United States v. Whitehurst

116 F.R.D. 511, 1987 U.S. Dist. LEXIS 10656
CourtDistrict Court, D. Minnesota
DecidedJuly 6, 1987
DocketNo. 87-46
StatusPublished
Cited by2 cases

This text of 116 F.R.D. 511 (United States v. Whitehurst) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Whitehurst, 116 F.R.D. 511, 1987 U.S. Dist. LEXIS 10656 (mnd 1987).

Opinion

ORDER OF REMOVAL AND DETENTION

JANICE M. SYMCHYCH, United States Magistrate.

The above matter was before the undersigned on July 2, 1987, upon motion of the United States for removal, pursuant to Fed.R.Crim.P. 40(a), and for an order of detention, pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3142(e). Defendant was present and represented by Bruce Hanley, Esq. and John Remington Graham, Esq. Assistant United States Attorney Joseph T. Walbran represented the United States. After hearing and argument, the court is convinced that both motions should be granted, for the following reasons.

I. REMOVAL

Rule 40(a) of the Federal Rules of Criminal Procedure provides the exclusive mechanism for transfer of a criminal defendant to the forum district when he has been arrested in a different district. Here, the United States grand jury in the Northern District of Alabama, on February 22, 1985, returned its indictment against “Mark Whitehurst also known as Swede.” Defendant here, whose true name is Mark Kenneth Foster, was arrested pursuant to that indictment in the District of Minnesota on June 29, 1987.

Because the prosecution here is pursuant to indictment, probable cause for the offense is established, and the government need not pursue that issue at the Rule 40 hearing. The only issue upon removal, then, is whether the arrestee is one and the same as the defendant charged in the indictment.

Defendant asserts two arguments against removal here, in addition to his factual resistance on the identity issue. He claims that hearsay evidence may not be used to establish identity in a Rule 40 hearing. He also claims that because his true name is different than that of the defendant in the indictment that he may neither be removed or prosecuted, pursuant to the filed indictment. The court rejects both arguments as nonmeritorious.

HEARSAY EVIDENCE

Prior to the presentation of evidence by defendant at the removal hearing, all proof of identity by the government came as hearsay from law enforcement officers. It consisted of hearsay evidence that the Federal Bureau of Investigation (FBI) had matched one of Mark Kenneth Foster’s fingerprints to documentary evidence seized in Alabama, that now-convicted coconspirators had identified Mark Kenneth Foster as the Mark Whitehurst in the indictment, and that a number of now-convicted coconspirators had made identifications from photo[513]*513graphic lineups, establishing the two men as one and the same person. The hearsay evidence, if properly admissible at a Rule 40 hearing, is overwhelmingly strong proof that Mark Kenneth Foster is the same man as the one named in the indictment.

Defendant makes an inferential argument that hearsay may not be utilized in a Rule 40 proceeding. He argues that the enabling legislation for the rules of evidence and criminal procedure at 18 U.S.C. § 3771, and the November 20, 1972 order of promulgation of the Federal Rules of Evidence (FRE) require that the FRE govern in a criminal proceeding. He then argues that FRCrP 4, which permits use of hearsay on issues of probable cause, and the Bail Reform Act, which permits use of hearsay on issues of detention, inferentially mean that hearsay is otherwise inadmissible. He also asserts that United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 55 S.Ct. 781, 79 L.Ed. 1501 (1935), supports this proposition, although he cannot direct the court to any language in the opinion that so states. This elaborate reasoning stretches the authorities cited by defendant, lacks common sense, and is directly contrary to existing authority. United States v. Johnson, 45 F.R.D. 427, at 429 (D.Nev.1968), holding hearsay admissible at removal hearing. FRE 1101(d)(3). Accordingly, defendant’s hearsay objections are overruled, and the hearsay evidence is admitted.

SUFFICIENCY OF PROOF

Johnson, at 429, holds that hearsay proof of the photo identification of the defendant by a witness to the crime is sufficient for removal. Here, three coconspirators—Connie Ray Newell, David Nix, and Terry Markham, have made photo-lineup identifications of known photographs of Mark Kenneth Foster as the same man who participated with them in the marijuana and cocaine distribution enterprise described in the indictment. They specifically identified him as the “Swede”, or “Mark Whitehurst” named in the indictment. Because coconspirator testimony alone may be sufficient for criminal conviction at trial, Eg., United States v. Dorsey, 819 F.2d 1055 (11th Cir.1987); United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737 (8th Cir.1986); and United States v. Taylor, 657 F.2d 92 (6th Cir.1981), cert. denied, 459 U.S. 1102, 103 S.Ct. 723, 74 L.Ed.2d 950 (1982), defendant’s arguments about the credibility of the coconspirators do not preclude consideration of their identifications. When considered with the totality of the proof of identification they are compelling.

Certain drug ledgers were seized from the Alabama home of coconspirator Watson in April, 1983. They consisted of 4-6 briefcases containing numerous notebooks, identified by conconspirators Bobby Williamson and Newell as drug ledgers. Agents’ reviews of those ledgers establish that they contain numerous references to “Mark” and to “Swede.” Defendant Mark Kenneth Foster’s fingerprint was positively identified by the FBI as being present on a page of the 1981 ledgers. Agents’ interviews with coconspirators in 1983-1984 resulted in consistent, independent oral statements that Foster was a member of the conspiracy alleged in the indictment. Such representations came from Williamson who stated that defendant used the names both Foster and Whitehurst; Newell, who described a splinter in the conspiracy from its origin in Tennessee and Alabama to Arizona, identifying Foster/Whitehurst as one- and-the same participant, and the role of 18-wheelers for loading and transporting drugs from a farm in Tennessee; and John Hart, who described defendant as one of the major traffickers in the conspiracy, who also assisted in building an 8,000 square foot log home on the Tennessee farm which was, for awhile, the distribution point for marijuana; and Terry Markham, an Arizona coconspirator, who described her continuation of the drug distribution from Arizona. Markham told agents that Foster continued his drug deal[514]

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Cite This Page — Counsel Stack

Bluebook (online)
116 F.R.D. 511, 1987 U.S. Dist. LEXIS 10656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-whitehurst-mnd-1987.