Petition for Writ of Certiorari — Kyle Costello, Petitioner v. United States

UNITED STATES OF AMERICA v. KYLE COSTELLO, Appellant, --- Fed. Appx. ---- (2018)

2018 WL 389190

This case was not selected for

publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1 generally

governing citation of judicial decisions issued

on or after Jan. 1, 2007. See also U.S.Ct. of

Appeals 3rd Cir. App. I, IOP 5.1, 5.3, and 5.7.

United States Court of Appeals,

Third Circuit.

UNITED STATES OF AMERICA

v.

KYLE COSTELLO, Appellant

No.

16

4092

|

Submitted Under Third Circuit

L.A.R. 34.1(a) September 11, 2017

|

(Filed: January 12, 2018)

On Appeal from the United States District Court for the

Eastern District of Pennsylvania

(D.C. Crim. No. 14-107-01)

District Judge: Hon. Lawrence F. Stengel

Before: VANASKIE, RENDELL, and FISHER, Circuit

Judges

OPINION"

VANASKIE, Circuit Judge.

*1 Appellant Kyle Costello raises two arguments

in this appeal from his conviction on armed bank

robbery and related charges. First, he contends that his

conviction is invalid because his extradition from Texas

to Pennsylvania on a state parole violation charge was

a sham to hold him for federal prosecution at a later

date, in violation of his rights under the Speedy Trial

Act, 18 U.S.C. § 3161. Second, he argues that the District

Court incorrectly sentenced him as a career offender

because his prior state conviction for aggravated assault

did not constitute a “crime of violence.” We agree with

the District Court's rulings that no Speedy Trial Act

_ Bgiead

violation occurred, and that Costello is a career offender

for purposes of sentencing. Accordingly, we will affirm the

District Court's order.

L

On November 7, 2013, video surveillance showed two

men committing an armed robbery at the National Penn

Bank near Shillington, Pennsylvania. Costello's parole

agent saw Costello's image on the news and identified

him as one of the robbers.! On November 21, 2013,

the Cumru Township Police Department issued an arrest

warrant for Costello for the bank robbery. Costello was

arrested in Texas on December 20, 2013. On that same

date, a parole violation warrant was issued for Costello

by the Pennsylvania Board of Probation and Parole.

During a removal hearing in Texas, Costello contested

extradition on the Cumru Township arrest warrant. To

expedite his transfer to Pennsylvania, the detainer on the

Cumru Township warrant was lifted, and Costello was

brought back to Pennsylvania pursuant to the state parole

violation warrant.

Upon his arrival in Pennsylvania on January 15, 2014,

Costello was incarcerated at SCI-Huntingdon on the

parole violation warrant. Fifty days later, on March 6,

2014, a federal grand jury returned an indictment against

Costello for the robbery of the National Penn Bank.*

Specifically, he was charged with conspiracy to commit

robbery, in violation of 18 U.S.C. § 371, armed bank

robbery and aiding and abetting, in violation of 18 U.S.C.

§§ 2, 2113(d), and carrying and using a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C.

§§ 2, 924(c)(1)(A)(ii).

Costello moved to dismiss the federal indictment, arguing

that, because more than thirty days had elapsed between

his initial arrest on January 15, 2014 and the return of

the federal indictment on March 6, 2014, his rights under

the Speedy Trial Act were violated. After conducting

a hearing, the District Court denied Costello's motion,

holding that he had failed to show the requisite

“collusion” between federal and state agents that would

trigger the Speedy Trial Act upon his detention at SCI-

Huntingdon. The District Court explained that Costello's

showing of “mere cooperation or close contact between

the federal government and the state” was not enough.

(App. at 13.)

in A-

UNITED STATES OF AMERICA v. KYLE COSTELLO, Appellant, --- Fed.Appx. ---- (2018)

*2 Costello proceeded to trial, was convicted on

all charges, and the matter proceeded to sentencing.

Over Costello's objection, the District Court found that

Costello's 2004 and 2008 state convictions for aggravated

assault properly served as “crimes of violence” predicates

for a career offender designation under the United States

Sentencing Guidelines, thereby exposing Costello to a

Guidelines imprisonment range of 360 months to life.

The District Court then exercised its discretion to vary

downward from the Guidelines range and imposed an

aggregate prison term of 264 months. Costello timely

appealed.

IL.

The District Court had subject matter jurisdiction under

18 U.S.C. § 3231, and we have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742. “We review the

District Court's conclusions of fact for clear error[,]” and

our review of the District Court's interpretation of the

Speedy Trial Act is plenary. United States v. Dyer, 325

F.3d 464, 467 (3d Cir. 2003). “Whether a prior conviction

constitutes a crime of violence for purposes of the career

offender Guideline is a question of law over which we

exercise plenary review.” United States v. Marrero, 743

F.3d 389, 393 (3d Cir. 2014).

A.

Under the Speedy Trial Act, “[aJny 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). If the government fails to file the information

or indictment within thirty days, “such charge against

that individual contained in such complaint shall be

dismissed or otherwise dropped.” Id. at § 3162(a)(1); see

also United States v. Battis, 589 F.3d 673, 678 (3d Cir.

2009) (“In general, delay is measured from the date of

arrest or indictment, whichever is earlier, until the start

of trial.”). Where, as here, the defendant is arrested on

state charges and later indicted on federal charges, “the

right to a speedy trial in the federal case is triggered

by the federal indictment, and the time period under

consideration commences on that date.” Jd. at 679. As

stated in United States v. Garner, 32 F.3d 1305, 1309 (8th

Cir. 1994), an “arrest on state charges does not engage the

speedy trial protection for a subsequent federal charge.”

See also United States v. Muniz, | F.3d 1018, 1024 (10th

Cir. 1993) (“When [the defendant] was arrested by state

authorities ...[,] his speedy trial rights for the subsequent

federal charges did not attach.”). This is true even if the

federal charge shares the same facts as the state case. See

United States v. Mills, 964 F.2d 1186, 1189-90 (D.C. Cir.

1992).

A state arrest, however, may trigger the Speedy Trial Act

“when the Government has knowledge that an individual

is held by state authorities solely to answer to federal

charges.” United States v. Woolfolk, 399 F.3d 590, 596

(4th Cir. 2005). This is known as the “ruse” exception.

See United States v. Benitez, 34 F.3d 1489, 1494 (9th Cir.

1994). Under this exception, state proceedings may trigger

the Speedy Trial Act upon a showing of “collusion or

evidence that the detention was for the sole or primary

purpose of preparing for [federal] criminal prosecution.”

United States v. Garcia-Martinez, 254 F.3d 16, 20 (1st Cir.

2001).

Costello relies upon the “ruse” exception to argue that the

Speedy Trial Act clock began running upon his return to

Pennsylvania on January 15, 2014. He thus argues that his

indictment by a federal grand jury on March 6, 2014, more

than thirty days after his incarceration in Pennsylvania

began, was invalid as untimely. 4

*3 We have yet to adopt the “ruse” exception. See Dyer,

325 F.3d at 468 (“Even if we were to conclude that the

[ruse] exception is a valid one, [the defendant] has not

shown that he would be entitled to invoke it under the

circumstances of this case.”). We again need not decide

whether there exists a “ruse” exception to the general

tule that the Speed Trial Act clock begins to run upon

return of the federal indictment, because there simply is

no evidence of collusion between federal and state law

enforcement officials in this case, or that Costello was

detained on the parole violation warrant for the purpose

of preparing a federal prosecution. As the District Court

explained following the evidentiary hearing on Costello's

motion, “[i]f anything, the testimony showed confusion

and lack of communication between the state and federal

government—the antithesis of collusion.” (App. at 14.)

Indeed, the Assistant District Attorney handling the

state charges testified that he did not even learn of

Area sad iX hea

UNITED STATES OF AMERICA v. KYLE COSTELLO, Appellant, --- Fed.Appx. ---- (2018)

Costello's return to Pennsylvania until February 24, 2014,

and even then continued to build the Commonwealth's

case against Costello because he was not sure that the

federal government would bring charges. * Simply being

incarcerated in a state prison before federal indictment

does not mean that agents brought Costello back solely,

or even primarily, for federal prosecution. Thus, even if

we were to find that the “ruse” exception exists, we hold

that Costello's Speedy Trial Act rights were not triggered

upon his arrival at SCI-Huntingdon on January 15, 2014.

B.

The career offender provision of the Sentencing

Guidelines imposes enhanced sentences for defendants

who have “two prior felony convictions of either a crime

of violence or a controlled substance offense.” U.S.S.G.

§ 4B1.1(a). Pertinent to the matter under consideration,

“crime of violence” is defined as:

any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another ....

US.S.G. § 4B1.2(a)(1).

Costello was convicted in 2004 of violating 18 Pa. Cons.

Stat. § 2702(a)(3), which provides that “[a] person is

guilty of aggravated assault if he: ... attempts to cause

or intentionally or knowingly causes bodily injury to

any of the [specifically enumerated] officers, agents, [or]

employees ... in the performance of duty ....” 3 “Bodily

injury” is defined as “[iJmpairment of physical condition

or substantial pain.” 18 Pa. Cons. Stat. § 2301. Costello

argues that his 2004 aggravated assault conviction can

qualify as a “crime of violence” only if the use of “violent

force” is a necessary element of § 2702(a)(3). In support of

this assertion, he relies upon Johnson vy. United States, 559

U.S. 133 (2010), which held that the term “violent felony,”

as used in the Armed Career Criminal Act (ACCA), 18

U'S.C. § 924(e)(1), requires use of “violent force—that is,

force capable of causing physical pain or injury to another

person.” /d. at 140 (emphasis in original). Costello argues

that § 2702(a)(3) does not require use of “violent force”

because “impairment of physical condition” qualifies as

the requisite “bodily injury,” and a person's physical

condition may be “worsened, lessened, or diminished

i.e., impaired—without the person necessarily suffering

‘physical pain or injury’ through the employment of

‘violent force.’ ” (Appellant's Br. at 19-20).

We disagree. Section 2702(a)(3) requires that the accused

knowingly or intentionally cause “bodily injury.” The

statute therefore necessarily contemplates the use of such

physical force as to impair one's physical condition or

produce “substantial pain.” “Johnson held that so long

as the force involved is ‘capable of causing physical

pain or injury to another person,’ ... the ‘physical

force’ requirement of the crime-of-violence definition

is satisfied.” De Leon Castellanos v. Holder, 652. F.3d

762, 766 (7th Cir. 2011) (quoting Johnson, 559 U.S.

at 140). Costello cites no authority to support his

assertion that a person can intentionally impair another's

physical condition without use of such physical force

as is “capable of causing pain or injury.” Johnson, 559

U.S. at 140. Common sense dictates that knowingly or

intentionally causing impairment of another's physical

condition requires the use of physical force. Accordingly,

we hold that the District Court did not err in finding that

Costello's aggravated assault conviction under § 2702(a)

(3) constituted a “crime of violence” as that term is defined

in the United States Sentencing Guidelines.

Iv.

*4 For these reasons, we will affirm the order of the

District Court entered on November 1, 2016.

All Citations

--- Fed. Appx. ----, 2018 WL 389190

Footnotes

1 Costello had been paroled from SCI-Rockview for aggravated assault and kidnapping.

2 State charges were dropped as a result of the federal indictment.

A-posndig A-~23

UNITED STATES OF AMERICA v. KYLE COSTELLO, Appellant, --- Fed.Appx. ---- (2018)

3 We disagree with the government that Costello waived his “ruse” argument by stating during the District Court proceedings

that “the defense isn't in a position to argue that there was collusion” based upon the testimony presented. (App. at 65.)

Costello asserted in the District Court, and reasserts here, that the Speedy Trial Act is implicated where the “primary

purpose” of incarceration by state authorities is to prepare for a federal prosecution. (Appellant's Reply Br. at 1; citing

Dyer, 325 F.3d at 468.) We thus find that Costello properly preserved his Speedy Trial Act argument.

4 A state docket sheet showed a preliminary hearing scheduled in Costello's case for March 10, 2014.

5 Costello does not appear to challenge the District Court's classification of his 2008 aggravated assault conviction as a

“crime of violence.”

End of Document