy, 566 F.2d 1377, 1381-82 (9th Cir. 1978).
As the Government's memorandum makes clear, the question whether a state arrest can render a person "accused" for purposes of the Sixth Amendment right to a speedy trial in a subsequent federal prosecution has been expressly considered by the Courts of Appeals for the First, Second, Fifth, Seventh, Eighth and Ninth Circuits. United States v. Cabral, supra; United States v. Mejias, 552 F.2d 435 (2d Cir. 1977), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115; United States v. Phillips, 569 F.2d 1315 (5th Cir. 1978); United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), cert. den. 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973); United States v. Burkhalter, 583 F.2d 389 (8th Cir. 1978); United States v. Romero, 585 F.2d 391 (9th Cir. 1978), cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 492 (1979). The closest that the Third Circuit seems to have come to this issue is a summary affirmance. United States v. Dabney, 393 F.Supp. 529 (E.D.Pa. 1975), aff'd without opinion, 527 F.2d 644 (3d Cir. 1976); United States v. Clark et al., 398 F.Supp. 341 (E.D.Pa.1975), aff'd without opinion, 532 F.2d 745, 746, 748 (3d Cir. 1976) ( ). Only in the First Circuit case, Cabral, was it squarely held that a federal defendant's Sixth Amendment speedy trial rights attached at the time of his state arrest. The defendants here also rely on the Seventh Circuit case, DeTienne, and on the district court decision affirmed...
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