Opinion
Case No. 3:20-CR-00371-JGC
04-05-2022
UNITED STATES of America, Plaintiff v. Tyrone RILEY, et al., Defendants.
Frederick D. Benton, Jr, Law Office of Frederick D. Benton, Jr., Columbus, OH, for Defendant Tyrone Riley. Jon D. Richardson, Peter G. Rost, Toledo, OH, for Defendant Yvonne Harper. David Lee Klucas, Richard M. Kerger, Kerger Law Firm, Toledo, OH, for Defendant Garrick Johnson. Ronald L. Wingate, I, Adams Street Law, Toledo, OH, for Defendant Larry Sykes. Jody L. King, Michael J. Freeman, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.
Frederick D. Benton, Jr, Law Office of Frederick D. Benton, Jr., Columbus, OH, for Defendant Tyrone Riley.
Jon D. Richardson, Peter G. Rost, Toledo, OH, for Defendant Yvonne Harper.
David Lee Klucas, Richard M. Kerger, Kerger Law Firm, Toledo, OH, for Defendant Garrick Johnson.
Ronald L. Wingate, I, Adams Street Law, Toledo, OH, for Defendant Larry Sykes.
Jody L. King, Michael J. Freeman, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.
ORDER
James G. Carr, Senior United States District Judge
The Federal Grand Jury has charged four former members of the Toledo, Ohio City Council, Tyrone Riley, Larry Sykes, Yvonne Harper, and Gary Johnson, with soliciting and accepting bribes in exchange for their votes on matters before that body. In doing so, the indictment asserts, they conspired to and did violate the anti-extortion provisions of the Hobbs Act, 18 U.S.C. §§ 1951 - 52.
The indictment also charged Keith Mitchell, who died shortly after its return. The prosecution as to him has abated.
Following their entry of not guilty pleas, the defendants filed, separately and jointly, a variety of motions. On January 11, 2022, I ruled on seven of those motions. (Doc. 99). I set a hearing for further argument on the remaining motions and held that hearing on March 14, 2022. I informed counsel of my anticipated rulings on those motions and stated that I would issue an order memorializing my rulings.
On March 29, 2022, I issued a short order notifying the parties that I have decided to hold several of the motions in abeyance pending further proceedings. There are four remaining motions. (Docs. 58, 77, 78, 97). I explain my rulings on those motions below.
1. Defendants’ Motions for a Bill of Particulars (Docs. 58, 77)
Defendants Johnson and Riley filed separate motions requesting that the government submit a bill of particulars.
Defendant Johnson asks that the government provide a bill of particulars "as to the facts which support Count 1 of the Indictment." (Doc. 58, pgID 451). Count 1 charges defendant Johnson, among others, with Hobbs Act Conspiracy pursuant to 18 U.S.C. § 1951. (Doc. 12, pgID 310). Defendant Johnson argues that a bill of particulars is required here because the criminal complaint did not reference Johnson's alleged involvement in the now-charged conspiracy.
Defendant Riley seeks a bill of particulars specifying "how the alleged conduct ‘obstructed, delayed, or affected commerce’ " and "how the alleged conduct represents an exchange for an official act." (Doc. 77, pgID 559).
The government responds that I should deny defendants’ motions for bills of particulars because it has provided defendants with "full and voluminous discovery" and sufficient notice of the charges against them. I agree.
The Sixth Circuit has explained that the purposes of a bill of particulars are:
(1) to ensure that a defendant understands the nature of the charges against him so that he can adequately prepare for trial; (2) to avoid or minimize the danger of unfair surprise at trial; and (3) to enable the defendant to plead double jeopardy if he is later charged with the same defense when the indictment itself is too vague and indefinite for such purposes.
United States v. Martin , 822 F.2d 1089 (6th Cir. 1987).
The decision to grant or deny a motion for a bill of particulars is "within the sound discretion of the trial court." Id.
While defendant Johnson argues that the criminal complaint must have alleged conspiracy for the government to include that charge in the indictment, he provides no case law or other authority supporting that assertion. The applicable legal doctrine is to be found in Federal Rule of Criminal Procedure 4(a), which requires only that the complaint establish probable cause to justify an arrest warrant.
Defendant Johnson pivots his argument in his reply brief, contending that the indictment is not valid because it does not include any overt acts or "manner and means." (Doc. 90, pgID 653). His argument relies heavily on United States v. Tyson , No. 1:18CR708, 2020 WL 502413 (N.D. Ohio 2020) (Boyko, J.). In that case, the court ordered the government to provide a bill of particulars because it had not provided sufficient details in the indictment regarding an alleged meeting between the co-conspirators.
However, Tyson is distinguishable in a significant way. In that case, the court observed that the government's discovery disclosures lacked critical details about the alleged conspiratorial meeting. This deficiency in the discovery justified ordering a bill of particulars. Here, the government represents, and defendants agree, that it has provided full and complete discovery. Defendants cannot point out any way in which they do not know as much as the prosecutor about the case. The Sixth Circuit has made clear that "[i]f there has been full disclosure by the Government ... the need for a bill of particulars is obviated." Martin , supra , 822 F.2d at 1089.
Defendant Riley also argues that a bill of particulars is required to clarify: 1) how the alleged conduct affected interstate commerce and 2) how the alleged conduct was in exchange for an official act, i.e. what constituted the quid pro quo.
Regarding the first argument, I overruled a similar objection in my prior order, explaining how the alleged conduct could have an effect on interstate commerce. (Doc. 99, pgID 731-33). I therefore find defendant Riley's first argument without merit.
Defendant Riley's second argument regarding a quid pro quo is substantially similar to an argument that defendant Johnson makes in his Motion to Dismiss Counts 5 and 12 (Doc. 69). I have held that motion in abeyance and will address the argument in due course but decline to address it now.
Therefore, I decline to order a bill of particulars in this case.
2. Defendant Riley's Motion to Suppress Electronic Surveillance Evidence (Doc. 78)
Defendant Riley moves to suppress phone conversations and text messages that the government intercepted pursuant to a series of Title III electronic surveillance orders. The government opposes the motion. (Doc. 87). I deny the motion.
Alternatively, defendant asks for a hearing under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). I deny that request as well.
Judge Jeffrey J. Helmick issued a sequence of five surveillance orders that, in part, led to the defendants’ indictment. The parties agree that the defendant has no standing as to the first order. They also agree that, as to the other four orders, which targeted him and his cell phone as a "spin off’ from the first order, he has standing.
He makes two principal challenges to the underlying affidavits: 1) lack of probable cause; and 2) failure to satisfy the "necessity" requirement of 18 U.S.C. §§ 2518(1)(c) and (3)(c). I disagree as to both contentions.
First, there was ample probable cause to support the orders. To avoid potential prejudice to Mr. Riley and the other defendants, I decline to say more than I already have about the facts and acts that justify that conclusion. In the event of a conviction at trial, I will, if counsel desires, prepare and file a more elaborate synopsis of the probable cause showing in the pertinent affidavits.
I find likewise defendant's challenge to the necessity showing is without merit. Section 2518(1)(c) requires the affiant to show that conventional, less intrusive investigatory methods have either: 1) been unsuccessfully attempted, 2) if attempted would be unsuccessful, or 3) if attempted, would endanger either the investigation's success or other persons.
Here, again, the affidavits amply satisfy all aspects of this requirement.
The lodestar in this assessment is the need to gather sufficient admissible evidence to convict, not just charge the targets. The distance from probable cause to proof beyond a reasonable doubt is great. Conspiratorial agreements typically occur out of sight, even if their purposes – a favorable vote – take place in plain view. Even where an informant has gained a conspirator's confidence, he or she will only be privy to a part of what's going on between that individual and his or her confederates.
Simply put, surreptitious, court-ordered electronic surveillance is not just a way for the government to bridge the gap between probable cause and proof beyond a reasonable doubt – it is often the only way. The affidavits in this case showed conclusively that this was so here.
Other investigatory alternatives, both those the government tried and those it did not try were, and would not have been, enough for the government to bridge the evidentiary gap between probable cause and proof needed to convict. To be sure, conventional methods had been somewhat successful – but they were far from enough to obtain guilty verdicts.
As with my earlier order and my other rulings here, if needed for purposes of appeal, I will prepare a more fulsome opinion detailing my reason why, within the contours of this case, I deny the defendant's motion. For now it suffices to state that I find the government clearly met its obligation to show probable cause that other, less intrusive conventional investigatory methods had not worked, would not have worked, and would have jeopardized the investigation if tried.
3. The Nondisclosure Agreement (Doc. 97)
Defendant Johnson filed a motion asking that I dismiss the charges against him because of an allegedly improper non-disclosure agreement that the FBI used during its investigation.
The government responds that the FBI did not engage in any misconduct. Even if it did, it contends, the defendant cannot satisfy the applicable standard because he must show that the government's conduct was so offensive that it shocks the conscience.
The FBI provided the non-disclosure agreement at issue to a Mercy Health official after asking that official not to object to the opening of an internet café nearby.
Defendant Johnson takes issue with several aspects of this agreement. First, the agreement does not define the "sensitive information" which it purportedly protects. Second, the agreement does not have an expiration date. And third, the agreement cautions the Mercy official that he could be criminally charged if he makes any unauthorized disclosures of the sensitive information that the agreement protects.
I share defendant Johnson's concerns about this agreement. I am especially troubled by its apparent lack of expiration date. I can understand the government's need for the official to refrain from disclosing information during the investigation. But I do not see why the terms of the agreement need to extend past the date of indictment.
This agreement may have a chilling effect on defense counsel's ability to communicate with potential witnesses. The Mercy Health official might understandably be reticent to speak with defense counsel after having signed an agreement warning him that he could be criminally charged if he shares information with anyone.
Despite these concerns, defendant Johnson has provided no legal basis upon which I could dismiss the charges against him because the FBI used this agreement. His motion does not cite to any constitutional provision, statute, or case that would give me such authority. It is therefore unclear what he is asking me to do, aside from dismissing the indictment so that "the Government understands the corrosive nature of its conduct." (Doc. 97, pgID 722).
Defendant Johnson could argue that the FBI's use of this agreement violates his due process rights. But I reject that potential argument for the following reasons.
The Sixth Circuit has foreclosed defendants from arguing that the government acted outrageously in inducing them to commit a crime. United States v. Tucker , 28 F.3d 1420, 1428 (6th Cir. 1994). It explained, "there is no authority in this circuit which holds that the government's conduct in inducing the commission of a crime, if outrageous enough, can bar prosecution of an otherwise predisposed defendant under the Due Process Clause of the Fifth Amendment." United States v. Flowers , 712 F. Appx 492, 497 (6th Cir. 2017) (internal quotation marks and emphasis omitted).
Therefore, to the extent defendant Johnson argues that the FBI's use of the non-disclosure agreement was improper because it prevented the hospital from objecting to the internet café, thereby inducing the commission of offenses charged in this case, that argument fails.
It seems more likely, however, that defendant Johnson rests his argument on the outrageousness of the agreement itself and the chilling effect that it has on his ability to prepare an adequate defense. While the Sixth Circuit has not spoken clearly on the issue in this context, it has left open the possibility that government conduct that does not involve inducement could be so outrageous that it would violate a defendant's right to due process. See id. at 497 ("Under the outrageous government conduct defense, government involvement in a crime may be so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped."); United States v. Pipes , 87 F.3d 840, 843 (6th Cir. 1996) (acknowledging that there could be "a theory of due process that protects individuals from outrageous police conduct that shocks the conscience even if that conduct does not deprive individuals of a life, liberty, or property interest").
However, the Sixth Circuit has only opined that such a defense could be available if circumstances were sufficiently extreme.
And even if the defense of outrageous government conduct were available, that conduct would need to "shock the conscience." While I find that the FBI's agreement in this case is troublesome, it does not meet this high standard. It does not shock my judicial conscience and does not rise to the level of conduct found shocking in other cases. Cf. Rochin v. California , 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcible extraction of defendant's stomach contents to obtain evidence shocks the conscience).
In my more than forty years as a federal judicial officer, this is the first time I have encountered the agreement that the FBI used in this case. I trust that its use has not become commonplace. But it seems to have been unnecessary under all the circumstances as I understand them.
That the effect of such an agreement can potentially be to enable the government to come between a potential witness and a future defendant's attorney is deeply troublesome. This is especially true given the ominous warning about nondisclosure. Here, the attorneys made defense counsel aware of the agreement's existence. But would AUSAs elsewhere do likewise?
Here, the ice didn't break. That is not to say that someday it might not.
I therefore decline to dismiss the charges against defendant Johnson on these grounds.
Conclusion
For the foregoing reasons, it is hereby ORDERED THAT:
1. Defendants’ Motions for a Bill of Particulars (Docs. 58, 77) be, and the same hereby are, denied;
2. Defendant Riley's Motion to Suppress Electronic Surveillance Evidence (Doc. 78) be, and the same hereby is, denied; and
3. Defendant Johnson's Motion Concerning Non-Disclosure Agreement (Doc. 97) be, and the same hereby is, denied.
So ordered.