Opinion
5:20-CR-00217-FL-4
05-17-2021
United States of America, v. Kendale Tyrone Strange,
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Defendant. Defendant Kendale Tyrone Strange, who faces gun- and drug-related charges, has three motions before the court. To begin with, Strange asks the court to prohibit the Government from using DNA evidence and evidence obtained during the search of 522 School Street at trial. He claims that the searches that led to this evidence violated his constitutional rights. Mot. to Suppress, D.E. 101 at 1.
Along with the motion to suppress, Strange asks the court to allow him to have two trials, one on his gun charge and one on his drug-related charges. He argues that he would be prejudiced by having to defend himself against all the charges during one trial.
Finally, he challenges the level of detail in the indictment's drug conspiracy count. He says it does not provide him with enough information to prepare his defense. He wants the court to order the Government to give him a bill of particulars.
The court will address each of these issues separately.
I. Background
A federal grand jury returned a Superseding Indictment in July 2020 charging Strange with three drug-related charges, including being involved in a drug conspiracy, as well as a charge for being a felon in possession of a firearm. Two warrant applications from March 2020 recount the events that led to these charges. The court will review the facts in each application and the testimony Strange gave at the evidentiary hearing before addressing the motions' merits.
A. Warrant Application for 522 School Street
Fayetteville Police Officers Newman and Maldonado applied for a warrant to search 522 School Street on March 17, 2020. Their application discussed two investigations into Strange's alleged criminal activity. First, the application discusses Strange's alleged involvement with an assault in a restaurant parking lot, and then it addresses his alleged drug dealing.
1. Assault and Gun Possession Investigation
In late February 2020, Fayetteville police officers received a report of a shooting. Through their investigation, officers learned that the victim had gotten into a verbal altercation with a person driving a Mercedes. The argument began outside a gas station convenience store but carried over into the parking lot of a nearby restaurant.
Once in the parking lot, the Mercedes' driver got out of the car with a gun in his hand. The driver and the victim once again exchanged words. At some point the driver began to raise the gun and the victim turned his head. The victim “felt an impact on his head” and heard a gunshot. He thought he had been shot in the head. The driver fled the scene in the Mercedes.
Newman obtained video footage from the gas station. He compared the footage to a photograph of Strange and concluded that Strange was the Mercedes' driver.
2. Drug Activity at or around 522 School Street
After discussing the assault investigation, the application reviewed Strange's criminal history. It revealed that between 1993 and 2013, Strange had been convicted of drug-related offenses 13 times. He had also been convicted of illegally possessing a firearm twice.
The affidavit then moved on to the investigation of 522 School Street, which began in April 2019. As part of the investigation, Maldonado and Detective Kurt Stein and met with a confidential informant. The informant, who had a record of being credible and reliable and had participated in controlled purchases, shared that Strange was selling crack and heroin from 522 School Street.
The affidavit does not identify the gender of any of the confidential sources. For ease of reference, the court will refer to each of these individuals as he or him.
About four months later, in August 2020, law enforcement received an anonymous tip stating that Strange was selling drugs from a house on School Street that was set up as a car detailing body shop. The tipster also said that “crack heads” were always on School Street and around the house.
In January 2020, Fayetteville Police Officer Creech spoke with a woman in the front yard of 522 School Street. She said she was there to see “Ghost, ” which Creech knew to be Strange's nickname. While talking with the woman, Creech saw drug paraphernalia in her car. He searched the car and found two crack pipes, a spoon with burnt residue, needles, and a cotton ball. Creech “knew” that these items were drug paraphernalia. A field test revealed that the cotton ball had heroin on it.
As all this was going on, Strange left 522 School Street. But upon seeing law enforcement he went back inside.
In the month before the March 2020 warrant application, Maldonado conducted surveillance at 522 School Street. She saw Strange there “daily.” She also noticed “frequent visitors” arrive at the house during the day on bicycles and foot. The visitors stayed for only a brief time. While at the house, the visitors would meet with Strange in the front yard or go inside. Maldonado believed that this conduct was consistent with someone selling drugs at the house. Id.
During that same time, Maldonado met with a confidential source who knew various drug dealers. The source knew of a black male by the name of “Ghost” who sold crack and heroin on School Street. Id. at 8-9. After being shown a photo of Strange, the source confirmed that Strange was the person he knew as Ghost. Id. at 9.
Then, in the week before applying for the warrant, Maldonado used a confidential source to purchase crack from Strange. After being searched for contraband and being given money by law enforcement, the source went to 522 School Street. The source went inside, met with Strange, and bought crack from him. The entire transaction took about a minute.
The last piece of the investigation involved information from the Public Works Commission. In response to an inquiry from Maldonado, the Commission shared that it had an active account under Strange's name for 522 School Street.
B. Issuance and Execution of the School Street Warrant
Based on the application North Carolina Superior Court Judge Marry Ann Tally issued a warrant allowing officers to search 522 School Street. Along with searching the property, they could also search Strange, anyone present on the property “that may possess the evidence sought within [the] affidavit[, ]” cars found on the property, and any other cars “operated with keys found inside” 522 School Street. The warrant also authorized the seizure of 13 categories of items, including drugs, drug paraphernalia, weapons, money, and proof of ownership or control of the property.
Law enforcement executed the warrant the next day, March 18, 2020. In an upstairs bedroom they found Strange and a set of keys to a BMW. Also in the house were drugs, a gun, and mail addressed to Strange.
Officers learned that the BMW keys they found in the house unlocked a BMW sitting in the driveway of 522 School Street. A search of the car turned up a gun in its trunk.
C. Application for Warrant to Obtain DNA Samples
After the search of the School Street property, Maldonado applied for a warrant to obtain a DNA sample from Strange. The application said that law enforcement had searched 522 School Street on “March 13, 2020” and found Strange and two firearms. It also noted that Strange had been convicted of possession of a firearm by a felon. According to the application, the DNA taken from Strange would be compared to any DNA collected from the guns. North Carolina Magistrate JC Stafford issued the warrant and officers obtained the DNA swabs from Strange.
D. Testimony at Evidentiary Hearing
Strange testified at the motions hearing about his connection to 522 School Street. He said that he purchased the property with someone else to fix it up and sell it. During the relevant period, Strange lived at 522 School Street and kept his belongings there.
Strange noted that he was testifying under the Supreme Court's decision in Simmons v. United States, 390 U.S. 377 (1968). Strange provides that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Id. at 394.
Although he discussed his connection to the School Street Property, he provided no testimony about the BMW that officers found there.
II. Motions to Suppress
The Fourth Amendment provides two distinct, but related protections to the people. To begin with, it provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. And then it then provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id.
Following his indictment, Strange identified what he believes are discrepancies and inadequacies in the search warrant applications that defeat a finding of probable cause. For the residential search warrant, he challenges both the content of the application and the scope of the resulting warran. And for the DNA collection warrant, Strange says that an incorrect date in the application renders the entire warrant invalid. He argues that a reasonable officer could not have relied on these warrants and asks the court to suppress evidence from the resulting searches.
The undersigned will address each of Strange's arguments below. But, ultimately, they are not persuasive. To begin with, Strange has not shown that he has standing to challenge the search of the BMW. While he does have standing to challenge the search of 522 School Street, his arguments do not stand up to scrutiny. And the incorrect date listed in the DNA collection application did not render the warrant invalid. So the district court should deny Strange's motion.
A. Standing to Challenge the Search Warrants
The Government argued that Strange had not established that he has standing to challenge the search of 522 School Street and a BMW parked at the property. Since the Fourth Amendment only provides people with the right to be “secure in their persons, houses, papers, and effects” from unreasonably searches and seizures, U.S. Const. amend. IV (emphasis added), a defendant must have some sort of personal interest in the property searched or seized before he may pursue a motion to suppress. See Carpenter v. United States, 138 S.Ct. 2206, 2242 (Thomas, J., dissenting) (“To come within the text of the Fourth Amendment, Carpenter must prove that the cell-site records are his[.]”), 2255 (Alito, J., dissenting); Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia, J., concurring) (“The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.”).
Despite the use of the term “standing” the United States' argument does not implicate this court's authority to decide this motion. See Byrd v. United States, 138 S.Ct. 1518, 1530 (2018). Instead, the term is “a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search[.]” Id.
So before he may challenge the searches, Strange must show that he “has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Rakas v. Illinois, 439 U.S. 128, 133 (1978). To do this, he must show “that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable[.]” Carter, 525 U.S. at 88. An asserted expectation of privacy ““must be objectively reasonable; in other words, it must be an expectation ‘that society is prepared to recognize as reasonable.'” United States v. Bullard, 645 F.3d 237, 242-43 (4th Cir. 2011).
Whether Strange has standing to challenge the search of 522 School Street depends on why he was there. If he was there “as a resident or as an overnight guest” he has standing to challenge the search. United States v. Brinkley, 980 F.3d 377, 383 (4th Cir. 2020) (citing Minnesota v. Olson, 495 U.S. 91, 98-100 (1990)). But if he was there for a brief time for something like “a business transaction” he would not. Carter, 525 U.S. at 90. Strange's testimony establishes that he lived at 522 School Street at the time of the search, so he has standing to challenge the search of the property.
The BMW is a different story. The Fourth Circuit has explained that a “person normally has no legitimate expectation of privacy in an automobile in which he asserts neither a property interest nor a possessory interest.” United States v. Carter, 300 F.3d 415, 421 (4th Cir. 2002).
Strange has not asserted either a property or a possessory interest in the BMW. So he lacks standing to challenge the search of the BWM and the district court should deny this portion of his motion.
B. Warrant to Search 522 School Street
Strange challenges whether the affidavit submitted with the search warrant application establishes probable cause to search 522 School Street. He focuses on six things. First, he claims the application relied on stale information. Second, he challenges the use of information from informants and non-affiant officers, Third, he says that the application does not justify the affiant's believe that people visited 522 School Street to buy drugs. Fourth, he claims a nexus does not exist between the School Street location and any drug dealing. Fifth, Strange maintains the information in the application does not assert the requisite particularity for a search warrant. And sixth, he argues that the list of items officers could seize was overbroad.
1. Whether the Information in the School Street Application Was Stale
Strange argues that the warrant for 522 School Street is invalid because the information in the officers' application was stale. Mem. in Support Mot. to Suppress at 4. If he is correct, the warrant stands on shaky ground since a judge may only issue a warrant if it stems from “allegations of ‘facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.'” United States v. McCall, 740 F.2d 1331, 1335-36 (quoting Sgro v. United States, 287 U.S. 206, 210 (1932)). Assessing whether the information in a warrant is stale involves more than “simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.” United States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (internal quotations omitted). Instead, the court must “look to all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized.” Id. at 1336.
The facts and circumstances of this case provide no support for Strange's argument. The application establishes that Strange has been involved with selling drugs for over 20 years. Sources, informants, and tipsters told law enforcement over a series of months that Strange was selling drugs in 2019 and 2020. And in the week before the warrant request, a controlled purchase took place at 522 School Street. These facts provided a substantial basis to believe that there was probable cause to issue the search warrant.
Strange relies on a case from the D.C. Circuit, United States v. Washington, 775 F.3d 405, (D.C. Cir. 2014), to blunt the effect of the controlled purchase. He focuses on that courts' admonition that affiants should “avoid temporal ambiguity in their description of drug transactions, particularly where only one sale is involved[.]” Id. at 409.
But the circumstances of Washington are vastly different from this case. In that case the affiant said that “within the past 72 hours” a confidential informant with a long history of providing accurate information shared that he had accompanied a friend to purchase crack. Id. at 406. The drug deal took place in a blue Cadillac parked next to a house. Id. The affidavit provided no indication when this purchase happened. Id. at 408. The officer then went to the house where the deal took place and saw the same car parked outside. Id. at 406. He confirmed that the car's owner had a connection to that residence and had a previous drug conviction. Id. On that basis, a District of Columbia judge issued a warrant to search the house. Id. The search led to the discovery of drugs and, eventually, charges against Washington. Id. at 406-07.
On appeal, Washington claimed that the application was stale because although it said that the officer's conversation with the informant occurred in the past 72 hours, it did not “state when the alleged drug transaction itself occurred.” Id. at 408. But the D.C. Circuit rejected this argument, noting that Washington's position “appears to reflect precisely the sort of ‘hypertechnical reading' of the affidavit that we have rejected in favor of commonsense readings.” Id. at 408. Instead, it found that it would be “a fair reading, although not the only one, ” of the affidavit to conclude that the search took place during the 72-hour period mention in the affidavit. Id. (quoting United States v. Gaston, 357 F.3d 77, 81 (D.C. Cir. 2004)).
The ambiguity that was present in Washington is not present here. The affidavit in that case presented an ambiguity because it was unclear whether the buy had taken place during the 72-hour period or at some other undetermined time. The affidavit explicitly states that the buy took place in the week before the sale. So Washington provides no basis to question the existence of probable cause in this case.
2. Reliance on Information from Other Officers
Strange also suggests that the affiants to the search warrant application should not have relied on information from other officers. Mem. in Support at 9. But there is nothing wrong with including information obtained from other officers in a search warrant application. United States v. Ventresca, 380 U.S. 102, 111 (1965) (“Observations of fellow officers . . . engaged in a common investigation are plainly a reliable basis for a warrant”); United States v. Welebir, 498 F.2d 346, 349 n.2 (4th Cir. 1974) (“[A]n affiant . . . can base his information on information in turn supplied him ... by fellow officers.”). This argument provides no reason to question the existence of probable cause for the warrant.
3. Reliance on Anonymous Tip and Confidential Sources
Strange next challenges the application's reliance on information from unnamed sources, claiming that they are unreliable. No doubt an informant's “reliability is ‘key' to a magistrate's probable cause analysis when the search warrant application contains information provided by an informant.” United States v. Lull, 824 F.3d 109, 116 (4th Cir. 2016) (citing United States v. Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996)). Resolving questions about a source's reliability here requires an assessment of the totality of the circumstances with a particular focus on “the informant's ‘veracity' or ‘reliability' and his or her ‘basis of knowledge.'” Wilhelm, 80 F.3d at 119 (quoting Illinois v. Gates, 462 U.S. 213, 233 (1983)). Another important consideration is whether officers have been able to corroborate the source's information. United States v. Hodge, 354 F.3d 305, 309 (4th Cir. 2004). But “[t]here is no set requirement that all tips be corroborated by subsequent police investigation in order to be considered credible.” United States. v. DeQuasie, 373 F.3d 509, 519 (4th Cir. 2004) (quoting United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997) (en banc)).
Consideration of the totality of the circumstances yields no concerns about the credibility of the information provided by sources. Strange claims that there are issues about the credibility of the April 2019 confidential informant because there was “no additional information on how this informant knows the information he provides[.]” Mem in Supp. at 4. But this informant had a history of being credible, reliable, and willing to make controlled purchase at the direction of law enforcement. That is enough to establish his credibility. See United States v. Clyburn, 24 F.3d 613, 618 (4th Cir. 1994).
Next, Strange appears to question the credibility of the August 2019 anonymous tipster who said that “crack heads” were regularly outside the School Street property. But he never explains what the issue is with this information. In any event, both the earlier information from the confidential source and the later controlled purchase support this statement. And the tipster's statement that drug users hung around 522 School Street was corroborated when, in January 2020, an officer found an apparent drug user hanging around 522 School Street.
Strange also challenges the reliability of the unnamed woman who said she was at 522 School Street to see Ghost. He says that the affidavit did not establish her reliability. But the statement's credibility is strengthened because it occurred during a face-to-face encounter with law enforcement. See United States v. DeQuasie, 373 F.3d 509, 523 (4th Cir. 2004) (“an informant who meets face-to-face with an officer provides the officer with an opportunity to assess his credibility and demeanor and also exposes himself to accountability for making a false statement”). And Strange coming out the front door of 522 School Street while this encounter was going on also corroborated her statement.
The statements by the third parties are credible enough for a judicial official to consider them in the probable cause analysis. The argument to the contrary is unpersuasive.
4. Officer Knowledge That Frequent, Short Visits Are Consistent with Drug Sales
Strange says that Maldonado did not explain how she knew that people often arriving at the house and staying at the house for a short time was consistent with drug dealing. Both the circumstances and Maldonado's training and experience make it reasonable for the magistrate judge to have credit her statement without further explanation. Plus courts have recognized that type of activity as consistent with someone selling drugs from the house. United States v. Rose, 321 Fed.Appx. 324, 327 (4th Cir. 2009).
5. Nexus to Search School Street
Strange points out that there was no nexus between 522 School Street and the firearm used in the restaurant parking lot assault. Mem. in Support Mot. to Suppress at 5, 8. Strange never explains why this is relevant to the probable cause analysis. There was an undeniable nexus between drug dealing and the residence based on the controlled purchase. And the warrant sets out why officers believed that Strange, who frequented the School Street property, was the person seen on video using a gun as part of an assault. This argument provides no reason to doubt the existence of probable cause to issue the warrant.
6. Particularity of the Warrant
Strange believes the warrant lacked the requisite particularity as to the location and the things to be searched. Mem. in Support Mot. to Suppress at 7. He says the affiants did not outline in enough detail the 522 School Street residence, vehicles, and the drugs and firearms found. Id. at 7-9.
The Fourth Amendment requires that a warrant “particularly describe[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend IV. The Framers included this requirement as a tool to halt the use of general warrants. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 558 n.12, 650 (1999). A warrant would violate this provision if it authorized “arrests of ‘suspected persons' or a search of ‘suspicious places.'” Id. Wilkes v. Wood, one case that “laid the groundwork for” the Fourth Amendment, provides a helpful example. Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1196 (2016). In Wilkes, the offending warrant instructed its bearers “ ‘to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled, The North Briton,' and ‘to apprehend and seize [them], together with their papers, and to bring in safe custody before me, to be examined.'” Id. at 1201 (citing The Gen. Warrant on Which John Wilkes Was Arrested, 30 April 1763, in D.B. Horn, ed, Eng. Hist. Documents 1714-1815 61, 61-62 (Methuen 1967)).
In line with this background, courts have recognized that the Fourth Amendment “does not set forth some general ‘particularity requirement.'” United States v. Grubbs, 547 U.S. 90, 97 (2006). Instead, it “specifies only two matters that must be ‘particularly describ[ed]' in the warrant: ‘the place to be searched' and ‘the persons or things to be seized.'” Grubbs, 547 U.S. at 97 (alteration original).
The warrant for 522 School Street contains much more detail about the items to be seized than the general warrants that motivated the Fourth Amendment's particularity requirement. It specifies the location officers could search and the categories of items they could seize. So it complies with the Fourth Amendment's particularity requirement.
7. Warrant Overbreadth
Strange's final argument claims that the warrant was overbroad. He claims that the items the warrant authorized officers to seize “were listed in boilerplate language and non-specific, unduly general terms, and did not reference or relate specifically to” Strange or the School Street property.
To comply with the Fourth Amendment a warrant must be “‘no broader than the probable cause on which it is based.'” United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006) (quoting United States v. Zimmerman, 277 F.3d 426, 432 (3rd Cir. 2002)). The warrant meets this standard. All the items the warrant authorized officers to seize were reasonably related to the allegations of drug trafficking that justified the warrant. So this argument does not provide a basis to suppress evidence obtained from 522 School Street.
C. Warrant to Obtain a DNA Sample
Strange challenges the validity of the warrant used to obtain a sample of his DNA. He asserts that the warrant was “facially invalid and should not have been issued.” Mem. in Supp. at 2. He bases this argument on the fact that the supporting affidavit said that the search of 522 School Street occurred on March 13, 2020, when it occurred on March 18, 2020. Id. Strange claims that the fact that the magistrate issued the warrant despite the error means that he “either did not read the affidavit, or chose to ignore the facial invalidity of the affidavit.” Id. at 2
According to Strange there are two consequences that follow from the magistrate's alleged dereliction of duty. First, the warrant is not entitled to the usual level of deference that reviewing courts give to the judgment of the magistrate who issued the opinion. Id. Second, the officers “knew or should have known” that because of the erroneous date the affidavit did not establish probable cause to search Strange, so they cannot rely on the good-faith exception to the exclusionary rule.
Despite his allegations, Strange never explains how or why Magistrate Stafford would know that there was an error in the affidavit. After all, he did not issue the warrant for 522 School Street. Judge Tally did.
So, on the record before the court, there is no reason to believe that Stafford was aware of the erroneous date. And there is thus no reason to believe that he either did not read the affidavit or ignored the error in it. Strange's argument to the contrary is baseless.
But that still leaves the question of what impact including the erroneous date has on the existence of probable cause. Typically a defendant addresses this type of issue through a request for a Franks hearing. Strange does not explicitly request a Franks hearing in either his motion or his supporting brief. And the case's only appearance in Strange's filings occurs in a blockquote discussing when courts should decline to give deference to a magistrate's decision.
To begin with, Strange must make more than a passing reference to Franks to properly raise the issue with the court. See, e.g., United States v. Patterson, 213 F.Supp.2d 900, 916 (N.D. Ill. 2002); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if he did properly raise it, the argument would be futile. The Franks analysis requires the court to replace the wrong date with the correct date and then assess whether there was probable cause to issue the warrant. Miller v. Prince George's Cty., Md., 475 F.3d 621, 628 (4th Cir. 2007). Correcting this error would only strengthen the existence of probable cause to obtain Strange's DNA. So the erroneous date does not provide a basis to exclude the DNA evidence. The district court should deny this portion of Strange's Motion to Suppress.
III. Motion to Bifurcate
In his second motion, Strange asks for separate trials on his drug and gun charges. Mot. to Bifurcate, D.E. 103 at 1. He says that the Government will bring in evidence of the alleged assault and his prior conviction of felon in possession of a firearm that will prejudice the jury at trial. Id. at 2.
In response, the Government suggests that Strange could file a motion in limine instead to exclude some violent evidence of the assault. It also notes that Strange could make a stipulation about the prior felony conviction. Resp. to Mot. to Bifurcate & Bill of Particulars, D.E. 119 at 6.
Rule 14 of the Federal Rules of Criminal Procedure allows a court to “order separate trials of counts” when joining them “appears to prejudice a defendant[.]” Fed. R. Crim. P. 14(a). The defendant must make a “strong showing of prejudice.” United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984). To meet this burden he must show that there is “‘a serious risk that a joint trial would . . . prevent the jury from making a reliable judgment about guilt or innocence.'” United States v. Min, 704 F.3d 314, 319 (4th Cir. 2013) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). And if a defendant can make a strong showing of prejudice, the court need not sever the trial if “less drastic measures, such as limiting instructions, ” could “cure any risk of prejudice.” United States v. Hayden, 85 F.3d 153, 160 (4th Cir. 1996).
The court must also balance any possible prejudice “against the interests of the efficient administration of justice.” United States v. Cole, 857 F.2d 971, 974 (4th Cir. 1988). The mere fact that joinder may make for a tougher defense or that a separate trial might increase the defendant's chance of acquittal is not a sufficient ground for severance. Goldman, 750 F.2d at 1225.
Strange claims that there are two ways he would suffer prejudice if he had to defend against the drug and gun charges at the same time. First, he believes that the United States will introduce evidence from the assault to support the gun charge. He claims that this would prejudice his ability to defend against the drug charges. Second, he argues that the Government's need to introduce a prior felony conviction to establish the gun charge would prejudice his ability to defend against the drug charges.
Strange's arguments do not establish the serious risk of prejudice necessary to grant his motion. But even if the court were to assume that Strange would be prejudiced as he describes, any prejudice can be addressed through a limiting instruction or, as for the prior conviction, a stipulation, see Old Chief v. United States, 519 U.S. 172 (1997). So the district court should deny his motion to bifurcate.
IV. Motion for a Bill of Particulars
Strange lastly asks for the court to compel the Government to provide him with a bill or particulars for the drug conspiracy charge. He says that “without such a detailed outline, [he] will be left guessing as to when and with whom he is alleged to have conspired, confederated, or agreed to enter into illegal conduct.” Mot. for Bill of Particulars, D.E. 104 at 2.
The Federal Rules of Criminal Procedure allow a defendant to seek a bill of particulars when the indictment is not “sufficiently detailed to apprise the defendant of the charges against him so that he may prepare his defense[.]” United States v. Duncan, 598 F.2d 839, 848 (4th Cir. 1979). But Defendants do not have a constitutional right to a bill of particulars, and “the granting or denial of a bill is within the court's discretion.” United States v. Bales, 813 F.2d 1289, 1294 (4th Cir. 1987) (citing United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969)).
The purpose of a bill of particulars “is to fairly apprise the defendant of the charges against him so that he may adequately prepare a defense and avoid surprise at trial.” United States v. Automated Med. Labs, Inc., 770 F.2d 399, 405 (4th Cir. 1985). It is not designed as a device for the defendant to obtain “detailed disclosure of the government's evidence in advance of trial.” Id. “The bill of particulars is not intended to give a defendant the benefits of the government's investigative efforts. Nor may it be used to compel disclosure of the government's legal theory prior to trial.” United States v. Stroop, 121 F.R.D. 269, 272 (E.D. N.C. 1988).
The Fourth Circuit has held that “[w]hen each count of an indictment contains the official citation of the statute under which the defendant is charged and the evidence constitutes precise proof of the charges in the indictment, denial of a motion for a bill of particulars is not an abuse of discretion.” Bales, 813 F.2d at 1294. And when the Government produces substantial amounts of documents and information or engages in “open file” discovery, courts are reluctant to require the Government to produce a bill of particulars. See United States v. Soc'y of Indep. Gasoline Marketers of Am., 624 F.2d 461, 466 (4th Cir. 1979); United States v. Schembari, 44 F.2d 931, 934-35 (4th Cir. 1973).
Courts seldom grant requests for a bill of particulars that seeks to identify co-conspirators. See United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir. 1985); United States v. Doan, 184 F.Supp.3d 271, 283 n.11 (E.D. Va. 2016) (citing cases). Strange has not persuaded the court that it should reach a different result in this case. The indictment contains all the necessary elements of the offense and the Government has provided a substantial amount of discovery. Strange has not shown that he lacks the necessary information to defend against the drug conspiracy charge. The district court should deny his motion for a bill of particulars.
V. Conclusion
Strange has not shown that he is entitled to the relief he seeks in any of his motions. The district court should deny them all. D.E. 101, 103, 104.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.