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May 18, 1984


The opinion of the court was delivered by: DIAMOND


 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, 465 U.S. 1030, 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 Wilson *fn1" 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."

 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 first indictment at all, if the charges contained in Counts One and Two of the second indictment are in fact, as the defendant contends, the same as, or charges which should have been joined with, those contained in the first indictment, the date of the first indictment would control and no sanctions at all would apply to Counts One and Two of the second indictment.

 The government contends in the alternative, however, that the conspiracy count of the second indictment is not in fact the same as, or one which should have been joined with, the conspiracy count in the first indictment, and, therefore, no "tacking" is required in any event. Finally the government argues that even if we add the days which have run under the first indictment to those chargeable under the second, the permissible statutory period has not been exceeded.

 The general principles which govern our disposition of this motion appear to be as follows. In determining whether a subsequent indictment does in fact charge the same offense or one which was required to be joined with an offense charged in a previous indictment, we employ double jeopardy tests. In other words, "we must determine whether, within the meaning of the Double Jeopardy Clause, the charges contained in the superseding indictment are the same as, or required to be joined with, charges contained in the original indictment." Novak, 715 F.2d at 817. "Offenses are the 'same' for double jeopardy purposes when the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other." United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975). Further, "in the context of multiple charges of conspiracy under the same statute, the United States Supreme Court has held that 'a single agreement to commit an offense does not become several conspiracies because it continues over a period of time. Braverman v. United States, 317 U.S. 49, 52, 63 S. Ct. 99, 101, 87 L. Ed. 23 (1942). '" Novak, 715 F.2d at 817.

 It is important to bear in mind when considering whether or not one or two conspiracies have been charged that "it is the agreement which constitutes the crime, not the overt acts." United States v. Young, 503 F.2d 1072, 1076 (3d Cir. 1974). In addition, as stated in Young, "proper weight must be given to consideration of whether the overt acts alleged in the first conspiracy charge were carried out in furtherance of the broad agreement alleged in the second indictment or whether these acts were carried out in furtherance of a different agreement." Id.

 Where, as here, a defendant makes a prima facie showing that a second indictment charges the same offense as, or one required to be joined with, charges contained in a previous indictment, the government must prove by a preponderance of the evidence to the court as the trier of fact that the offenses are separate. See Id. at 568 F.2d at 332.

 With regard to the continuing criminal enterprise in violation of 21 U.S.C. § 848 charged in Count Two of the second indictment, the predicate conspiracy in violation of 21 U.S.C. § 846 is a lesser included offense. Jeffers v. United States, 432 U.S. 137, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977); United States v. Lurz, 666 F.2d 69 (4th Cir. 1981), cert. denied, 459 U.S. 843, 103 S. Ct. 95, 74 L. Ed. 2d 87 (1982). And Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), establishes the general rule that the Double Jeopardy Clause prohibits a state or the federal government from trying the defendant for a greater offense after it has convicted him of a lesser included offense. It follows, therefore, that the continuing-criminal-enterprise-charge must be joined with its predicate conspiracy under double jeopardy standards.

 Having reviewed the conspiracy counts of the indictments in question in the light of the foregoing principles and the evidence which was adduced at the hearing, we find the following facts which we believe require the conclusion that the government has failed to rebut the presumption raised by the defendant's prima facie case that the conspiracies are the same:

(1) The principal actor in the two conspiracies as well as in the continuing criminal enterprise as charged by the government is the defendant Dean K. Felton.
(2) The conspiracy charged in the second indictment spans a period of time which completely encompasses the time charged in the conspiracy in the earlier indictment.
(3) The principal location of the criminal activity is the same in both conspiracies, Pittsburgh, Pennsylvania.
(4) The alleged conspiracy in the first indictment arises out of activities at Antiques International and is a component of the conspiracy charged in the second indictment.
(6) Both conspiracies involved an agreement "to distribute and possess with the intent to distribute marijuana."
(7) At the July, 1983, hearing, a DEA Agent, Larry J. Carroll, testified, and we find as a fact, that the individuals involved in those overt acts charged at No. 83-49 which ante-date the overt acts at No. 79-121 were in fact the same individuals who were charged in No. 79-121; to-wit, Dean Felton, Keith Felton, Robert Wilson, and Angelica Felton.
(8) Further, at least one of these same conspirators was involved in some of the overt acts at No. 83-49 which post-dated the conspiracy dates charged at No. 79-121, specifically, Robert Wilson appears in No. 83-49 in overt acts 4, 5, 6, 8, 9, 18, 19, 20, 23 and 24. In all, Robert Wilson, a co-conspirator at No. 79-121, and, obviously, a known but unnamed co-conspirator at No. 83-49, appears in overt acts in No. 83-49 which span a period which ante-dates by several months the former indictment dates and which continue through April 3, 1981, one month prior to the final date charged in the second indictment.
Finally, as to overt acts 8 and 9 at No. 83-49, Agent Carroll testified, and we find as a fact, that the same Robert Wilson dealt with one or more of those named as conspirators at No. 83-49: Overt Act 8 (Hathorne), Overt Act 9 (Dean Felton, Hathorne).

 It seems fair to conclude, therefore, that the conspiracies alleged in the two indictments are one and the same and that Dean Felton engaged in a single conspiratorial agreement to possess with the intent to distribute marijuana with one or more of the alleged conspirators charged in both indictments.

 Furthermore, it also appears fair to conclude as to Count Two at Criminal No. 83-49, where Dean Felton is charged with being the principal in a continuing criminal enterprise, that this enterprise included the conspiracy charged at Count One of both of the indictments in question and that this conspiracy was a lesser included offense of the continuing criminal enterprise charge, and that, therefore, in accordance with the foregoing principles, was, in effect, one which should have been joined in the first instance for double-jeopardy-Speedy-Trial-Act consideration.

 Having thus concluded as the defendant has urged and the law and the facts support, that the conspiracies charged in both indictments are the same offense, the next question becomes whether the nonexcludable time which is chargeable to Criminal No. 79-121 should be "tacked" to Criminal No. 83-49.

 The government argues that since the first indictment was returned prior to the effective date of the mandatory-dismissal-sanctions of the Act, the time limits and, indeed, the sanctions that were applicable under the Act when the indictment at Criminal No. 79-121 was returned control. It cites in support of this proposition United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981). There, the First Circuit in construing the Act in conjunction with the implemental plan adopted by the District of Massachusetts, which expressly provided that the original indictment date determined the applicable Speedy Trial Act time limits for the commencement of trial, held that not only would the date of the original indictment determine the time period within which trial must commence but also would determine "the applicability of sanctions under section 3162." Id. at 670. See also United States v. Salmon, 504 F. Supp. 1270 (S.D.Tex. 1981), citing United States v. Barboza, 612 F.2d 999, 1000, n.2 (5th Cir. 1982).

In the event that a complaint, indictment, or information is filed against a defendant charged in a pending indictment or information or in an indictment or information dismissed on motion of the United States Attorney, the trial on the new charge shall commence within the time limit for commencement of trial on the original indictment or information unless the court finds that the new charge is not for the same offense charged in the original indictment or information or an offense required to be joined therewith. (emphasis added).

 It appears, therefore, that since the court has found that the conspiracies in the two indictments are one and the same and that the "conspiracy" is a lesser included offense of the continuing criminal enterprise charged at No. 83-49, the non-sanction and time-limit provisions of the Act which applied when the indictment at Criminal No. 79-121 was returned in June of 1979 control, and no sanctions are applicable, 18 U.S.C. § 3163(c), § 3174(c). Budzyna, 666 F.2d at 670-71.

 Notwithstanding the foregoing, in order that there be a complete record for appeal purposes, we make the following Speedy-Trial-Act-calculations as to the indictment at No. 79-121. We are, of course, assuming arguendo that there is "tacking", since otherwise this is all irrelevant.

 For purposes of our analysis and calculations, the time interval from indictment to trial began on the date the indictment at No. 79-121 was returned, since, as we indicate below, the defendant was arrested on the charges prior to the return of the indictment, and the indictment was timely returned within the 30-day period following the defendant's arrest. 18 U.S.C. § 3161(b).

 The defendant was arraigned on July 6, 1979, therefore eight nonexcludable days had run between June 28, 1979 and July 5, 1979 with July 6, 1979, (one day) being excluded under 18 U.S.C. § 3161(h)(1). [All further references are to subsections of 18 U.S.C. § 3161 unless otherwise initiated.]

 On July 13, 1979, a conference was held before Judge Simmons who granted an extension of time for the filing of pretrial motions. *fn2" During the period from July 13, 1979, to January 3, 1980, numerous motions were filed by the defendants and hearings or oral arguments thereon held by Judge Simmons. Those motions were disposed of on January 9, 1980. We find, therefore, that the same six-day period from July 7 to July 12, 1979, is nonexcludable and that the 181 days from July 13, 1979, to January 9, 1980, is excludable under (h)(1)(F) and (h)(1)(J).

 An interlocutory appeal was taken by the government on January 15, 1980. The five days between the disposition of the motions on January 9, 1980, and the filing of the notice of appeal by the government on January 15, 1980, are nonexcludable, but the 338 days between January 15, 1980, and December 17, 1980, when a certified copy of the Judgment Order was received from the Court of Appeals and filed by our Clerk of Court are excludable under (h)(1)(E).

 Judge Simmons entered an order on December 19, 1980, scheduling the trial for January 26, 1981. The defendant Felton and others filed a motion to continue on January 16, 1981, which was granted orally after a hearing on that date, *fn3" and on January 20, 1981, the court entered a written order continuing the trial on defendant's motion until April 28, 1981, in the interests of justice under (h)(8)(B). *fn4" Jury selection began on May 11, 1981, thus concluding the Speedy Trial Act clock for Criminal No. 79-121. The 29 days which elapsed between the filing of the Judgment Order by the Court of Appeals on December 17, 1980, until the filing of, and hearing on the defendants' motion for continuance on January 16, 1981, is nonexcludable, while the 116 days from that date to jury selection on May 11, 1981, is excludable under (h)(8)(B)(i).

 The court finds from the record at Criminal No. 79-121 that 24 days elapsed during the interval between defendant Felton's arrest and terminated with the return of the indictment at Criminal No. 79-121. This was timely under § 3161(b), and is not included in the time-to-trial calculations. During the second interval, from the return of the indictment to the commencement of jury selection, there were a total of 48 nonexcludable days and 636 excludable days under the various sections of 18 U.S.C. § 3161 previously cited. Under a "tacking" theory, and assuming that the current Act times apply, those 48 days would have to be ...

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