Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-27-2005
USA v. Harvey
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3642
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"USA v. Harvey" (2005). 2005 Decisions. Paper 1306.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-3642
___________
UNITED STATES OF AMERICA
vs.
GARY ANTHONY HARVEY,
Appellant.
___________
On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 02-cr-00149)
District Judge: The Honorable Thomas K. Moore
___________
Submitted Under Third Circuit LAR 34.1(a)
April 19, 2005
BEFORE: NYGAARD, RENDELL, and SMITH, Circuit Judges.
(Filed: April 27, 2005)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant Gary Harvey pleaded guilty to possession with intent to distribute, and
to importing heroin. In his guilty plea, Harvey reserved the right to appeal the District
Court’s suppression ruling, where it held that the government was not collaterally
estopped from relitigating the issue of probable cause. We will affirm his conviction, but
vacate and remand for re-sentencing under United States v. Booker, 543 U.S. __, 125 S.
Ct. 738 (2005).
I.
Harvey was arrested following a police investigation of Harvey and Cesar
Vasquez Quionnes. Police, through a wiretap on Quionnes, received information that he
would be transporting illegal drugs. They also had information, from the wiretap, that a
person in a white shirt and Miami hat would be waiting for Quionnes. Police saw
Harvey, wearing a white shirt and Miami hat, enter the same Wendy’s that Quionnes had
earlier entered. A few minutes later Harvey left the restaurant and was arrested. He was
never seen interacting with Quionnes. A search incident to arrest revealed 1.6 kilograms
of heroin. Harvey was advised of his rights, and admitted that he was to receive $3,000
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from Quionnes for transporting the drugs. He also had a phone number for Quionnes,
which matched the cell phone in Quionnes’ possession.
Harvey was charged with possession with intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(I), and with importation of
a controlled substance into the United States in violation of 21 U.S.C. § 952(a). During a
suppression hearing related to these charges, Harvey discovered for the first time that the
information that provided probable cause to arrest him came from a wiretap. Harvey filed
a motion to suppress the evidence derived from the wiretap because the Government had
failed to follow proper discovery procedures under the wiretap statute. The District Court
suppressed the evidence. Once the wiretap evidence was excluded, the District Court also
concluded that the Government lacked probable cause to arrest Harvey. The charges
against Harvey were dismissed without prejudice following a motion by Harvey to
dismiss for speedy trial violations.
Harvey asked that the charges be dismissed with prejudice so that the Government
could not simply re-prosecute him and escape from the Court’s ruling. The Government
assured the District Court that it was not using the Speedy Trial Act as a means of
escaping the ruling and that it had not yet determined whether it would re-prosecute
Harvey. Based upon these assurances, the District Court dismissed without prejudice and
ordered the Government to return Harvey’s possessions, including his passport, without
delay. The Government did delay, however, and Harvey sought an emergency order
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demanding the return of his property. The Government again promised the Court that it
was not delaying in an attempt to re-prosecute Harvey. The Court ordered the documents
returned to Harvey. The next day when Harvey’s lawyer went to pick up his possessions,
agents arrested Harvey as he waited in his attorney’s car. The Government had re-
indicted Harvey for identical offenses.
Harvey filed a Motion in Limine to determine whether the previously suppressed
wiretap evidence would be permitted in the second criminal indictment. Harvey argued
that the Government had used the Speedy Trial Act as a way to get around the District
Court’s suppression ruling. Thus, he argued, the Court should either (1) change the
previous order to a dismissal with prejudice, or (2) find that the previous suppression
ruling collaterally estopped its use in the second criminal matter. Although the District
Court acknowledged that the Government appeared to be using the Speedy Trial Act as a
way of avoiding the Court’s earlier discovery sanction, it nonetheless denied Harvey’s
motions.
In deciding Harvey’s Motion to Reconsider and the Motion to Suppress, the
District Court examined whether the ruling met the requirements for collateral estoppel.
Concluding that the order was not a “final and valid judgment” the Court held that it did
not meet the collateral estoppel requirements. The District Court also concluded that
Harvey did not establish prosecutorial vindictiveness. Harvey again moved to suppress
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the confession and evidence claiming that there was not probable cause for his arrest.
The District Court denied this motion.
Following the denial of the motion to suppress, Harvey pleaded guilty, on the
condition that he could appeal the Court’s suppression rulings. The Court sentenced
Harvey to 51 months imprisonment, the minimum under the guidelines, and five years
supervised release. On appeal, Harvey alleges that: (1) the District Court erred by finding
that the Government was not collaterally estopped from using the wiretap evidence
suppressed in the first criminal matter; (2) there was not sufficient probable cause to
arrest him; and (3) he should be resentenced pursuant to United States v. Booker, 543
U.S. __, 125 S. Ct. 738 (2005).
II.
The standard of review in the Third Circuit for collateral estoppel cases is unclear.
See Nat’l R.R. Passenger Co. v. Pennsylvania Pub. Util. Comm’n, 288 F.3d 519, 524-25
(3d Cir. 2002); Witkowski v. Welch, 173 F.3d 192, 198 n.7 (3d Cir. 1999). As in National
Railroad and Witkowski, we need not resolve this dispute because the more exacting
plenary standard of review will yield the same result as a more deferential standard of
review.
In order to find that the Government is collaterally estopped from litigating the
admissibility of the wire tap in Harvey’s second criminal case we must find four separate
elements: (1) that the issue decided in the prior adjudication is the same as the one
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presented in the later action; (2) that the issue was actually litigated; (3) that the issue was
determined by a final and valid judgment; and (4) that the determination was essential to
the prior judgment. Nat’l R.R., 288 F.3d at 525. The District Court correctly concluded
that the first two requirements are met. The admissibility of the wiretap information was
actually litigated in the prior criminal action and the same issue is presented here.
As the District Court concluded, however, the decision to exclude the wiretap
evidence in the first criminal action was not a final and valid judgement. Rather, the
decision in the first action was a discovery sanction for the government’s failure to
comply with the wiretap statute. The order was not premised on a violation of Harvey’s
constitutional rights or any defect in the manner on which the wiretap was obtained.
Consequently, the discovery sanction was not a final and valid judgment to which
collateral estoppel would apply.
III.
In reviewing the denial of Harvey’s motion to suppress for a lack of probable
cause, we review factual findings for clear error and exercise plenary review over the
District Court’s application of the law to those facts. United States v. Perez, 280 F.3d
318, 336 (3d Cir. 2002). The District Court correctly concluded that probable cause
existed to arrest Harvey. Several facts indicated that Harvey may have committed or was
in the process of committing a crime. Sufficient evidence provided probable cause to
arrest Harvey: (1) a person known to Quionnes was traveling to St. Thomas from San
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Juan to pick up drugs; (2) as a result of that information surveillance was set up, and
Quionnes was followed; (3) information was received (through a wiretap) that Quionnes
would meet a person in a white t-shirt and Miami hat at a certain location; (4) based upon
surveillance at that location, Harvey was observed in a white t-shirt and Miami hat; (5)
both Quionnes and Harvey were surveilled simultaneously and entered a Wendy’s
restaurant near the same time; and (6) Harvey then exited the restaurant and walked
quickly toward the cruise ship dock.
Probable cause for a warantless arrest exists when, at the time of the arrest, “the
facts and circumstances within the officer's knowledge are ‘sufficient to warrant a prudent
man in believing that the [suspect] had committed or was committing an offense.’”
United States v. Glasser, 750 F.2d 1197, 1205 (3d Cir. 1984). Given the facts known to
the officers here, a reasonable person would suspect that Harvey had committed or was
committing an offense at the time of his arrest.
IV.
Finally, Harvey challenges his sentence under United States v. Booker, 543 U.S.
__, 125 S. Ct. 738 (2005). Having determined that the sentencing issues Harvey raises
are best determined by the District Court in the first instance, we vacate the sentence and
remand for re-sentencing in accordance with Booker.