Opinion
Case No. 03-40011-01-RDR.
May 6, 2004
MEMORANDUM AND ORDER
On April 26, 2004 the court held a hearing on the pending motions in this case. In this order, the court shall reiterate the rulings made by the court at the hearing and rule on any motions that were taken under advisement.
The defendant was indicted on January 29, 2003 and charged with four counts. He is charged with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a); possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1); and possession of a firearm while being an unlawful user of marijuana in violation of 18 U.S.C. § 922(g). The charges arise from a traffic stop of the defendant's vehicle in Saline County, Kansas on November 25, 2002.
This case was originally assigned to Judge Robinson. The defendant's present counsel is his third attorney. His prior attorneys filed various motions on his behalf, including a motion to suppress and a motion to dismiss based upon racial profiling. Judge Robinson ruled on those motions before transferring the case to me. The defendant's current attorney has filed a number of motions, including several motions that were filed on April 22 and 23, 2004.
MOTION FOR PRETRIAL INSPECTION OF PROPOSED EXHIBITS AND DEMONSTRATIVE EVIDENCE
The defendant seeks an order requiring the government to submit for inspection all exhibits and demonstrative evidence that it intends to produce at trial at least 14 days prior to trial.
The government has no objection to this motion. With the government's response, the court shall grant this motion. Defense counsel should contact government counsel and arrange for inspection of the exhibits and demonstrative evidence.
MOTION TO COMPEL PRODUCTION OF FIELD NOTES
The defendant seeks an order directing the government to preserve and to provide him with field notes that contain his responses to interrogations made on or about November 25, 2002, at the time of his arrest, and later during his transport to and his incarceration at the Saline County Jail.
The government indicated at the hearing that no field notes exist. Accordingly, this motion shall be denied as moot.
MOTION FOR DISCLOSURE OF IMPEACHING INFORMATION
The defendant seeks an order directing the government to disclose a variety of impeaching materials concerning all government witnesses. The defendant seeks the following: (1) past criminal records of government witnesses; (2) prior misconduct and bad acts of government witnesses; (3) consideration or promises given to government witnesses; (4) information concerning pending matters involving government witnesses; (5) information concerning prior testimony of government witnesses related to this case; (6) information concerning prior testimony of informants, accomplices and experts related to this case; (7) personnel files of government witnesses; and (8) any information helpful to defense in impeaching a government witness.
The government has responded that it has no information of any felony convictions of its witnesses and no evidence that would aid in their impeachment. The government further indicates that no promises or inducements have been made to their witnesses. Finally, the government objects to the production of any personnel files.
The court believes that the government has adequately responded to the defendant's motion. The government understands its obligation under Brady v. Maryland, 373 U.S. 83 (1963), and the court believes that it will continue to comply upon receipt of any impeachment material. With the government's understanding of its obligation under Brady, the court finds no need to direct the production of the personnel files of the government witnesses. See United States v. Muse, 708 F.2d 513, 516-17 (10th Cir. 1983).
MOTION TO INVOKE SEQUESTRATION RULE PRIOR TO VOIR DIRE
The defendant seeks an order imposing the sequestration rule prior to voir dire. He wants the witnesses to be advised not to discuss testimony which they have given with any other prospective witness and the government instructed not to advise witnesses what testimony has previously been given.
The government has no objection to this motion. The court shall sustain this motion.
MOTION FOR DISMISSAL OF INDICTMENT BASED UPON IMPROPRIETIES COMMITTED BY THE GOVERNMENT
The defendant seeks dismissal of the indictment based upon an argument that certain improprieties occurred during the presentation of evidence to the grand jury. Specifically, the defendant initially contends that the prosecutor committed error by commenting on the defendant's right to remain silent during the questioning of a witness. The defendant next contends that the prosecutor engaged in improper conduct by using leading questions, failing to disclose that a witness had no personal knowledge of the events, and failing to disclose the identity of the officers who provided the aforementioned witness with information. Based upon the last argument, the defendant asserts that the grand jury had no ability to exercise independent judgment.
"The remedy of dismissal of an indictment on [prosecutorial misconduct] grounds is an extraordinary one." United States v. Pino, 708 F.2d 523, 530 (10th Cir. 1983). The misconduct must be "flagrant to the point that there is some significant infringement on the grand jury's ability to exercise independent judgment." Id. After a review of the grand jury transcript, the court is not persuaded that any errors were committed by the government. Nevertheless, to the extent that some error is discerned, the court finds no significant infringement on the grand jury's ability to exercise independent judgment. See, e.g., United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir. 1981) (indictment subject to dismissal only if prosecutor's comments about defendant's invocation of his right to remain silent significantly infringed upon ability of grand jury to exercise independent judgment). Accordingly, this motion shall be denied.
MOTION FOR DISMISSAL OF INDICTMENT FOR VIOLATION OF FED.R.CRIM.P.6
The defendant seeks dismissal of the indictment based upon a violation of Fed.R.Crim.P. 6. The defendant asserts that (1) the grand jury lacked the requisite number; (2) there is no indication that the indictment was returned in "open court;" and (3) the grand jury may have served more than 16 months. Finally, the defendant asks the court to undertake an in camera investigation to determine if any blacks served on the grand jury that indicted him.
The allegations made by the defendant appear to be based upon rather wild speculation. The court shall, however, conduct anin camera inspection to consider some of defendant's contentions. The Tenth Circuit "believe[s] defendants are entitled to the assurance of the district judge that the judge has inspected the [grand jury foreperson's] report and it contains twelve or more votes to indict. But anything more, except upon a showing of particularized need, would negate [Fed.R.Crim.P.] 6(c)'s requirement of secrecy absent an 'order of the court'." United States v. Deffenbaugh Industries, Inc., 957 F.2d 749, 757 (10th Cir. 1992).
The court finds that the grand jury that indicted the defendant had the requisite number of grand jurors to proceed and the necessary number to indict. In addition, the grand jurors had not served longer than 18 months. Finally, the court finds that the indictment was served in open court. The court finds that the defendant has offered no basis for a determination of how many blacks served on the grand jury. With these conclusions, the court shall deny this motion.
MOTION TO SUPPRESS EVIDENCE FOR VIOLATION OF DEFENDANT'S RIGHT TO TRAVEL
The defendant seeks suppression of the evidence because he was stopped solely because he was operating a vehicle with out-of-state license plates. The defendant suggests that this fact constitutes a violation of equal protection and his right to travel. The government suggests that this motion is too late. The government asserts that the motion should have been raised when the defendant earlier filed a motion to suppress and motion to dismiss based upon racial profiling. The government also argues that the defendant has not sufficiently demonstrated discriminatory intent under United States v. Armstrong, 517 U.S. 456 (1996).
At the hearing, the government presented the testimony of Kansas Highway Patrol Trooper Craig Davis, the officer who stopped the defendant's vehicle. The defendant presented the court with some information prepared by the Federal Public Defender's Office. This packet of materials showed that Kansas Highway Patrol Trooper Craig Davis issued 731 tickets and warnings during nine months of 2002. Of that amount, 597 of the car stops were out-of-state vehicles while only 134 were vehicles with Kansas plates.
Trooper Davis testified that he has been a Kansas Highway Patrol officer for 15 years. He currently patrols a 25-mile area of Interstate 70 stretching from approximately Salina west to Ellsworth. He indicated that the information contained in the packet of materials produced by the defendant appeared to be reasonable. He suggested there might have been some error in the accumulation of the materials, but he could not point to anything specific. He acknowledged that he probably did stop more out-of-state vehicles than Kansas vehicles for traffic violations. He testified that, based upon his observations and experience while patrolling, he believed that the majority of the cars in the area where he patrols are out-of-state vehicles. He further opined that out-of-state vehicles may commit more traffic infractions on I-70 based on (1) the desire of the drivers to get through Kansas as quickly as possible; and (2) the lack of knowledge of the drivers of the look of the Kansas Highway Patrol cars which are without light bars on the top and are not easily recognizable as law enforcement vehicles. He testified that he did not discriminate against out-of-state vehicles and that he did not hold any animosity against individuals driving out-of-state vehicles. He stated that he only stops vehicles that are committing a traffic violation.
The court has some concern about the tardiness of this argument. The defendant has not offered any reason why it was not included in the earlier filed motion to suppress. Nevertheless, in light of the past circumstances in this case, the court shall consider the merits of the motion.
Interestingly, the defendant has failed to provide much in the way of legal support for his arguments here. With a fleeting reference to Armstrong, he suggests that he is entitled to relief because he was treated differently than other similarly situated Kansas residents.
In Armstrong, several criminal defendants were indicted on drug and firearm charges involving crack cocaine. The defendants, who claimed that they were being subjected to selective prosecution because they were African-American, filed a motion seeking evidence to support their claim and to support a motion to dismiss the criminal charges. The Supreme Court held that while F.R.Crim.P. 16(a)(1)(C) authorizes criminal defendants to examine government documents material to a defense against the government's case-in-chief, these defendants could not discover documents material to their selective prosecution claim unless they produced some evidence that similarly situated defendants of other races had not been prosecuted. Armstrong, 517 U.S. at 465.
In reaching its conclusion, the Court noted that the decision to prosecute "may not be based on 'an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id. at 464 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). The requirements for a selective prosecution claim draw on ordinary equal protection standards. Id. at 465. The defendant must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. Id. To establish discriminatory effect, the defendant must establish that similarly situated individuals outside his or her protected group were not prosecuted. Id.
The defendant here complains not of selective prosecution, but rather of selective enforcement. The analysis, however, would be the same. United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002). To prevail, the defendant would have to demonstrate that the actions of Trooper Davis had a discriminatory effect and that Trooper Davis had a discriminatory purpose when he stopped him. Id.
The court is not persuaded that the evidence presented to the court shows either a discriminatory effect or discriminatory purpose. The court found Trooper Davis' testimony credible on the issue of stopping cars from other states. He indicated that more out-of-state cars travel in the area where he patrols and many engage in traffic violations. There was no evidence to counter this testimony. In sum, the statistical evidence of discriminatory effect was insufficient. See, e.g., United States v. Borrego, 66 Fed.Appx. 797, 801 (10th Cir. 2003) (statistical evidence, while helpful, is rarely sufficient to support an equal protection claim); see also United States v. Alcaraz-Arellano, 302 F. Supp.2d 1217, 1227-28 (D.Kan. 2004). Moreover, Trooper Davis indicated that he had no discriminatory purpose in stopping out-of-state vehicles. Again, the court found no evidence suggesting this testimony was untrue. See Alcaraz-Arellano, 302 F. Supp.2d at 1234 (defendant must present some non-statistical evidence to demonstrate that law enforcement officer acted with discriminatory intent). In sum, the court believes that the evidence offered by the defendant was woefully inadequate to show an equal protection violation.
The court also finds nothing to support the defendant's contention that his constitutional right to travel was violated in this case. The court believes that the decision reached by Judge Robinson on the defendant's earlier filed motion to suppress forecloses this argument. In that order, Judge Robinson found that the defendant had been stopped lawfully for traffic violations. "Even if an officer focuses on out-of-state plates, the existence of a traffic violation justifies a traffic stop without violating the driver's right to travel." United States v. Ware, ___ F. Supp.2d ___, 2004 WL 609289 at *37 (D.Neb. 2004); see also United States v. Walraven, 892 F.2d 972, 974 (10th Cir. 1989). Accordingly, the court shall deny defendant's motion.
MOTION IN LIMINE
The defendant seeks an order in limine precluding the government from introducing into evidence or mentioning the following at trial: (1) his aliases; (2) references to a street gang; (3) his suspended driver's license; (4) his Georgia warrant for hindering or obstructing an officer; and (5) the curriculum vitae of Officers Davis and Patrick.
The government asserts that it will use aliases when necessary to identify the defendant. The government further believes that the gang references and the Georgia warrant are necessary because they are inextricably tied to the stop in this case. The government notes that it does not intend to introduce evidence of the defendant's suspended driver's license or the curriculum vitae of the officers.
The court shall grant the motion as it pertains to the defendant's suspended driver's license and the curriculum vitae of the officers. The court shall deny the remainder of the motion.
MOTION FOR DISCOVERY
The defendant seeks a variety of materials. He seeks the following: (1) scientific evidence; (2) physical evidence; (3) photographs, crime scene sketches and fingerprint evidence; (4) statements by the defendant; (5) witness statements; (6)Miranda waiver forms; (7) documents and physical evidence; (8) notes of witness interviews; (9) Brady evidence; (10) sworn, written, recorded or transcribed witness statements; (11) U.S. Attorney notes of witness statements; (12) information regarding scientific evidence; (13)(a) written complaints against Troopers Davis and Patrick; (13)(b) Salina radio dispatch tape of 11/25/02; (13)(c) all documents regarding drug dog "Baro"; (13)(d) documents provided by government to grand jury; (13)(e) U.S. Attorney's opening statement to grand jury; and (13)(f) records and papers used by jury clerk in connection with grand jury selection process.
The government has responded that request nos. 1, 3, 4, 7, 13(c) and 13(e) have been provided. The government has further responded that there is nothing to produce on request nos. 5, 6, 8, 9, 10, 11, 12, 13(a) and 13(d). The government notes that the highway patrol troopers are bringing the physical evidence requested in no. 2 to the hearing. The government also states that defendant's request no. 13(b) will be provided if it is available. Finally, the government notes that the materials noted in defendant's request no. 13(f) are not in the government's possession and, even if they were, they would be confidential.
The court finds that the government has adequately responded to the defendant's motion. The government has explained that it has provided "full" discovery to the defendant. The court believes that the government has been very generous in its provision of materials to the defendant. The court shall not order anything in addition to what has already been provided. If the defendant has a specific request, he should file any additional motions within ten days of the date of this order.
MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS, IF NECESSARY, UPON COMPLETION OF DISCOVERY
The defendant seeks additional time to file more motions if the receipt of additional discovery requires them. The court has not required the government to produce any additional discovery. Nevertheless, the court will allow the defendant ten days from the date of this order in which to file any additional motions that need to be filed as the result of the rulings made by this court in this order.
MOTION FOR RECONSIDERATION/SUPPLEMENT TO DEFENDANT'S MOTION FOR RECONSIDERATION
The defendant seeks reconsideration of Judge Robinson's decision of November 23, 2003 in which she denied defendant's motion to suppress. The defendant argues that Judge Robinson's order was an abuse of discretion and was contrary to the law of warrantless search and seizure. The defendant suggests that Trooper Davis did not have reasonable suspicion to stop him and that his continued detention exceeded the scope of a traffic stop.
A motion to reconsider must be based upon (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. D.Kan.R. 7.3.
The court does not find that the defendant has raised sufficient grounds for reconsideration of Judge Robinson's order. The defendant merely alleges that she incorrectly found the facts and erroneously applied the law. The defendant cites to no new evidence or new law. The court's review of Judge Robinson's order shows no clear error or manifest injustice. Accordingly, this motion shall be denied.
MOTION FOR DISMISSAL # 2
The defendant seeks dismissal based upon outrageous governmental conduct. The defendant suggests that dismissal is appropriate because Troopers Davis and Patrick have provided testimony that is inconsistent, contradictory and unbelievable.
The defendant has the burden of proving outrageous government conduct. United States v. Diaz, 189 F.3d 1239, 1245 (10th Cir. 1999). Dismissal will only be granted in the most egregious circumstances. Id. The defendant must show that the challenged conduct violates the notions of fundamental fairness and is shocking to the universal sense of justice. Id.
The court is not persuaded that the defendant has come close to demonstrating outrageous conduct here. The defendant points to various inconsistencies and possible errors in the testimony of the troopers. This is clearly not enough to warrant dismissal.
MOTION FOR SUPPRESSION # 2
This motion was filed on April 22, 2004. The deadline for filing pretrial motions was April 5, 2004. In this motion, the defendant contends that the evidence against him should be suppressed because Trooper Davis made the decision to search his vehicle based on the fact that the defendant was a crime victim. This argument arises from the fact that the defendant's vehicle had bullet holes in it and Trooper Davis found this suspicious.
The government contends that this motion is untimely. The government further argues that the motion lacks any merit.
The court agrees with both arguments raised by the government. The motion is untimely. It was filed over two weeks after the deadline for the filing of pretrial motions. Moreover, the motion lacks merit. As pointed out by Judge Robinson in her decision, the decision by Trooper Davis to have the defendant detained briefly so that a dog could sniff the van was based upon a totality of the circumstances, not just the bullet holes that were in the van. Judge Robinson found that the totality of the circumstances showed that reasonable suspicion existed for the prolonged detention of the defendant. Moreover, as pointed out by the government, even if Trooper Davis drew the wrong conclusions from the evidence he observed, that is not grounds for suppression. "A mistaken premise can furnish grounds for aTerry stop, if the officers do not know that it is mistaken and are reasonable in acting upon it." United States v. Ornelas-Ledesma, 16 F.3d 714, 718 (7th Cir. 1994), vacated on other grounds, 517 U.S. 690 (1996). In sum, the court finds no merit to this motion. It shall be denied.
MOTION IN LIMINE
The defendant seeks an order of the court directing that the government be prohibited from mentioning or introducing into evidence the following prior convictions of the defendant: (1) burglary 7/21/77; (2) addict in possession of firearm 7/3/83; (3) concealed firearm 8/12/92; and (4) addict in possession of firearm 8/27/94. The defendant argues that none of the prior convictions should be admissible as prior bad acts under Fed.R.Evid. 404(b). The government has not filed a response to this motion.
This motion was filed after the deadline for the filing of motions. However, since it involves the introduction of evidence at trial, the court will consider it prior to trial. The court shall allow the government ten days from the date of this order in which to file a response. The court will then hear argument on it approximately one week prior to trial.
PRO SE PETITION FOR WRIT OF HABEAS CORPUS
On January 26, 2004 the defendant filed a pro se writ of habeas corpus. He filed it at a time when he was seeking new counsel. In the motion, he asserts that he is being illegally detained because of defects in the grand jury proceedings.
The court has considered most, if not all, of the arguments raised in this writ in the Motion for Dismissal Based upon Violation of Fed.R.Crim.P. 6 filed by his current counsel. Based upon the determinations made in resolving that motion, the court finds that the instant writ also lacks merit. The writ shall be denied and dismissed.
IT IS THEREFORE ORDERED that defendant's motion for pretrial inspection of proposed exhibits and demonstrative evidence (Doc. # 89) be hereby granted. The defendant's counsel should contact government counsel and arrange for inspection of the exhibits and demonstrative evidence.
IT IS FURTHER ORDERED that defendant's motion to compel production of field notes (Doc. # 90) be hereby denied as moot.
IT IS FURTHER ORDERED that defendant's motion for disclosure of impeaching information (Doc. # 91) be hereby denied as moot. The court believes that the government understands its continuing obligation to produce impeaching information.
IT IS FURTHER ORDERED that defendant's motion to invoke sequestration rule prior to voir dire (Doc. # 92) be hereby granted.
IT IS FURTHER ORDERED that defendant's motion for dismissal of indictment based upon improprieties committed by the government (Doc. # 93) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for dismissal of indictment for violation of Fed.R.Crim.P. 6 (Doc. # 94) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to suppress evidence for violation of defendant's right of travel (Doc. # 95) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion in limine (Doc. # 97) be hereby granted in part and denied in part as set forth in the foregoing memorandum.
IT IS FURTHER ORDERED that defendant's motion for discovery (Doc. # 98) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for reconsideration (Doc. ## 104 and 113) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for dismissal # 2 (Doc. # 105) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for suppression # 2 (Doc. # 114) be hereby denied.
IT IS FURTHER ORDERED that defendant's pro se petition for a writ of habeas corpus (Doc. # 74) be hereby denied.
IT IS FURTHER ORDERED that a hearing be held on defendant's motion in limine (Doc. # 115) on June 11, 2004 at 1:30 p.m.