IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No. 4:06-CR-00018

:

v. : (Judge McClure)

:

JASON LAMAR PRESSLEY a/k/a :

JASON SMITH a/k/a JAY, :

TERRY RAFEEQ SCOTT a/k/a TAFFY, :

JEROME DAVID KING, and :

WENDELL R. SIMPKINS, :

:

Defendants. :

M E M O R A N D U M

June 2, 2006

BACKGROUND:

On January 12, 2006, defendants Pressley, Scott, King, and Simpkins were

indicted by a grand jury sitting in the Williamsport Division of the Middle District

of Pennsylvania on a one-count indictment. The grand jury charged that the

defendants conspired to possess with intent to distribute more than five grams of

cocaine base known as crack, in violation of 21 U.S.C. § 846 (Count One). It was

also recited that the defendants possessed a number of firearms during and in

furtherance of the conspiracy. All defendants entered pleas of not guilty to the

original indictment, and all are incarcerated awaiting trial.

We granted as unopposed motions to compel filed separately by defendants

Case 4:06-cr-00018-JFM Document 147 Filed 06/02/06 Page 1 of 18
1

 As noted in our May 5, 2006 order continuing the trial, the Assistant

United States Attorney failed to comply with Local Criminal Rule 7.1 in filing the

first superseding indictment. (See Rec. Doc. No. 113, at 2-3.) Local Criminal

Rule 7.1 provides:

2

Scott and Simpkins. (Rec. Doc. Nos. 74 & 81). Defendants Scott and Simpkins

have filed notices that they will contest the authenticity and admissibility of the

government’s evidence at trial, pursuant to our pretrial order dated March 10,

2006. (See Rec. Doc. Nos. 40, 76-79, 87-90.) 

The government moved to continue the trial until June 1, 2006. All

defendants filed statements of reasons for their non-concurrence in the motion. On

May 1, 2006, we denied the government’s motion to continue. (Rec. Doc. No. 93). 

Jury selection was scheduled for May 8, 2006.

A flurry of activity followed our denial of the government’s motion to

continue. On May 2, 2006, the day after we denied the motion to continue, the

Assistant United States Attorney assigned to the case filed a motion to disqualify

defendant Pressley’s attorney due to a conflict of interest. On May 3, 2006, the

Assistant United States Attorney traveled to Harrisburg to obtain a first

superseding indictment, which contains nine counts.1, 2 

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Upon the filing of a superseding indictment, the

government shall file a statement indicating whether the

United States has filed or will file a motion for a

continuance of trial based upon the filing of the

superseding indictment and indicating the changes that

have been made in the superseding indictment in

comparison to the preceding indictment.

Local Criminal Rule 7.1 (emphasis added). We set forth the differences between

the original indictment and the superceding indictment in our May 5, 2006 order

continuing the trial. (See Rec. Doc. No. 113, at 2-5.)

2

 Defendants Scott, King, and Simpkins entered pleas of “not guilty” on the

first superseding indictment. (See Rec Doc. Nos. 139, 141, 143.) Defendant

Pressley, at his arraignment on the first superseding indictment, did not wish to

enter a plea, as he stated that he does not recognize the first superseding indictment

as differing from the original indictment. The presiding magistrate judge entered a

plea of “not guilty” on behalf of Pressley, in accordance with the Federal Rules of

Criminal Procedure. (See Rec. Doc. No. 144.)

3 Defendant Scott joined the motion on May 5, 2006. (See Rec. Doc. Nos.

114 & 115.) Defendant King joined on May 10, 2006. (Rec. Doc. No. 125.) 

3

On May 5, 2006, defendant Simpkins filed a motion to dismiss the First

Superseding Indictment, with prejudice. (Rec. Doc. No. 107.) All defendants have

joined this motion.3

 Also on May 5, defendant Simpkins filed a Motion

Case 4:06-cr-00018-JFM Document 147 Filed 06/02/06 Page 3 of 18
Defendant Pressley orally joined the motion during the hearing to disqualify his

attorney, and new counsel for Pressley filed a motion to join on May 26, 2006. 

(Rec. Doc. No. 146.)

4

 Defendant Scott joined the motion on May 9, 2006. (See Rec. Doc. Nos.

122 & 128.) Defendant King joined on May 10. (Rec. Doc. No. 125.) Defendant

Pressley joined on May 26, 2006. (Rec. Doc. No. 146.)

5

 After an in camera and partially ex parte hearing on the motion to

disqualify, we issued a sealed memorandum disqualifying Pressley’s appointed

counsel due to a conflict of interest. (Rec. Doc. Nos. 123 & 124.) On May 11,

2006, we issued an order appointing new counsel for defendant Pressley. (See

4

Requesting the Production of Transcripts From the Grand Jury Returning The

Indictment Returned January 12, 2006 And Superseding Indictment Returned May

3, 2006. (Rec. Doc. No. 112.) All defendants have joined in this motion as well.4

On May 5, 2006, we issued an order continuing the trial of all four

defendants until our disposition of three important pretrial motions: the

government’s motion to disqualify Pressley’s counsel, the defendants’ motion to

dismiss the superseding indictment with prejudice, and the defendants’ motion

requesting the production of grand jury transcripts. 

We have decided the motion for disqualification.5

 Now before the court are

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Rec. Doc. No. 124.)

5

the defendants’ motions to dismiss the superseding indictment with prejudice, and

defendants’ motion requesting the production of grand jury transcripts. In this

memorandum, we also consider defendant King’s motion for production of the

transcript from the in camera hearing regarding defendant Pressley’s

representation. (Rec. Doc. No. 125.) 

For the following reasons, we will deny the motions. 

DISCUSSION:

I. Motion To Dismiss the Superseding Indictment, With Prejudice

The defendants argue that the filing of the superseding indictment forced

them to make a choice between two unacceptable alternatives: proceed to trial on

the first superseding indictment without having adequate time to prepare a defense

against the new charges, or request a continuance and surrender the right to a

speedy trial. They therefore ask that we dismiss the superseding indictment, with

prejudice. 

Below we explain our conclusion that there has been no violation of the

Speedy Trial Act in this case. We then discuss the defendants’ arguments

regarding the abuse of prosecutorial discretion. 

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A. The Speedy Trial Act

The Speedy Trial Act provides that “[i]n any case in which a plea of not

guilty is entered, the trial of a defendant . . . shall commence within seventy days .

. . from the date the defendant has appeared before a judicial officer of the court in

which such charge is pending.” 18 U.S.C. § 3161(c)(1). “Numerous exclusions,

however, give flexibility to this facially rigid seventy-day period.” United States v.

Felton, 811 F.2d 190, 193 (3d Cir. 1987); see 18 U.S.C. § 3161(h). “If the

defendant is not brought to trial within seventy days, as augmented by allowable

exclusions, the court must dismiss the indictment on motion of the defendant.” 

Felton, 811 F.2d at 193; 18 U.S.C. § 3162(a)(2).

Section 3161(h)(1)(F) (“subsection (F)”) excludes from these seventy days

certain delays occasioned by the filing of pretrial motions:

(h) The following periods of delay shall be excluded in

computing the time within which an information or an

indictment must be filed, or in computing the time within

which the trial of any such offense must commence:

(1) Any period of delay resulting from other

proceedings concerning the defendant, including but not

limited to–

(F) delay resulting from any pretrial motion,

from the filing of the motion through the conclusion of

the hearing on, or other prompt resolution of, such

motion.

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 “All defendants who are joined for trial generally fall within the speedy

trial computation of the latest codefendant.” Henderson v. United States, 476 U.S.

321, 323, n.2 (1986) (citing 18 U.S.C. § 3161(h)(7)). Thus, the speedy trial clock

in this case runs from March 14, 2006, the date that defendants Simpkins and

Pressley made their initial appearance and pled not guilty to the original

indictment.

7

18 U.S.C. § 3161(h)(1)(F) (emphasis added).

The government argues that no time has run from the Speedy Trial clock in

this case, as pretrial motions were filed immediately after arraignment,6

 and

various overlapping motions have been pending during the entire pretrial period. 

(Govt’s Br. In Opp., Rec. Doc. No. 134-1, at 5-9.) The defendants argue that

because any delay “is actually a delay caused by Counsel for the United States,”

time has been running on the Speedy Trial clock and the trial must be held in May. 

(Rec. Doc. No. 136, at 2.)

We disagree with the defendants’ view. Our calculation shows that, at the

most, two days have run on the Speedy Trial clock. The last two of these four

codefendants were arraigned on March 14, 2006. On March 15, 2006, defendant

Scott filed a motion to compel discovery. One day of non-excludable time thus

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8

elapsed between March 14 and March 15, 2006. 

After March 15, 2006, various overlapping pretrial motions were filed by the

parties and resolved by this court. When we denied the government’s motion to

continue on May 1, 2006, that disposed of the last pretrial motion then pending. 

On May 2, 2006, the government filed the motion to disqualify defendant

Pressley’s counsel. One day of non-excludable time thus elapsed between May 1

and May 2, 2006. During the pendency of the motion to disqualify, defendant

Simpkins filed the instant motion to dismiss the superseding indictment. A total of

two days have elapsed on the Speedy Trial clock.

The periods of excludable delay discussed above are authorized by

subsection (F). The plain language of the statute excludes from the seventy-day

speedy trial requirement “any period of delay” resulting from “any pretrial

motion.” 18 U.S.C. § 3161(h)(1)(F) (emphasis added). The defendants argue that

the time between the filing and resolution of certain of their pretrial motions, such

as the motions to compel discovery, should not be excludable, because the motions

were filed due to the government’s repeated failures to provide discovery materials

to the defendants. We discussed those failures in two orders granting motions to

compel filed by defendants Scott and Simpkins, and our order denying the

government’s motion to continue trial. (See Rec. Doc. Nos. 74, 81, & 93.)

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The defendants cite to no authority, and we are aware of none, which

supports their argument that motions to compel discovery are excluded from the

rule set out in subsection (F). As the plain language of the statute is clear, and the

Supreme Court of the United States has broadly interpreted subsection (F), see

Henderson v. United States, 476 U.S. 321, 325 (1986) (affirming the Seventh

Circuit’s holding that subsection (F) “excludes delays resulting from pretrial

motions without qualification”), we will not hold that the circumstances

surrounding the filing of pretrial motions may remove such motions from the scope

of subsection (F). 

There has been no violation of the Speedy Trial Act in this case. Because

the defendants’ speedy trial rights were not jeopardized, the defendants were not

compelled to choose between their right to a speedy trial and their right to the

effective assistance of counsel.

B. Prosecutorial Misconduct

The defendants argue that the prosecution obtained the first superseding

indictment with an improper purpose–to delay trial. Defendants suggest that

because the government had the information relied upon to obtain the first

superseding indictment at the time it obtained the original indictment, the

government acted inappropriately in obtaining a first superseding indictment that

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7

We reinforce that trial was continued due to our consideration of the pretrial

motions, and not as an automatic continuance granted upon the filing of a

superseding indictment. See United States v. Rojas-Contreras, 474 U.S. 231, 234-

37 (1985) (while “Congress did not intend that the 30-day trial preparation period

begin to run from the date of filing of a superseding indictment,” the Speedy Trial

Act “itself places broad discretion in the District Court to grant a continuance when

necessary to allow further preparation.”); United States v. Rahamin, 168 F. App’x

512 (3d Cir. 2006) (same).

10

was not the product of an ongoing investigation.7

The second half of the argument is foreclosed by the broad, but not

unlimited, prosecutorial discretion granted the government in criminal cases. 

The United States Court of Appeals for the Third Circuit has most recently

rejected the second half of defendants’ argument in United States v. Winkleman,

No. 03-4500, 03-4753, 2006 WL 1371584 (3d Cir. May 18, 2006). In Winkleman,

the defendants-appellants argued “that because prosecutors had sufficient

information to charge them with trading weapons for narcotics as part of the

general conspiracy charge in count one, that the charge should have been contained

in one of the previous superceding indictment[s].” Id. at *2.

The Third Circuit rejected that argument, noting that “prosecutors are

Case 4:06-cr-00018-JFM Document 147 Filed 06/02/06 Page 10 of 18
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permitted to make charging decisions, and the decision to exclude the illegal

trading from the conspiracy count is entirely permissible.” Id. The United States

Supreme Court has held that “[i]n our system, so long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute,

the decision whether or not to prosecute, and what charge to file or bring before a

grand jury, generally rests entirely in [the prosecutor’s] discretion.” Bordenkircher

v. Hayes, 43 U.S. 357, 364 (1978) (Stewart, J.). 

The fact that the government was in possession of the information it used to

obtain the first superseding indictment at the time it obtained the original

indictment does not render the first superseding indictment improper or vindictive.

In support of their argument regarding delay, the defendants direct the court

to a decision of the United States District Court for the Eastern District of

Pennsylvania, United States v. Hoffman, No. Crim. 01-169, 2003 WL 1889466

(E.D. Pa. Apr. 16, 2003) (Kelly, J.). The district court’s holding in Hoffman–that

the defendant’s right to a speedy trial was not violated, and that the second

superseding indictment was not filed with an improper purpose–was affirmed by

the United States Court of Appeals for the Third Circuit in United States v.

Hoffman, 148 F. App’x 122 (3d Cir. 2005). 

The district court in Hoffman held that “there was no ill motive, negligence,

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nor deliberate intention to delay trial on behalf of the government in seeking a

Second Superseding Indictment. To the contrary, . . . the filing of the new charges

was because of additional evidence the government uncovered in its continuing

investigation.” Hoffman, 2003 WL 1889466, at *5. The Court of Appeals

affirmed, reasoning:

The Due Process Clause of the Fifth Amendment

requires dismissal of an indictment “if it [is] shown . . .

that the pre-indictment delay . . . caused substantial

prejudice to [the accused’s] rights to a fair trial and that

the delay was an intentional device to gain tactical

advantage over the accused.” United States v. Marion,

404 U.S. 307, 324 (1971). In the present case Hoffman

has failed to allege any prejudiced caused by the

purported delay and has failed to show that the delay was

used to gain a tactical advantage. The District Court

recognized that the second superseding indictment was

delayed due to the need to conduct further investigation,

not to gain an improper tactical advantage or to prejudice

Hoffman.

Hoffman, 148 F. App’x at 130. 

We will dismiss the first superseding indictment only if the defendants show

two things: (1) substantial prejudice to their right to a fair trial, and (2) an

intentional delay used to gain tactical advantage. Id.; Marion, 404 U.S. at 324. 

Our analysis ends with consideration of the first element, as defendants have

failed to show that their right to a fair trial has been substantially prejudiced by the

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filing of the first superseding indictment. 

Defendants argue that they are prejudiced by the filing of the superseding

indictment five days prior to trial in two ways. First, they argue that the

superseding indictment jeopardized their right to the effective assistance of

counsel, because counsel was not prepared to present a defense on the new charges. 

(See Rec. Doc. No. 107, at ¶19.) Second, defendants argue that “forcing [them] to

proceed on the Superseding Indictment on May 8, 2006 will jeopardize [their] right

to a speedy trial by compelling [them] to request a continuance” to adequately

prepare a defense. (Rec. Doc. No. 107, at ¶ 21.)

We have already explained that there has been no Speedy Trial Act violation

in this case. The defendants were therefore not presented with a situation where

they had to choose between their right to a speedy trial and their right to the

effective assistance of counsel. If defense counsel were unprepared to present a

defense on the new charges on the date set for trial, a motion to continue would be

appropriate. See, e.g., United States v. Rahamin, 168 F. App’x 512 (3d Cir. 2006)

(the Speedy Trial Act “places broad discretion in the District Court to grant a

continuance when necessary to allow further preparation.”).

Because the prosecutor enjoys broad, but not unlimited, discretion in

charging decisions, and because the defendants have failed to show that the filing

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8

 The defendants also request that we dismiss the first superseding

indictment because (1) the government has failed to comply with Local Criminal

Rule 7.1, and (2) Federal Rule of Criminal Procedure 48(b)(1) authorizes dismissal

of “an indictment . . . if unnecessary delay occurs in presenting a charge to a grand

jury.” We reject these arguments in this case. First, the defendants have cited no

authority, and we are aware of none, that mandates dismissal if the prosecutor fails

to comply with Local Criminal Rule 7.1. Second, as we have decided that the

filing of the first superseding indictment was not improper, dismissal under Federal

Rule 48(b)(1) is not warranted. 

14

of the first superseding indictment caused substantial prejudice to the defendants’

right to a fair trial, we decline the invitation to dismiss the first superseding

indictment.8

II. Motion For Production Of Grand Jury Transcripts

The defendants have also filed a motion requesting the production of grand 

jury transcripts from the grand jury sessions regarding the original and first

superseding indictments. The defendants request the transcripts “to assist the

Court in making a determination on whether the Government possessed additional

information resulting from an ongoing investigation between the filing of the

Indictment and Superseding Indictment.” (Rec. Doc. No. 112, at ¶8.) 

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We will deny the motion. As set forth above in our discussion of the Third

Circuit’s decision in Winkleman and the Supreme Court decision in Borderkircher,

the prosecutor has broad, but not unlimited, discretion in charging decisions. As

we stated above, the fact that the government was in possession of the information

it used to obtain the first superseding indictment at the time it obtained the original

indictment does not render the first superseding indictment improper or vindictive. 

The “indispensable secrecy of grand jury proceedings must not be broken

except where there is a compelling necessity.” United States v. Procter & Gamble,

356 U.S. 677, 682 (1957) (quoting United States v. Johnson, 319 U.S. 503, 513

(1943). The defendants have not demonstrated a “compelling necessity” here. The

motion requesting the production of grand jury transcripts will be denied.

III. Motion For Production of Transcript From In Camera Hearing

Regarding Defendant Pressley’s Representation

Defendant King has also moved for production of the transcript from the in

camera hearing regarding defendant Pressley’s representation. (Rec. Doc. No.

125.) No brief in support of this motion has been filed, as required by Local Rule

7.5. The motion will therefore be deemed withdrawn. See Local Rule 7.5

(“Unless otherwise ordered by the court, if supporting legal briefs are not filed

within the time provided by this rule such motion shall be deemed to be

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16

withdrawn.”). While King has also failed to brief his motion to join the motion to

dismiss the superseding indictment and the motion for production of grand jury

transcripts, we deem that he has joined the briefs in support filed by defendants

Simpkins and Scott. 

CONCLUSION:

In an accompanying order, for all of the reasons set forth above, the

defendants’ motions to dismiss the superseding indictment, and requesting

production of grand jury transcripts, will be denied. Defendant King’s motion for

a transcript of the in camera hearing regarding defendant Pressley’s representation

will be deemed withdrawn.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge 

Case 4:06-cr-00018-JFM Document 147 Filed 06/02/06 Page 16 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No. 4:06-CR-00018

:

v. : (Judge McClure)

:

JASON LAMAR PRESSLEY a/k/a :

JASON SMITH a/k/a JAY, :

TERRY RAFEEQ SCOTT a/k/a TAFFY, :

JEROME DAVID KING, and :

WENDELL R. SIMPKINS, :

:

Defendants. :

O R D E R

June 2, 2006

For all of the reasons set forth in the accompanying memorandum,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendant Pressley’s Motion For Joinder In All Codefendants’ Briefs,

Motions And Other Pleadings Filed To Date Regarding Codefendant

Terry Rafeeq Scott, Codefendant Jerome David King And

Codefendant Wendell R. Simpkins, is granted, consistent with the

accompanying memorandum. (Rec. Doc. No. 146.)

2. Defendant Scott’s Motion To Join Co-Defendant Simpkins’s Motion

Requesting The Production Of Transcripts From The Grand Jury

Returning The Indictment Returned January 12, 2006, And

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2

Superseding Indictment Returned May 3, 2006, is granted. (Rec. Doc.

No. 122-1.)

3. Defendant King’s Motion To Join Co-Defendant Simpkins’s Motion

To Dismiss And Motion Requesting The Production of Transcripts

From The Grand Jury And Co-Defendant Scott’s Motion To Dismiss

And Motion For Transcript Of The May 25, 2006 In Camera Hearing

Regarding Co-Defendant Pressley’s Representation, is granted in part

and deemed withdrawn in part, consistent with the accompanying

memorandum. (Rec. Doc. No. 125.)

4. The defendants’ Motion To Dismiss The Superseding Indictment

Filed May 3, 2006, With Prejudice, is denied. (Rec. Doc. Nos. 107 &

114.)

5. The defendants’ Motion Requesting The Production Of Transcripts

From The Grand Jury Returning The Indictment Returned January 12,

2006 And Superseding Indictment Returned May 3, 2006, is denied. 

(Rec. Doc. No. 112.)

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

 

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