Opinion
DOCKET NO. 1:15-cr-00097-MOC-DLH
05-20-2016
UNITED STATES OF AMERICA, v. KEVIN WAYNE VANOVER and MEREDITH ANN YATES, Defendants.
ORDER
THIS MATTER is before the court on the following Motions: Defendants' Joint Motion to Suppress (#25); Defendant Vanover's Motion to Dismiss Count Six of Superseding Indictment due to Vindictive Prosecution (#52); Defendant Yates' Motion to Adopt and Co-conform Vanover's Motion (#67); Defendant Yates' Motion to Compel Copy of Law Enforcement's Personnel Records or for In Camera Review (#61); and Defendant Yates' Motion to Compel Defendant's Motion for Confidential Informant's File or for In Camera Review (#63). The court held a hearing on these Motions on May 13, 2016. Also before the court are three pro se Motions (##71, 72, 73) filed by the two Defendants in this case, both of whom are represented by counsel, to dismiss all charges against them. For the reasons stated in open court, as well as those stated herein, the court will defer ruling on the Motion to Dismiss Count Six of the Superseding Indictment (#52) until it receives sworn statements from the prosecutor, which should occur either by sworn affidavit or by live testimony at some point before this matter proceeds to trial. Also as stated at the hearing, if the prosecutor files a sworn affidavit, Defendants shall be given the opportunity to cross-examine him on the statements made therein. As to the remaining Motions, the court enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I. FACTUAL BACKGROUND
In considering the facts underlying the claims for Defendants' motion, the court notes at the outset that it heard sequestered testimony from seven witnesses at the hearing: 1) Mr. Matthew Moon; 2) Agent Christopher Green, Bureau of Alcohol, Tobacco, Firearms and Explosives; 3) Richard Tabor, former chief and now part-time active reserve police officer with the Bryson City Police Department; 4) Chief Deputy Jerry Crisp, Graham County Sheriff's Office; 5) Thomas Heath Woodard, formerly of the Graham County Sheriff's Office, now with the Clay County Sheriff's Office; 6) Earnest Styles, Jr., Graham County Sheriff's Office; and 7) Jason Birchfield, Graham County Sheriff's Office. The court finds each of their testimony to be credible. The relevant facts that give rise to Defendants' Motion to Suppress are as follows.
Matthew Moon, a resident of Robbinsville, NC, began communicating with Defendant Vanover on Facebook some time during the early months of 2015. Mr. Moon testified that in connection with his occupation as the operator of a pawn shop, he takes a personal interest in firearms. Mr. Moon initially came into contact with Defendant Vanover through a Facebook group called Franklin Gun Traders, a group devoted to members' shared interest in buying, selling, and trading firearms.
Testimony from Officer Tabor and Chief Deputy Crisp established that, in addition to his occupation as a pawn shop operator, Mr. Moon has a history of providing local law enforcement agencies with information about potential criminal activity in Western North Carolina. Mr. Moon has cooperated with multiple county sheriff departments in previous years, and he stated that his motivation for doing so was to "do the right thing." Mr. Moon repeatedly testified that he has never received financial compensation for his assistance.
After they became acquainted through the Franklin Gun Traders Facebook page, Mr. Moon and Defendant Vanover engaged in four commercial transactions: (1) Mr. Moon sold .22 ammunition to Defendant Vanover; (2) Mr. Moon purchased a shotgun from Defendant Vanover; (3) Mr. Moon traded 1400 rounds of Remington ammunition for half of one ounce of marijuana; and (4) Mr. Moon purchased a banjo from Defendant Vanover. At some point after the completion of these transactions, Mr. Moon learned of Defendant Vanover's prior felony conviction.
Mr. Moon also testified that, based on statements made to him by Defendant Vanover, he began to fear for the safety of Defendant Yates, who is married to Defendant Vanover. Specifically, he feared that Defendant Vanover would hurt or kill Defendant Yates. After becoming fearful for Defendant Yates' safety, Mr. Moon contacted Officer Rick Tabor at the Bryson City Police Department and informed him that Defendant Vanover was a convicted felon, that he was in possession of automatic weapons, and that he might be planning to hurt or kill his wife. This communication occurred in approximately the middle of February 2015. Because Defendants Vanover and Yates are residents of Graham County, Officer Tabor referred the matter to Officer Jerry Crisp of the Graham County Sheriff's Office, who then referred the matter to Officer Heath Woodard. Officer Woodard then established contact with Mr. Moon. Following this contact with Officer Woodard, Mr. Moon continued to interact socially with Defendants Vanover and Yates, and on multiple occasions Mr. Moon visited Defendants' home. Although Mr. Moon testified that he never visited Defendants' home without having been advised to do so by either the Graham County Sheriff's Office or, later, Agent Green of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), Mr. Moon's testimony indicated that during each of his visits to Defendants' property, he was present as a welcome and invited guest. Furthermore, Mr. Moon testified that he never visited Defendants' property without Defendants also being present. During his visits, Mr. Moon was never allowed to roam or explore the property unaccompanied.
On an unspecified number of occasions, Mr. Moon gathered audio and visual recordings of what he believed to be evidence of criminal activity located in Defendants' home. Mr. Moon testified that he observed marijuana, automatic weapons, silencers for automatic weapons, and other firearms therein. Mr. Moon communicated these observations to Officer Woodard.
Soon after Mr. Moon's initial contact with the Graham County Sheriff's Office, ATF Agent Green became involved in the investigation. Sometime between February and May of 2015, Agent Green instructed Mr. Moon to attempt to purchase a silencer from Defendant Vanover. This attempt was ultimately unsuccessful due to inclement weather and poor road conditions. On May 5, 2015, a meeting was held between members of the Graham County Sheriff's Office, a North Carolina Alcohol Law Enforcement officer, and Agent Green. At this meeting it was decided that the officers would provide Mr. Moon with a cell phone that would enable him to surreptitiously create a video recording of the interior of Defendants' home. On May 6, Officer Woodard gave Mr. Moon the phone and instructed him how to use it. Mr. Moon was also instructed to place his personal cell phone in his back pocket and to use this second phone to simultaneously transmit audio from Defendants' home to law enforcement officers located elsewhere.
On the same day, Mr. Moon visited Defendants' home under the pretext of discussing lending Defendant Vanover some money for the purpose of buying a lawnmower. After being invited into Defendants' residence, Mr. Moon observed Defendant Vanover in possession of firearms and a clear bag of marijuana. These items were captured by the video recording created by Mr. Moon. After approximately fifteen minutes inside Defendants' residence, Mr. Moon left and returned to the location where he had previously met with law enforcement officers. Mr. Moon informed Officers Scott Ogle, Birchfield, Crisp, and Woodard of his observations and returned the phone he had been provided.
Pursuant to a previously acquired felony arrest warrant, officers of the Graham County Sheriff's Office stopped Defendant Vanover's vehicle and arrested him as he was leaving his property around 10:30 A.M. on May 6. One of the arresting officers, Chief Deputy Crisp, testified that Defendant Vanover was not read his Miranda rights at the time of his arrest but neither was he questioned. Defendant Yates, who was at Defendants' home, was also arrested. Prior to being transported to the Graham County jail, Defendant Vanover informed law enforcement officers that they would find marijuana inside his residence. Chief Deputy Crisp testified that this statement was made by Defendant Vanover after he heard officers openly discuss their plans to acquire a search warrant. Officer Joseph Jones of the Graham County Sheriff's Office applied for and received a search warrant for the Vanover/Yates home, listing as support for probable cause: the incriminating statement by Defendant Vanover, the audio and video information gathered by Mr. Moon earlier that morning, and other information regarding stolen property that Mr. Moon had observed on previous visits to the Defendants' residence. The search warrant was executed on May 6; officers seized items including firearms, ammunition, silencers and marijuana.
Following their arrest, Defendants were released. State criminal charges were dismissed, but Defendants were subsequently indicted by the federal government on November 18, 2015 and were arrested the following day. Agent Green interviewed (individually) Defendants Vanover and Yates on November 19, after they were taken into custody. Defendant Yates waived her Miranda rights and did not make any incriminating statements to Agent Green prior to doing so. Defendant Vanover was not informed of his Miranda rights until approximately fifteen minutes after Agent Green began interviewing him. Prior to being read his rights, Defendant Vanover spoke at length about the Constitution, the role of government in the lives of citizens, politics, and other matters. In the course of what essentially amounted to a stream of consciousness recitation of his thoughts on such issues, Defendant Vanover stated that prior to being arrested, he had been in possession of marijuana and guns. Agent Green testified that these utterances were not made in response to questioning or other probing statements; Agent Green's testimony was confirmed by a recording of the interview that was played for the court. Agent Green informed Defendant Vanover of his Miranda rights after allowing him the opportunity to speak his mind. Vanover then signed a waiver of those rights and told Agent Green that he would continue to talk about his charges to the extent he felt comfortable.
II. DEFENDANTS' JOINT MOTION TO SUPPRESS
The Defendants have jointly moved to suppress evidence in this case. Both parties seek to have evidence seized as a result of the search of their home suppressed; Defendant Vanover seeks to have an incriminating pre-Miranda statement suppressed.
A. Evidence From Search of Defendants' Home
The Fourth Amendment protects individuals against unreasonable searches and seizures. Katz v. United States, 389 U.S. 347, 353 (1967). Warrantless searches are per se unreasonable under the Fourth Amendment unless they fall under one of several recognized exceptions. See id. at 357. A "search" within the meaning of the Fourth Amendment occurs where the government invades an area in which a person has an expectation of privacy that society is willing to recognize as reasonable. Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)). A person's expectation of privacy is considered reasonable by societal standards when derived from "'concepts of real or personal property law or ... understandings that are recognized and permitted by society.'" Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978)).
Under most circumstances, an individual has a reasonable expectation of privacy in the activities conducted within his or her home and, as a result, "the home is accorded the full range of Fourth Amendment protections." Lewis v. United States, 385 U.S. 206, 211 (1966). However, the Supreme Court has made clear that the Fourth Amendment protects people, not places. Katz, 389 U.S. at 351. When a person knowingly and voluntarily reveals information to the public about activities taking place within the home, this information receives no protection under the Fourth Amendment. Id.
Similarly, a defendant does not have a privacy interest in matters voluntarily revealed to a government agent, including a confidential informant. See United States v. Davis, 326 F.3d 361, 365 (3d Cir. 2003) (citing Hoffa v. United States, 385 U.S. 293, 302 (1966)). See also United States v. Longoria, 177 F.3d 1179, 1183 n. 2 (10th Cir.) ("If a defendant ... knowingly exposes his conversations to accomplices, even in a room not accessible to the general public, his conversations are not subject to Fourth Amendment protection from disclosure by such accomplices."), cert. denied, 528 U.S. 892 (1999). In Hoffa, the Supreme Court concluded that "no interest legitimately protected by the Fourth Amendment is involved" where a defendant confides in a government agent under the assumption that the agent would not reveal his wrongdoing. 385 U.S. at 302. Following Hoffa, the Court established that where a government agent surreptitiously creates audio recordings of a defendant's statements made in confidence, the defendant likewise lacks a Fourth Amendment privacy interest in these recordings. United States v. White, 401 U.S. 745, 753 (1971). The Court in White explained that because an "agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them," recording or simultaneously transmitting these conversations to law enforcement officers is equally permissible. White, 401 U.S. at 751. See also United States v. Caceres, 440 U.S. 741, 750-51 (1979) (concluding that simultaneous recording using equipment on the agent's person and transmission to recording equipment located elsewhere are equivalent for constitutional purposes).
The Supreme Court has long acknowledged that "in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents." Lewis, 385 U.S. 206, 209 (1966). Further, where a defendant voluntarily invites a government agent into the defendant's home, the fact that the defendant is unaware of the agent's true identity as an informant does not preserve the defendant's privacy interest in activities or statements the agent witnesses while present. See Hoffa, 385 U.S. at 301-302; United States v. Lee, 359 F.3d 194, 199-200 (3d Cir. 2002). A government agent, in the same manner as a private person, may accept an invitation to "enter upon the premises for the very purposes contemplated by the occupant." Lewis, 385 U.S. at 211. Of course, such an invitation would not permit the government agent to secretly ransack areas of the defendant's home, but where the agent does not "see, hear, or take anything that was not contemplated, and in fact intended" for the agent by the occupant, the Fourth Amendment is not violated. Id. at 210-211 (citing Gouled v. United States, 255 U.S. 298 (1921)). This is so because once a defendant invites a government agent into his residence, he "forfeit[s] his privacy interest in those activities that [are] exposed to [the agent]." Davis, 326 F.3d at 366. See also Lee, 359 F.3d at 201; United States v. Brathwaite, 458 F.3d 376, 381 (5th Cir. 2006).
Considering the factual circumstances here, the court finds that Defendants' Fourth Amendment rights were not violated when Mr. Moon, acting as a confidential informant for the Graham County Sheriff's Office, was invited into the Defendants' home on May 6, 2016. Nor were the Defendants' rights violated when Mr. Moon's mobile phone, located in his back pocket, simultaneously transmitted to law enforcement officers a recording of the conversation that took place between Mr. Moon and Defendant Vanover inside Defendants' home. And finally, Defendants' Fourth Amendment rights were not violated when Mr. Moon, holding the mobile phone given to him by law enforcement officers, recorded video footage of marijuana and weapons located inside the Defendants' home. Although the Fourth Circuit has not yet expressly ruled on the issue, three other circuit courts have concluded that video evidence gathered inside a defendant's private room by an invited visitor should, for Fourth Amendment purposes, be treated similarly to audio recordings. See Davis, 326 F.3d at 366; Brathwaite, 458 F.3d at 381; Lee, 359 F.3d at 201-02 ("[T]he Supreme Court has not drawn any distinction between those two types of evidence, and we similarly see no constitutionally relevant distinction between audio and video surveillance in the present context."). No evidence presented at the suppression hearing indicates that Mr. Moon saw or heard any activity within the Defendants' home that the Defendants did not intend for him to witness.
Because the Defendants voluntarily forfeited any privacy interest they had in what Mr. Moon saw and heard while a guest in their home, Mr. Moon's presence and surreptitious recordings could not have constituted an unreasonable government intrusion into a societally recognized expectation of privacy. Consequently, no government search was effected by Mr. Moon and therefore the Defendants' Fourth Amendment rights were not implicated by his surveillance.
In their joint Motion to Suppress, the Defendants correctly note that the Fourth Amendment does not apply to a private citizen's search unless that person is acting as an agent of the government. See United States v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003). The Defendants argue that by acting in cooperation with and at the instruction of law enforcement to record audio and video surveillance from the interior of the Defendants' home, Mr. Moon was acting as an agent of the government. Even accepting Defendants' argument as true, Mr. Moon's status as a government agent is not dispositive of the issue of whether the Defendants' Fourth Amendment rights were violated. Here, where Mr. Moon was an invited guest of the Defendants, his status as either government agent or private citizen is irrelevant. By welcoming Mr. Moon into their home, the Defendants voluntarily forfeited any expectation of privacy in what their guest saw or heard. As the Fourth Circuit recently noted, "White, Hoffa, Lopez and similar cases generally establish that a person who confides information about her illegal activities in another bears the risk that this information will be reported to law enforcement[.]...[A]ny expectation she holds that this information will be held in confidence is not one entitled to Fourth Amendment protection." United States v. Graham, 796 F.3d 332, 353 n. 13 (4th Cir.), reh'g en banc granted, 624 F. App'x 75 (4th Cir. 2015) (internal citations omitted). The court will therefore DENY Defendants' Motion to Suppress evidence received as a result of Mr. Moon's recordings.
B. Statements
The Fifth Amendment to the United States Constitution guarantees that "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V. Pursuant to this protection against compelled self-incrimination, "[a] confession made during a custodial interrogation will be suppressed unless police advise the defendant of his [Miranda rights], and the defendant knowingly, intelligently, and voluntarily waives those rights." United States v. Holmes, 670 F.3d 586, 591 (4th Cir. 2012) (citations omitted). Prior to any custodial questioning, the suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." Miranda v. Arizona, 384 U.S. 436, 444 (1966). Statements elicited in noncompliance with this rule may not be admitted as part of the prosecution's case in chief. Stansbury v. California, 511 U.S. 318, 322 (1994). Statements obtained during a non-custodial interview are admissible. United States v. Hargrove, 625 F.3d 170, 177 (4th Cir. 2010). Put another way, there is no infringement on the suspect's Fifth Amendment rights absent custodial interrogation. United States v. Hornsby, 666 F.3d 296, 309 (4th Cir. 2012) (citing Edwards v. Arizona, 451 U.S. 477, 481-82, 486 (1981)).
Even where a suspect is in custody, "the special procedural safeguards outlined in Miranda are required [only] where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446 U.S. 291, 300 (1980). "'Interrogation'...must reflect a measure of compulsion above and beyond that inherent in custody itself." Id. See also Arizona v. Mauro, 481 U.S. 520, 529 (1987) ("Officers do not interrogate a suspect simply by hoping that he will incriminate himself."). As the Supreme Court explained in Innis:
A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect ... amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.446 U.S. at 301-02 (emphasis in original). "The Court also explained that in determining whether police conduct is the functional equivalent of interrogation, the intent of the police, although not the focus, can be relevant to the determination." See United States v. Blake, 571 F.3d 331, 339 (4th Cir. 2009) (citing Innis, 446 U.S. at 30 n. 6).
The Court further explained:
[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980).
As a general rule, the burden of proof is on the defendant who seeks to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove by a preponderance of the evidence that the challenged evidence is admissible. Colorado v. Connelly, 479 U.S. 157, 168 (1986).
Here, both Defendants signed Miranda waivers once they were in custody. Neither Defendant has challenged the adequacy of the warning or the validity of the waiver. The court listened to individual audio recordings of Agent Green reading those rights out loud to each Defendant. Defendant Yates has not moved to suppress any statements made. Defendant Vanover has moved to suppress a statement made to law enforcement during an interview at the Swain County Sherriff's office on November 19, 2015 after he was arrested but before he was read his Miranda rights, which amounted to admissions that he had guns and drugs in his home.
The court listened to the audio recording of Defendant while in custody and has gone over the transcript of that recording. The court agrees with the government that while Defendant was certainly in custody, he was not being interrogated at the time he made the incriminating statement. In fact, Agent Green repeated several times that he needed to read the Defendant something and asked no questions of Defendant related to the alleged crime. After listening to several minutes of Defendant's animated statements about the Constitution, religion, politics, and his understanding of his rights, Agent Green had to essentially interrupt Defendant and read him his Miranda rights. In light of the facts here, the court agrees with the government that Defendant's challenged statement was not made in response to interrogation of any sort. The court finds that Agent Green could not have thought that any of his words or actions, which were generally aimed at telling Defendant that he would have a platform to share his views on his charges once he met with an attorney were responsive to some of Defendant's claims about citizens' rights to gun ownership in this country, would elicit an incriminating response. The apparent intent of Agent Green from the recording and the transcript was to allow Defendant to vent frustration at his charges in an effort to calm him down before reading him his Miranda rights. The court finds nothing coercive about the law enforcement officer's conduct in this case and therefore finds that Defendant's statements were voluntarily made. Accordingly, the court will DENY without prejudice Defendant Vanover's Motion to Suppress statements. While the court finds that the statements made on November 19, 2015 discussed herein were voluntarily made, the court will consider any additional challenges to statements that the government may wish to introduce at trial which Defendant Vanover opposes.
The court noted at the first hearing on the Motion to Suppress (held April 7, 2016 before being continued for the reasons stated on the record at that hearing) that if any issues arise regarding statements that Mr. Vanover made in the car after he was arrested, the court would listen to arguments on it. See (#62) at 30:12-24. The government indicated at that time that it would not be introducing any statements made by Mr. Vanover in the car. See id. Agent Green also testified that he did not question Defendant Yates other than biographical information. See id. at 26:14-27:13. At this time, neither Defendant appears to challenge any statements made while being transported, but the court will hear such arguments if either Defendant wishes assert them.
III. DEFENDANT YATES' MOTION TO COMPEL COPY OF LAW ENFORCEMENT'S PERSONNEL RECORDS
Defendant Yates asks the court for an Order directing the government to provide any and all material favorable to the defense contained in law enforcement's personnel records, including but not limited to training and disciplinary records of all of the officers expected to testify for the government in this matter. Defendant asks that if the government is uncertain whether any information in these personnel records is material, that the court conduct an in camera review of the personnel files. Defendant Yates does not allege that any particular information as to any particular officer will be found in such records, or that the government has failed to comply with its discovery obligations. The government opposes the motion as a fishing expedition for Brady material that is unwarranted and unnecessarily time-consuming. The government reiterated by briefing and at the hearing its intent to comply with all Brady disclosure requirements and the Pretrial Discovery Order.
The Due Process Clause requires the Government to disclose to the defense prior to trial any exculpatory or impeaching evidence in its possession. See Giglio v. United States, 405 U.S. 150, 153-55 (1972); Brady v. Maryland, 373 U.S. 83, 86-88 (1963). Evidence need only be disclosed if it: (1) is favorable to the defendant; (2) was suppressed by the Government; and (3) is material. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Undisclosed evidence is material when its cumulative effect is such that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995) (internal citations and quotation marks omitted). The Fourth Circuit has noted that "[m]ere speculation about the existence of potentially exculpatory or impeaching evidence is insufficient to give the defense access to materials under Brady and Giglio." United States v. Jones, 378 F. App'x 359, 360 (4th Cir. 2010) (citing United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986); United States v. Navarro, 737 F.2d 625, 630-31 (7th Cir. 1984)). Additionally, "Brady does not require the Government 'to gather information or conduct an investigation on the defendant's behalf.'" Id. (citing United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002)). The court also notes that the court's Standard Pretrial Discovery Order in this case continues to govern the parties' discovery obligations.
Courts in this circuit have routinely rejected requests such as the one sought by Defendant Yates here, particularly where there is no specificity as to the information requested. See, e.g., United States v. Robinson, 627 F.3d 941, 952 (4th Cir. 2010); United States v. Jones, 378 F. App'x 359, 360 (4th Cir. 2010) (affirming district court's denial of defendant's request for criminal records for a government witness, which included a 20+ year old conviction for robbery, as defendant "only speculated that information in [the] file would have produced exculpatory or impeaching evidence [and] [m]oreover, the evidence he sought by way of his motion was not material."); United States v. Wilson, 278 F.R.D. 145, 156 (D. Md. 2011) ( "To the extent that [defendant] seeks to require the Government to review personnel files, the motion will be denied on the merits. To rule otherwise would place an 'unacceptable burden' on prosecutors and law enforcement, and the Government need not 'conduct disciplinary inquiries into the general conduct of every officer working the case.'") (quoting United States v. Robinson, 627 F.3d 941, 951 (4th Cir. 2010)). As noted at the hearing, the court finds no reason to compel disclosure of the information sought by Defendant Yates here given the applicable legal authority. The court will therefore DENY the Motion to Compel, but will allow the parties to submit any documents related to this Motion that they wish the court to review in camera by separate motion.
IV. DEFENDANT YATES' MOTION FOR CONFIDENTIAL INFORMANT'S FILE
Defendant Yates has also moved the court for an Order directing disclosure of a whole host of evidence related to the "confidential informant" in this case, Mr. Moon. The Motion requests "an Order directing the United States of America to provide to the defendant the confidential informant's file and all material favorable to the defense contained in law enforcement's file or notes of the confidential informant." Defendant asks for information related to all cases that this person has participated in before in order to determine whether Mr. Moon was acting on the instructions of law enforcement officers, and for information that would allow for "more effective cross-examination" of Mr. Moon, including for impeachment purposes. As to the seventeen different categories of information sought by Defendant in his Motion, the court went through each of the requested categories with the parties at the hearing and need not repeat its individual rulings here. The motion will therefore be GRANTED in part and DENIED in part as stated at the hearing. If the parties have questions or need clarification on a particular ruling, they may seek further guidance by filing a motion.
The government stated in its briefing and reiterated at the hearing that it has turned over the criminal record and an "informant file" on this witness, and stated that it would look for an additional file held by the police department in a neighboring county and turn that over as well. The parties shall notify the court by motion if this file for any reason is not turned over to Defendants.
As stated at the hearing, the court ORDERS as follows: No information contained in those files shall be copied, the material shall be held by the attorneys, and information unrelated to this case is not to be shared with either Defendant absent a further Order of the court.
V. PRO SE MOTIONS TO DISMISS
Both Defendants filed pro se Motions to Dismiss (##71, 72, 73) all charges against them the day before the court held a hearing on the above Motions. At the hearing, the court explained to the Defendants that the Local Rules forbid defendants who are represented by counsel from filing their own motions. See. L. R. Cv. 47.1(H):
(H) Pro Se Motions Filed By Criminal Defendants Who Have Not Waived Their Right To Counsel. Except for challenges to the effective assistance of counsel, the Court will not ordinarily entertain a motion filed by a criminal defendant who is still represented by counsel and has not formally waived his or her right to counsel in the presence of a judicial officer after being fully advised of the consequences of waiver. Exceptions to this general rule may be made in the discretion of the judicial officer considering the pro se motion.Id. Given the colloquy conducted at the hearing, the court believes that Defendants understand that any further motions filed in their case not filed by their attorneys will not be considered by the court unless Defendants waive their right to counsel as stated in the Local Rule. Because the Motions do not comply with the Local Rules, the court will deny them and therefore will not consider them on the merits.
ORDER
IT IS, THEREFORE, ORDERED that:
1. Defendants' Joint Motion to Suppress (#25) is DENIED;Signed: May 20, 2016
2. Defendant Yates' Motion to Compel Copy of Law Enforcement's Personnel Records or In Camera Review (#61) is DENIED;
3. Defendant Yates' Motion to Compel Defendant's Motion for Confidential Informant's File or for In Camera Review (#63) is GRANTED in part and DENIED in part, as stated at the hearing;
4. Defendants' pro se Motions to Dismiss (##71, 72, 73) are DENIED; and
5. Defendant Vanover's Motion to Dismiss Count Six of Superseding Indictment due to Vindictive Prosecution (#52) and Defendant Yates' Motion to Adopt and Co-conform Vanover's Motion (#67) have been set for an additional hearing at 9:30 a.m. on May 26, 2016. The court will consider the merits of the Motion after the government has presented evidence by way of sworn testimony either at that hearing or by sworn affidavit, under the parameters discussed at the hearing.
/s/_________
Max O. Cogburn Jr.
United States District Judge