Opinion
Case No. 3:09-cr-109
08-13-2013
UNITED STATES OF AMERICA, Plaintiff, v. PIERRE O. COLQUITT, Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY OVERRULING "DEFENDANT'S PRO SE
MOTION TO DISMISS CHARGES FOR 1) A BRADY VIOLATION, 2)
PROSECUTORIAL MISCONDUCT AND CONSIDER CASE FOR
PRESCEDENT [sic]" (DOC. #88)
This matter is currently before the Court on "Defendant's Pro Se Motion to Dismiss Charges for 1) A Brady Violation, 2) Prosecutorial Misconduct and Consider Case for Prescedent [sic]." Doc. #88.
As an initial matter, the Court notes that Defendant filed a substantially similar pro se motion on November 18, 2010. Doc. #64. He argued that because the Government had intentionally withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), all charges against him should be dismissed. The facts giving rise to that motion are as follows.
On cross-examination at the trial, Detective Keri Frasco testified that she wrote in her "buy report" that, on May 27, 2009, she witnessed a recorded phone call between a confidential informant and alleged co-conspirator Latorya Bibbs. The confidential informant allegedly told Frasco that he called Bibbs on her cell phone at 937-450-6405 to make arrangements to buy heroin. Trial Tr. at 336-37. Latorya Bibbs, however, testified on cross-examination that cell phone service to that number had been disconnected on May 25, 2009. Trial Tr. at 392.
Defendant claimed that he told the Government of this discrepancy at the suppression hearing held on February 16, 2010, and asked for a copy of the alleged audio recording. He maintained that the Government never produced it because it does not exist. He further argued that Detective Frasco perjured herself at trial when testifying about the May 27th phone call.
The Court gave counsel for Defendant until November 23, 2010, to decide whether he would adopt his client's pro se motion. Counsel chose not to do so. On July 19, 2012, the Court overruled Defendant's pro se motion, noting that there is no constitutional right to hybrid representation. See United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir. 1987). An attorney is, of course, under no obligation to file every motion requested by a client, and would, in fact, be subject to sanctions for filing a motion that clearly lacked merit.
On March 21, 2013, Defendant, again acting pro se, filed the motion which is currently pending. He notes that the Government has now conceded that the confidential informant could not have called Bibbs at 937-450-6405 on May 27, 2009, because that phone number had been disconnected. He once again argues that the charges against him should be dismissed because the Government's failure to turn over this exculpatory information constitutes a Brady violation, and because the Government engaged in prosecutorial misconduct by eliciting perjured testimony from Detective Frasco.
The Court notes that, once again, counsel for Defendant has declined to adopt Defendant's pro se motion. Accordingly, the Court is not obligated to consider it. Nevertheless, in an effort to tie up all remaining loose ends prior to sentencing, the Court will briefly address the merits of the motion.
In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The Brady doctrine, in essence, "is the rule of law that the Due Process Clause is violated when the government achieves a conviction . . . by withholding evidence 'so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.'" United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1981) (quoting United States v. Agurs, 427 U.S. 97, 107 (1976)).
A Brady violation consists of three elements: (1) the evidence must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the government; and (3) the accused must have been prejudiced as a result. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The Government must evaluate all evidence within its control to determine whether it must be disclosed as Brady material. Jamison v. Collins, 291 F.3d 380, 387-88 (6th Cir. 2002).
Since it appears to be undisputed that there is no audio recording of the May 27th phone call from the confidential informant to Bibbs, the "evidence" allegedly suppressed in this case must be the Government's knowledge that Bibbs's cell phone was inoperable on that date. Assuming arguendo that this evidence is favorable to Defendant and that the Government suppressed it, Defendant cannot show that he was prejudiced as a result.
Notably, Defendant claims that he is the one who first informed the Government, on the date of the suppression hearing, that Bibbs's cell phone was inoperable on May 27th. As the Sixth Circuit noted in Carter v. Bell, "Brady is concerned only with cases in which the government possess information which the defendant does not . . . there is no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question. . ." 218 F.3d 581, 601 (6th Cir. 2000). Because Defendant already knew that the cell phone was inoperable on the date in question, this would appear to fall outside the scope of Brady.
Moreover, the suppression of the evidence in question was not "material either to guilt or punishment." Brady, 373 U.S. at 87. It is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985).
Here, the phone call at issue was referenced in Detective Frasco's May 27, 2009, "buy report," Def.'s Ex. B at Suppression Hr'g, and cited in the Criminal Complaint, Doc. #1. Nevertheless, the Government did not rely on this particular phone call in proving any of the charges filed against Defendant. It did not elicit any evidence at trial concerning the controlled buy that was the subject of that particular phone call, nor did it include the heroin purchased during that controlled buy in its drug quantity calculations.
The Government's case was based on three other controlled buys that took place on March 19, 2009, April 1, 2009, and April 22, 2009, on evidence obtained when the search warrant was executed on May 29, 2009, and on the testimony of other witnesses. The Government presented ample other evidence that Bibbs knowingly conspired with Defendant to distribute and possess with the intent to distribute in excess of 100 grams of heroin. The May 27th phone call was simply not material to this finding. There is no reasonable probability that, had the evidence in question been disclosed, the result of the proceeding would have been any different. For all of these reasons. Defendant cannot show that he was prejudiced by the alleged suppression of evidence. His Brady claim therefore lacks merit.
Defendant also argues that prosecutorial misconduct warrants dismissal of all of the charges against him. A "conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U.S. at 103.
To establish a claim of prosecutorial misconduct, Defendant must show that "the statement in question was false, that the prosecution knew it was false, and that it was material." Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000). Defendant argues that Detective Frasco's trial testimony — that she witnessed a recorded phone call on May 27th, between the confidential informant and Bibbs — was false, that the Government knew that it was false, and that it was material since Bibbs was a key witness.
The most fundamental problem with Defendant's argument is that the prosecution did not elicit the testimony at issue. On direct examination, the Government did not question Detective Frasco about this phone call at all. Rather, it was defense counsel that raised the issue on cross-examination. Trial Tr. at 336-38. The Government did nothing to follow up on this line of questioning on redirect. Since the prosecution did not use perjured testimony to obtain a conviction, there is no prosecutorial misconduct and no due process violation. In addition, because the Government did not rely, in any way, on the controlled buy that was the subject of this phone call, Frasco's testimony cannot be deemed material.
For the reasons set forth above, the Court OVERRULES "Defendant's Pro Se Motion to Dismiss Charges for 1) A Brady Violation, 2) Prosecutorial Misconduct and Consider Case for Prescedent [sic]." Doc. #88.
It is entirely unclear what Defendant seeks in asking the Court to "Consider Case for Prescedent [sic.]" Therefore, the Court makes no attempt to rule on this request.
___________________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE