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United States v. Ochoa

United States Court of Appeals, Eleventh Circuit

October 25, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DANIEL OCHOA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DANIEL OCHOA, Defendant-Appellant.

          Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:17-cr-20595-DMM-1, No. 1:14-cr-20674-JLK-1

          Before ROSENBAUM, GRANT and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         Following two jury trials, Daniel Ochoa appeals his convictions and sentences for Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, knowingly carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and knowingly possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

         On appeal, Ochoa argues that the district court erred in: (1) limiting his cross-examination of FBI Task Force Officer Gerard Starkey; (2) denying his motion to suppress pre- and post-Miranda[1] statements; (3) dismissing Count Three of the original indictment without prejudice; and (4) denying his motions for judgment of acquittal in both trials. Ochoa also contends that the cumulative error doctrine requires that his convictions be vacated and that the district court procedurally erred in calculating his advisory guidelines range during both of his sentencing proceedings. After review, and with the benefit of oral argument, we affirm Ochoa's convictions and sentences.

         I. FACTUAL BACKGROUND

         We begin by describing the underlying armed robbery offense that gave rise to the charges against Ochoa, then move on to his arrest and subsequent questioning by law enforcement. Our description is based on the evidence presented at trial, as well as testimony and evidence presented during a pre-trial suppression hearing.

         A. The Robbery

         On August 15, 2014, an armored Brink's truck was scheduled to deliver $30, 000 to Check Cashing USA in Miami. The truck was manned by two crew members, that is, a driver and a "messenger." The messenger was "responsible for the contents of the truck," and was tasked with "get[ting] off the truck and then go[ing] into stops" to "make a pickup and/or delivery." Around 9:00 a.m. that day, in broad daylight, when the messenger, 72-year-old Andres Perez, exited the truck to deliver the $30, 000 to Check Cashing USA, he was confronted by a man who pointed a .40 caliber handgun[2] at him and said, "This is a holdup." The man shot Perez in the leg, took the bag of money, and then ran away.

         B. The Arrest

         Thereafter, investigators developed a lead and began to focus on Ochoa as the perpetrator of the robbery. Once the investigators identified Ochoa as a suspect, Officer Starkey put together a photo lineup including Ochoa's driver's license photo. Officer Starkey then showed the photo lineup to the victim (Perez) and two other witnesses to the robbery who were previously interviewed by investigators. All three witnesses identified Ochoa as the perpetrator of the robbery. These identifications occurred approximately two weeks after the robbery.

         Officer Starkey obtained an arrest warrant for Ochoa. A SWAT team was dispatched to arrest Ochoa at his residence. Upon arriving at Ochoa's residence around 6:00 a.m., the SWAT team leader, FBI Special Agent Geoffrey Swinerton, ordered everyone out of the residence. Five people-three males, including Ochoa, and two females-exited the residence. Agent Swinerton spoke to the three males, one of whom was later identified as Ochoa's 15-year-old brother Angel. Agent Swinerton asked them if there were other individuals in the residence and if there was anything in the residence that could potentially harm the SWAT team members who might enter the residence to search it. In particular, he asked them about "[b]ombs, booby traps, weapons," and anything else that could be "harmful."

         The residents confirmed that no one else was in the residence and initially claimed there was nothing dangerous in the residence. Agent Swinerton then "pressed the question again," in part because he thought, based on Ochoa's facial expression, there might be something in the residence he would want to know about before sending the members of the team in. In "press[ing] the question," Agent Swinerton said something to the effect of, "Listen, you know, we're going to end up finding the stuff, but I don't want anybody to get hurt. You have to let me know if there's anything that could hurt my guys before we go in." At that point, Ochoa indicated there was a handgun in a drawer in one of the bedrooms.

         Agent Swinerton then gave the SWAT team permission to enter the residence and conduct a safety sweep to confirm that there were no other occupants. The SWAT team, however, did not search for, or retrieve, a handgun.

         C. Ochoa's Interview

         Following his arrest, Ochoa was transported to the FBI field office in Miami, where Officer Starkey and another FBI special agent interviewed him. The interview was video and audio recorded. Before reading Ochoa his Miranda rights, Officer Starkey asked if Ochoa needed to use the restroom or wanted anything to eat or drink. Officer Starkey then asked a series of biographical questions as part of the booking process, and to confirm that Ochoa could speak English and was capable of making a reasonable decision concerning his rights. Officer Starkey then provided Ochoa with an "Advice of Rights" form, which included a recitation of Ochoa's Miranda rights. Officer Starkey reviewed each statement on the form with Ochoa, and Ochoa answered "Yes" when asked whether he understood each right.

         When Officer Starkey reached the final portion of the form, Ochoa expressed some confusion. The final portion of the form was headed "WAIVER OF RIGHTS" and stated as follows: "I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present."

         After Officer Starkey read this provision, Ochoa repeatedly asked Officer Starkey to "hold on," at which point Officer Starkey read the provision again. At that point, Ochoa stated he did not "really agree with that one," and Officer Starkey responded that he was not "asking if you agree with it." Ochoa then stated, "You're asking me at this time [if] I'm willing to answer questions without a lawyer. I don't agree with that." Ochoa then expressed concern that if he said yes, that meant he was "willing to cooperate." Officer Starkey then attempted to further explain the Waiver of Rights provision as follows:

STARKEY: Can I speak for one minute?
OCHOA: Okay.
STARKEY: Okay. What it means, and it just lays out your right. You have the right to have an attorney here, to be with you during questioning. If that's your decision, then we're not going to talk about the case. If you decide yes, I want to talk to you, then you can do that. You can also say yes, at this time, I'm willing to talk to you, later I may change my mind.
OCHOA: Okay, yes, I understand, yes.
STARKEY: Okay. So, is that yes, you'll speak without an attorney?
OCHOA: Yes.

         Ochoa then signed the Advice of Rights form and agreed to continue the interview. The form shows Ochoa's initials beside each individual right and his signature at the bottom.

         Notably, Ochoa did not, during the course of the interview, confess to any of the charged offenses. He did, however, again discuss the presence of a firearm in the residence. Specifically, Ochoa acknowledged that he had told the "SWAT people that came in the house" that "[he] had a firearm in [his] room," but he noted that he never said the firearm was his. When Officer Starkey asked if there were any firearms in the house, Ochoa again stated that there was a gun "in a drawer" in "the last [room] to the right," though he claimed he could not recall its type or color. Upon further questioning, Ochoa appeared to confirm that he was referring to "the room that [he] occup[ies]," agreeing with Officer Starkey's statement that "in your room there should only be one gun." He stated later in the interview, however, that he had acknowledged only "somewhat" that he "knew that the gun was in that room in the . . . drawer."

         D. The Search of the Residence

         While Officer Starkey interviewed Ochoa at the field office, other agents remained at Ochoa's residence to secure the area until a search warrant could be obtained. The search warrant application referenced Ochoa's pre- and post-Miranda statements concerning the presence of a gun in the residence. During this time, some other occupants of the residence, including Ochoa's younger brother Angel, remained near the house.

         After obtaining the warrant, agents searched the residence, discovering (1) $12, 900 in cash-consisting entirely of $100 bills-wrapped in a bag hidden in the freezer; (2) large amounts of newly purchased merchandise with the tags still attached, along with receipts that documented purchases made after the date of the robbery; (3) firearm accessories, specifically a holster, a large capacity magazine with .45-caliber ammunition inside of it, and a box containing four rounds of .45-caliber Hornady brand ammunition; (4) a passport photo and travel documents indicating Ochoa planned to fly to Nicaragua and that he purchased his plane ticket after the robbery; (5) a Florida driver's license bearing Ochoa's name and photograph; and (6) several cell phones, along with a receipt confirming Ochoa had purchased one of the phones three days before the robbery. With the exception of the bag of cash in the freezer and some of the merchandise, all of these items were recovered from what appeared to be Ochoa's bedroom, and the firearm accessories were recovered from a drawer in that bedroom.

         The search team also recovered a black Heckler & Koch gun case (containing a handgun and three loaded magazines) and a stray bullet from the yard. While waiting for the warrant, the agents assigned to secure the area allowed one of the residents-Ochoa's brother, Angel-to go to the side yard and use the restroom out of the agents' line of sight. When Angel took an unusually long time, one of the agents, Special Agent Matthew Carpenter, walked around the residence to find him. Agent Carpenter observed Angel coming back from the far side of the residence, and when Agent Carpenter went to examine the area, he discovered a .45-caliber bullet that did not appear to have been "outside for any length of time," and a black gun case leaning up against the residence. Agent Carpenter also checked the back door and found that it was unlocked. Upon inspecting the case, agents discovered it contained a .45-caliber handgun and three loaded magazines.[3]

         II. PRE-TRIAL PROCEEDINGS

         A grand jury returned a superseding indictment charging Ochoa with Hobbs Act robbery (Count One), knowingly carrying a firearm during and in relation to, and knowingly possessing that firearm in furtherance of, the crime of violence charged in Count One (Count Two), and knowingly possessing a firearm and ammunition while he was a convicted felon (Count Three).

         The district court granted Ochoa's unopposed motion to sever Count Three from Counts One and Two.

         A. Ochoa's Motions to Suppress

         Prior to trial, Ochoa filed two motions to suppress. First, he sought to suppress any testimony or evidence concerning the three witnesses' identifications of him based on the photo lineups. A magistrate judge recommended denying the motion to suppress, and when Ochoa did not file any objections to the magistrate judge's report and recommendation, the district court denied the motion.[4]

         Next, Ochoa moved to suppress the statements he made to the SWAT team leader at the residence immediately following his arrest, as well as the statements he made to Officer Starkey during his interview at the FBI field office. He argued that his statements to the SWAT team leader about the gun in the residence were the result of questioning that occurred after his arrest but before he was informed of his Miranda rights, and there was no applicable exception to Miranda. As to the statements he made during the interview at the FBI field office, Ochoa argued he had clearly communicated that he did not wish to speak with investigators without a lawyer present, but the questioning continued.

         A magistrate judge conducted an evidentiary hearing, during which Agent Swinerton, Officer Starkey, and Agent Carpenter (who first discovered the stray bullet and black gun case outside the residence) testified. Agent Swinerton and Officer Starkey described their respective interactions with Ochoa as detailed above, and the magistrate judge reviewed the video of Ochoa's interview.

         At the conclusion of the testimony from Agent Swinerton and Officer Starkey, the magistrate judge stated that, even excising the pre- and post-Miranda statements from the warrant application, there was "ample probable cause to have issued the warrant" to search the residence. As a result, any evidence seized pursuant to the valid search warrant was covered by the independent source doctrine, and the only remaining issue was the admissibility of the statements themselves, which the magistrate judge addressed in a written report and recommendation ("R&R").

         In that R&R, the magistrate judge recommended that the district court deny Ochoa's motion to suppress his statements. First, the magistrate judge found that Ochoa's pre-Miranda statements to Agent Swinerton made at the scene of his arrest to Agent Swinerton were covered by the public safety exception and thus were not subject to suppression, notwithstanding the absence of Miranda warnings. Second, the magistrate judge found Ochoa's interview statements to Officer Swinerton at the FBI field office similarly were not subject to suppression. Because Ochoa failed to unambiguously and unequivocally invoke his Fifth and Sixth Amendment rights by clearly requesting counsel, the statements were not taken in violation of Miranda.

         Over Ochoa's objections, the district court adopted the R&R and denied Ochoa's motion to suppress.

         B. The Government's Motion in Limine

         Anticipating that it would call Officer Starkey as a witness at Ochoa's trial, the government moved in limine to prevent Ochoa from cross-examining Officer Starkey about a series of events that occurred in 2003 to 2004, when he was a detective with the Miami-Dade Police Department ("MDPD"). In particular, the government sought to preclude Ochoa from asking about two instances of computer misuse involving Officer Starkey that the MDPD discovered in early 2004.

         In the first instance, Officer Starkey used MDPD computers from May 2003 through January 2004 to send inappropriate, politically motivated emails to his wife's political opponent in an election. While Officer Starkey may not have initially admitted to any wrongdoing, it is undisputed that he later did so in a written memorandum to his supervisor and in statements to Internal Affairs investigators. In the second instance, Officer Starkey used his work computer to access and download sexually explicit images, and subsequently installed and attempted to use an unauthorized program to delete those images. The unauthorized software was downloaded in April 2003. As a result of these actions, the MDPD sustained two allegations for departmental misconduct or improper procedure, and Officer Starkey was suspended for 10 days without pay. No criminal charges were filed against Officer Starkey.

         At trial, the district court ultimately granted the government's motion after hearing argument from the parties. The district court also entered a written ruling. The district court concluded evidence of Officer Starkey's disciplinary history was not admissible under Federal Rule of Evidence 608(b), as it was "if at all, only marginally probative of [his] character for truthfulness." The district court further concluded that, in any case, the evidence should be excluded pursuant to Federal Rule of Evidence 403 because its probative value was "considerably outweighed by the danger of confusion to, or misleading of, the jury."

         III. THE FIRST TRIAL

         On September 19, 2016, the case proceeded to trial on Counts One and Two, which lasted four days. As Ochoa challenges his convictions based on the sufficiency of the evidence, we will review more of the evidence presented at trial.

         A. The Government's Evidence

         During the trial, the government presented testimony from 12 witnesses. The government first called two Brink's employees, including the messenger, Perez, who was shot during the robbery.[5] The first employee, Bruce Woerner, was the director of security for Brink's and testified that $30, 000 in $100 bills was to be delivered to Check Cashing USA on the day of the robbery. Woerner further stated the bag of money that was stolen contained a GPS tracking device, which was briefly activated following the robbery, before it stopped transmitting a signal.

         The government later presented testimony from Robert Stevens, a bureau chief for the GPS tracking company that makes and sells the tracking device Brink's places in its money bags. Stevens testified that the GPS tracker in question showed that the person in possession of the stolen money bag fled east to reach the airport expressway, which he then took westward. At that point, the device stopped transmitting, indicating it had been discovered and destroyed.

         The second Brink's employee to testify was Perez, the messenger from whom the robber took the bag of money, and the person the robber shot. Perez recounted his memory of the robbery, as detailed above. When asked if he was able "to get a look" at the robber, Perez stated he "saw his face and the pistol." Perez further testified that he was shown a photo lineup by the FBI on September 2, 2014, and he identified a photograph of the person who held him up. Perez did not have any recollection of providing law enforcement with a physical description of the perpetrator prior to the day he reviewed the photo lineup. On cross-examination, Perez acknowledged that, during the robbery, he saw the robber for only four seconds, though Perez maintained he "saw his face" and recalled the robber had a "slight build."

         The government then called the other two eyewitnesses who had identified Ochoa in separate photo lineups. The first eyewitness, Jonathan Montenegro, testified he was with a friend-Deybis Bermudez, the second eyewitness-at a check cashing store when he witnessed the August 15 robbery of the Brink's truck. At the time the robbery occurred, Montenegro was inside the check cashing store, "walking up and down" in front of the window. Montenegro saw the robber's face while the robber was confronting Perez and as he ran by the window. Montenegro was able to describe the robber's face, height, clothing, and skin color at the time of the trial.

         The second eyewitness, Deybis Bermudez, confirmed that he was at the check cashing store with Montenegro on August 15 and was able to observe the robbery. Bermudez heard someone screaming, "Give me the bag," and turned around in time to see a man with a gun "fighting with security." Although Bermudez was not able to see the robber's face very well during the confrontation, he saw the robber's profile as he ran away, and was able to describe the robber to police as "[t]hin, with a beard, close-cut beard, short hair, like my shade of skin[, ] . . . [a]nd about my height."

         Both eyewitnesses also testified about their subsequent identifications of Ochoa from separate photo lineups. Montenegro and Bermudez were together when they were approached by Officer Starkey. The two were separated, and each identified who he believed to be the perpetrator of the robbery.

         Montenegro testified that, when he viewed the photo lineup, he was able to quickly narrow it down to two photographs, which he then asked to "take a closer look" at. Once he made an identification, he told Officer Starkey he was sure, and he recalled at trial that he "was completely sure" about his identification at the time. As for Bermudez, he again acknowledged that he was not able to see the robber's face very well, but he picked the picture that he thought looked most like the man he had seen, based primarily on the shade of his skin.[6]

         The government then presented the testimony of FBI Special Agent James Kaelin, who participated in the execution of the search warrant at Ochoa's residence and photographed the evidence seized. The residence had three bedrooms and three bathrooms, but most of the evidence Agent Kaelin photographed came from what Agent Kaelin identified as Ochoa's bedroom. Agent Kaelin drew the conclusion because several of Ochoa's personal items- including his driver's license, cell phones, and travel documents-were recovered from that bedroom.

         Agent Kaelin recounted the evidence discovered in the bedroom, including, as we detailed above, Ochoa's driver's license, cell phones, receipts for purchases made after the date of the robbery, travel documents, and merchandise (such as clothing, shoes, and hats) that appeared to be newly purchased. Notably, one of the receipts confirmed that Ochoa had purchased a cell phone-one associated with the number (305) 986-5014-three days before the robbery. Agent Kaelin also testified as to the $12, 900 in $100 bills that was found in the freezer.

         On cross-examination, Agent Kaelin acknowledged there were bags of what appeared to be newly purchased clothing in the common areas of the residence, along with displays for jewelry and sunglasses, and boxes of cologne and perfume. Based on the amount of merchandise throughout the residence, Agent Kaelin conceded it looked like someone might have been running a "home business" selling the merchandise. Agent Kaelin further acknowledged that several other people apparently lived in the residence with Ochoa.

         Officer Starkey testified next. As the lead investigator into the Brink's robbery, Officer Starkey described the investigative steps he took to identify Ochoa as the robber, including, as we detailed above, the development of a lead that pointed to Ochoa and the subsequent identifications via photo lineup by the victim and two witnesses. As to the identifications, Officer Starkey confirmed that the victim and both witnesses identified a photograph of Ochoa as the robber. Officer Starkey also testified regarding the process by which he compiled the photo lineups and presented them to the witnesses.

         Officer Starkey offered further testimony concerning these processes on cross-examination, during which defense counsel questioned him about why and how he chose the particular photo of Ochoa that appeared in the lineup and whether he pressured any of the witnesses into making a selection. Of note, Officer Starkey denied that any of the three witnesses had indicated to him that they were unable to choose between two photos, which he stated would have constituted a "non-identification."

         Officer Starkey also offered testimony concerning the interview he conducted with Ochoa at the FBI field office, and the government submitted into evidence several clips from the interview, which were then played for the jury. Of note, Ochoa confirmed that he had purchased a plane ticket to Nicaragua, though he claimed that he was going to visit his grandmother and that his aunt gave him the money to purchase the ticket. Ochoa also told Officer Starkey during the interview that law enforcement should "put on" Ochoa anything recovered from the house that was "criminal" or "not supposed to be there." However, at the end of the interview, he asserted that he "didn't commit [any] crime" and could not cooperate with law enforcement because he did not "know anything."

         Officer Starkey further testified that he participated in the execution of the search warrant at Ochoa's residence and discovered the money in the freezer. On cross-examination, Officer Starkey acknowledged that he had not discovered any direct link indicating that the currency found in the freezer was the particular currency taken from the Brink's truck.

         The final set of witnesses the government called all testified concerning evidence retrieved from one of the cell phones that was seized from Ochoa's bedroom. The government called Special Agent Jeffrey Etter, a computer forensic examiner with the FBI, Marilyn Dilly, a supervisor in subpoena compliance with Sprint, and Special Agent David Magnuson, a member of the FBI's cellular analysis survey team. Agent Etter established that one of the phones taken from Ochoa's bedroom was likely the same phone Ochoa had purchased three days before the robbery, as it was associated with the same number that appeared on the receipt the search team recovered.

         Based on the records for that phone provided by Sprint, Agent Magnuson testified concerning which cell towers the phone connected to on the date and time of the robbery and immediately thereafter. This cell-tower data, when compared with the GPS tracking for the stolen money bag, indicated that the phone's likely position was consistent with the GPS tracker's location immediately following the robbery and immediately before the GPS tracker was deactivated.

         At the close of the government's case, Ochoa moved under Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal, arguing primarily that the government had failed to prove it was actually Ochoa who committed the robbery. The district court denied the motion, and Ochoa rested without putting on any evidence.

         B. The Verdict and Sentence

         After deliberating, the jury found Ochoa guilty on both counts. The presentence investigation report ("PSR") initially calculated Ochoa's total offense level of 27, based on the following: (1) a base offense level of 20, pursuant to U.S.S.G. § 2B3.1(a); (2) a two-level increase because the property of a financial institution was taken, pursuant to U.S.S.G. § 2B3.1(b)(1); (3) a four-level increase because a victim sustained serious bodily injury, pursuant to U.S.S.G. § 2B1.3(b)(3)(B); and (4) a one-level increase because the loss amount was more than $20, 000 but less than $95, 000, pursuant to U.S.S.G. § 2B3.1(b)(7)(B).

         The PSR also concluded that Ochoa was subject to an enhanced sentence as a career offender, pursuant to U.S.S.G. § 4B1.1, because: (1) he was at least 18 years old when he committed the offenses of conviction; (2) one of his offenses of conviction was a felony "crime of violence"; and (3) he was previously convicted of at least two felony "crimes of violence." The PSR identified two prior Florida convictions as qualifying "crimes of violence" under § 4B1.1: (1) a 2007 conviction for armed robbery; and (2) a 2009 conviction for second-degree murder. Based on his career-offender designation, Ochoa's base offense level was increased to 32.

         Ochoa's total offense level of 32 and criminal history category of VI- which was also based on his career-offender status under § 4B1.1(b)-resulted in an advisory guidelines range of 210 to 262 months' imprisonment. However, because Ochoa was a career offender with a count of conviction other than his § 924(c) conviction-his conviction for Hobbs Act robbery-his guideline range became 360 months' to life imprisonment, pursuant to U.S.S.G. §§ 4B1.1(c)(2) and (3).

         Prior to sentencing, Ochoa did not object to the PSR. At sentencing, he objected to, inter alia, paragraphs 36 and 37 of the PSR-which detailed his Florida convictions for armed robbery and second-degree murder, respectively. He did not, however, specifically argue that either of his prior Florida convictions did not categorically qualify as a violent felony under U.S.S.G. § 4B1.2(a).

         Following the sentencing hearing, the district court sentenced Ochoa to a total sentence of 360 months' imprisonment, consisting of a 240-month sentence as to Count One, followed by a consecutive 120-month sentence as to Count Two. Ochoa appealed, generating case no. 16-17609 in this Court.

         IV. MISTRIAL, DISMISSAL & REINDICTMENT ON COUNT THREE

         On September 26 and 27 of 2016, a second jury trial was held, this time on Count Three of the indictment, which charged Ochoa with being a felon in possession of a firearm and ammunition. When the trial resulted in a hung jury, the district court declared a mistrial.

         On September 28, 2016, the district court issued an order initially setting retrial for January 23, 2017. The district court's order specifically noted that "THE SCHEDULED TRIAL DATE . . . MAY BE SET BEYOND THE TIME LIMITS OF THE SPEEDY TRIAL ACT," and instructed the parties to notify the court within ten days "THAT THEY OBJECT TO THIS TRIAL DATE AND INSIST, IN WRITING, ON A TRIAL DATE WITHIN THE SPEEDY TRIAL ACT DEADLINES." Despite the fact that the January 23, 2017, date was well outside the statutory Speedy Trial period, neither party objected or otherwise notified the court until well after the expiration of the speedy trial period, which occurred on December 6, 2016.[7]

         On December 28, 2016, Ochoa's defense counsel filed a motion to withdraw, which the district court eventually granted, following a hearing, on January 25, 2017. In its order granting the motion to withdraw, the district court continued the trial on Count Three. Soon thereafter, successor defense counsel requested an additional 60 days continuance to prepare for trial, which the district court granted. The district court ultimately set a trial date on Count Three for June 5, 2017, with the order again containing language notifying the parties that the trial date may be set outside the time limits of the Seedy Trial Act.

         On April 3, 2017, Ochoa, represented by successor defense counsel, moved to dismiss Count Three under the Speedy Trial Act, noting that approximately 90 days had lapsed between the September 27, 2016, mistrial and December 28, 2016, when prior counsel had moved to withdraw. The government agreed that Count Three was subject to dismissal, but asked the district court to dismiss the charge without prejudice. On May 9, 2017, the district court granted Ochoa's motion but agreed to dismiss Count Three without prejudice after considering the relevant statutory factors.

         Meanwhile, Ochoa had been transported to Coleman Penitentiary to begin serving his federal sentence on Counts One and Two. Because Ochoa's presence was again needed in Miami for his trial on Count Three, on April 3, 2017, the government secured a writ of ad prosequendum so that Ochoa could be transferred to the federal detention center in Miami. Although the district court had dismissed Count Three without prejudice on May 9, Ochoa was transferred to the federal detention center in Miami on May 22, 2017, pursuant to the previously issued writ. He remained there through at least August 2017.

         On August 22, 2017, the government obtained a new indictment against Ochoa, again charging him with knowingly possessing a firearm and ammunition as a convicted felon, in violation of § 922(g)(1).[8] Like the superseding indictment filed in the first case, the new indictment specifically charged that Ochoa, "having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm and ammunition." The indictment alleged that the firearm and ammunition were:

a. One (1) Heckler & Koch, .45 caliber semi-automatic pistol;[9]
b. Twenty (20) rounds of Hornaday, .45 caliber ammunition;
c. Two (2) rounds of "R-P" Remington, .45 caliber ammunition;[10]and
d. Thirty-two (32) rounds of Speer, .45 caliber ammunition.[11]

         Ochoa moved to dismiss the new indictment under the Speedy Trial Act, arguing the government had failed to indict him within 30 days of his "arrest." Ochoa insisted that his presence at the federal detention center pursuant to the writ of ad prosequendum in the absence of any operative indictment amounted to an "arrest" for purposes the Speedy Trial Act, which restarted the Act's 30-day clock. As a result, he argued, the government's August 22, 2017, ...


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