United States v. Pough

96 F.Supp.3d 495

UNITED STATES of America

v.Marcus POUGH.

Criminal Action No. 06–686.

United States District Court, E.D. Pennsylvania.

Signed March 23, 2015.

Arlene D. Fisk, Joseph A. Labar, U.S. Attorney's Office, Philadelphia, PA, Leo R. Tsao, Washington, DC, Richard W. Goldberg, Philadelphia, PA, for Plaintiff.

MEMORANDUM RE SENTENCE IMPOSED ON VIOLATION OF SUPERVISED RELEASE

BAYLSON, District Judge.

I. Introduction

This case raises significant and novel constitutional issues considered before imposing a prison sentence for violation of supervised release, arising out of defendant's arrest and prosecution in state court for being the get-away driver in a murder. In finding the violation, this Court relies on defendant's incriminating testimony given during a suppression hearing in state court, even though the state court eventually suppressed defendant's confession because it was obtained in violation of defendant's state and federal constitutional rights. Subsequently, the prosecution of defendant was withdrawn.

On February 18, 2015, defendant was sentenced to 60 months' imprisonment for violating the terms of his supervised release. This Memorandum will explain the background and reasons for the Court's sentence.

Defendant pled guilty in 2006 in this Court to federal charges of possession of cocaine base with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime, and this Court sentenced him to 60 months imprisonment followed by a 5–year term of supervised release. This Court revoked Defendant's supervised release once before, in 2012, as a result of a guilty plea to receipt of stolen property in the Philadelphia Court of Common Pleas, an imposed a punishment of 60 days house arrest. The defendant continued on supervised release.

Following defendant's arrest by Philadelphia Police on June 27, 2012, on murder charges, the Probation Office of this Court lodged a detainer against the defendant as of June 29, 2012. ECF 47. This Court deferred any action pending resolution of the state court criminal proceedings. After the state trial court entered an order suppressing defendant's incriminating statement which he gave to Philadelphia police officers following his arrest, the Commonwealth of Pennsylvania, not having any other evidence, withdrew the criminal charges.

II. Alleged Violation of Supervised Release

Following the state court disposition, the Probation Office requested a hearing, which took place on March 11 and 18, 2015. Defendant filed an objection (ECF 57) to the introduction of his statement to Philadelphia police in support of revocation and his testimony at the suppression hearing. Defendant argued that because the state court concluded his statement was obtained by coercion in violation of the Fifth and Fourteenth Amendments, the Fifth Amendment Due Process Clause likewise requires this Court to exclude the statement from its revocation proceedings. Defendant further argued that the Court should not penalize him for testifying in aid of a motion to suppress in state court by admitting this testimony against him in this federal revocation proceedings, and also that his testimony was not incriminating.

The government filed a response (ECF 59), arguing that although the Philadelphia Court of Common Pleas suppressed Defendant's incriminating statement after he was arrested admitting his involvement with the homicide, this Court should reach an independent conclusion that the statement was admissible, and also consider the incriminating testimony defendant gave in support his motion to suppress.

III. State Court Proceedings

A. Investigation

During the Philadelphia Police's investigation of the 2012 shooting of Damon Stafford, a suspect in an unrelated homicide identified Defendant's van as the get-away vehicle pictured in a surveillance video that captured Mr. Stafford's murder. Homicide Detectives located Defendant's vehicle and encountered Defendant in the course of impounding it. The detectives subsequently transported Defendant to the Homicide Unit at 8th and Race St., where he was arrested, interrogated, and recorded a formal written statement implicating himself as the getaway driver for the shooters, although the parties disagree as to the circumstances surrounding the questioning. As a result of his incriminating statement, Defendant was charged with conspiracy, murder, violations of the Uniform Firearms Act, and possession of an instrument of a crime.

B. Suppression Hearings

Defendant moved to suppress his written statement on Fifth and Fourteenth Amendment grounds.¹ Judge Linda Carpenter first heard testimony and argument on Defendant's motion to suppress at a hearing on October 28, 2013. At this hearing, Detective William Sierra testified that Defendant was transported to the Homicide Unit by uniformed officers, was placed in an interview room, provided oral and written Miranda warnings at 6:54 p.m., was questioned by Detective Sierra and Detective Derrick Jacobs starting at 7:06 p.m., and signed a formal written statement admitting he was offered $10,000 to act as the getaway driver. On cross examination, Detective Sierra testified that Defendant arrived at homicide at 3:50 p.m. and that as a matter of practice, witnesses or suspects are not given Miranda warnings until after they have indicated in conversation with the police that they know something about the incident under investigation.

Defendant also testified at the first suppression hearing. He stated that when he first spoke with the detectives and they asked him to come with them for questioning, he believed he was required to go. He testified consistently with Detective Sierra that detectives placed him in an interrogation room after he arrived at the police station. He asserted they began questioning him at that time, without providing Miranda warnings, telling him “we know that this is the van that was involved in a shooting.” ECF 57–1, at 10. Defendant claimed he disclosed to the detectives that a family member had been murdered while in a witness protection program. He testified that the detectives then promised him that if he made a statement about his involvement in the homicide, he and his family could enter witness protection where he would be provided with job assistance, he could have his van back, and he would be granted immunity from prosecution.

Defendant averred that he then gave an oral statement admitting involvement in the murder, was asked to repeat his statement while the detectives transcribed it, then signed the statement, including the Miranda waivers. During cross examination, Defendant denied that he knew who the shooters were or that he acted as their getaway driver. When the prosecutor asked whether it was Defendant's van that was used as the getaway car in the homicide, Defendant's attorney objected to this as an attempt to explore the “veracity” of Defendant's statement, and Judge Carpenter sustained the objection. Ex. 1 at 72:1, Mar. 11, 2015 Hearing.

Judge Carpenter reopened the record at a second hearing on December 13, 2013, because the prosecutor had not been prepared to address Defendant's testimony that the detectives offered inducements in exchange for his statement. At the second hearing, Detective Jacobs testified that he and Detective Sierra did not promise Defendant immunity or relocation assistance, but only offered to ask the prosecutor to keep him in federal rather than state custody during any sentence Defendant received for the homicide or revocation of his federal probation. The prosecutor also recalled Detective Sierra, who likewise testified that Defendant requested federal custody, and also admitted that Defendant “knew he would go to prison” before he started to give a recorded statement he because he had already “mentioned he was the getaway driver.” Ex. 2 at 28:21–30:17, Mar. 11, 2015 Hearing.

Defendant was the final witness in the second hearing. His counsel knew he was on federal supervised release but did not request any limitation on his testimony, or seek a ruling that defendant should not be cross examined on the veracity of his statement to police (as defense counsel had done at the first hearing). The defendant reiterated his prior testimony that the detectives offered promises of immunity and witness protection in exchange for his statement. On cross examination, the prosecutor began questioning Defendant, without objection² , about the contents of his written statement, resulting in the following exchange:

Q: You've had a chance to look at your statement again since the last hearing, right? Take a look at your confession again?

A: Yes.

Q: And when you mentioned that thing about how you were talking about getting your van back, you said specifically I'll never get that car back, will I; is that right?

A: Yes.

Q: And you knew that you were confessing and implicating the shooters on the homicide, right?

A: Yes.

Q: That you were only the getaway driver. You never even held the gun, right?

A: Never what?

Q: You're the getaway driver only, right? Meaning you didn't shoot the gun that day that killed Damon Stafford, right?

A: Yes.

Q: You identified Hak and New–Man as the shooters, not you, correct?

A: Yes.³

* * * *

Q: Just so that we're clear, you're telling Her Honor that you legitimately thought, despite being the driver in a murder for hire, that you were not going to be prosecuted for that?

A. Yes.

Hearing of December 13, 2013, pp. 44–45.⁴

Judge Carpenter held a final hearing on reconsideration of her ruling in favor of suppression on May 30, 2014. At the reconsideration hearing, Judge Carpenter reopened the record to hear testimony from representatives of the District Attorney's office regarding their policies on granting immunity, as well as from the detective who took Defendant's second statement regarding the homicide he witnessed, but in which he did not participate. Defendant did not testify at the reconsideration hearing.

C. Judge Carpenter's Opinion

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