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,
...