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United States of America v. Timothy Faison

April 13, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge


On September 21, 2011, a jury convicted defendant of possession of cocaine base with intent to distribute (Count One) and with distributing cocaine base (Counts Two, Three and Four), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) and 841(b)(1)(C). The defendant proceeded pro se with former Assistant United States Attorney, now defense attorney Leonard Lato, Esq. serving as stand-by counsel.

By two documents entitled "affirmation in opposition to verdict," both received in the Clerk's Office on November 7, 2011, defendant has moved to arrest judgment pursuant to Fed. R. Crim. P. 34(a)(2), or for a judgment of acquittal pursuant to Rule 29, as well as, in the alternative, for a new trial under Rule 33.

Defendant's Jurisdictional Arguments Firstly, I will address defendant's jurisdictional arguments. He maintains that:

As to Counts 1, 3 and 4 of the indictment, this Court does'nt have lawful jurisdiction of these charges in which I was already being prosecuted on in state court. On 6/19/10 defendant was arraigned on these charges in Nassau County 1st District Court. On 9/24/10 these charges was presented to state grand jury in which they voted a no true bill . . . . On 10/29/10 the state judge ordered the charges dismissed in favor of the accused.[*fn1 ] On 8/5/10 the federal government charge[d] me with the same offense that I was already being prosecuted on in state court, which is count 1 of the indictment. Then in June of 2011 the government added the remaining two state charges to their indictment, which is count 3 & 4.

Def.'s "Argument 1" contained in his "Affirmation in Opposition to Verdict" dated "11/1/11" at 1.

The federal prosecution, defendant posits, "violates [his] 4th, 10th & 14th Amendment rights as well as the doctrine of collateral estoppel." Id. A similar argument was previously and unsuccessfully advanced by defendant under the rubric of a double jeopardy claim. See Mar. 25, 2011 Transcript (bench decision rejecting defendant's arguments based on purported double jeopardy violations and abuses of the doctrine of dual sovereignty). To the extent defendant has reconfigured that argument in the guise of a claim of collateral estoppel, it still lacks merit. As noted by the government, "the doctrine of collateral estoppel bars relitigation of an issue of fact determined by a final judgment only in a subsequent lawsuit 'between the same parties.'" Gov't's Dec. 5, 2011 Letter in Opp'n at 3 (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). The State of New York and the United States are not the same parties. Instead, each entity is a separate sovereign entitled to enforce its own laws. And "[w]hen a single act violates the laws of two sovereigns, the wrongdoer has committed two distinct offenses." United States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990). Accordingly, the state proceedings referenced by defendant (even if, contrary to the fact, he was placed in jeopardy as a result thereof),*fn2 did not bar the federal charges of which defendant stands convicted under the doctrine of double jeopardy, collateral estoppel, or otherwise.

Defendant's other jurisdictional argument is similarly unpersuasive. The crux of that claim is that this Court lacks jurisdiction because the United States Attorney for the Eastern District of New York did not receive specific authorization from the United States Attorney General to prosecute defendant. That, defendant argues, runs afoul of the supposed mandate set forth in 28 U.S.C. § 515(a), which provides: The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

28 U.S.C. § 515(a).

This argument was earlier broached by the defendant on the eve of trial. At that time, I denied the application and characterized what I understood to be the thrust of his argument thusly:

We are not going to delay the trial.

But I'm making this determination without precluding you from bringing an application that indicates that any time the United States Attorney[']s Office in any one of the 94 districts throughout this country intends to file a criminal charge, misdemeanor, felony, against an accused, that there must be explicit permission provided by the attorney general.

Sept. 8, 2011 Transcript at 77.

The government has not specifically addressed this argument by defendant in their opposition to the present motion. However, when the issue was ...

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