The opinion of the court was delivered by: SIMMONS
The Defendants, Howard Emmett Horsley and Charlotte Johnson, have been charged in a seven count indictment with conspiracy to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. § 846; and with distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841 (a)(1). Only the Defendant Howard Horsley is charged in Counts 2, 3, and 4 of the indictment (distribution and possession with intent to distribute); both of the Defendants are charged in Count 1 of the indictment (conspiracy to distribute and possess with intent to distribute) as well as in Counts 5, 6, and 7 (distribution and possession with intent to distribute) of the indictment.
Both Defendants have filed numerous pre trial motions which have previously been heard and argued, and are now ready for decision by this Court. The Defendant Howard Horsley has filed the following motions: Motion for a Speedy Trial, Motion to Dismiss, Motion to Disclose Favorable Evidence, Motion to Disclose the Identity of an Informant, Motion for Pre Trial Hearing to Determine the Admissibility of Hearsay Statements of Co-Conspirator, Motion for Bill of Particulars, Motion for Disclosure of Jencks Material, and a Motion to Suppress. Defendant Horsley filed a second motion to dismiss the indictment, however, that motion was withdrawn by Horsley on October 22, 1985. The Defendant Charlotte Johnson has filed a Motion for Severance, Motion for Pre Trial Hearing to Determine Admissibility of Hearsay Statements of Co-Conspirator, and a Motion to Adopt Defendant Horsley's Motions to Dismiss and Suppress. Defendant Horsley has also filed a Motion to Adopt Defendant Johnson's Motion for Severance.
MOTION FOR A SPEEDY TRIAL
The Defendant Howard Horsley was indicted in the Western District of Pennsylvania by a federal grand jury on April 11, 1985. Defendant Horsley had previously been arrested December 12, 1984 on a warrant for state charges by City of Pittsburgh police officers, and on April 24, 1985, these state charges were nolle prossed. In this motion, the Defendant contends that the time for the commencement of the federal Speedy Trial Act, 18 U.S.C. § 3161 et seq., should be based on the date of his arrest on December 12, 1984, and not on the date of the federal indictment, April 11, 1985. The Defendant claims that the Speedy Trial Act has been violated, and he is entitled to the dismissal of the charges, if the December 12, 1984 arrest date is used as the relevant date in computing the time provisions of the Speedy Trial Act. The Defendant also argues that because the United States instituted the federal proceedings when there were only 47 days remaining on the state speedy trial period, it is improper for the United States to circumvent the state speedy trial periods by instituting these new federal proceedings. It is the Defendant's position that the state arrest on December 12, 1984 is the relevant date that must be used in computing the federal speedy trial requirements under section 3161 of the Speedy Trial Act.
The Speedy Trial Act requires that a Defendant be charged by indictment or information within 30 days of his arrest or the service of summons [ 18 U.S.C. § 3161(b)], and that trial commence within 70 days of either the filing of the indictment or the Defendant's appearance before a judicial officer, whichever event occurs last. [ 18 U.S.C. § 3161(c)(1)]. However, it is a federal arrest and not a state arrest which triggers the commencement of these time provisions. United States v. Adams, 694 F.2d 200 (9th Cir. 1982); United States v. Iaquinta, 674 F.2d 260, 267 (4th Cir. 1982); United States v. Leonard, 639 F.2d 101 (2d Cir. 1981). In order for the time limitations contained in section 3161 of the Speedy Trial Act to apply, the Defendant must be held on federal charges, and, thus, if a person is held by state authorities on a state charge, and then is turned over to federal authorities for federal prosecution, the date of that delivery into federal custody, and not the date of the state arrest, is the applicable date for purposes of the Speedy Trial Act. United States v. Shahryar, 719 F.2d 1522 (11th Cir. 1983); United States v. Tanu, 589 F.2d 82 (2d Cir. 1978).
Here the Defendant was arrested by state officials on December 12, 1984, on state charges. The record indicates that there was no federal action or involvement in the state arrest, and the arresting police officers could not have been acting as "agents" of the federal government at the time they arrested Horsley on December 12, 1984. It is also clear that there has been no violation of the Pennsylvania Speedy Trial requirements, since the state charges were timely withdrawn prior to the Defendant's final state trial date. There has been no expiration of the time period permitted by the federal Speedy Trial Act, since it is the date of the federal indictment and not the date of the state arrest which triggers the time provisions contained in 18 U.S.C. § 3161. The Motion is without merit, and the Motion to Dismiss for Speedy Trial Violations will therefore be denied.
MOTION FOR PRE TRIAL HEARING TO DETERMINE EXISTENCE OF CONSPIRACY
Both of the Defendants have filed motions seeking a separate pre trial hearing to determine the existence of a conspiracy, in which this Court would determine the admissibility of co-conspirator statements. Before the statements of a co-conspirator may be presented to the jury, the Court must determine that the government has established the existence of the alleged conspiracy and the connection of each Defendant with it by a clear preponderance of the evidence, independent of the hearsay declarations. United States v. Continental Group, Inc., 603 F.2d 444, 457 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980). In United States v. Ammar, 714 F.2d 238 (3d Cir. 1983), the Third Circuit has considered whether an in limine hearing should be preliminarily held so that the court can determine the existence of the alleged conspiracy. The Third Circuit in Ammar, supra, noted that the Fifth Circuit prefers a preliminary hearing in limine, while the Ninth Circuit declines to express a preference for the pre trial determination of the admissibility of co-conspirator statements. In Ammar, the Third Circuit declined to impose the requirement of the preliminary hearing, emphasized that the control of the order of proof at trial is within the discretion of the trial judge, and concluded that in the circumstances, it was not error or an abuse of discretion for the trial judge to have refused to hold a pre trial hearing. 714 F.2d at 247.
There is no justification in this case for holding a pre trial hearing on the question of the admissibility of co-conspirator statements. A pre trial hearing would be cumbersome, inefficient, and duplicative. This is not an unduly complex case which involves many defendants or lengthy and varied counts. This Court at trial will easily and efficiently be able to determine whether the prosecution has established the existence of the conspiracy which would then permit the use of the declarations of the co-conspirator. The motions of both Defendants will be denied.
MOTION TO DISMISS INDICTMENT
The Defendant Howard Horsley has moved to dismiss the instant indictment, contending that it was sought by law enforcement officers of the Commonwealth of Pennsylvania in order to circumvent his Pennsylvania procedural and substantive constitutional rights. Horsley contends that the above-captioned indictment is one of a series of indictments where the City of Pittsburgh police have sought to utilize the United States District Court for the Western District of Pennsylvania for the prosecution of crimes which are de minimus and/or in cases where there is a violation of a defendant's rights under the Commonwealth of Pennsylvania. Defendant claims that the selection of the federal forum for these reasons constitutes prosecutorial misconduct which requires the dismissal of the indictment. The Defendant Charlotte Johnson has also adopted this Motion to Dismiss.
Defendant Horsley claims that the criminal information brought in state court and the indictment brought in the above-captioned case are duplicitous, and that the principle reason for this federal prosecution is to circumvent Horsley's rights under the Pennsylvania constitution and to avoid the suppression of the evidence and the dismissal of the state criminal action. At the hearing and argument held before this Court on July 3, 1985, the Defendant's attorney conceded that he had to show more than the mere fact that Horsley's case was being prosecuted in federal court, and that there were problems with the state court proceeding. (Tr. July 3, 1985 at 6). The Defendant, however, has not been able to show such a course of conduct on the part of the United States Attorney in adopting cases of this type.
The Assistant United States Attorney indicated at the July 3, 1985 hearing that the federal government assumed the prosecution of the above-captioned case because there was an on-going federal investigation concerning the Defendant's involvement in illegal drug trafficking, that Howard Horsley had long been identified as a major heroin trafficker, that the Defendant Horsley had a prior federal conviction for narcotics, and that it was felt that Defendant Horsley was a career type of criminal. The Assistant United States Attorney indicated that the United States asked to adopt the state case, and received the approval of the District Attorney, before any of the evidence was presented to the federal grand jury. (Tr. July 3, 1985 at 14-16). At the time that the state charges were withdrawn, there had been no allegations made that the Pennsylvania speedy trial requirements had not been met.
The Defendants claim that the indictment in the above-captioned case is a form of prosecutorial misconduct since the indictment was brought for the purposes of circumventing state substantive and procedural rights. While it is true that there is prosecutorial misconduct and vindictiveness where the motive of the prosecution is to discourage or preclude a Defendant from exercising legal rights [ Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978)], in the instant case the conduct of the government in obtaining the indictment has not prevented or discouraged the Defendants from exercising any of their legal rights under federal or state law. The claim that substantive and procedural rights were violated at the state level is without merit since there has never been any state court ruling or hearing on those issues; although charges were originally filed in state court, the Defendants were never brought to trial on those charges in the state court system, no pre trial motions concerning the state charges were ever filed, and there has never been any prosecution or adjudication on the merits of the state case. The above-captioned indictment was not brought because the local law enforcement officers failed to prevail in state court, and there has been no showing of a policy or practice on the part of the United States Attorney to federally prosecute crimes in order to circumvent state substantive and procedural rights. The United States Attorney has articulated legitimate reasons for initiating this federal prosecution, and the Defendant has offered nothing to either refute these legitimate reasons or to indicate that the United States Attorney acted vindictively and/or in bad faith.
Additionally, this Court notes that prosecution of drug conspiracy charges in federal court after a state court conviction on the same charges is not an abuse of discretion and does not show prosecutorial vindictiveness. United States v. Sellers, 603 F.2d 53 (8th Cir. 1979). Where as in this case there have been no pre trial motions filed in the state system and no trial on the underlying charges in the state system, it is not an abuse of prosecutorial discretion for the United States to obtain the above-captioned indictment. The Motion to Dismiss will therefore be denied.
MOTION FOR DISCOVERY AND/OR PRODUCTION OF FAVORABLE EVIDENCE
Defendant Horsley seeks the pre trial disclosure of all written or recorded statements or reports which are favorable to Defendant; disclosure of all grants of immunity, plea bargains, promises and preferential treatment of witnesses, all "rap" sheets of witnesses who will testify; names and addresses of all witnesses who testified before the grand jury; the identity of all witnesses who failed to identify Defendant Horsley as a member of the alleged conspiracy; statements of the co-conspirator; and all personnel files of the undercover officer.
The government, by way of response to this Motion, has stated that it has no statements or reports discoverable under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); that there have been no grants of immunity, plea bargains, promises or preferential treatment of witnesses. The government also claims that there is no witness who was unable to identify Defendant Horsley as an alleged conspirator, and has stated that all statements by the Defendants and all statements which are discoverable under Local Rule 24 have been or will be provided. The United States has also assured that all documentation pertaining to funds used to purchase the controlled substances and/or to funds provided to the informant will be given to the Defendant. It therefore appears that the only two requests presently at issue in the Defendant's Motion for Discovery are the request for the names and addresses of the grand jury witnesses who will not be called at trial, and the request for the disclosure of the personnel files of the undercover officer.
With respect to the request for the disclosure of the personnel file of the undercover officer, the Defendant contends that it is a discoverable document in the possession of the United States Government. The Defendant believes that the personnel file may contain material which will be helpful in preparing for the cross examination of the undercover officer, and the Defendant contends that the defense at ...