Opinion
Criminal No. 10-82 (DMC).
March 8, 2011
OPINION
This matter comes before the Court upon a series of motions made by Defendant Barrington Delisser ("Defendant") and the United States of America (the "Government"). After considering the submissions of the parties, and for the reasons stated in this Court's Opinion filed on this day;
IT IS on this 8th day of March, 2011;
ORDERED that Defendant's motion for a hearing to suppress all evidence seized is denied;
ORDERED that Defendant's motion to conduct a hearing to determine the admissibility of any statements by him to law enforcement is denied as moot;
ORDERED Defendant's motion to compel the Government to produce a list of potential witnesses is denied;
ORDERED that Defendant's motion seeking an order to produce all "rough notes" created in the course of its investigation is granted;
ORDERED that Defendant's motions to disclose any and all Brady,Gigilio, and Jencks materials are granted;
ORDERED Defendant's motion to compel disclosure of the identity of a confidential source is reserved;
ORDERED Defendant's motion for a hearing to determine the admissibility of any statements made by co-conspirators is reserved;
ORDERED that the Government's motion for an order seeking reciprocal discovery from Defendant is granted;
OPINION
This matter comes before the Court upon a series of motions made by Defendant Barrington Delisser ("Defendant") and the United States of America (the "Government"). After considering the submissions of the parties, and based upon the following, the Court finds that: Defendant's motion for a hearing to suppress all evidence seized is denied; Defendant's motion to conduct a hearing to determine the admissibility of any statements by him to law enforcement is denied as moot; Defendant's motion to compel the Government to produce a list of potential witnesses is denied; Defendant's motion seeking an order to produce all "rough notes" created in the course of its investigation is granted; Defendant's motions to disclose any and all Brady, Gigilio, and Jencks materials are granted; Defendant's motion to compel disclosure of the identity of a confidential source is reserved; Defendant's motion for a hearing to determine the admissibility of any statements made by co-conspirators is reserved; the Government's motion for an order seeking reciprocal discovery from Defendant is granted.
I. BACKGROUND
The facts in the Background section have been taken from the parties' moving papers and the Opinion of the Court issued in this matter on April 14, 2010.
HSI agents conducted surveillance of the Hotel later that afternoon. In the evening, agents observed a Ford Fusion matching the information provided by the CS pull into the Hotel's parking lot. The agents watched as two black men, later identified as Defendant and co-conspirator Lydney Gordon ("Gordon"), exited the vehicle and entered the Hotel carrying a dark-colored rolling suitcase, a dark colored computer bag, and a light colored plastic bag. The men exited the Hotel twenty-five minutes later, carrying what appeared to be the same luggage they entered with as well as an additional light colored rolling suitcase. Agents observed the men place the luggage in the Ford Fusion and drive away.
Shortly thereafter, marked units of the Harrison Police Department stopped the Ford Fusion. Though Defendant initially gave police consent to search the luggage in the vehicle, he withdrew that consent before the search began. In response, police deployed a narcotics detection dog to the scene. Within minutes, the dog alerted its handler to the presence of a controlled substance inside the vehicle. HSI agents then obtained a federal search warrant to search the Ford Fusion. A search uncovered 960 grams of cocaine and pens used for the detection of counterfeit currency, several cell phones, a GPS device, several receipts and approximately $2200 in cash. Defendant and Gordon were subsequently arrested.
A warrantless search of the abandoned Hotel room uncovered: an Office Depot sales receipt dated September 9, 2009 for a digital scale; several pens used to detect counterfeit currency; a manual for an electronic scale; numerous air fresheners; an open box of fabric softener sheets; a can of aerosol air freshener; and a stick of incense.
Defendant immediately invoked his right to counsel during post-arrest interviews and was not questioned thereafter. Gordon waived his rights and agreed to speak with agents. Over the course of several interviews, Gordon informed agents that he and Defendant had driven from Florida to New Jersey in order to distribute multiple kilograms of cocaine in conjunction with three other men. Gordon, Defendant, and a colleague, used the Hotel as the base of their New Jersey operation. The night of Defendant's arrest, he and Gordon had discovered that the third man had abandoned the hotel room, taking nearly all of the cocaine and money stored in the room with him. Defendant and Gordon feared that this man fled with cocaine sales proceeds and so they immediately gathered their belongings (including the remaining cocaine and money) and abandoned the Hotel, without intending to return.
On February 25, 2011, Defendant was charged in a superseding indictment with conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine and distribution of 500 grams or more of cocaine.
II. DISCUSSION
1. Motion to Suppress Seized Evidence
Defendant requests a hearing to determine the admissibility of seized evidence. A defendant is only entitled to a pretrial evidentiary hearing when the moving papers "demonstrate a `colorable claim' for relief." United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996) (citations omitted). "In order to be `colorable,' a defendant's motion must consist of more than mere bald-faced allegations of misconduct. There must be issues of fact material to the resolution of the defendant's constitutional claim." Id. Here, Defendant has offered absolutely no allegations of misconduct and states only that that "some items taken in this case were seized with and without a warrant." Defendant does not allege that any items were improperly seized or that any of Defendant's rights were violated. Thus, defendant has failed to satisfy the burden of proving that a suppression hearing is necessary.
2. Motion for a Hearing to Determine the Admissibility of Defendant's Statements
The Government represents that it is "unaware of any statements taken by [Defendant] as he invoked his right to counsel immediately . . . following arrest" and that "[i]f the government becomes aware of any such statement, it will be provided to defense pursuant to the terms of the Order for Discovery previously entered by this Court." Gv't's Br. 10-11. Seeing as how there are no statements for the Court to consider at this time, the motion for a hearing is dismissed as moot.
3. Motion for Production of Witness List
As Defendant concedes, the Government is under no obligation to supply Defendant with a list of witnesses, United States v. Addonizio, 451 F.2d 49, 64 (3d Cir. 1972), and the Court find no reason for such a list to be produced. Therefore, this motion is denied.
4. Motion for Preservation of Handwritten Notes
Defendant requests that the Government preserve all of the "rough notes" recorded by law enforcement officers in connection with its investigation. In response, the Government has acknowledged its obligation to preserve notes of interviews and handwritten drafts of reports and asserts that it will abide by this requirement. See United States v. Ammar, 714 F.2d 238, 259 (3d Cir. 1983). Accordingly, Defendant's motion for the preservation of these documents is granted.
5. Motion for Production of Brady and Giglio Materials
Defendant next moves for the disclosure of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and impeachment materials under Giglio v. United States, 405 U.S. 150 (1972). The Government has expressed its intent to comply with the Discovery Order issued by this Court, and states that it currently is unaware of any Brady evidence. It appears the only remaining issue is the timing of Giglio disclosures, with the Defendant apparently requesting immediate disclosure. Though Giglio materials need not be disclosed pre-trial, given the imminency of impending trial date, the Court sees no reason to delay the production of these materials. Thus, Defendant's motion is granted and Giglio evidence is to be turned over immediately.
6. Motion to Compel Disclosure of Confidential Source
Given the lack of information presented to the Court by the Government regarding the CS. The Court reserves a decision on this motion until the commencement of trial.
7. Motion for a Hearing to Determine the Admissibility of Co-Conspirator Statements
Given that there is no indication by the Government as to whether any co-conspirator statements will be presented at trial, the Court reserves judgment on this motion until the time of trial.
Motion to Compel Disclosure of Jencks Material
The Government has indicated that it recognizes its obligation under the Jencks Act. Given the proximity of trial, the Court directs the immediate disclosure of these materials to Defendant.
8. Motion by Government for Reciprocal Discovery
Given the proximity of trial, and the fact that the Government has complied with Defendant's pre-trial discovery requests, the Court grants pre-trial reciprocal discovery to the Government pursuant to Federal Rules of Criminal Procedure 16(b)(1)(A) and (B).
III. CONCLUSION
For the reasons stated above, the parties' motions are decided as follows: Defendant's motion for a hearing to suppress all evidence seized is denied; Defendant's motion to conduct a hearing to determine the admissibility of any statements by him to law enforcement is denied as moot; Defendant's motion to compel the Government to produce a list of potential witnesses is denied; Defendant's motion seeking an order to produce all "rough notes" created in the course of its investigation is granted; Defendant's motions to disclose any and all Brady, Gigilio, and Jencks materials are granted; Defendant's motion to compel disclosure of the identity of a confidential source is reserved; Defendant's motion for a hearing to determine the admissibility of any statements made by co-conspirators is reserved; the Government's motion for an order seeking reciprocal discovery from Defendant is granted.
Date: March 8, 2011
Original: Clerk's Office