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United States v. Harden

United States District Court, N.D. Georgia, Atlanta Division

January 13, 2017

UNITED STATES OF AMERICA
v.
DOUGLAS B. HARDEN

          ORDER AND REPORT AND RECOMMENDATION

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE.

         After having been convicted on firearms and narcotics trafficking charges in Fulton County Superior Court, Defendant Douglas Harden is now also facing a two-count federal indictment charging him with possession of a firearm by a convicted felon and possession of a firearm in furtherance of a drug trafficking crime. He now moves to dismiss the federal indictment on double jeopardy grounds and moves to suppress the fruits of the search of a residence, which apparently was the basis of Defendant's initial arrest. For the reasons explained below, the Court RECOMMENDS that Defendant's Motion to Dismiss [19][22] and Motion to Suppress Evidence [17][23] be DENIED.

         FACTUAL BACKGROUND

         On March 27, 2014, a Fulton County Superior Court Judge issued a warrant authorizing Atlanta Police Department (“APD”) officers to search 36 Howell Street, Apartment 5, Atlanta, GA. [23-1] at 4. This warrant was based on the application and affidavit executed by an APD investigator, which explained that a APD confidential source (“CS”) bought cocaine at the Howell Street apartment in two separate undercover transactions on March 4 and March 24, 2014. See Id. at 3-4. The investigators used a CS who had successfully purchased narcotics in an undercover role on several other occasions and had otherwise provided reliable information. Id. On both occasions, the CS purchased $20 worth of cocaine from an individual at the he knew as “Mudd.” Id. The investigators knew that the CS did not have the cocaine prior to entering the Howell Street apartment because they searched him immediately prior to the undercover buys and observed him as he approached and entered the apartment. See Id. Field tests were positive for cocaine in both cases. Id.

         The investigator returned the warrant to the Superior Court Judge on April 15th, 2014. [23-2] at 1. The return indicated that an inventory was attached consisting of two pages, although the return that the Government obtained from the state officials and produced to the Defendant in discovery includes only a one page inventory. Id. at 2. According to this inventory, the investigators obtained 60.9 grams of marijuana, 8 grams of cocaine, a handgun, a digital scale, $1, 226 in U.S. currency and various packaging material. Id. The investigators also arrested the Defendant at the scene. Id.

         Defendant was indicted in Fulton County on four charges: (1) possession of cocaine with intent to distribute; (2) possession of marijuana with intent to distribute; (3) possession of a firearm during the commission of a felony; and (4) possession of a firearm by a convicted felon. Defendant subsequently entered a no contest plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and thereby was convicted of each of these state charges. A federal grand jury empaneled in this District then issued this Indictment, which charges Defendant with being a felon in possession of a firearm and possessing a firearm in furtherance of a drug trafficking crime, in violation of federal law.

         DISCUSSION

         A. Defendant's Motion to Dismiss

         It is undisputed that Defendant has already been previously convicted of possession of a firearm as a convicted felon, drug trafficking, and other violations of the State of Georgia's criminal code based on the same events at issue in this case. Thus, on September 26, 2016, Defendant filed a Motion to Dismiss Indictment Based on the Double Jeopardy Clause [19][22].

         The Fifth Amendment to the United States Constitution “protects defendants against successive prosecutions for the same criminal offense.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir.1994). But “identical offenses are nevertheless different for purposes of the Double Jeopardy Clause when they are charged by separate sovereigns.” Id.; United States v. Lanza, 260 U.S. 377, 382 (1922) (“an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.”); Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959). Defendant criticizes the wisdom and fairness of these principles, although candidly acknowledges that the “dual sovereignty” doctrine is binding on this Court based on current precedents. See Pl. Br. [19] at 5-9.

         Defendant invokes the Supreme Court's recent decision in Puerto Rico v. Sanchez Valle, et al., __ U.S. __, 136 S.Ct. 1863 (2016). In that case, the Court found that the Double Jeopardy clause barred the Commonwealth of Puerto Rico from separately prosecuting two defendants for the same transactions for which they had previously been convicted in federal court. Id. at 1876-1877. That case, however, did not eliminate or limit the dual sovereignty principle as it relates to successive State and Federal prosecutions. Rather, the Supreme Court addressed a question entirely irrelevant to the Court here: whether a United States territory, such as Puerto Rico, is in fact a separate sovereign from the United States Government. The Court answers that question in the negative at least as it relates to Puerto Rico. Id. The Court noted that the test of dual sovereignty turns on the “ultimate source” of the power undergirding the respective prosecutions. Id. at 1871. Because the Court found that the “ultimate source” of Puerto Rico's prosecutorial authority was statutory action by the U.S. Congress, the Court concluded that the Commonwealth of Puerto Rico was not a dual sovereign for purposes of the Double Jeopardy Clause. Id. at 1874-1877.

         Puerto Rico by its own terms has no impact on the application of the dual sovereignty doctrine to a prior prosecution by the State of Georgia. To the contrary, the Court reaffirmed the long standing principle that “the States are separate sovereigns from the Federal Government (and from one another).” Id. at 1871. The Defendant here has not been previously convicted for the same conduct in the courts of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, or any other U.S. territory. Thus, Puerto Rico does not change the result that this Court is compelled to reach here based on binding precedent, which is to deny Defendant's double jeopardy challenge to his federal prosecution. Defendant's Motion to Dismiss should be DENIED.

         B. Defendant's Motion to Suppress Evidence

         Defendant also moves to suppress the fruits of the March 27, 2014 search of the Howell Street Apartment that was authorized by the Fulton County Superior Court. Defendant argues that the warrant was not supported by a showing of probable cause, and that the APD failed to timely return the warrant and that, when it did return the warrant, it attached an incomplete ...


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