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United States v. Small

United States District Court, Third Circuit

April 30, 2013



GENE E.K. PRATTER, District Judge.


Defendant Kevin W. Small presents four pre-trial motions in advance of his trial on charges that he engaged in a criminal conspiracy in violation of 18 U.S.C. § 371, forged signatures of a judge and a court official in violation of 18 U.S.C. § 505, escaped from lawful federal custody in violation of 18 U.S.C. § 751, affixed a counterfeit court seal in violation of 18 U.S.C. § 606, and engaged in mail fraud in violation of 18 U.S.C. § 1341. Specifically, Mr. Small has filed a motion for change of venue, a motion to dismiss the charge of escape, a motion to suppress certain statements made by him to law enforcement personnel at the time of his re-arrest on March 5, 2012, and a request to be transferred to a different detention facility pending trial. (Docket No. 42). The Government opposes all of Mr. Small's applications. For the reasons outlined in this Memorandum the Court denies the motions and the transfer request.


The roots of this case reach back to federal charges levied against Mr. Small in 2006 when he was charged with four counts of filing false federal tax returns and with mail fraud. See Docket 1:06-CR-139. In a February 2007 trial presided over by Federal District Court Judge Christopher C. Conner, a jury convicted Mr. Small on the four tax return counts and acquitted him on the mail fraud count. Judge Conner sentenced Mr. Small to a term of imprisonment of 135 months, payment of $1, 000, payment of a $400 special assessment, and a three-year term of supervised release. Judge Conner expressly ordered that this federal sentence of incarceration was to be served consecutively to the state sentence Mr. Small was then already serving. Mr. Small's direct and indirect appeals were unavailing.[1]

Following the October 5, 2007 federal sentencing hearing Mr. Small returned to the Pennsylvania State Correctional Institution at Huntingdon. The Government contends that four days later the U.S. Marshal served the Commonwealth Department of Corrections with a Detainer Based on Federal Judgment and Commitment applicable to Mr. Small. The purpose of the Detainer was to make certain that the Pennsylvania authorities would turn Mr. Small over to federal authorities at the end of his Pennsylvania state sentence.

According to the Government, as outlined in the Indictment for the pending case, in October 2011 the records staff at SCI Huntingdon received through the mail a four-page document, ostensibly from the federal Clerk of Court for the Middle District of Pennsylvania. The document purported to bear the Clerk's signature and directed the entry of an accompanying order, supposedly issued by Judge Conner, which appeared to vacate Mr. Small's federal conviction and sentence and, hence, was to have the effect of discharging the detainer. The Government claims that the papers bore what was to be accepted as Judge Conner's signature and the District Court's official seal. The Commonwealth's prison officials allegedly accepted the papers, so that when Mr. Small completed his state sentence on January 5, 2012 he was released; he was not relinquished to the federal Bureau of Prisons; and the federal authorities were not informed of Mr. Small's release upon the completion of his state sentence.

In March 2012, by happenstance while working on an unrelated matter, a federal agent who had been engaged in the investigation of Mr. Small's earlier tax charges learned of Mr. Small's release by the Pennsylvania authorities. As a result, federal marshals, FBI personnel and other local law enforcement officers mobilized in order to locate and arrest Mr. Small, which they did on March 5, 2012 at Mr. Small's residence at 5033 Baltimore Street in Philadelphia. The alleged circumstances of that arrest are described below.

Within two weeks of his arrest, the grand jury returned an indictment with four charges against Mr. Small to which he pleaded not guilty at his March 20, 2012 initial appearance. The case, having been initially assigned to the criminal case docket of Judge Conner, was subsequently transferred to the Honorable John E. Jones III, also of the Federal District Court for the Middle District of Pennsylvania. Thereafter, on December 5, 2012, the grand jury returned a superseding indictment which contained the five charges outlined above. Mr. Small again entered not guilty pleas to each count. By January 9, 2013 Mr. Small had filed the motions enumerated at the outset of this Memorandum. While the motions were pending, the Third Circuit Court of Appeals entered an intracircuit transfer order to assign the duties of presiding over this case to the undersigned judge from the Eastern District of Pennsylvania. The case itself remains docketed in the Middle District.

In connection with Mr. Small's suppression motion, this Court then presided over an evidentiary hearing on March 7, 2013 to address the events of the arrest. At that suppression hearing, testimony was presented by law enforcement personnel Stephen Rowe, John Sermons, Michael Aleman and Gary Duncan. Mr. Small also testified.

Stephen Rowe, an inspector in the U.S. Marshal's Service, testified at the hearing and described his conduct as the lead investigator concerning Mr. Small's current charges. Inspector Rowe testified that he led approximately 10 law enforcement agents to Mr. Small's Philadelphia residence at about 6:45 a.m. on the morning of March 5, 2012. (Hrg. 3/7/13 N.T. at 9; 62). Inspector Rowe and the others who had been deployed to locate Mr. Small were informally dressed. Inspector Rowe followed the others as they forcibly entered Mr. Small's row house. (Hrg. 3/7/13 N.T. at 33; 63; 65). Among those ahead of Mr. Rowe as they entered the Small residence were FBI Agent John Sermons, Deputy Marshal Mike Aleman and Deputy Marshal Duncan, each of whom testified during the hearing. (Hrg. 3/7/13 N.T. at 36; 48; 63).

Once in the house, Inspector Rowe promptly found Mr. Small in the living room, handcuffed and prone on the floor as the earlier entering officers had secured him. (Hrg. 3/7/13 N.T. at 10). Inspector Rowe asked Mr. Small to identify himself. Before finally acknowledging that he was indeed Kevin Small, Mr. Small three times - according to Mr. Rowe - gave a different name. (Hrg. 3/7/13 10-11). At that point, according to Inspector Rowe, once Mr. Small acknowledged his identity Miranda warnings were verbally administered while Mr. Small was still in the living room. (Hrg. 3/7/13 10; 25; 38; 44; 57-58; 66-67). According to the witnesses then present, Mr. Small unambiguously acknowledged hearing and understanding the constitutional warnings. (Hrg. 3/7/13 12; 19; 45; 58-59). From the perspective of Inspector Rowe, Mr. Small was an adult of above average intelligence and was conversant with Miranda warnings from his prior interaction with the criminal justice system. (Hrg. 3/7/13 N.T. at 14-15). Thus, as also confirmed by Deputy Marshal Aleman, at the time Mr. Small was informed of his pre-interrogation constitutional rights he (Mr. Small) appeared to fully understand his Miranda rights and to be in full control of his faculties. (Hrg. 3/7/13 N.T. at 17-18; 39-40; 47).

While Mr. Small was informed of his rights as he remained handcuffed on the floor, as many as a dozen law enforcement personnel were milling about inside the house. None were pointing any weapon at Mr. Small as he was read his Miranda rights, [2] and none were directly physically touching Mr. Small or verbally abusing or threatening him. (Hrg. 3/7/13 N.T. at 18-19; 27-28; 31; 37; 39; 45-47). Soon after the Miranda warnings were given, according to Inspector Rowe, Mr. Small said he wanted to use the bathroom. Inspector Rowe, as well as FBI Special Agent John Sermons, walked Mr. Small to the first floor bathroom in the rear of the apartment near the kitchen. (Hrg. 3/7/13 N.T. at 12-13). Thereafter, Inspector Rowe and Mr. Small stepped into the nearby kitchen at which point, according to the inspector, Mr. Small expressed a desire to make a statement. (Hrg. 3/7/13 N.T. at 13; 29). When Inspector Rowe asked Mr. Small how he had come to be released from SCI Huntingdon Mr. Small several times demurred; his response was similar when asked questions about the creation or mailing of the supposed federal order. He did not answer when Inspector Rowe asked about the unserved federal sentence. (Hrg. 3/7/13 N.T. at 13-14).

In response to the inspector's inquiry about the Clerk's Office seal on one of the documents, Inspector Rowe testified that Mr. Small's rejoinder was, "You're not going to find that here." (Hrg. 3/7/13 N.T. at 14). Efforts to glean any more information ceased soon thereafter once Mr. Small began to demonstrate what Inspector Rowe described as "agitation" because Mr. Small wanted to change from his pajamas into street clothes and shoes. According to Inspector Rowe, he told Mr. Small at that point that he (Inspector Rowe) interpreted his (Mr. Small's) conduct as an effort to "deflect the conversation." (Hrg. 3/7/13 N.T. at 14-15). By that point, Inspector Rowe estimates that 10 minutes or less had elapsed since Mr. Small was informed of his constitutional rights. (Hrg. 3/7/13 N.T. at 30). Mr. Small was unharmed, with the single exception of ...

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