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holding that interest in grand-jury secrecy not outweighed by defendant's interest in disclosure of roll sheets
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Case No. 98-40083-01-RDR
August 2, 2002
MEMORANDUM AND ORDER
This case is now before the court upon several pretrial motions filed by defendant. A hearing was conducted upon these motions on July 19, 2002. Defendant has since filed a supplemental pleading in support of his motions. The government has filed a reply to that pleading. The court is prepared to rule.
On March 27, 2002, a superseding indictment was issued which provides the basis for the upcoming trial in this case. The superseding indictment has two counts. Count 1 alleges that from on or about August 1, 1995 to on or about September 30, 1995, defendant conspired with David Sahakian, Alan Hawley and others to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and § 841. Count 2 alleges that on or about August 15, 1995 and September 21, 1995, defendant aided and abetted the distribution of heroin in violation of Title 21 U.S.C. § 841 and 18 U.S.C. § 2.
The original indictment in this case alleged a conspiracy with Gregory Storey, Alan Hawley, Steven Ritter and others from January 1, 1995 until December 30, 1995 to possess with intent to distribute heroin. The events alleged in both indictments supposedly took place at the United States Penitentiary at Leavenworth, Kansas.
There have been two prior trials in this case. The first trial ended with a hung jury. The second trial resulted in a conviction which was overturned on the basis of an improper Allen charge.
The following motions were either ruled upon or taken under advisement during the hearing on July 19, 2002.
Motion for Notice of Rule 404(b) Evidence — Doc. No. 436
Federal Rule of Evidence 404(b) requires pretrial notice "of the general nature of any such evidence [a party] intends to introduce at trial." Defendant has requested that such notice be given prior to the trial in this case.
The government has provided the defendant with satisfactory notice in the government's response to defendant's motion. In addition, as the government notes, defendant has had the benefit of the knowledge obtained from two prior trials. Defendant has complained about references which were made to his alleged involvement in a conspiracy to murder and a stabbing incident, when these matters were not part of a prior 404(b) notice. If the evidence was admitted to impeach the testimony of a witness who had been questioned about defendant's character or history of prison conduct, then it was not 404(b) evidence. Furthermore, if the "evidence" was merely a question by counsel, then it was not evidence as the jury was instructed. In any event, defendant now has general notice of the 404(b) evidence anticipated for the upcoming trial. This notice is sufficient under the rule. See U.S. v. Jackson, 850 F. Supp. 1481 (D.Kan. 1994). Rule 404(b) does not require the production of any report substantiating the alleged conduct as part of the notice. It is not a rule of documentary discovery.
The government has sufficiently complied with the obligations of Rule 404(b). Therefore, the court shall consider defendant's motion moot.
Motion to compel discovery — Doc. No. 437
This motion lists 15 categories of material for discovery. The government has agreed to provide or has already provided the materials described in the first 5 categories. The government has also agreed to provide information in the category of "witness benefits." The court will only address in any detail those items to which there appeared to be a dispute at the time of the hearing.
Personnel files of DOJ or BOP personnel who are prospective witnesses —
Defendant requests a review of the case agent's and all other DOJ or BOP personnel files for: any evidence that a prospective government witness is biased or prejudiced against the defendant or has a motive to falsify or distort his testimony; any evidence that a witness has engaged in a criminal act, whether or not it has resulted in a conviction; any evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal or official misconduct; any evidence of medical or psychiatric reports or evaluations bearing upon a prospective witness's ability to "perceive, remember, communicate or tell the truth"; and any evidence that a witness has ever used narcotics.
The government states that it will provide the defendant with any impeaching information regarding its witnesses five days prior to trial. The court believes this will satisfy the government's obligation with respect to the personnel files of its witnesses.
Jencks Act material —
Under the category of "Jencks Act material" defendant requests the written statement "which the government sent to Judge Ideman in Los Angeles as a Rule 35(b) Motion for Charles `Beaver' Moorman's reduction in sentence as payment for services rendered." The court agrees with the government that this is discoverable material, although it is not Jencks Act material. The court assumes the statement will be produced for defendant if Moorman testifies in the next trial.
The other part of defendant's request under this category is for notes or Form 302 interviews done by FBI Agent Conway of Carl Lockhart, Daniel Tavale and Donna Stauffer. The government has, of course, committed itself to complying with the terms of the Jencks Act. If the material requested by defendant exists and qualifies as Jencks Act material, the court would urge the government to produce it for defendant five days prior to trial. The Jencks Act does not require production prior to the conclusion of the direct examination of a witness. However, to avoid delay in the trial of the court, the court would encourage pretrial production of the material and ask that defendant follow the same schedule.
Disciplinary records and drug testing results —
Defendant seeks the disciplinary and drug testing reports on any witness who testified against defendant in the previous two trials. Specifically, defendant is seeking this material for the time period when these witnesses have been in protective custody. The government objects that this request is overbroad. The court shall order production of such reports only to the extent that the material could be considered impeachment material under Giglio. That production should be made five days before trial.
Inmate housing quarters history —
Defendant seeks production of documents or information showing where government witnesses have been housed so that he might establish whether the witnesses have been able to make contact with each other and perhaps achieve greater conformity in their testimony. At the hearing on this motion, counsel for the government indicated that he would try to obtain this information at least for when the witnesses were housed in the nearby CCA facility. The court shall not direct the government to make any additional effort to obtain this information beyond what counsel has offered to provide.
Names of alleged unindicted co-conspirators —
Defendant seeks disclosure of the names of all alleged co-conspirators in this matter. Previously, the court ordered such disclosure when the conspiracy alleged was over the course of a full year's time and there was a greater possibility of surprise. However, given the current status of this case, which has been tried twice and is now proceeding upon an indictment with a much shorter time period, the court does not believe it is as necessary to direct the government to disclose any unindicted co-conspirators. Defendant has a full understanding of the government's theory of the case now, and the shorter period of the alleged conspiracy further lessens the opportunity for unfair surprise. Therefore, the court shall not direct that this disclosure be made. Cf., U.S. v. Richards, 94 F. Supp.2d 304, 316 (E.D.N.Y. 2000) (names of unindicted coconspirators need not be released where defendants have had access to these details through discovery material, such as transcripts of earlier trials involving the same conspiracy, and other representations by the government).
Statements of co-conspirators —
Defendant seeks the production of any statements of co-conspirators. The government has indicated that while nothing new will be offered at the next trial, counsel will look to determine if any evidence will include the statements of co-conspirators. The court is not aware of a rule requiring the disclosure of statements of co-conspirators. The court often does conduct James hearings to determine the admissibility of such statements. Obviously, disclosure of the statements occurs during a James hearing. In this instance, however, a James hearing would not appear necessary because of the prior trials in this case. Upon review, the court shall not order any disclosure beyond that volunteered by the government.
Polygraph examinations —
Defendant seeks disclosure of the results of any polygraph examinations conducted on any and all government witnesses in connection with the investigation of this case. At the hearing on this matter, defendant appeared to be willing to limit his request to the identification of who has taken a polygraph examination. The government has already told defendant that any person who entered the witness security program was given a polygraph examination. The court shall not order further disclosure by the government on this issue beyond any information which is required to be disclosed under Brady or Giglio.
SIA/SIS Investigation Reports Memoranda —
Defendant seeks certain reports or internal memoranda which were used to produce a report by Lt. C.H. Mildner in January 1996, which discusses drug trafficking at USP-Leavenworth during the time in question and which makes reference to defendant and many other persons. This report was revealed during the last trial of this case and its materiality and importance to the matters at issue has been a matter of dispute. See U.S. v. McElhiney, 275 F.3d 928, 933 (10th Cir. 2001). The government's duty of disclosure in this case is governed by the Brady standard. If there are reports which contain exculpatory material, then the government is obliged to produce those reports. Otherwise, the court is not aware of any authority requiring the production of the reports. Therefore, the court will only require production consistent with the government's duties under Brady.
FBI 302s of interviews of inmates named in Lt. Mildner's report —
The court will apply the same holding to this part of defendant's motion for discovery. If there were such interviews, the disclosure of any reports of the interviews shall be governed by the Brady standard. We note that often 302 reports are not considered as Jencks material. U.S. v. Williams, 998 F.2d 258, 269 (5th Cir. 1993) cert. denied, 510 U.S. 1099 (1994); U.S. v. Foley, 871 F.2d 235 (1st Cir. 1989). Of course, if there is a question as to whether the 302 reports qualify as Jencks Act material, the reports should be submitted for review in camera.
Motion for disclosure of personnel to whom grand jury transcripts and materials were disclosed and to affirm or deny the use of summaries before the grand jury — Doc. No. 434Defendant cites FED.R.CRIM.P. 6(e)(3)(A)(ii) (B) for this motion. This provision states:
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to —
. . . (ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.
(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.
The court does not believe these provisions support the requested disclosure. However, the court has examined the grand jury transcript for the superseding indictment which the government has agreed to produce for defendant. The court sees no indication in the transcript that summaries were used for the grand jury. In addition, the court is unaware of any notice of disclosure given to the court. As indicated, the court is not aware of any authority supporting any additional disclosure of information to defendant. Accordingly, the motion shall be denied to the degree defendant is seeking more information than what has already been provided.
Motion to inspect grand jury records — Doc. No. 435
This motion requests seven categories of information: 1) any order reflecting the beginning or extension of the term of the grand jury that returned the indictment and superseding indictment in this case; 2) roll sheets reflecting attendance records of the grand jurors and any substitutions; 3) records setting forth the method by which the grand jury was impaneled; 4) voting records related to any decision to extend the life of the grand jury; 5) all records of disclosure of the names of persons receiving information about matters occurring before the grand jury (as defined in Rule 6(e)); 6) a list of all persons to whom grand jury materials were disclosed, the dates of such disclosure, letters or warnings given to any persons regarding disclosure, and any petition for disclosure or notification of disclosure given to the court concerning such disclosure; and 7) a copy of all grand jury subpoenas for documents or testimony issued in this case, as well as the dates materials obtained from these subpoenas were returned to the grand jury and a list of all exhibits or documentary evidence presented to the grand jury.
There is no objection to the first, third and fourth request as long as any disclosure does not reveal the identities of grand jurors. The court requests that government counsel, standby counsel and the Clerk of the Court work together to execute this exchange of information.
The court shall not direct that roll sheets be produced for defendant. The traditional interests in the secrecy of grand jury proceedings have not been outweighed by any interest defendant has shown in the disclosure of the roll sheets.
Items five and six in the list appear to duplicate requests made in conjunction with the previously discussed motion. The court shall maintain the position taken with regard to that motion.
Finally, no justification has been established for the seventh item on defendant's list. The need for such information appears minimal since defendant will receive a transcript of the proceedings leading to the superseding indictment. No "particularized need" for additional information has been established. See U.S. v. Warren, 747 F.2d 1339, 1347 (10th Cir. 1984) (discussing the standard for disclosure of grand jury information). Therefore, this request shall be denied.
In sum, the motion to inspect grand jury records is granted and denied in part.
Motion to dismiss on the basis of vindictive prosecution — Doc. No. 441
In this motion, defendant contends that this case is being tried for the third time in retaliation for defendant's inquiries regarding the revival of a civil RICO lawsuit against various officials of the government. The civil lawsuit apparently was filed in the District Court for the District of Columbia in 1999, but dismissed on the grounds of Heck v. Humphrey, 512 U.S. 477 (1994). Defendant states that after he made inquiry about reviving his lawsuit following the Tenth Circuit's order reversing his conviction, the government asked for time to consider a request for a rehearing en banc and later pursued a superseding indictment and the continuation of this prosecution. Defendant further states that the prosecuting attorney remarked in casual conversation with defendant at the close of the second trial of this case that there would not be another trial, and told a friend of defendant's in a telephone conversation in January 2002 that he did not know if the case would be retried. Defendant contends that these circumstances support his claim that the decision to retry the case was made in response to defendant's interest in renewing his civil litigation.
Defendant has the burden of proving prosecutorial vindictiveness and "must establish either (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness. Thereafter, the burden shifts to the prosecution to justify its decision [to prosecute] with legitimate articulable, objective reasons." United States v. P.H.E., Inc., 965 F.2d 848, 860 (10th Cir. 1992). A "realistic likelihood of vindictiveness" must be cautiously evaluated. See United States v. Goodwin, 457 U.S. 368, 381 (1982). In U.S. v. Miller, 948 F.2d 631 (10th Cir. 1991) cert. denied, 503 U.S. 912 (1992), the Tenth Circuit did not find a realistic likelihood of vindictiveness in a situation where a defendant was indicted after he had filed civil lawsuits against the government stemming from his termination from employment.
A decision to prosecute is not vindictive if it is "`based upon the normal factors ordinarily considered in determining what course to pursue.'" United States v. Raymer, 941 F.2d 1031, 1042 (10th Cir. 1991) (quoting U.S. v. DeMichael, 692 F.2d 1059, 1062 (7th Cir.) cert. denied, 461 U.S. 907 (1983)). The standard is "whether, `as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or punitive animus towards the defendant because he exercised his specific legal right.'" Raymer, 941 F.2d at 1042 (quoting U.S. v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982)).
This case was originally brought before defendant filed his civil lawsuit. It has been tried twice. The first time a great majority of jurors were in favor of conviction. The second time defendant was convicted only to have the conviction reversed on the basis of an improper Allen charge. Therefore, there is reason to believe that a jury could be convinced of defendant's guilt. There is no proof that the person who made the decision to try this case a third time, who apparently is superior in rank to the prosecuting attorney, had any knowledge of the civil lawsuit. Finally, defendant has been suspected to have played a leadership role in a prison gang and to have had some involvement in a prison murder. These are factors which may legitimately be considered while making a decision to prosecute a case. Under these circumstances, the court finds that defendant has failed to demonstrate either actual vindictiveness or a reasonable likelihood of a vindictive prosecution.
Hence, the motion to dismiss shall be denied.
Motion to Dismiss Indictment on the basis of Selective Prosecution — Doc. No. 446
Defendant has brought a motion to dismiss on the basis of selective prosecution. He also seeks some discovery related to this motion. Defendant contends that he is being prosecuted because he is allegedly a member of the Aryan Brotherhood, while inmates of different races who allegedly belong to other designated disruptive groups inside the prison system have not or are not being prosecuted. In support of this argument, defendant states that while he had one positive drug test in 1995 and that has been used as evidence against him, many other inmates of other disruptive groups also had positive drug tests in 1995 (sometimes multiple positives) and were not prosecuted. Defendant also notes that he is just the third of four drug indictments out of Leavenworth Penitentiary in 10 years and that all of the indictments have involved alleged Aryan Brotherhood members. Defendant has listed Dallas Scott and Larry Mayes as examples. These inmates were indicted together in 1989. See Case No. 89-30007.
"A defendant who claims he was targeted for prosecution because of race is entitled to discovery on that claim only if he presents `some evidence tending to show the existence of the essential elements of the [selective prosecution] defense, discriminatory effect and discriminatory intent.'" United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001) (quoting United States v. Armstrong, 517 U.S. 456, 468 (1996)). Defendant "need not establish a prima facie case of selective prosecution to obtain discovery. . . . Nevertheless, given the heavy burden that discovery can impose on the government . . . the showing necessary to obtain discovery for a selective prosecution defense must `itself be a significant barrier to the litigation of insubstantial claims.'" James, 257 F.3d at 1178 (quoting Armstrong, 517 U.S. at 468, with other citations omitted).
In this case the court does not believe defendant has provided a sufficient showing of selective prosecution to obtain discovery or to dismiss the indictment. The drug test evidence is just one item of proof in this case. There are also messages written by defendant and by other inmates which the government contends are incriminating. In addition, there is testimony from inmates as well as government officers. In other words, the proof which has led to this prosecution involves much more than a positive drug test. Moreover, the charge in this case is not possession of drugs but conspiracy to possess with intent to distribute, a charge which requires more proof than a positive drug test. In addition, it seems clear that this case developed from an investigation of a prison murder. An alleged conspiracy to import and distribute drugs within the institution provided the backdrop for the murder. As the investigation progressed, a decision was made to bring drug charges, rather than murder charges, against defendant. But, the context of the investigation as well as defendant's alleged role within a prison gang, provides further grounds which distinguish this case from any case involving other alleged gang members who have had a positive drug test. The conscious exercise of some selectivity in enforcement on the basis of factors such as these is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978) (quoting, Oyler v. Boles, 368 U.S. 448, 456 (1962). Finally, the other cases brought against alleged Aryan Brotherhood members are too few in number to produce any inference of selective prosecution.
In light of all of these circumstances, defendant has been unable to provide sufficient proof of discriminatory intent or effect to justify additional discovery into his selective prosecution claims or dismissal of the indictment.
Motion to dismiss indictment based on prosecutorial misconduct before the grand jury — Doc. No. 440
Defendant asserts that the indictment should be dismissed because of inflammatory remarks made to the grand jury regarding defendant's alleged involvement with the Aryan Brotherhood, what the Aryan Brotherhood is within the prison, and defendant's alleged involvement in a prison murder.
In response, the government notes that the prosecution is now proceeding upon a superseding indictment issued by a different grand jury. The court has examined the transcript of the proceedings before the grand jury that issued the superseding indictment. The court finds nothing in that transcript which suggests flagrant misconduct or substantial prejudice.
"An indictment may be dismissed for prosecutorial misconduct which is flagrant to the point that there is some significant infringement on the grand jury's ability to exercise independent judgment." U.S. v. Pino, 708 F.2d 523, 530 (10th Cir. 1983). To reiterate, we find no misconduct in the proceedings before the grand jury that issued the superseding indictment. Any misconduct before the original grand jury would be harmless because the court is not proceeding upon that indictment. However, we do not view the comments to which defendant objects to constitute flagrant misconduct either, particularly when the prosecutor urged the grand jury to focus on the drug charge as opposed to other information in deciding whether to bring the original indictment. See United States v. Rodriguez, 738 F.2d 13, 16-17 (1st Cir. 1984) (testimony before grand jury that there was strong suspicion that defendant was involved in drugs did not warrant dismissal of indictment charging defendant with passport fraud when grand jury was told to disregard such testimony).
Therefore, the court shall deny this motion to dismiss.
Motion to dismiss indictment grounded upon a structural deficiency — Doc. No. 445
The court denied this motion during the hearing on this case for two reasons. First, there is no structural deficiency in the indictment. The superseding indictment properly alleges a violation of the drug laws under Title 21. Defendant's argument regarding 18 U.S.C. § 1791 is not relevant because a violation of that statute is not alleged. Second, there is no requirement to allege a violation under § 1791 as opposed to 21 U.S.C. § 846, because the government has the discretion to charge under either statute. Section 846 makes it illegal to conspire to possess with intent to distribute certain drugs. Section 1791 makes it illegal to possess a prohibited object, such as narcotic drugs, inside a prison. These are simply two different crimes. The prosecution has the option of charging either or both statutes if it desires.
Motion to dismiss based upon outrageous governmental misconduct — Doc. No. 444
Defendant alleges that letters he has sent to witnesses through his standby counsel, mail he has sent his investigator, and letters his investigator has sent to him have been opened by persons working for the Bureau of Prisons or Department of Justice and, in turn, that trial strategies or work product discussed in those letters have been shared with the prosecution. Defendant further asserts that his investigators' efforts to interview witnesses were disrupted by Bureau of Prisons' actions and that his witnesses have been subject to retaliation after testifying for defendant in this case. Defendant further contends that the interference with his mail occurred in spite of an informal agreement on April 9, 1999 by which defendant agreed to have a BOP officer screen his communications for improper content and then forward them if the communications appeared to be legitimate.
Speaking in the context of conduct which violated a defendant's Sixth Amendment right to counsel, the Supreme Court has stated, "[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." United States v. Morrison, 449 U.S. 361, 365 (1981). In Morrison, law enforcement agents spoke alone with a person who they knew had been indicted and had retained counsel and they offered that person benefits in return for cooperation. However, no cooperation was forthcoming and although the Court termed the agents' behavior "egregious", the Court found no grounds to dismiss the indictment since no prejudice had been shown. Similarly, in Weatherford v. Bursey, 429 U.S. 545 (1977), the Court held there was no Sixth Amendment or Fourteenth Amendment violation although an undercover agent participated in meetings between a criminal defendant and his counsel prior to trial because of the absence of proof of prejudice to the defendant.
In the instant case, defendant has provided evidence that some envelopes containing communications to witnesses or his investigator were opened. There is also evidence that some mail delivery through his standby counsel was interrupted. Defendant has also presented a copy of a magazine article stating that a group of inmates placed in "H-unit" at ADX-Florence was organized and received benefits in return for providing and analyzing information for the Bureau of Prisons. The article indicates inter alia that these inmates were given inmate-to-inmate messages (also known as "kites") to decipher. Defendant has also forwarded part of a written statement of John Greschner, an inmate at ADX-Florence and previous witness in this case. Greschner has stated that he was told in encrypted messages from Danny Weeks, an ADX inmate who is discussed in the magazine article about the "H-unit", that inmates in the unit were given "All of Mac's [the defendant's] confidential legal mail and trial strategies." According to Greschner, he was told that this material was:
Greschner was called as a defense witness for the second trial, but gave testimony favorable to the prosecution to the surprise and dismay of defendant. Defendant complains that the prosecution did not advise him of Greschner's decision to consult with the prosecution and give pro-government testimony. But, this did not violate any obligation of the government. The government had no responsibility to inform defendant that one of his witnesses had approached the government and indicated an intent to testify favorably for the government.
"searched for codes and interpreted [for] trial strategies which were forwarded to [the] AUSA [in] Topeka handling [the] case, slang interpretations were given incriminating spins and were forwarded by SIS Smith to [government] inmate witnesses on [the] case for use at trial. We downloaded all your [Greschner's] trial testimony from [the] internet on [the] office computer almost real time."
The court received a copy of Greschner's "affidavit" several weeks prior to the filing of defendant's motion. A copy of the "affidavit" shall be a sealed part of the record in this case.
The government finds defendant's claims to be incredible and ridiculous. The prosecution denies receiving any information regarding defendant's theories of defense and disputes the "privileged" nature of defendant's communications.
The court finds the claim that Greschner's trial testimony was downloaded from the internet almost real time, to be completely unbelievable, and this casts considerable doubt upon the rest of Greschner's information, which he admits is second-hand. Greschner's affidavit is the only tie between the article regarding H-Unit at ADX and the alleged interception of defendant's work product for the purpose of learning his trial strategies. The court does not believe this happened or, if it did, that it caused prejudice to defendant. Defendant suggests that the prosecution may have learned what he might assert the "kites" meant, and was then able to coach government witnesses how to contradict these innocent meanings. This does not seem plausible to the court. The kites largely speak for themselves. While there is some inmate code, it would be obvious to any attorney or investigating agent at the beginning that it was important to determine what certain specific terms meant. The government called some witnesses who actually received the kites or lived in the prison system during the time in question and therefore should have knowledge as to the meaning of the kites. The court does not believe that the testimony of these witnesses was altered because they had advance knowledge of what defendant might claim the kites meant. Nor has defendant pointed to proof of where such advance knowledge was evident or detrimental to his case.
Regarding interference with witness interviews or other actions taken by defendant's investigators, these matters arose during the period prior to the first trial of the case. The court believes that these problems were smoothed over eventually after discussions among court staff and various persons involved. The court has no reason to believe that ultimately the defense was significantly hampered because of these problems. The court notes that in more than one order, the court directed that no information be disclosed by the Bureau of Prisons to the case agent and the prosecuting attorney regarding defendant's actions in defending the case. See order dated May 21, 1999 and order dated July 16, 1999.
Finally, regarding the allegation of retaliation, the court has no proof before it to establish the claim of retaliation. Nor is there any evidence that the alleged retaliation affected the previous trials or may affect the upcoming trial.
For the above-stated reasons, the court shall deny the motion to dismiss for outrageous prosecutorial misconduct.
IT IS SO ORDERED.