United States v. Vanhoesen
| Decision Date | 04 January 2008 |
| Docket Number | No. 1:06-CR-411 (LEK).,1:06-CR-411 (LEK). |
| Citation | 529 F.Supp.2d 358 |
| Parties | UNITED STATES of America, Plaintiff, v. Raymond VANHOESEN, a/k/a Sham, and Jermaine Vanhoesen a/k/a Waleek, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Gaspar M. Castillo, Castillo & Associates, Albany, NY, for Defendant Raymond Vanhoesen.
Paul D. Silver, Office of United States Attorney, Albany, NY, for Plaintiff.
Currently before the Court are various pretrial motions filed by both Defendants in this case, Raymond Vanhoesen and Jermaine Vanhoesen. Dkt. Nos. 47, 49, 50. Defendant Raymond Vanhoesen seeks dismissal of the indictment on grounds that his right to be free from double jeopardy, protected by the Fifth Amendment of the United States Constitution, and his right to a speedy trial, protected by statute and the Sixth Amendment of the United States Constitution, have been violated. Dkt, No. 47. Defendant Jermaine Vanhoesen seeks dismissal of the indictment on double jeopardy grounds. Dkt. No. 49. Jermaine Vanhoesen also seeks a probable cause hearing, suppression of certain evidence, a bill of particulars, and disclosure of impeachment, exculpatory, and other evidence by the Government. Dkt. Nos. 49, 50.
This case has a very complicated procedural background, involving both state and federal court proceedings. However, as the complications affect the analysis of timing and double jeopardy issues raised by Defendants, they must be discussed in some detail here.
Defendant Raymond Vanhoesen ("Defendant" or "RVH") was arrested on March 6, 2002 and charged with various violations of the New York Penal Law related to the possession and sale of crack cocaine and drug paraphernalia. Affirmation at ¶ 11. He was indicted on those charges and scheduled for a trial before the Hon. Joseph Teresi, Justice of the Supreme Court of Albany County to take place June 9, 2003. Id. at ¶ 13. However, Judge Teresi dismissed three counts of the indictment on speedy trial grounds. Id. at ¶ 14. Defendant pled to the remaining two charges, which involved criminal use of drug paraphernalia, and was sentenced to time served. Id. at ¶¶ 15-16; Govt's Mem. of Law at 2. Charges mirroring those dismissed by Judge Teresi were then filed against Defendant in United States District Court on October 14, 2004. Affirmation at ¶¶ 19-20. Shortly afterwards, on October 21, 2004, the Appellate Division, Third Department for the New York State Supreme Court reversed Judge Teresfs decision and reinstated the dismissed drug charges. Id. at ¶ 22. On November 9, 2004, the federal charges against Defendant were dropped. Id. at ¶ 23; Notice (Dkt. No. 11).
Prior to the scheduled trial on the reinstated drug counts, Judge Teresi granted Defendant's Motion to dismiss on the grounds that Defendant's plea to the two charges constituted a plea to the entire indictment and double jeopardy thus barred further prosecution of the reinstated counts. Decision and Order (Dkt. No. 55, Ex. 3). Defendant was federally indicted on April 1, 2005; the indictment was superceded by an indictment on May 19, 2006, charging conspiracy and knowing distribution of more than 50 grams of crack cocaine from the period between 2002 and 2005. Indictment (Dkt. No. 55, Ex. 5); Superceding Indictment (Dkt. No. 55, Ex. 6). On October 13, 2006, the Court dismissed the indictment without prejudice for violation of the speedy trial act. Order (Dkt. No. 28, Case No. 1:05-CR-0166). Defendant was then re-indicted in United States District Court on October 19, 2006 on charges of conspiracy to distribute and possess, with the intent to distribute, more than fifty grams of crack cocaine, as well as substantive charges of possession with the intent to distribute. Indictment (Dkt. No. 55, Ex. 1).
An indictment was filed against Defendant Jermaine Vanhoesen ("Defendant" or "JVH") on April 8, 2003 in Albany County Supreme Court. Indictment (Dkt. No. 55, Ex. 7). The charges of the indictment included attempted sale of a criminal substance, criminal possession of a controlled substance and reckless endangerment, based on events that took place February 20, 2003. Id. JVH was tried and convicted on these charges. People v. Vanhoesen, 31 A.D.3d 805, 819 N.Y.S.2d 319, 321 (3d Dept.2006). See Govt's Mem. of Law . On July 6, 2006, JVH's conviction was reversed and remanded for a new trial. Vanhoesen, 819 N.Y.S.2d at 321.
JVH was charged, along with RVH, in the instant federal indictment, on October 19, 2006. Indictment (Dkt. No. 55, Ex. 1). JVH was charged with possession with intent to distribute more than 5 grams of crack cocaine, stemming from the February 20, 2003 incident, as well as conspiracy to distribute and possess with intent to distribute, along with RVH. Id.
On July 12, 2007, the state case against JVH was dismissed in favor of the federal prosecution. JVH's Mem. pf Law (Dkt. No. 49) at 26.; Govt's Mem, in Opp. (Dkt. No. 55) at 6.
RVH claims that the instant prosecution violates the double jeopardy clause of the Fifth Amendment to the United States Constitution and must be dismissed.
The double jeopardy clause of the Fifth Amendment forbids a second prosecution of the same offenses by the same authority after acquittal or conviction. Abbate v. U.S., 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). It does not forbid federal prosecution subsequent to a prosecution of the same offense under authority of a state; this is known as the dual sovereignty doctrine. Id.; Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ( "); U.S. v. Arena, 180 F.3d 380, 399 (2d Cir.1999).
There is an exception to the dual sovereignty doctrine: "where one prosecuting sovereign can be said to be acting as a `tool' of the other, or where the second prosecution amounts to a `sham and a cover' for the first." U.S. v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.1984) (quoting Bartkus v. Illinois, 359 U.S. 121, 123, 124, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)). This is a very narrow exception, which applies only "in an extraordinary type of case." U.S. v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 495 (2d Cir. 1995). "Even significant cooperation between state and federal authorities does not provide a basis" for the sham exception to the dual sovereignty doctrine. Id.
RVH argues that the state and federal prosecutions are "intertwined and interwoven" to the extent that both sovereigns "were tools and covers for each other." RVH's Mem. of Law (Dkt. No. 47). However, RVH does not provide any support for this assertion, except the timing of the various prosecutions. This fact is not alone sufficient to qualify either prosecution as a sham. RVH has not shown that either sovereign effectively controlled the other. As the Government points out, "a federal prosecutor may, in deciding whether to pursue a subsequent prosecution, take into consideration what he deems an inadequate result obtained in the state trial," without violating the double jeopardy clause. Arena, 180 F.3d at 399 (internal citations and quotation omitted). The facts indicate that this consideration of federal interests took place, but do not indicate that either prosecution was a sham. Accordingly, RVH's Motion to dismiss based on violation of the double jeopardy clause must be denied.
RVH was indicted on October 19, 2006.2 Indictment . The arrest warrant for RVH, issued on October 19, 2006, was not successfully executed until after RVH's arrest on May 31, 2007 in the Eastern District of Michigan and subsequent transfer back to New York. Executed Warrant (Dkt. No. 31); Notice of Transfer (Dkt. No. 29). RVH was then arraigned in the Northern District of New York on June 14, 2007:
a. Statutory Grounds
Under Section 3161 of Title Eighteen of the United States Code, a trial must commence within seventy (70) days of the filing of an indictment. The calculation of time within which a trial must commence does not include certain periods of delay, including "any period of delay resulting from the absence or unavailability of the defendant or an essential witness," 18 U.S.C. § 3161(h)(3), some delay for the transportation of a defendant from another district, 18 U.S.C. § 3161(h)(1)(H), delay from the filing through prompt disposition of pretrial motions, 18 U.S.C. § 3161(h)(1)(F), and delay, up to 30 days, when "any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J).
The calculation of the 70 day statutory period begins on October 19, 2006, the date of the current indictment. Indictment (Dkt. No. 12). However, as the record reflects, RVH was absent from the jurisdiction from the date of the indictment until June 14, 2007 and accordingly, that period of time is excluded froth calculation. 18 U.S.C. §§ 3161(h)(1)(J), (h)(3). Additionally, the period of time between June 14, 2007 and July 19, 2007 was also excluded for calculation by order of Magistrate Judge Homer, because a motion for disqualification was pending during that time. Order (Dkt. No. 35). The relevant period of time for speedy trial analysis is then July 19, 2007 until September 24, 2007, when pretrial motions were filed. Dkt. No. 44. During this period of time, sixtysix (66) days elapsed. Accordingly, there has been no violation of RVH's statutory...
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