United States v. Feldhacker

849 F.2d 293
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 31, 1988
DocketNos. 87-1459, 87-1469, 87-1570 and 87-1571
StatusPublished
Cited by43 cases

This text of 849 F.2d 293 (United States v. Feldhacker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Feldhacker, 849 F.2d 293 (8th Cir. 1988).

Opinion

ARNOLD, Circuit Judge.

Julia Lynn Feldhacker and Mark David Critz separately appeal from convictions stemming from the prosecution of a cocaine distribution scheme. In a consolidated trial, the jury convicted defendant Feld-hacker on four counts of perjury before a grand jury under 18 U.S.C. § 1623 and two counts of obstruction of justice under 18 U.S.C. § 1503.1 Defendant Critz was convicted by the same jury of three counts of distributing cocaine to individuals, one of whom was under the age of twenty-one, in violation of 21 U.S.C. §§ 841(a)(1) and 845(a), as well as four counts of obstruction of justice under 18 U.S.C. § 1503. The government cross-appeals from the District Court’s decision not to enhance the sentences of both defendants under 18 U.S.C. § 3147. We affirm the convictions of both Feldhacker and Critz, but we reverse the District Court’s refusal to enhance their sentences.

I.

Initially, both Feldhacker and Critz argue that the District Court should have granted their motions to dismiss the pending charges on the ground that the government had illegally initiated grand jury proceedings after it had dismissed a previous case against Critz. This argument has two aspects. Appellants suggest that the initial dismissal of charges against Critz with leave to refile violated the spirit of Fed.R.Crim.P. 48(a), the object of which is “... to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging ...” Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 85 n. 15, 54 L.Ed.2d 207 (1977). In this case, however, the record does not yield a reasonable inference of prosecutorial harassment. The government dismissed its original case against Critz only after the trial court granted Critz’s motion to suppress statements he made to investigators, with the result that the government’s case on the original indictment became severely weakened.

At this point, appellants argue that the government’s subsequent reindictment of Critz indirectly violated the rule that grand jury proceedings may not be used to develop the prosecution’s case once an indictment has issued. In effect, appellants are claiming that Critz’s previous indictment prevents any further grand jury investigation, despite the fact that this indictment had been dismissed. We reject this application of the rule. In general, absent prosecutorial abuse, a defendant does not obtain immunity from prosecution simply because the prosecution has previously dismissed an indictment which described the criminal acts at issue. See De-Marrias v. United States, 487 F.2d 19, 21 (8th Cir.1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974). In this particular instance, the suppression of Critz’s confession clearly constitutes a change in circumstances which justifies reindictment after a dismissal under Rule 48(a). See United States v. Mendenhall, 597 F.2d 639, 641 (8th Cir.), cert. denied, 444 U.S. 855, 100 S.Ct. 113, 62 L.Ed.2d 73 (1979). It is not argued that the government knew when Critz was initially indicted that the statement would be suppressed. Nor has Critz shown that the grand jury obtained any evidence against him while the original indictment, later dismissed, was still pending.

II.

Appellants next argue that the District Court erroneously failed to suppress the [296]*296testimony of five prosecution witnesses whose identities were initially divulged to investigators through statements of the defendants which the court later held were illegally obtained.2 Feldhacker and Critz both claim that these witnesses’ testimony was accordingly the fruit of the poisonous tree.

The government’s response is that the identities of these purchaser-witnesses would inevitably have been discovered absent the illegally obtained admissions of the defendants. In particular, the government relies on two legally obtained address books, which contain the names of and identifying information on each of the five witnesses. Feldhacker and Critz both argue vigorously that the investigating agents could not have picked the five witnesses out of the numerous other names and numbers in the books without the prior tainted knowledge derived from defendants’ earlier statements.3 They further allege that the address book entries are often fragmentary and vague. According to appellants, knowledge of the suppressed confessions enabled investigators to “zero in” on the names in the address book they already knew would produce the incriminating evidence.

The difficulty with appellants’ approach to the inevitable-discovery rule is that it mistakenly focuses on what investigators actually did after the unlawful discovery, rather than what they would have done in the absence of such an illegal disclosure. This inquiry necessarily entails reasoning about hypothetical circumstances contrary to fact. In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the Supreme Court held that since a murder victim’s body would have been discovered within a short time by a search party, the fact that the suspect first led police to the body under unlawful interrogation did not justify suppression of the evidence. In this context, the police in Williams were allowed to do even more than “zero in” on the illegally discovered gravesite. The police were allowed to retain their knowledge of the body’s location, since it would have been absurd to order that the victim’s body be reburied to test whether the search party would actually have discovered it.

Instead, the question here, as in Williams, is whether "... the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ...” 467 U.S. at 444, 104 S.Ct. at 2509. Even if their prior knowledge of witness Bob Bruns’s identity enabled investigators to decipher the “B.B.” entries in the address books more quickly, the prosecution can still avoid suppression of Bruns’s testimony if it can show that investigators operating without this prior knowledge would have ultimately uncovered Bruns anyway.4 This was a question of fact which the District Court resolved in favor of the prosecution. On the record before us, we cannot say that the District [297]*297Court’s factual finding was clearly erroneous.

III.

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849 F.2d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-feldhacker-ca8-1988.