Petition for Writ of Certiorari — Reginald L. Hopkins, Petitioner v. United States

No.

. IN THE

SUPREME COURT OF THE UNITED STATES

REGINALD HOPKINS — PETITIONER

vs.

UNITED STATES OF AMERICA — RESPONDENT,

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

John A. Abom, Esquire

Abom & Kutulakis, L.L.C.

2 West High Street

Carlisle, PA 17013

(717) 249-0900

(717) 249-3344 (fax)

QUESTIONS PRESENTED

Whether the Court of Appeals for the Third Circuit erred as a matter of

statutory interpretation in rejecting a “Ruse Exception” to the Speedy Trial Act as

applied to state arrests later resulting in federal prosecution.

Suggested answer: In the Affirmative.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

LIST OF PRIOR PROCEEDINGS

1. United States v. Hopkins, 1-21-CR-00177-001 (Middle District of

Pennsylvania); judgment entered on April 25, 2023;

2. United States v. Hopkins, No. 23-1836 (3d Cir); amended precedential

opinion reversing district court opinion entered on August 2, 2024;

8. United States v. Hopkins, No. 23-1836 (8d Cir.); order denying Petitioner's

petition for re-hearing entered August 2, 2024.

TABLE OF CONTENTS

Page

OPINIONS BELOW ...0.0.......ccccccseessessessessseseeceseseeseecesesscsescsccaesscssseetessessenessscestereseseseusees 6

JURISDICTION ....o....eeececescssesssscseseeccsesceseescauceesssscssssescascceseenccecsesesscssesesesecnseseeassaseeasees 7

STATUTORY PROVISIONS INVOLVED ....0....ecccecsescsssssceeeceescnesessesssesensessecsenssessaevees 8

STATEMENT OF THE CASE ...0.....ccccccccssesssssessescsesesesesssssecsescseeesssseesscsesveessessensesssseses 9

A. Procedural Background .0..........cccccccccssssssescsesescessesssssscsssuscssssasassensecsacetecaseeseees 9

B. Factual Background ..0...........ccccccccssesssesseessssssssssescsessscsevsescassseseccesecseaceeusessannes 10

C. District Court Judgment (Appendix ©) ou....cc.cccccseccssseseeseeseeseeseccecerseseeseeees 12

D. The Third Circuit Opinion (Appendix A).... 18

REASONS FOR GRANTING THE PETITION ..0...0.c.cccccccscscsssssccecececereeseecseseeeseeeees 14

I. The Third Circuit's decision creates a circuit split on the question of Ruse

Exception as applied to state arrests. No other Circuit has precedentially refused to

recognize application of the exception to a state arrest.........ccccesseseesese 14-16

Il. The Third Circuit's policy and separation of powers rationale for rejecting a Ruse

Exception to the STA misconstruced the nature of the exception. The exception is

consistent with Congress's purpose in enacting the STA............se0eceeee- 16-17

CONCLUSION ........ccccsssssessssessssscscsseesesceescesecseaesasaeseseesssesesneaesssaeseescseseususassusseuseuees 17

INDEX TO APPENDICES

APPENDIX A, Amended precedential opinion and judgment of the United

States Court of Appeals for the Third Circuit.

APPENDIX B, Order denying Petitioner's Petition for Rehearing, dated

August 2, 2024.

APPENDIX C, Memorandum Opinion entered by the United States District

Court for the Middle District of Pennsylvania, dated April 25, 2023, granting

dismissal of one count of Indictment;

TABLE OF AUTHORITIES

Cases

United States v. Alvarado-Linares, 698 F. App'x 969 (11 Cir. 2017) .....csssessssseees 14

United States v. Asfour, 717 F. App'x 822 (10 Cir, 2017) ...ccccssccccssesssesesscsseseeeseeees 14

United States v. Benitez, 34 F.3d 1489 (9th Cir, 1997) oe ec eces cee ceeseseseseseaaes 14, 16

United States v. Cepeda-Luna, 989 F.2d 353 (9th Cir. 1998) voocceccsseccesssssssesceeeeees 14

United States v. Jones, 129 F.3d 719 (2d Cir. 1997)... ceesseessesscneeseesenresseeeneeeseeeseeees 14

United States v. Kelley, 40 F.4t 276 (5th Cir, 2022)... eesessescsrecseecseseeteeseseaeeensees 14

United States v. Knight, 824 F.3d 1105 (D.C. Cir. 2016) ....cc.cccescecsesssccsesestestsseseesens 15

United States v. Mearis, 36 F.4t 649 (5th Cir. 2022)... eceesesceceseesssssceceecseeneecess 14

United States v. Mills, 964 F.2d 1186 (D.C. Cir, 1992) ......essesesesessessssesessesssesereeess 15

United States v. Ramirez-Cortez, 213 F.3d 1149 (9t Cir. 2000)... cceccesceceeseeeeeee 16

United States v. Saucedo, 956 F.3d 549 (8th Cir. 2020)... cccecssssessesesssesessrsereeeecees 14

United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)....... 16

United States v. Woolfolk, 399 F.3d 590 (4th Cir, 2005) .0....eseeecsecessessssesseeesseeeeseeseens 14

Statutes

18 U.S.C. § 924 (0) oo sesececsseecssssessssensneesssneecsntessnessasessnuecensssssuseesneseasesseseecasseseessuseesneeesaee 9

18 U.S.C. § B1GL occ ste cseseseenseesessensesscasseseascesenecessesssessasscaseesesseesessaesesescanseacaseeases 8

18 U.S.C. § 8162 oo ecceneeccenecesenseesecssessessaesnsesessessesescesensessasesseueesstesensosseresasecseeees 8

21 U.S.C. § B41 ieee sesessstensseseeseeesesencecseasecsenssescesseseesaseetsseeseseesernessensesterees 9

28 U.S.C. § 12541) ce ecececcccessesescesscssesssssecsscscscscscecscscerscscavecscausnsescststqusssesestssseeecssseaeaes 7

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below from the United States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The amended precedential opinion and judgment of the United States Court of

Appeals for the Third Circuit of August 2, 2024 appears in Appendix A to this petition.

The memorandum opinion and judgment entered by the United States District

Court for the Middle District of Pennsylvania appears in Appendix B to this petition.

JURISDICTION

The date on which the United States Court of Appeals for the Third Circuit

issued the opinion in this case was July 9, 2024, with an Amended Opinion issued

August 2, 2024. The date on which the United States Court of Appeals for the Third

Circuit denied Petitioner's petition for rehearing in this case was August 2, 2024. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 8161-8174 Speedy Trial Act

18 U.S.C. § 3161(b)

“Any 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(c)(1)

“In any case in which a plea of not guilty is entered, the trial of a defendant charged

in an information or indictment with the commission of an offense shall commence

within seventy days from the filing date (and making public) of the information or

indictment, or from the date the defendant has appeared before a judicial officer of

the court in which such charge is pending, whichever date last occurs.”

18USC. § 3162(a)(1)

“If, in the case of any individual against whom a complaint is filed charging such

individual with an offense, no indictment or information is filed within the time limit

required by section 3161(b) as extended by section 3161(h) of this chapter, such

charge against that individual contained in such complaint shall be dismissed or

otherwise dropped.”

STATEMENT OF THE CASE

A. Procedural Background

On February 19, 2021, agents of the Dauphin County Drug Task Force

executed a search warrant on the home of Petitioner, resulting in Petitioner's arrest

and detention on state charges.

On June 23, 2021, an Indictment was returned, charging Petitioner federally

with Distribution of a Controlled Substance (21 U.S.C. § 841(a)(1)) and Felon in

Possession of a Firearm (18 U.S.C. § 922(g)(1)). The federal charges caused a

detainer to be lodged at Dauphin County Prison, where Petitioner was being

detained on state charges from the same search warrant which was executed on

February 11, 2021. Initial Appearance was held on July 8, 2021, whereupon the

federal magistrate ordered Petitioner detained. State charges were withdrawn by

the state prosecutor on July 26, 2021.

Petitioner filed a Motion to Dismiss pursuant to the Speedy Trial Act (“STA”)

on October 6, 2022. At hearing on February 3, 2023, Task Force Officer (“TFO”)

Bates, a Harrisburg City police officer who is cross-designated as an ATF Agent,

testified he spoke to the federal prosecutor about the case, and was told to file state

charges first!. TFO Bates further testified at that time federal indictment was

uncertain and would depend on sufficient evidence being determined. The district

1 While the district court ultimately rejected as uncredible TFO Bates’ testimony

explaining the inconsistency between testimony at the first and second hearings

and the written bail recommendation, the court did credit this testimony as

consistent.

court issued an order and memorandum opinion March 6, 2028, denying the Motion

to Dismiss but characterizing the decision as a close call.

Petitioner sought reconsideration on March 15, 2023, based upon newly

disclosed discovery. Namely, the Government disclosed the February 19, 2021

written bail recommendation made by TFO Bates to the state magistrate following

state arrest, in which it was stated that Petitioner was being federally indicted. The

bail recommendation was not mentioned during the first hearing on Motion to

Dismiss and unknown to defense counsel previously. The written request was

located February 23, 2023 and disclosed to defense March 6, 2023, the same day the

district court issued its first memorandum opinion denying relief. Due to this

additional evidence, the district court reopened the record and a supplemental

hearing was convened on March 24, 2023. TFO Bates was recalled as a witness and

testified again. This time, TFO Bates testified he was in communication with the

federal prosecutor and based on those communications, represented to the state

magistrate that Petitioner was being federally indicted. TFO Bates testified

unambiguously that he only made the bail recommendation after consultation with

an Assistant United States Attorney. The district court confronted TFO Bates with

inconsistencies between his prior and current testimony, namely the certainty of the

bail recommendation versus the testimony that federal indictment was uncertain

and to be determined.

B. Factual Background

10

In early 2021, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) regional

office came to believe that Petitioner was potentially selling controlled substances in

the Harrisburg, Pennsylvania area and may be in possession of a firearm. Because

of this, TFO Bates opened an investigation into Petitioner. The investigation

started out as a federal investigation. In furtherance, police utilized a confidential

informant to allegedly conduct a controlled buy from Petitioner; one buy from 101

Evergreen Street, Apartment B1 was successful while two other attempts were not.

TFO Bates applied for, and was granted, a federal search warrant by a federal

magistrate on February 11, 2021. The application for search warrant was prepared

by an Assistant United States Attorney. Upon execution of the warrant on

February 19, 2021, firearms were located. After the search was completed, TFO

Bates and the Assistant United States Attorney working on the matter spoke.

Despite the investigation and search warrant being federal matters, charges were

filed in state court the same day and Petitioner was arrested. Jd. In advance of

Petitioner’s preliminary arraignment on the state charges, TFO Bates sent an email

to the presiding state magistrate judge, in which he told the magistrate

Affiant requests high bail on defendant due to the nature of the charges and

the defendant is being federally indicted. If convicted would be looking at 15-

year mandatory sentence? The defendant does have knowledge of this and

does put him at flight risk.

TFO Bates testified he would not have made this written bail recommendation and

would not have told the state judge Petitioner was being indicted without some

2 Per TFO Bates’ later testimony, a fifteen-year mandatory would not apply and he

was mistaken to tell this to the state magistrate.

11

communication with federal authorities empowered to cause an indictment to be

sought.

Petitioner was arraigned on state charges the same day, with bail set at

$250,000.00 by a state magistrate judge, which Petitioner was unable to post.

Charges were filed in state court, per TFO Bates, in part because additional time

was needed to investigate. All reports prepared were submitted through the ATF’s

reporting system and not to Harrisburg City Police. Preliminary hearing on state

charges was continued repeatedly, and ultimately, never occurred as the state

charges were dropped after federal indictment.

C. District Court Judgment endix B,

In written opinion, the district court found the Ruse Exception to the Speedy

Trial Act and require a showing of two elements to be proven by a moving

defendant. First, it must be proven that state charges (and related arrest) were

filed for the sole or primary purpose of preparing a federal criminal prosecution; and

second, that there was collusion between state and federal authorities. The district

court found the testimony of TFO Bates to be unreconcilable due to inconsistent

testimony between the separate hearings and not credible, crediting only the bail

recommendation. Based on this factual finding, the district court granted the

Motion to Dismiss, finding as a factual matter the state charges were filed for the

primary or sole purpose of preparing a federal criminal prosecution against

Petitioner based on the bail recommendation. The district court then concluded

12

that collusion had occurred. As a result of these findings, the Ruse Exception was

applied and Speedy Trial Act time began running not upon federal indictment on

June 23, 2021, but rather upon arrest on February 19, 2021. Based on this

determination, the district court dismissed the charge of Felon in Possession of a

Firearm with prejudice. The drug distribution count was not dismissed but was

later withdrawn.

D. The Third Circuit Opinion (Appendix A)

In a precedential decision issued July 9, 2024 and amended August 2, 2024,

the United States Court of Appeals for the Third Circuit declined to interpret the

Speedy Trial Act to contain a Ruse Exception regarding arrest by state authorities

for the sole or primary purpose of preparing federal prosecution, becoming the first

court of appeals to do so. The Court of Appeal reinstated the dismissed count. The

Court of Appeals drew a distinction between arrest by state authorities as a prelude

to federal indictment and civil arrest by federal authorities (most commonly in the

immigration context), expressing no opinion on the latter. Appendix A at n.8.

13

REASONS FOR GRANTING THE PETITION

L The Third Circuit's decision creates a circuit split on the question of

Ruse Exception as applied to state arrests. No other Circuit has

precedentially refused to recognize application of the exception to a

state arrest. Breaking from the uniform precedent of other circuits

warrants consideration by this Court to resolve the split.

The Third Circuit’s decision of July 9, 2024 as amended August 2, 2024

considered and rejected a Ruse Exception to the STA as applied to state arrests,

becoming first and only Court of Appeals to precedentially reject the exception as it

relates to state arrests made for the sole or primary purpose of preparing federal

prosecution. The Third Circuit Court’s creation of a circuit split warrants

consideration by this Court.

The Second, Fourth, Fifth, and Ninth Circuits have recognized the exception

as applicable to state arrests. United States v. Jones, 129 F.3d 718 (2d Cir. 1997);

United States v. Woolfolk, 399 F.3d 590, 595 (4t Cir. 2005); United States v. Kelley,

40 F.4th 276 (5t Cir. 2022); United States v. Mearis, 36 F.4th 649, 653 (5th Cir.

2022); United States v. Benitez, 34 F.3d 1489, 1494 (9th Cir. 1994)(« Speedy Trial

Act time periods may be triggered by state detentions that are merely a ruse to

detain the defendant solely for the purpose of bypassing the requirements of the

Act.”)3,

3 The 11* Circuit has rejected application of the Ruse Exception to arrests under

state authority, in a non-precedential opinion. United States v. Alvarado-Linares,

698 F. App’x 969 (11th Cir. 2017). The 10‘ Circuit assumed without deciding that

the exception could only apply to state arrests. United States v. Asfour, 717 F.

App’x 822 (10tb Cir. 2017) (unpublished). The Eighth Circuit has assumed without

deciding that the Ruse Exception exists and applies to state arrests. United States

v. Saucedo, 956 F.3d 549, 553 (8th Cir. 2020)(“Under the ruse exception, a civil

14

The D.C. Circuit has rejected the Ruse Exception to the STA as applied to

arrests made under the District of Columbia Code. United States v. Knight, 824

F.3d 1105, 1109-10 (D.C. Cir. 2016); United States v. Mills, 964 F.2d 1186, 1188

(D.C. Cir. 1992)(en banc). This is distinguishable from the current question

presented because the D.C. Code, while similar in function to the statutes of a state,

is itself a law enacted under federal authority. The District of Columbia, while

functioning like a state for many purposes, has no inherent sovereignty and

possesses only the authority delegated to it by Congress, unless overruled by

Congress. Under The District of Columbia Self-Government and Governmental

Reorganization Act (PL 93-198), the Council of the District of Columbia has quasilegislative authority to enact statutes similar to a state legislature, but. Congress

retains authority to overrule the Council. This makes the question of the effect of a

state arrest on federal speedy trial rights a separate question from that decided in

Knight and Mills, where both authorities involved were federal.

Accordingly, the Third Circuit is the first and only Court of Appeals to reject

application of the Ruse Exception to a state arrest in a precedential decision. The

Circuit Court’s opinion, breaking away from the entirety of precedential appellate

decisions, created a circuit split on the question of the effect of collusion between

state and federal authorities which would not otherwise exist. Breaking from the

unanimous of precedents of other circuits and creating a circuit split warrants

arrest or detention may trigger the Speedy Trial Act when law enforcement

authorities collude with state or civil officials to detain a defendant as a mere ruse

for later prosecution.”).

15

review by this Court in order to resolve the split.

I. The Third Circuit’s policy and separation of powers rationale for

rejecting a Ruse Exception to the STA misconstrued the nature of the

exception. The exception is consistent with Congress’s purpose in

enacting the STA.

In rejecting a Ruse Exception applicable to state arrests, the Court of Appeals

reasoned that such an exception should properly come from Congress. Appendix A

at 24. This reasoning conflicts with that of four circuit courts which have accepted

the exception as applied to state arrests. Such courts viewed the exception as

consistent with, and in furtherance, of Congressional intent in enacting the STA.

Congress codified the constitutional speedy trial right through the Speedy Trial Act,

which establishes specific time limits pertaining to various stages of a criminal

prosecution. See 18 U.S.C. § 3161 et seg. “Congress enacted the Speedy Trial Act

because of its concern that this Court's previous interpretations of the Sixth

Amendment right to a speedy trial had drained the constitutional right of any real

meaning.” United States v. Taylor, 487 U.S. 326, 352, 108 S. Ct. 2413, 2427, 101 L.

Ed. 2d 297 (1988)(internal quotation omitted). “Congress designed the Speedy Trial

Act in part to protect the public's interest in the speedy administration of justice,

and it imposed the sanction of dismissal under section 3162 to compel courts and

prosecutors to work in furtherance of that goal.” United States v. Ramirez-Cortez,

218 F.8d 1149, 1157 (9th Cir. 2000). “The Speedy Trial Act would lose all force if

federal criminal authorities could arrange with state authorities to have the state

authorities detain a defendant until federal authorities are ready to file criminal

charges.” Benitez, 34 F.3d at 1494, see also, United States v. Cepeda-Luna, 989

16

F.2d 353, 357 (Sth Cir. 1993).

Rather than infringe on the power of Congress to enact policy, the Ruse

Exception serves Congressional intent by giving effect to the STA. Without it, state

and federal authorities are permitted to circumvent the purposes of the STA of

protecting the rights of defendants and timely but deliberative administration of

justice by engaging in a coordinated shell game of keeping a defendant in custody

for federal purposes without triggering the deadlines contained in the STA. Like

the Sixth Amendment right to a speedy trial before it, the Speedy Trial Act is at

risk of being drained of any real meaning by virtue of judicial interpretation.

CONCLUSION

For the foregoing reasons, this petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/John A. Abom

John A. Abom, Esquire

Abom & Kutulakis, LLC

2 W. High St.

Carlisle, PA 17013

717-249-0900 — Phone

717-249-3344 — Fax

JAA@AbomKutulakis.com

Attorney for Petitioner Hopkins

September 25, 2024

17