The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Currently before the Court are several objections to the Presentence Investigation Report ("PSR") and other requests for relief by the defendant James Charles Kopp. The Court shall address some of these issues here and the remainder at the time of sentencing.
Custody Status of Defendant
The defendant asserts that he is primary state custody and asked to be returned to state custody after he is sentenced. The Court finds that the defendant is incorrect.
The government has asserted the following facts as to defendant's custody status, against which the defendant has failed to offer any evidence. The defendant was extradited from France on requests from the State of New York and the United States, after the United States agreed not to seek the death penalty. Pursuant to treaty and protocol, the defendant was turned over by France to the U.S. Marshal Service ("USMS"). The defendant was transported from France by the USMS aboard a plane provided by the Federal Bureau of Investigation ("FBI"). An Amherst Police Department officer was on board. The plane landed at Niagara Falls Air base, Niagara Falls, Niagara County, New York. The defendant and all on board were cleared by Customs and Border Protection Officers. The defendant was then turned over by the USMS to the FBI who processed him and then presented him to United States Magistrate Judge Hugh B. Scott for Arraignment. The defendant was held in federal custody without bail. The defendant was then, pursuant to a writ of habeas corpus ad prosequendum, presented to the Erie County Court for arraignment. For all future appearances in state court, the defendant's presence was obtained by a writ of habeas corpus ad prosequendum.
As between the state and federal sovereigns, primary jurisdiction over a person is generally determined by which one first obtains custody of, or arrests, the person. Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir.1991); see also United States v. Vann, 207 F. Supp. 108, 111 (E.D.N.Y.1962) (The controlling factor in determining the power to proceed as between two contesting sovereigns is the actual physical custody of the accused).
Here, the defendant has been and is currently in the primary jurisdiction of the federal government. The USMS and the FBI first obtained custody of the defendant. The fact that the defendant was tried, convicted and sentenced by the State of New York first does not change primary jurisdiction. Shumate v. United States, 893 F. Supp. 137, 139 (N.D.N.Y.1995) (The general rule as to place of incarceration is that regardless of the order in which sentences are imposed, the sentence of the sovereign which has primary jurisdiction is served first.") (citing, In re Liberatore, 574 F.2d 78, 89 (2d Cir.1978)). Thus, the defendant is and always has been in federal custody.
Request for Defense Sentencing Witnesses
The defendant requests that several witnesses be allowed to speak on his behalf at sentencing. The Court denies this request.
The defendant asks for assignment of new counsel or to proceed pro se. The Court denies this request.
Upon return of the jury's verdict on January 25, 2007, the Court set a schedule for post-trial motions and sentencing. Generally, sentencing is held within 90 days of the verdict. However, the defendant requested additional time to prepare post-trial motions and for sentencing, and the Court granted that request. On February 27, 2007, the defendant requested additional time to file post-trial motions. The Court again granted the request, but denied a request to further adjourn sentencing, specifically warning the defendant that sentencing would not be adjourned.
After proceeding pro se at trial, the defendant requested assignment of counsel in a letter filed March 8, 2007, and on March 14, 2007, the Court granted the request and assigned Assistant Federal Public Defender John Humann, Esq., as counsel, noting that Mr. Humann had been stand by counsel during the trial and had represented Mr. Kopp prior to his pro se status. At the time the Court granted the defendant's request for counsel, the Court warned the defendant that he would not be permitted to return to pro se status. See United States v. Reddeck, 22 F.3d 1504, 1510-11 (10th Cir.1994) ("Once the defendant has elected either to waive appointed counsel or waive the constitutional right to defend himself, he does not have an unlimited right to thereafter change his mind and seek the other path of representation.").
Mr. Humann subsequently filed a motion to withdraw as counsel, claiming a potential conflict of interest based on a potential ineffective assistance of counsel claim in the ...