U.S. v. Boese

Full title: UNITED STATES OF AMERICA, Plaintiff, v. SHADD ALLAN BOESE, Defendant

Court: United States District Court, D. Kansas

Date published: Nov 17, 2005

Case No. 02-40152-01-RDR (D. Kan. Nov. 17, 2005)

Opinion

Case No. 02-40152-01-RDR.

November 17, 2005

ORDER

RICHARD ROGERS, Senior District Judge

This order is issued following a hearing upon pretrial motions which are pending in this case. The court took some of the motions under advisement and ruled upon other motions. Our rulings upon all the motions are as follows.

Defendant's motion to require election due to multiplicity

This motion alleges that Count 1 and Count 2 of the indictment are multiplicitous. Count 1 alleges that defendant, in violation of 18 U.S.C. § 924(c)(1)(A), possessed and carried a pistol during and in relation to a drug trafficking crime — that is possession with the intent to distribute methamphetamine. Count 2 alleges that defendant, in violation of § 924(c)(1)(B), possessed and carried a machine gun during and in relation to the same drug trafficking crime.

During the hearing upon the pretrial motions, the court announced that under Tenth Circuit law defendant may not be found guilty of both Count 1 and Count 2. Tenth Circuit case law states that multiple § 924(c) violations cannot be premised on the same underlying drug offense. See U.S. v. Rogers, 921 F.2d 1089, 1092-1093 (10^th Cir. 1990); U.S. v. Johnson, 977 F.2d 1360, 1376-77 (10^th Cir. 1992). We note that in both of these cases, a machine gun and other guns were part of the 924(c) charges.

The court shall not require the government to elect to prosecute either Count 1 or Count 2. But, the court will not permit a conviction on both counts if a jury determines that defendant is guilty of both Counts 1 and 2. The court will enter a judgment of conviction on the charge with the more serious penalty and refuse to enter a conviction on the other charge. SeeJohnson, 977 F.2d at 1377, citing U.S. v. Moore, 958 F.2d 310, 314 (10^th Cir. 1992).

Motion to dismiss for destruction of evidence

This motion from defendant asks that the court dismiss the charges in this case because agents of the prosecution have destroyed evidence.

The Tenth Circuit discussed the principles to be applied to defendant's motion in U.S. v. Bohl, 25 F.3d 904 (10^th Cir. 1994), where it stated that the holdings in California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988) should guide the analysis:

Under the two-prong Trombetta test, the government violates a defendant's right to due process when (1) it destroys evidence whose exculpatory significance is "apparent before" destruction; and (2) the defendant remains unable to "obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. The Court in Youngblood extended Trombetta to provide that, if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was "potentially useful" for the defense, then a defendant must show that the government acted in bad faith in destroying the evidence. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38.

. . . .

[T]he "mere fact that the government controlled the evidence and failed to preserve it is by itself insufficient to establish bad faith." [United States v. Richard, 969 F.2d 849, 853-54 (10^th Cir.) cert. denied, 506 U.S. 887 (1992)]. . . .

[M]ere negligence on the government's part in failing to preserve such evidence is inadequate for a showing of bad faith.

25 F.3d at 909-10 912.

The court heard testimony regarding defendant's motion from Lane Mangels, an investigator for the Salina Police Department. He stated that he learned a week prior to a previous trial setting for this case that the Salina Police Department had destroyed some of the evidence and was in the process of destroying more. The evidence custodians received an evidence destruction order from the state district court prior to destroying some of the evidence. Mangels attributed the mistaken effort to destroy evidence to a misunderstanding regarding the status of this case. He said the misunderstanding occurred because defendant pleaded guilty, but was later permitted to withdraw his guilty plea. There was no evidence which disputed this explanation for the destruction of the evidence.

Part of the charges in this case are premised upon contraband and weapons found in a 1989 Ford Taurus. The Taurus was searched after defendant was arrested, and the keys to the Taurus as well as methamphetamine and cash were found on his person. The Taurus was not registered to defendant. We assume that defendant will claim that the items in the Taurus belonged to another person or persons and that he did not possess them. Defendant appears to be arguing now that law enforcement officers either destroyed or did not seize items of evidence in the car which would support such a claim.

Defendant so far has failed to produce evidence and arguments which would support dismissal of the charges based on the destruction of evidence. Defendant has failed to identify any specific evidence which was destroyed and which is exculpatory. The court does not believe that items belonging to other persons or items that once belonged to other persons are exculpatory because they do not prove that defendant did not possess the Taurus and the illegal items which were contained inside. The mere possibility that the lost evidence could have exculpated a defendant does not establish the apparent exculpatory value of the evidence. U.S. v. Parker, 72 F.3d, 1444, 1451 (10^th Cir. 1995). Furthermore, witness testimony from the persons who owned or possessed other items in the Taurus could substitute for the items themselves. In addition, there may be witness testimony from the persons who seized the evidence, as well as pictures or photocopies of the evidence or evidence custody receipts which could be considered comparable to the evidence that was destroyed or not seized. For these reasons, defendant has failed to satisfy the Trombetta standard for dismissal.

Defendant has failed to meet the Youngblood standard as well because he has provided no evidence of bad faith on the government's part. There has only been evidence of negligence. Moreover, defense counsel has had access to the list of items which were seized from the vehicle prior to the destruction of some of those items. This negates a finding of bad faith. Defendant contends that bad faith is demonstrated by a lack of a policy to protect evidence and by the failure to seize items which may have belonged to others. Proof of both of these points is lacking. There was a policy that called for acquiring a destruction of evidence order. This shows good faith. Unfortunately, there was a failure to check first with the case agent prior to securing that order. This mistake does not prove bad faith. Moreover, there is no evidence yet of items in the Taurus which belonged to other people, how those items would be useful to the defense, and why there is no comparable evidence to compensate for the failure to seize or properly secure those items.

There has been a reference to a computer system which was found in the Taurus. But, there is no evidence that this was destroyed. If it was not seized, the court does not believe that shows bad faith, because by itself the presence of a computer system which at the time of the search or at some previous time belonged to another person, is not powerful evidence for the defense in this case. Many reasons consistent with guilt could explain why a computer system belonging to someone else might be in a car over which defendant maintained control.

After careful consideration, the court shall deny defendant's motion to dismiss.

Government's motion in limine regarding Joe Garman

Joe Garman was a Salina police officer and a material witness in this case. In 2004, almost two years after the events leading to the indictment in this case, there was an internal investigation conducted by the Salina Police Department which led to Garman's resignation. The investigation concerned the sending and receipt of inappropriate e-mails. The government's motion in limine asks that there be no reference made to Garman's departure from the police department during the trial. Defendant contends that cross-examination upon this matter is relevant and permissible under Rules 404(b) and 608(b).

The court has made an in camera inspection of a file produced by the Salina Police Department which contains materials relating to the internal investigation of the e-mail allegations and internal investigations of other complaints made against Garman during his career with the Salina police force. After a careful review, the court shall hold that the matters discussed in the materials presented to the court should not be referred to during cross-examination of Garman, or otherwise referred to without prior permission from the court. The fact that Garman no longer works for the Salina Police Department may be referenced during his examination. But, reference may not be made to and questions may not be asked concerning the reason for his resignation or the facts or allegations regarding the internal investigations documented in the file the court has examined in camera.

Rule 404(b) permits the introduction of evidence of "other crimes, wrongs, or acts . . . for [such] purposes . . . as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ." The court does not believe the items discussed in the file reviewed in camera are relevant to any of those purposes. They are not relevant to the investigation of the charges in this case. Nor are they relevant to how Garman conducted himself in similar investigations.

Rule 608(b) states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .

Our review of the matters presented for our inspection persuades us that they are not probative of Garman's truthfulness or untruthfulness and, therefore, not proper evidence under Rule 608(b). We would further find that any slight probative value which might be found to exist is outweighed by the possibility of confusion or prejudice, thus requiring exclusion under Rule 403. The court believes our holding is consistent with the Advisory Committee Notes to Rule 608, as well as the holdings in the following cases. U.S. v. Rosario Fuentez, 231 F.3d 700, 704-05 (10^th Cir. 2000) (no abuse of discretion in barring cross-examination regarding police officer's behavior during an internal affairs investigation); U.S. v. Saunders, 166 F.3d 907, 919-20 (7^th Cir. 1999) (no abuse of discretion in barring cross-examination on matters relating to an Office of Inspector General's report regarding an FBI agent); U.S. v. Hamell, 3 F.3d 1187, 1189 (8^th Cir. 1993) cert. denied, 510 U.S. 1138 (1994) (no abuse of discretion in barring cross-examination about an officer's dismissal from the police department for using illegal drugs and submitting false statements about drug use to investigators); U.S. v. Johnson, 968 F.2d 765, 766-67 (8^th Cir.) cert. denied, 506 U.S. 980 (1992) (no abuse of discretion in preventing cross-examination regarding internal police investigation).

Consistent with the comments made above, the government's motion in limine is granted. The materials reviewed by the courtin camera shall be a sealed exhibit maintained by the Clerk of the Court.

Motion to dismiss the third superseding indictment

The government is seeking to dismiss the third superseding indictment and to proceed upon the second superseding indictment. Defendant has objected to this motion and asks the court to require the government to proceed upon the third superseding indictment. Rule 48(a) of the Federal Rules of Criminal Procedure states in part that: "The government may, with leave of the court, dismiss an indictment, information or complaint." The court does not believe it is unfair or unjust to permit the government to dismiss the third superseding indictment. The dismissal of the third superseding indictment would not be contrary to the interests of justice or the public interest. Therefore, the motion to dismiss the third superseding indictment shall be granted.

IT IS SO ORDERED.