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United States v. Ferrebee

United States District Court, M.D. Pennsylvania

June 7, 2018

UNITED STATES OF AMERICA
v.
JOSIAH FERREBEE, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE UNITED STATES DISTRICT COURT.

         Before the court is defendant's motion to dismiss for failure to comply with the Speedy Trial Act (Doc. 65) and motion to suppress evidence in this criminal matter. (Doc. 69). Having been fully briefed and a hearing held on the suppression motion, these matters are ripe for disposition.

         Background

         On June 3, 2016, the United States filed a complaint against Defendant Josiah Ferrebee, charging him with persuading a minor to engage in sexual activity for the purposes of producing a visual depiction, in violation of 18 U.S.C. § 2251(a) and 18 U.S.C. § 2251(e). Magistrate Judge Joseph F. Saporito presided over the defendant's initial appearance on the same day. The defendant pleaded not guilty to the charges.

         Four days later, the court granted the defendant's motion for a psychiatric examination. The evaluation was conducted at the Federal Detention Center, SeaTac between July 18, 2016 and September 6, 2016. The clinical staff at SeaTac concluded that the defendant does not suffer from a mental disorder that would substantially impair his ability to understand the nature and consequences of the court proceedings brought against him. Subsequent to the evaluation, the defendant was returned to Lackawanna County Prison, where he has since remained.

         On August 9, 2017, the defendant filed a motion to dismiss the charges against him on the grounds that the United States failed to bring him to trial within seventy (70) days as required by the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). On August 18, 2017, the defendant filed a motion to suppress evidence obtained by the United States in this investigation. The court held a hearing on the motion to suppress on December 15, 2017. After the hearing, the court ordered the parties to file supplemental briefs. The time for filing such briefs has now passed, and both motions are ripe for disposition.

         Discussion

         As noted above, the defendant has filed two motions. In his first motion, which is a motion to dismiss, the defendant argues that his continued detention without trial is in violation of the Speedy Trial Act, 18 U.S.C. § 3161, and the indictment against him should therefore be dismissed. The defendant's second motion is a motion to suppress evidence. In this motion, the defendant argues that statements that he made while in police custody as well as physical objects seized by the government should be suppressed as this evidence was obtained in violation of his constitutional rights. The court will address each motion in turn.

         I. Motion to Dismiss for Violation of the Speedy Trial Act, 18 U.S.C. § 3160

         Under the Speedy Trial Act, the trial of a defendant who pled not guilty to the alleged commission of an offense as charged in an information or indictment “shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). “ ‘Congress enacted the Speedy Trial Act to give effect to the Sixth Amendment right to a speedy trial by setting specified time limits after arraignment or indictment within which criminal trials must be commenced.' ” United States v. Lattany, 982 F.2d 866, 870 (3d Cir. 1992) (quoting United States v. Rivera Constr. Co., 863 F.2d 293, 295 (3d Cir. 1988)). “If the trial does not commence within the 70-day period, the Act requires that the indictment be dismissed.” Rivera, 863 F.2d at 295 (citing 18 U.S.C. § 3162(a)(2)).

         The Act does not mandate, however, that every criminal case go to trial within 70 days or face immediate dismissal. For example, in calculating the 70-day period prescribed by the Speedy Trial Act, “[d]elay resulting from any pretrial motion, from the date of the filing of the motion through the date of the prompt disposition of the motion, is excluded.” United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993). “Any pretrial motion, including a motion for extension of time, is a pretrial motion within the meaning of Section 3161(h)(1)(F) and creates excludable time, even if it does not in fact delay trial.” Id. Relevant in this case, the Act also provides for the exclusion of certain periods from the “delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant.” 18 U.S.C. § 3161(h)(1)(A).

         Furthermore, time attributable to a delay is excluded from the 70-day time limit “if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). The district court must state its reasons for granting an “ends of justice” continuance; however, the statement of reasons need not be made contemporaneously with the order to continue because the Act's “reasons” requirement is satisfied by subsequent memorandum explaining the court's decision. See United States v. Brooks, 697 F.2d 517, 522 (3d Cir. 1982). It is the defendant who bears the burden of proving a violation of the Speedy Trial Act. See 18 U.S.C. § 3162(a)(2). Thus, the question before us is whether defendant has carried his burden and established that he has not faced trial by the appropriate date after subtracting excludable delays. We find that he has not.

         After a careful review, we find that the defendant's proposed calculation of the days that should be excluded from the speedy trial clock is flawed and imprecise. When all excludable time is counted, the defendant's non-excludable time has not exceeded the 70-day period prescribed by the Speedy Trial Act.

         In coming to this conclusion, we first look at when the Speedy Trial clock began to run. The defendant was arrested for child exploitation offenses and brought before the court for an initial appearance on June 3, 2016. The grand jury indicted him on June 14, 2016. Because the defendant appeared before the court prior to his indictment on June 14, 2016, the date of the indictment begins the countdown of the 70 days of the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1) (stating that “the trial of a defendant charged in an information or indictment . . . shall commence within seventy days from the filing date . . . of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs); see also United States v. Willaman, 437 F.3d 354, 358 (3d Cir. 2006).

         This case presents an interesting set of circumstances, however, that affect this June 14, 2016, start date. On June 6, 2016, prior to the indictment being filed, the defendant filed a motion for a psychiatric examination to determine his mental competency. Both parties acknowledge that the law provides for the exclusion of time “resulting from the delay of any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant.” 18 U.S.C. § 3161(h)(1)(A). More specifically, the filing of the motion for a psychiatric examination stops the Speedy Trial clock. U.S. v. Tinklenberg, 563 U.S. 647, 650 (2011). On June 6, 2016, however, as noted above, the Speedy Trial clock had not yet started. Therefore, when the Speedy Trial clock did “start” on June 14, 2016, it immediately stopped due to the pending motion for a psychiatric examination.

         We next must determine when the Speedy Trial clock started running again. The defendant argues that it started again when his psychiatric examination at SeaTac was completed on September 6, 2016. The law provides, however, that excludable time for Speedy Trial purposes continues far beyond the psychiatric evaluation itself, and lasts until a determination of mental competency is made by the court. See U.S. v. Graves, 722 F.3d 544, 547 (3d Cir. 2013). Thus, we find that the Speedy Trial clock started running again on December 6, 2016, when the defendant was arraigned and the mental competency results from his psychiatric evaluation were acknowledged by the court. Until December 6, 2016, no time had run against the Speedy Trial clock.

         At this juncture, we agree with the defendant that the twenty-four (24) days that followed, between December 6, 2016 and December 30, 2016, do count against the Speedy Trial clock. The government argues that this time period is excludable because it was the time period set by the court for the preparation of pretrial motions. The Speedy Trial act does not, however, subject all pretrial motion-related delay to automatic exclusion, as the government suggests. See Bloate v. U.S., 559 U.S. 196, 206 (2010). Rather, it “renders automatically excludable only the delay that occurs ‘from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of' the motion.” Id. (emphasis added in Bloate) (citing subsection (h)(1)(D) of the Speedy Trial Act). The days between December 6, 2016, and December 30, 2016, therefore count toward the 70-day Speedy Trial clock.

         The parties agree that the clock stopped once again on December 30, 2016, the date the defendant filed his first motion for an extension of time to file pretrial motions. This motion was disposed of on January 11, 2017. By way of an order, we held that “[t]he period of time from the signing of the order to the rescheduled date of trial shall be excluded under the Speedy Trial Act 18 USC §3161(h)(7)(a).” (Doc. 27). Various time extensions have occurred since our January 11, 2017, order. The parties agree that all time from December 30, 2016, until the date of the instant accompanying order is excludable.

         In summary, the Speedy Trial clock started running on June 14, 2016. It immediately stopped on the same day. The clock started again on December 6, 2016. It remained running until December 30, 2016. On December 30, 2016, the clock stopped, and it has yet to start again. Our calculation therefore leads us to the finding that a total of twenty-four (24) days have run against the 70-day Speedy Trial clock. Thus, there has been no violation of the Speedy Trial Act. The defendant's motion to dismiss will be denied.

         II. Motion to Suppress

         The defendant next seeks to suppress certain statements he made on June 2, 2016, to law enforcement officers on the grounds that the statements were the product of custodial interrogation; the defendant was not provided with his Miranda rights prior to the statements; and the defendant did not thereafter waive his Miranda rights voluntarily. The defendant also seeks to suppress physical evidence obtained by the government from searching his iPhone and thumb drives, on the grounds that the government did not obtain the defendant's valid consent before performing said ...


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