The opinion of the court was delivered by: Gene E.K. Pratter,j.
Kareem Russell was charged under 18 U.S.C. §922(g)(1) with possession of a firearm by a convicted felon by way of grand jury indictment issued on March 30, 2010, while he was also in the throes of responding to federal charges in another prosecution, Criminal Action No. 09-672, for conspiracy, bank fraud and aggravated identity theft. He seeks to have the gun charges indictment dismissed for an alleged violation of his right to a speedy trial on that charge. Having received Mr. Russell's Motion, as well as the Government's response, and having benefited from the parties' counsel's oral argument, the Court determines that it is appropriate to deny the Motion.
Law enforcement authorities obtained a search warrant for Mr. Russell's residence and executed it on April 1, 2007. The police searched for documents, identification cards, checks or credit cards in the names of persons other than Mr. Russell or his house mates. In addition to various papers and things as enumerated in the warrant, in the Russell residence the officers found a loaded Smith & Wesson .40 semi-automatic handgun with one live round in the chamber and eight live rounds in the gun's magazine. According to a National Crime Information Center/Pennsylvania Crime Information Center check, the gun had been reported as stolen. Knowing that Mr. Russell was a convicted felon, the officers arrested him.
State-related charges emanating from the above-recounted events eventually were dismissed, and he was released. Subsequently, however, various federal charges were lodged against Mr. Russell. Specifically, on October 15, 2009 the federal grand jury indicted Mr. Russell on charges of conspiracy, bank fraud and aggravated identity theft. Two weeks later Mr. Russell was arrested on those charges. After pre-trial motion practice and rescheduling of an earlier trial date, a June 2011 trial was scheduled for the bank fraud and identity theft charges in Criminal Action No. 09-672. Mr. Russell chose to enter a guilty plea to that indictment on the day the trial was set to begin.
Some 16 months earlier, on March 4, 2010, as a result of the April 4, 2007 search that had led to the seizure of the gun from Mr. Russell's closet, Mr. Russell was charged on the felon-in-possession accusation by means of a federal complaint. The grand jury's actual indictment followed three weeks later, at a time when Mr. Russell was already detained, awaiting trial on the bank fraud and related charges in Criminal Action No. 09-672.
Both of Mr. Russell's prosecutions appeared on the dockets of this Court. In keeping with the Court's procedures, trial in the Criminal Action No. 09-672 bank fraud matter was initially set for June 7, 2010. The Speedy Trial Act date for the firearm case here at Criminal Action No. 10-186 would have been the next day, namely, June 8, 2010. A pre-trial conference was set in this firearm case for June 3, 2010. The day before the scheduled conference, Mr. Russell's counsel filed a motion for a continuance of the trial for "not less than ninety (90) days."
The motion itself provided that the time from June 3, 2010 to the next trial listing was excludable for purposes of calculating time under the Speedy Trial Act. The motion was not opposed. The Court accepted the defense representation that more time before trial was needed for investigation, witness preparation, discovery review and trial and/or motion preparation, as well as time to "explore possible non-trial dispositions." Accordingly, the Court granted Mr. Russell's continuance motion on August 24, 2010, finding:
[P]ursuant to 18 U.S.C. § 3161 (h)(7), that (1) [Criminal Action No. 10-186] cannot proceed to trial and must be continued because the failure to grant the continuance would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice; and therefore, (2) the ends of justice served by this continuance outweigh the best interests of the public and the defendant in a speedy trial."
No specific new trial date was then set, although the Order did specify that for Speedy Trial Act computation purposes the time from the date of the Order to the next trial date would be excluded.
Other activities in Mr. Russell's cases continued. Mr. Russell's counsel filed a suppression motion in this firearms case and, following an evidentiary hearing, that motion was denied on April 27, 2011. Meanwhile, Mr. Russell, his counsel and the Government counsel readied themselves for the trial in Criminal Action No. 09-672 (the bank fraud case) as to which, as explained, supra, Mr. Russell elected to enter a guilty plea on June 13, 2011. A month later, through counsel, he filed this motion to dismiss the indictment in this firearm case. The Court invited counsel to present evidence if desired. Both counsel elected to present only oral argument and chose to forego the invitation to present evidence.
Given that the only continuance operative in this case (or in Mr. Russell's other case for that matter) was requested by the defense, was not opposed by the Government and was granted by the Court, it might be tempting to describe Mr. Russell's motion as a disingenuous effort to "sandbag" the Government and the Court.*fn1 Or, perhaps it would be suitably appropriate simply to admonish Defendant to "Be careful what you wish for . . . you may get it." However, the Court prefers to ...