USA v. Quinones-Davila et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 2016-0009
)
JOSE R. HODGE, et al., )
)
Defendants. )
__________________________________________)
Attorneys:
Alphonso G. Andrews, Jr., Esq.,
St. Croix, U.S.V.I.
For the United States
Renee Dowling, Esq.,
St. Croix, U.S.V.I.
For Defendant Jose R. Hodge
MEMORANDUM OPINION AND ORDER
Lewis, Chief Judge
THIS MATTER comes before the Court on “Jose R. Hodge’s Motion to Dismiss Counts 3
and 5 of the Second Superseding Indictment,” filed on March 7, 2018 by Defendant Jose R. Hodge
(“Hodge”). (Dkt. No. 1238). The Government filed a Response on March 19, 2018. (Dkt. No.
1285). For the reasons that follow, the Court will deny Hodge’s Motion.
I. BACKGROUND AND PROCEDURAL HISTORY
Drug Enforcement Agency agents arrested Hodge and three other Defendants on
November 14, 2015. He was charged in a Complaint, filed the next day, with conspiracy to possess
a controlled substance with intent to distribute and possession of cocaine powder with intent to
distribute. (Dkt. No. 1 in 2015-mj-0029). The alleged conspiracy took place from November 13,
2015 through November 14, 2015, with the possession charge alleged to have occurred on
November 14, 2015. Id.
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On December 29, 2015, the Government filed an Information charging Hodge and nine co-
Defendants with the same offenses alleged in the Complaint: conspiracy (dating from November
6-14, 2015) and possession of a controlled substance with intent to distribute. (Dkt. No. 43 in 2015-
cr-0042). On May 10, 2016, Hodge and eleven co-Defendants were charged in a seven-count
Indictment, inter alia, with conspiracy (dating from January 2012 to December 2015), attempted
possession of cocaine with intent to distribute, and possession of cocaine with intent to distribute.
(Dkt. No. 1 in 2016-cr-0009). Hodge and another co-Defendant were also charged with bulk cash
smuggling. Id. A seven-count Superseding Indictment was filed on August 23, 2016, charging
Hodge and fourteen co-Defendants with the same crimes as alleged in the original Indictment.
(Dkt. No. 190). Trial on the Superseding Indictment began on May 15, 2017 and concluded on
July 7, 2017 with a mistrial. The retrial has been scheduled for April 30, 2018. (Dkt. No. 1315).
On February 21, 2018, the grand jury returned a five-count Second Superseding Indictment
against Hodge and the five co-Defendants who are to be retried. (Dkt. No. 1216). The period of
the conspiracy changed from January 2012 to December 2015, to January 2014 to March 2016.
Count 3 of the Second Superseding Indictment charges Hodge and two other Defendants with
attempted possession of cocaine relating to an event that allegedly took place on December 13 and
14, 2014. (Dkt. No. 1216 at 10). This was the same offense that had been alleged in Count 4 of the
Superseding Indictment (Dkt. No. 190), although Hodge was not charged in that Count of the
Superseding Indictment. Count 5 of the Second Superseding Indictment charges Hodge and two
other Defendants with attempted possession of cocaine relating to an event that allegedly took
place between November 9 and 12, 2015. (Dkt. No. 1216 at 12). This was the same offense that
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had been charged in Count 6 of the Superseding Indictment, but here, too, Hodge was not charged
in that Count of the Superseding Indictment.1
II. DISCUSSION
Hodge’s Motion hinges on his interpretation of various provisions of the Speedy Trial Act,
18 U.S.C. § 3161. Hodge seeks dismissal of Counts 3 and 5 contained in the Second Superseding
Indictment, claiming that the Government is time-barred from charging him for any offense that
is based on the same conduct or that results from the same criminal episode that culminated in his
arrest on November 14, 2015, pursuant to 18 U.S.C. §§ 3161(b) and (d)(1). He observes that where
the Government violates § 3161(b), dismissal is appropriate pursuant to 18 U.S.C. § 3162(a)(1),
and the charges should be dismissed with prejudice, when applying the factors set forth in United
States v. McIntosh, 229 F. Supp. 2d 431 (D.V.I. 2002). (Dkt. No. 1239 at 2-3).
In opposition, the Government argues that the Court should deny Hodge’s Motion because,
pursuant to the text of the statutes, §§ 3161(b) and (d)(1) are inapplicable to the circumstances
here. (Dkt. No. 1285). The Government further argues that Hodge has not been prejudiced by his
inclusion in Counts 3 and 5 of the Second Superseding Indictment.
Title 18, Section 3161(b) provides, in pertinent part:
Any information or indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which such individual was
arrested or served with a summons in connection with such charges.
18 U.S.C. § 3161(b). Another provision, § 3161(h), sets forth the periods of delay that are excluded
in computing the time within which an information or indictment must be filed. Among other
things, “delay resulting from any interlocutory appeal,” § 3161(h)(1)(C) and “delay resulting from
1 This conduct was also referred to as Events 6 and 9, respectively, and listed as Overt Acts
supporting Count 1 of the Superseding Indictment (the conspiracy charge). (Dkt. No. 190 at 7, 8-
9).
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any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other
prompt disposition of, such motion,” § 3161(h)(1)(D), are excluded from the computation of the
thirty days. If an information or indictment is not filed within thirty days, as extended by section
3161(h), the charges must be dismissed:
If, in the case of any individual against whom a complaint is filed charging such
individual with an offense, no indictment or information is filed within the time
limit required by section 3161(b) as extended by section 3161(h) of this chapter,
such charge against that individual contained in such complaint shall be dismissed
or otherwise dropped.
18 U.S.C. § 3162(a)(1).
Hodge was charged by Complaint on November 14, 2015. The Government would have
faced a thirty-day deadline to file an information or indictment containing those charges if no
excluded time periods applied. The Information was filed on December 29, 2015. Although Hodge
claims that § 3161(b) was violated, he does not assert—nor could he—that the filing of the
Information exceeded the thirty-day limit, after applying the exclusions permitted under section
3161(h).2
Instead, Hodge asserts that § 3161(b) was violated by his inclusion in Counts 3 and 5 of
the Second Superseding Indictment. However, Hodge was never charged in the Complaint with
attempted possession surrounding the December 13 and 14, 2014 events, with which he was
charged in Count 3 of the Second Superseding Indictment. Similarly, Hodge was never charged in
the Complaint with attempted possession surrounding the November 9-12, 2015 events, with
which he was charged in Count 5 of the Second Superseding Indictment. Accordingly, bringing
these two new charges against Hodge in the Second Superseding Indictment is not governed by
2 After applying the exclusions, only two speedy trial days had expired by the time that the
Information was filed.
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the thirty-day time limit contained in § 3161(b). Thus, § 3161(b) was not violated and the penalty
provisions of § 3162(a)(1) do not apply.
Case law supports this conclusion. In United States v. Komolafe, 246 F. App’x 806 (3d
Cir. 2007), a panel of the Third Circuit concluded that “superseding indictments filed longer than
30 days after an arrest which add charges to those contained in the original indictment do not
violate the Speedy Trial Act.” Id. at 809. As the Third Circuit has found, the Speedy Trial Act
‘“requires the dismissal of only those charges that were made in the original complaint that
triggered the thirty-day time period.’” United States v. Watkins, 339 F.3d 167, 174 (3d Cir. 2003)
(quoting United States v. Oliver, 238 F.3d 471, 473 (3d Cir. 2001)). In sum, the Court rejects
Hodge’s motion to dismiss, based on § 3161(b).
Hodge also posits that § 3161(d)(1) precludes the Government from charging him with
Counts 3 and 5. He states that § 3161(d)(1) “contemplates a situation such as this instant matter
where Jose R. Hodge was arrested and originally charged in a Criminal Complaint, then a Criminal
Information, and ultimately an Indictment, all arising from an offense based on the same conduct
and arising from the same criminal episode,” which resulted in his arrest. (Dkt. No. 1239 at 2). He
claims “the Government is time barred” from charging him with Counts 3 and 5. Id. Other than
his conclusory statement, Hodge provides no analysis or case law demonstrating how his
circumstances fall within § 3161(d)(1).
Section 3161(d)(1) provides:
If any indictment or information is dismissed upon motion of the defendant, or any
charge contained in a complaint filed against an individual is dismissed or
otherwise dropped, and thereafter a complaint is filed against such defendant or
individual charging him with the same offense or an offense based on the same
conduct or arising from the same criminal episode, or an information or indictment
is filed charging such defendant with the same offense or an offense based on the
same conduct or arising from the same criminal episode, the provisions of
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subsections (b) and (c) of this section shall be applicable with respect to such
subsequent complaint, indictment, or information, as the case may be.
18 U.S.C. § 3161(d)(1).
Section 3161(d)(1) is inapplicable here because the Indictment and Information were not
dismissed upon motion by Hodge. In fact, the Court denied Hodge’s motion to dismiss. (Dkt. No.
48 in 2015-mj-0029). Nor were any of the charges against Hodge contained in the two-count
Complaint dismissed or dropped, after which a Complaint, Information, or Indictment was filed
charging him with “the same offense or an offense based on the same conduct or arising from the
same criminal episode” as alleged in Counts 3 and 5. Thus, pursuant to its plain language, §
3161(d)(1) does not apply in this case.
Hodge nevertheless lifts the “same offense or an offense based on the same conduct or
arising from the same criminal episode” language from § 3161(d)(1) to conclusorily argue that
because Counts 3 and 5 are part of the same offense or criminal episode as the charges filed in the
initial Complaint in 2015, the Government was “time-barred” from filing those charges against
him in the Superseding Indictment. This argument appears to equate the Speedy Trial Act with a
statute of limitations within which the Government must file charges against Hodge. The Speedy
Trial Act “governs post-accusation periods of delay,” while statutes of limitations “govern[] the
time limit within which the federal government must bring an indictment for an offense.” United
States v. Beckett, 208 F.3d 140, 150 (3d Cir. 2000). The applicable statute of limitations in this
case, 18 U.S.C. § 3282(a), provides that “no person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or the information is instituted within five years
next after such offense shall have been committed.” The charges brought in the Second
Superseding Indictment were filed within five years of the offenses being committed. To the extent
that Hodge’s argument implicates a statute of limitations theory, it fails.
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Hodge also offers some general arguments that the “overlong gap” between his arrest in
November 2015 and the filing of the Second Superseding Indictment violates his due process rights
and prejudices him by requiring him to prepare a new defense for retrial. (Dkt. No. 1239 at 3).
With regard to his due process contention, he cites one case—United States v. Garcia, 2016 WL
7257190 (D.N.M. Nov. 16, 2016)—for the proposition that a preindictment delay that rises to a
constitutional violation requires dismissal of the indictment with prejudice. He also asserts that
because the trial date is quickly approaching, his ability to mount a new defense is limited, as his
counsel has prescheduled commitments in Virgin Islands Superior Court, which leaves little time
to revamp his defense strategy and review the extensive discovery. Id. He adds, without further
explanation or argument, that “the only purpose for this delay by the Government is to gain a
tactical advantage over Jose R. Hodge.” Id. at 4.
The Government responds that the additional charges do not unfairly prejudice Hodge
because discovery produced before—as well as testimony elicited during—the first trial, provided
information regarding the factual predicate of the new charges, and Hodge has already defended
at the first trial against the conduct that forms the basis for Counts 3 and 5. (Dkt. No. 1285 at 8-9).
The Court agrees. The Court’s recent finding in addressing a motion for continuance of the
trial, in which Hodge joined, is equally applicable here:
In light of the discovery produced, testimony elicited, and rulings by the Court in
the context of the first trial, the revisions to the Second Superseding Indictment
should come as no surprise to Defendants. . . .
With respect to the additional charges against Defendant Hodge in Counts 3 and 5
of the Second Superseding Indictment, testimony regarding his alleged
involvement in the claimed December 2014 and November 2015 events that
underlie those counts was elicited through confidential source Timothy
Schoenbohm at the first trial. (Dkt. No. 1002 at 10, 13). . . . Defendant[ ] and [his]
counsel were presented with this testimony at the first trial. Defense counsel also
requested and received daily transcripts of the testimony of . . . Schoenbohm . . . .
Accordingly, Defendant[] ha[s] been well aware of allegations of [his] involvement
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in the events charged in the Second Superseding Indictment since at least the first
trial—which concluded over nine months prior to the scheduled April 16 trial date.
In view of [Hodge’s] prior knowledge of the evidence upon which the [charges in
Counts 3 and 5 of] the Second Superseding Indictment are based—as conveyed via
the testimony of [Schoenbohm] at the first trial, as well as the daily transcripts
received by counsel for purposes of preparing for the cross-examination of
[Schoenbohm]—the Court finds that the 54-day period between the filing of the
Second Superseding Indictment and the [April 16, 2018] date scheduled for the start
of jury selection in the second trial provides [Hodge’s] counsel with more than
ample time to conduct any further investigation into the allegations and develop
any additional defense strategies beyond those already utilized in response to the
evidence presented at the first trial.
(Dkt. No. 1315 at 6-8). With the two-week continuance granted by the Court, the 54-day
preparation time is now expanded to 68 days—over two months. In sum, the Court rejects Hodge’s
due process/prejudice argument here as well.
ORDER
UPON CONSIDERATION of “Jose R. Hodge’s Motion to Dismiss Counts 3 and 5 of the
Second Superseding Indictment” (Dkt. No. 1238), the Government’s Opposition thereto (Dkt. No.
1285), and the entire record in this matter, it is hereby
ORDERED that “Jose R. Hodge’s Motion to Dismiss Counts 3 and 5 of the Second
Superseding Indictment” (Dkt. No. 1238) is DENIED.
SO ORDERED.
Date: April 13, 2018 ________/s/________
WILMA A. LEWIS
Chief Judge
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