The opinion of the court was delivered by: Tucker, J.
Presently before this Court are Defendant's Motion to Suppress (Doc. 22) and the Government's Response in Opposition thereto (Doc. 28); Defendant's Motion to Compel the Production of the Identity of the Alleged Informant (Doc. 30) and the Government's Response in Opposition thereto (Doc. 40); and Defendant's Motion to Dismiss Indictment on Speedy Trial Grounds, or in the Alternative, for Severance (Doc. 38) and the Government's Response in Opposition thereto (Doc. 43).*fn1 For the reasons set forth below, Defendant's Motions are denied.
On September 23, 2010, Defendant Adam Scott ("Defendant" or "Scott") was arrested on a Complaint and warrant. Defendant was charged by Indictment (Doc. 9) on October 13, 2010 and arraigned on October 28, 2010. On December 8, 2010, the Government filed a Superseding Indictment (Doc. 14) which added Vincent Marchant as a co-defendant. In the Superseding Indictment, Defendant was charged with five counts for conspiracy to distribute 500 grams or more of cocaine and 28 grams or more of crack cocaine in violation of 21 U.S.C. § 846 (Count One); distribution of 28 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Seven); possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Nine); possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1) (Count Ten); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Eleven). Defendant and Marchant were arraigned on the Superseding Indictment on January 6, 2011. The alleged facts giving rise to Defendant's indictment are as follows.
As set forth in the search warrant affidavit, in April 2010, the West Chester Police Department and the Drug Enforcement Administration (DEA) obtained authorization to conduct a wiretap on a telephone utilized by Vincent Marchant. This wiretap, specifically conversations intercepted in April and May 2010, revealed that defendant Adam Scott was one of Marchant's main sources of cocaine.
On June 2, 2010, a Pennsylvania State search warrant was executed on Marchant's residence in West Chester, Pennsylvania, and officers seized approximately eleven ounces of powder cocaine and one ounce of crack cocaine along with digital scales and packaging material. Marchant was arrested and, shortly thereafter, he made a post-Miranda statement in which he admitted that he had been selling cocaine for the past 18 months and identified Scott as one of his suppliers.
On September 16, 2010, at approximately 8:13 p.m., West Chester Police Officers saw a 2001 black Buick sedan (with Pennsylvania registration # HHR9404) with tinted windows and a broken tail light driving eastbound on West Chestnut Street. The Buick was being driven by Scott and had no other passengers. The officers stopped the Buick, and Scott gave them his verbal consent to search the vehicle. At approximately 8:30 p.m., an officer arrived at the scene with a K-9 dog trained in the detection of narcotics. The dog alerted to the presence of narcotics in the Buick's trunk and its drivers side dashboard. Upon further inspection, officers found what appeared to be an electronically controlled trigger, possibly for a hidden compartment in the driver's side dashboard of the car. The officers released Scott and secured the Buick while waiting to obtain a warrant to search the vehicle.
At approximately 10:57 p.m. that same evening, a confidential informant ("CI"), whose past information had proven to be accurate and reliable, told the DEA that the CI had assisted Scott in Scott's drug trafficking. The CI also said that Scott had told him that the police had stopped his vehicle and discovered the secret compartment in the car. Scott also told the CI that Scott was hiding his drugs in his apartment, and that Scott was going to the Spare Rib bar located at 135 East Gay Street in West Chester with drug proceeds (in the form of U.S. currency) on his person. The CI had previously told law enforcement that Scott lived at 215 North Everhart Rd., Apt. 2C, West Chester, Pennsylvania. In addition, in the course of the investigation, agents and other law enforcement officers saw Scott's vehicle parked in front of that address.
The DEA then passed the information received from the CI to the West Chester Police Department, which in turn provided the information to Officer Josh Lee. At approximately 11:14 p.m., Officer Lee saw Scott inside of the Spare Rib bar. Lee stopped and frisked Scott, and recovered $960 from Scott's person. Scott was arrested, and search of his person incident to the arrest resulted in the recovery of an Ipod Touch, an LG Metro PSC cellular telephone, and a Sanyo Redimobile PCS cellular telephone.
On September 16, 2010, Chief Magistrate Judge Thomas J. Rueter signed warrants authorizing the government to search Scott's residence at 215 North Everhart Road, Apt. 2C, West Chester, Pennsylvania, as well as Scott's vehicle (the 2001 black Buick sedan with Pennsylvania registration # HHR9404) and the Ipod and cell phones recovered from Scott's person incident to his arrest.
The agents entered the residence using a key recovered from Scott at the time of his arrest. Inside the apt, agents found $29, 689 in United States Currency, jewelry appraised at approximately $15,000, and a loaded gun hidden underneath a set of drawers in the defendant's bedroom. Also in his bedroom, agents recovered crack cocaine and marijuana from a back pack, and numerous small blue and yellow zip lock baggies which are known to be used to package and distribute drugs. The crack cocaine from the back pack was packaged in two knotted clear plastic bags and weighed 10.7 grams, and the marijuana was packaged in five plastic knotted bags, and weighed 62.3 grams. In the kitchen inside a cabinet, agents recovered a pyrex pot which contained crack cocaine which weighed 4.1 grams, a digital scale, and two boxes of baking soda which is a well-known cutting agent for the preparation of crack cocaine. Also recovered from the apartment were numerous documents in the name of Adam Scott, including a Pennsylvania Board of Probation and Parole Violation Warning, dated September 15, 2010.
On January 13, 2011, Defendant filed a Motion to Suppress Evidence (Doc. 22). On January 28, 2011, the Government filed a Response in Opposition thereto (Doc. 28). On February 4, 2011, Defendant filed a Motion to Compel the Production of the Identity of the Alleged Informant (Doc. 30). The Government filed a Response in Opposition thereto (Doc. 40) on February 14, 2011. On February 11, 2011, Defendant filed a Motion to Dismiss Indictment on Speedy Trial Grounds, or in the Alternative, for Severance and a Motion for Automatic Review of Conditions of Release (Doc. 38). On February 18, 2011, the Government filed a Response in Opposition thereto (Doc. 43).
On February 23, 2011, the Court held a hearing and oral argument on the aforementioned motions. During the hearing, Defense counsel withdrew the Motion for Automatic Review of Conditions of Release. The Court now addresses the remaining pending motions.
III. Defendant's Motion to Dismiss Indictment on Speedy Trial Grounds
For the reasons discussed below, the Court denies Defendant's Motion to Dismiss the Indictment on Speedy Trial Grounds.
Defendant argues that his speedy trial rights were violated when he was not tried by December 22, 2010, the date he claims was the speedy trial deadline under his original indictment. Defendant further claims that the superseding indictment cannot be used to reset the clock for calculating his speedy trial date because of the government's unreasonably dilatory conduct. To support this contention, Defendant argues that if the alleged facts set forth in the September 16, 2010 search warrant were true, then the government already knew all of the alleged facts needed to charge Marchant in the original indictment with the offenses that it eventually alleged in the Superseding Indictment. Specifically, Defendant points to the fact that the government intercepted phone calls between Marchant and Defendant suggesting drug activity in April and May 2010; that cocaine was seized from Marchant's residence and car on June 2, 2010; and that on the same day, Marchant submitted a lengthy interview to the West Chester police identifying Defendant as his source for cocaine. Defendant contends the government's two-month delay in filing the Superseding Indictment, which merely added the new conspiracy charge against him and added co-defendant Marchant, was done willfully and in bad faith.
The Government disagrees and maintains that the superseding indictment must reset the speedy trial date. The Government notes that the conspiracy charge in the superseding indictment is based on wiretap information gathered between March and June of 2010. The Government contends that this charge was filed within approximately six months of the end of the wire tap, well before the five-year statute of limitations deadline. Accordingly, the Government argues that Defendant's claim that these charges were unduly delayed is frivolous.
If a defendant enters a plea of not guilty, the Speedy Trial Act ("STA") mandates that trial must commence within seventy days, or ten weeks, of either the date on which the indictment was filed or the date on which the defendant first appeared before the court, whichever is later.
18 U.S.C. § 3161(c)(1). Generally, when the trial does not commence within the seventy-day period, the indictment must be dismissed. 18 U.S.C. § 3162(a)(2).
There are, however, several circumstances under which a trial that begins later than seventy days after the date of the original indictment or arraignment does not violate the STA. One set of circumstances occurs when the cause of the delay fits within an exclusion specified by the statute. See 18 U.S.C. § 3161(h); Zedner v. United States, 547 U.S. 489 (2006); United States v. Lattany, 982 F.2d 866, 871 (3d Cir. 1992). The statute provides that delay resulting from, inter alia, the following two occurrences "shall be excluded in computing the time within which . . . the trial of any such offense must commence". First, the court should exclude "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(D). Additionally, the court should exclude "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(H).
Moreover, when a superseding indictment contains a new charge not identified in the criminal complaint or charged in the original indictment, then that superseding indictment commences a new, independent 70-day speedy trial period. Lattany, 982 F.2d at 873 n.7. A superseding indictment also commences a new, independent 70-day speedy trial period when the superseding indictment adds a new defendant. See United States v. Liu, 2011 WL 182228 (9th Cir. 2011) (citing United States v. King, 483 F.3d 969, 973 (9th Cir. 2007)). See also Henderson v. United States, 476 U.S. 321, 323 n. 2 (1986) ("[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest co-defendant."); United States v. Adams, 625 F.3d 371, 377 (7th Cir. 2010) ( ". . . when an indictment charges more than one defendant, the speedy trial clock for all defendants typically does not begin to run until the last of the defendants appears [and] [t]his principle holds true when an additional defendant is added to the case by way of a superseding indictment.") (internal citations omitted).
For the addition of a co-defendant to restart the STA clock, the court must establish that any delay in adding the co-defendant was reasonable and not caused by any bad faith on the part of the Government. King, 483 F.3d at 974. That said, a defendant's mere assertion that the Government's delay in adding a co-defendant in a superseding indictment is unreasonable, without any analysis or argument to substantiate this assertion, lacks the persuasive authority necessary to counter the restart of the STA clock. See Adams, 625 F.3d at 378 (defendant waived the argument of unreasonableness when he did not contend that any other defendant not named in the original indictment was improperly joined; did not contend that the new defendant was named on a pretext to delay the trial; and did not offer any analysis of why the delay in indicting should be deemed unreasonable on the facts of the case).
For example, in King, the defendant argued that his STA rights were violated when the court reset the STA date according to the calculation for a new defendant who was added seven months after the original indictment date. 483 F.3d at 974. The Court rejected the defendant's argument and found that it was reasonable for the government to add a defendant seven months after the filing of an indictment due to the complexity of the case and ...