The opinion of the court was delivered by: DuBOIS, J.
Defendant James Robinson is charged by Superseding Indictment with possession with intent to distribute cocaine base ("crack") (referred to as "crack cocaine"). Presently before the Court are two motions: defendant's Motion to Dismiss Indictment / Motion for Release on Conditions ("Speedy Trial Motion") and defendant's Motion to Reopen Suppression Hearing. The Court heard oral argument on March 13, 2012, and, for the reasons set forth below, denies the Speedy Trial Motion and grants in part and denies in part the Motion to Reopen Suppression Hearing.
This Memorandum recounts the procedural history of the case in four sections: (1) proceedings from the arrest through August 2010; (2) the October 8, 2010, suppression hearing; (3) proceedings from October through December 2010; and (4) proceedings from October 2011 through January 2012.
A.Proceedings from Arrest Through August 2010
Defendant was arrested on February 22, 2009, and was originally charged in the Municipal Court of Philadelphia, where a preliminary hearing was held on April 21, 2009. The United States Attorney's Office then adopted the prosecution. A federal grand jury returned an Indictment on July 15, 2009, charging defendant with one count of possessing with intent to distribute approximately fifty-five grams of crack cocaine, in violation of 21 U.S.C. § 841 et seq.*fn1 Defendant's initial appearance was before then-Chief Magistrate Judge Thomas Rueter on July 28, 2009. On July 30, 2009, defendant was arraigned, entered a plea of not guilty, and stipulated to pretrial detention. (July 30, 2009, Bail Status and Order, Docket no. 7, at 1.) Defendant's trial date was set for October 19, 2009. The Court granted defendant's unopposed motion for a continuance on October 9, 2009, and continued the trial to February 8, 2010, pursuant to 18 U.S.C. §§ 3161(h)(8)(A), (h)(8)(B)(i), and (h)(8)(B)(iv). Defendant agreed to the continuance. (Oct. 9, 2009, Order, Docket no. 18, at 2.)
On December 21, 2009, Catherine Henry, Esquire, defendant's counsel, filed Defendant's Motion to Suppress Physical Evidence Obtained in Violation of the Fourth Amendment ("Motion to Suppress"). On January 21, 2010, she filed an additional unopposed continuance motion. On January 29, 2010, the Court granted defendant's second continuance motion, scheduled a suppression hearing for April 9, 2010, and continued the trial to May 10, 2010, pursuant to 18 U.S.C. §§ 3161(h)(7)(A), (h)(7)(B)(i), and (h)(7)(B)(iv). Defendant again agreed to the continuance. (Jan. 29, 2010, Order, Docket no. 34, at 2.) Ms. Henry then requested a postponement of the suppression hearing because the parties were "optimistic" that the case would "result in a non trial disposition." (March 25, 2010, Order 1.) Accordingly, the Court postponed the suppression hearing. Ms. Henry next filed a third unopposed motion for a continuance on April 26, 2010. The Court granted that motion by Order dated May 6, 2010, pursuant to 18 U.S.C. §§ 3161(h)(7)(A), (h)(7)(B)(i), and (h)(7)(B)(iv), and continued the trial to November 1, 2010. Defendant agreed to the continuance. (May 6, 2010, Order, Docket no. 44, at 2--3.) The Court also scheduled the hearing on the suppression motion and any other motions requiring a hearing for October 8, 2010.
Ms. Henry filed a Motion to Withdraw as Counsel on June 11, 2010, averring that defendant had requested a new attorney. (June 11, 2010, Mot. Withdraw Counsel 1.) The Court held a hearing on August 26, 2010, at which the Court granted Ms. Henry's motion and appointed Kenneth C. Edelin, Esquire to represent defendant. The suppression-hearing date and trial date were not changed at that time. On October 1, 2010, Mr. Edelin filed Defendant's Supplemental Memorandum of Law in Support of His Suppression Motion ("Defendant's Supplemental Memorandum"), advancing an additional argument in support of the Motion to Suppress.*fn2
B.October 8, 2010, Suppression Hearing
At the October 8, 2010, hearing on the Motion to Suppress, the government presented a single witness, Philadelphia Police Officer James Robertson, who was the arresting officer. The government also introduced photographs of the intersection where defendant was arrested and of the narcotics recovered from his pocket. The Court summarized the evidence as follows:
At approximately 1:45 p.m. on February 22, 2009, Officer James Robertson of the Philadelphia Police Department received a radio call based on an anonymous 911 call reporting an assault of a pregnant female by a light-complexioned black male wearing a tan shirt and blue pants at the intersection of 27th Street and Cecil B. Moore Avenue in North Philadelphia. Officer Robertson drove his patrol car to the intersection, arriving approximately thirty seconds after receiving the radio call. As he approached the intersection, Officer Robertson observed the defendant standing at the southwest corner of the intersection dressed in a tan shirt and blue pants. He did not observe a pregnant woman in the vicinity. Officer Robertson exited his patrol car, announced himself, and approached the defendant. As he approached the defendant, Officer Robertson observed that the defendant was sweating despite being dressed lightly for the cold weather. Officer Robertson asked the defendant "what was going on," to which the defendant responded that "nothing was going on." The defendant refused to provide the officer with his name and stated that he did not have any identification. Officer Robertson then took the defendant aside and performed a pat-down to check for weapons. In the course of the pat-down, Officer Robertson felt a bulge in defendant's left front pocket, which Officer Robertson believed to be small plastic [packets] containing narcotics contraband. Officer Robertson removed the suspected narcotics from defendant's pocket and placed defendant in handcuffs. He then conducted a further search and recovered additional suspected narcotics and cash but no weapons. The suspected narcotics later tested positive for crack cocaine.*fn3
United States v. Robinson, No. 09-cr-473, 2010 WL 4181736, at *1 (E.D. Pa. Oct. 25, 2010) (transcript citations omitted).
The Court denied defendant's Motion to Suppress by Memorandum and Order dated October 22, 2010. In concluding that Officer Robertson had not violated defendant's Fourth Amendment rights, the Court first held that the officer had a reasonable suspicion that defendant was engaged in criminal activity before detaining him. Robinson, 2010 WL 4181736, at *3--5. The Court next rejected defendant's argument that the officer's frisk was not supported by a reasonable belief that defendant was armed and dangerous, given that "the officer had a reasonable suspicion that the defendant had committed a violent assault of a pregnant woman on a city street and . . . [demonstrated] nervousness and other suspicious behavior." Id. at 5--6. Finally, the Court concluded that the Terry frisk did not violate the plain feel doctrine because "probable cause to believe the objects were narcotics existed prior to the point at which Officer Robertson ruled out the possibility that the objects were a weapon or that they concealed one." Id. at *6--7.
C.Events of October through December 2010
When the Court issued the Memorandum and Order described above, defendant's trial was scheduled for November 1, 2010. On October 27, 2010, the government filed a motion to continue the trial because an essential witness-Officer Robertson-would be unavailable due to his wife giving birth. (Mot. United States Continuance Unavail. Essential Witness 1--2.) The Court ordered that the time from the filing of the Motion of the United States for Continuance for Unavailability of Essential Witness until "a hearing on said motion [was] concluded or other prompt disposition [was] made" be excluded for Speedy Trial Act purposes. (Oct. 27, 2010, Order, Docket no. 64.) That same day, the Court received notice that defendant wished to enter into a plea agreement. Therefore, the Court scheduled a hearing for November 1, 2010-the scheduled trial date-to accept defendant's change of plea or, in the alternative, to address the government's continuance motion. (Oct. 28, 2010, Notice, Docket no. 65.)
At the November 1, 2010, hearing, Mr. Edelin informed the Court that defendant was not prepared to enter into the plea agreement, was "dissatisfied" with Mr. Edelin's performance, and requested a new attorney and another suppression hearing. (See Nov. 1, 2010, Hr'g Tr. 2--5.) The Court conducted a colloquy of defendant, who explained that he believed Mr. Edelin failed to address issues that "would have made a big difference" at the suppression hearing and that he wanted more time to consider the plea agreement. (Id. at 6--7, 9--12.) The Court informed defendant that it would not permit another suppression hearing and that it would not appoint a new attorney because defendant had had "two of the best attorneys who appear before [the Court]" in Ms. Henry and Mr. Edelin. (Id. at 7, 9.) Without ruling on the government's October 27, 2010, continuance motion, the Court scheduled a status hearing on November 22, 2010. Defendant was instructed to advise the Court whether he had decided to plead guilty or needed more time to consider doing so, or wanted the Court to schedule a new trial date, in which case the Court would address the government's continuance motion. (Id. at 10--14.) That ruling was set forth in an Order dated November 1, 2010, scheduling the status hearing for November 22, 2010, and deferring ruling on the government's continuance motion. (Nov. 1, 2010, Order, Docket no. 68.) The trial scheduled for November 1, 2010, was continued under those circumstances, but no new trial date was set at that time.
At the November 22, 2010, hearing, Mr. Edelin advised the Court that defendant did not want to sign the plea agreement and requested a new attorney. (Nov. 22, 2010, Hr'g Tr. 3.) The Court conducted a colloquy of defendant and then addressed Mr. Edelin and defendant outside the presence of government counsel. One of defendant's concerns with the plea agreement was that he wanted to be able to file a habeas corpus motion challenging Mr. Edelin's effectiveness in litigating the suppression motion. (Id. at 14.) In response, government counsel agreed to
consider allowing defendant to file a habeas corpus motion. (Id. at 21--22.) Because any such motion would target Mr. Edelin, the Court permitted him to withdraw and appointed NiaLena Caravasos, Esquire, to represent defendant. (Id.; Nov. 22, 2010, Order, Docket no. 71.) Without ruling on the government's continuance motion, the Court then scheduled a status hearing on December 17, 2010.
By letter dated December 14, 2010, Ms. Caravasos reported that defendant needed to be examined by a forensic psychiatrist. At the December 17, 2010, status hearing, Ms. Caravasos presented an unopposed oral Motion for Continuance of Trial-defendant's fourth continuance motion-seeking time to allow the psychiatric examination to be completed. (Dec. 17, 2010, Order, Docket no. 78, at 1--2.) Defendant agreed to continue the trial to May 31, 2011. (Id.) By agreement of the parties, the Court denied the government's October 27, 2010, continuance motion as moot. (Id. at 2.) The Court then granted defendant's continuance motion pursuant to
18 U.S.C. §§ 3161(h)(7)(A), (h)(7)(B)(i) and (h)(7)(B)(iv) and continued the trial to May 31, 2011. (Id. at 1.) Defendant agreed to the continuance. (Id. at 3.)
The Court later granted defendant's fifth continuance motion and continued the May 31, 2011, trial date to November 14, 2011, pursuant to 18 U.S.C. §§ 3161(h)(1)(A), (h)(7)(A), (h)(7)(B)(i), and (h)(7)(B)(iv). Defendant agreed to the continuance. (May 20, 2011, Order, Docket no. 92, at 3.)
D.Events of October 2011 Through January 2012
The Court held a status hearing on October 17, 2011, to address concerns raised by defendant's counsel, Ms. Caravasos, in letters to the Court dated July 28, 2011, and September 13, 2011, about whether deficits in defendant's memory and comprehension precluded him from understanding the proceedings or assisting in his defense. (Oct. 17, 2011, Order, Docket no. 100, at 3--4.) As of the hearing, trial was still scheduled for November 14, 2011. Prior to the hearing, defendant's counsel provided the Court with reports dated June 16, 2011, and October 11, 2011, from psychiatrist Robert L. Sadoff, M.D., and a report dated June 9, 2011, from psychologist Gerald Cooke, Ph.D. (Id. at 1.)
At the hearing on October 17, 2011, the Court ordered defendant committed to an appropriate facility for a competency evaluation and recommended treatment pursuant to 18 U.S.C. §§ 4241(b) and 4247(b). The Order provided that defendant was referred "for a period not to exceed 30 days" but that the facility could request additional time by letter to the Court. (Oct. 17, 2011, Order at 1--2.) The Order also continued the trial until further Order of the Court pursuant to 18 U.S.C. §§ 3161(h)(1)(A), (F), and (H).
Defendant was designated on October 26, 2011, to the Metropolitan Correctional Center in New York ("MCC-NY") by the Federal Bureau of Prisons. By letter dated October 28, 2011, MCC-NY requested an extension until November 25, 2011, to file its report. (Oct. 28, 2011, Letter from Warden Suzanne Hastings to Court, Docket no. 105, at 1.) The Court granted the request by Order dated November 4, 2011. MCC-NY's extremely thorough report, dated November 29, 2011, was filed under seal on December 12, 2011.
The parties, through counsel, addressed matters including the Metropolitan Correctional Center's report during a telephone conference on December 21, 2011. That same day, Ms. Caravasos filed a Motion for Leave to Withdraw, seeking permission to terminate her representation due to defendant's "consistently negative feelings toward [her]" and the "obvious breakdown of the attorney-client relationship." (Mot. Leave Withdraw, Docket no. 112, at 1--2.) The Court scheduled a hearing on January 20, 2012, to address both the evaluation and the Motion for Leave to Withdraw.*fn4 (Dec. 23, 2011, Order, Docket no. 114, at 1.) At that hearing, based on the competency report and defense counsel's representations, the Court determined that defendant understood the nature and consequences of the charges against him and was able to assist in his defense. (Jan. 20, 2012, Order Regarding Competency, Docket no. 119, at 1.) The Court then granted Ms. Caravasos leave to withdraw, appointed Stephen J. Britt, Esquire, to represent defendant, and scheduled a status report date to facilitate the scheduling of further proceedings, including the trial. The Court also continued the trial date until further order of the Court pursuant to 18 U.S.C. § 3161(h)(7)(A) due to the appointment of new counsel. (Jan. 20, 2012, Order Regarding Pro Se Motions & Future Proceedings, Docket no. 121, at 1--2.) At a status hearing on February 17, 2012, the Court scheduled further proceedings, including the presently scheduled trial date of April 23, 2012.
Defendant filed his Speedy Trial Motion on February 18, 2012, contending that his speedy trial rights have been violated. He advances two arguments in support of this contention. First, he argues generally that his pretrial detention violates the Sixth Amendment and the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., because he has suffered negative physical and mental effects due to his "depressive disorder, his 'considerable anxiety problems[,]' . . . [his] profound dislike of people," and "his impaired memory." (E.g., Mem. Supp. Speedy Trial Mot. 5; see also March 13, 2012, Hr'g Tr. ("3/13/12 Tr.") at 14.) Second, according to defendant, two of the continuances the Court granted were improper under the Speedy Trial Act. He objects to
(1) the events that took place between October and December, 2010, that allegedly resulted in the Court's granting defendant's oral motion for a continuance on December 17, 2010; and (2) the October 17, 2011, commitment for a competency evaluation, and subsequent extension. (See 3/13/12 Tr. 14--15.) As to the December 17, 2010, continuance, defendant avers that the Court impermissibly continued the trial at the government's request to accommodate Officer Robertson's wife giving birth. (Id. at 20.) As to the October 17, 2011, continuance and extension, defendant argues that the Court had no authority to continue the trial and extend the commitment to permit MCC-NY to complete the competency evaluation. (Id. at 17--18.)
Defendant seeks dismissal of the indictment as a remedy or, in the alternative, release on bail pending trial. (Mem. Supp. Speedy Trial Mot. 5.)
F.Motion to Reopen Suppression Hearing
Defendant argues that the Court should reopen the suppression hearing because "there were extant critical facts which were not briefed in the motions nor developed." (Mot. Reopen Suppression Hr'g 5--6.) The motion raises four points, and Mr. Britt added a fifth at oral argument. First, defendant contends that Officer Robertson testified at defendant's preliminary hearing in state court that he was "certain" the bulge in defendant's pocket was not a weapon before he reached into the pocket. (Id. at 7.) Second, according to defendant, the officer also acknowledged at the preliminary hearing that he had "manipulat[ed]" or "squeeze[ed]" the bulge instead of rubbing it with an open palm. (Id. 6--7.) Third, Officer Robertson had "only a few months['] experience at the time of Mr. Robinson's apprehension," which defendant contends "should have been emphasized at the suppression hearing." (Id. at 8.) Fourth, defendant argues that the Court's opinion denying the Motion to Suppress improperly referred to "vials" of crack cocaine instead of "packages or bags." (Id. at 11--12.) Finally, defendant ...