Opinion
Case No. 02-40014a-01-RDR
December 30, 2002
MEMORANDUM AND ORDER
On December 13, 2002 the court held a hearing on two motions recently filed by the defendant. At that time, the court inquired about a number of pretrial motions filed previously by the defendant proceeding pro se, even though he had appointed counsel. The defendant's present counsel indicated that he was not willing to withdraw those motions. Accordingly, the court shall consider those motions as well as the recently filed motions.
Prior to the hearing, the defendant filed a motion for continuance. The motion was filed based upon a belief that the court would be hearing evidence on the motion to suppress. The court explained to counsel for the defendant that we intended to hear only his motion to reopen the suppression hearing. Accordingly, the motion for continuance was denied.
The defendant was originally indicted on January 30, 2002. At that time he was charged with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The charge arose from a traffic stop on December 21, 2001. The case was originally assigned to Judge Robinson. Marilyn Trubey was appointed to represent the defendant. Eventually, Ms. Trubey sought to withdraw. Her motion was granted and Kay Huff was appointed to represent the defendant. She filed various motions on his behalf, including a motion to suppress.
Judge Robinson held a hearing on the motion to suppress and orally denied it. She concluded that there was no basis to suppress any evidence. She found that there was probable cause to stop the vehicle and then probable cause to arrest and search the defendant.
After that ruling the defendant filed a number of pro se motions. The defendant also filed a pro se appeal of the suppression order. Ms. Huff then moved to withdraw. The court allowed her to withdraw and appointed Mike Jackson. Following the appointment of Mr. Jackson, a superseding indictment was filed. The superseding indictment added a charge of possession with intent to distribute ecstasy in violation of 21 U.S.C. § 841(a)(1). Mr. Jackson was given time to file more motions, and he then filed the following motions: (1) motion to reopen suppression hearing (Doc. #95); and (2) motion for defense inspection of documents (Doc. #94).
MOTION FOR DEFENSE INSPECTION OF DOCUMENTS (Doc. #94)
The defendant seeks an inspection of document nos. 26 through 39 that have been sealed by the court at the request of the government. The defendant contends that inspection is necessary to determine whether the documents contain any exculpatory information that must be produced pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
The government opposes this motion and contends that the documents are neither exculpatory nor discoverable. The government suggests that these documents do not contain any information that falls within the requirements of Brady. Nevertheless, the government invited the court to conduct an in camera review to determine whether they are discoverable.
Based upon the arguments, the court is not persuaded that an in camera review of the documents is necessary. Nevertheless, the court did examine the documents again. The court does not find any material in these documents that is exculpatory or discoverable by the defendant. Accordingly, this motion is denied.
MOTION TO REOPEN SUPPRESSION HEARING (Doc. #95)
The defendant seeks to reopen the suppression hearing that was held before Judge Robinson on May 20, 2002. The defendant contends that the dispatch transcript, which was prepared by Officer Bryan Wheeles on July 8, 2002 is "newly discovered evidence of the type that would warrant reopening the suppression hearing." The defendant suggests that "[i]f the government had made the dispatch transcript available to the defense prior to the hearing, then the transcript could have been used during cross-examination of the government's witnesses" and "could reasonably have altered the Court's decision to reply on the testimony of the officers." The defendant also suggests that the suppression hearing should be reopened to prevent manifest injustice. He contends that the dispatch transcript shows various inconsistencies in the testimony of the officers given at the earlier suppression hearing.
The government argues initially that the transcript is not new evidence because defense counsel had a copy of the dispatch tape prior to the suppression hearing. Accordingly, the government suggests that the defendant had access to the tape and the government was not required to provide the defendant with a copy of the transcript. The government also strongly disagrees with the defendant that the transcript shows any perjury by either of the officers. The government asserts that the transcript shows innocent failure of recollection or misrecollection at worst. The government believes that the transcript is generally consistent with all of the testimony given by the officers at the suppression hearing.
Having carefully considered the arguments of the parties, the court has determined that the defendant's motion should be granted. The court believes that a new suppression hearing will allow the matters raised by the defendant to be thoroughly considered and will allow the court the opportunity to resolve those issues.
MOTION TO DISMISS DUE TO SUPREME COURT RULING ON ROUTINE TRAFFIC STOPS (Doc. #57)
The defendant seeks dismissal based upon a recent decision by the New Jersey Supreme Court, State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002). He contends that this ruling compels dismissal of the instant case.
In Carty, the New Jersey Supreme Court, in an effort to protect motorists from racial profiling, placed limits on the searches that can be conducted of vehicles without warrants. The court ruled that police cannot ask to search a vehicle they have stopped unless there is reasonable suspicion that criminal activity is occurring. Carty, 790 A.2d at 912. In reaching this decision, the court made clear that its ruling was based on New Jersey law, not federal constitutional law. Id. at 912-914.
Judge Robinson had an earlier hearing on this motion and heard argument on it. She took it under advisement until the appeal of the ruling on the motion to suppress was decided. She, however, has never ruled on the motion.
As correctly pointed out by the government, this ruling does not require dismissal here for several reasons. First, the ruling is from a state supreme court based on state law. It is not a ruling that this court must follow. Second, it is factually distinguishable from this case. In Carty, the court was concerned with the propriety of consent searches after a traffic stop. This case does not involve a consent search. Accordingly, this motion shall be denied.
APPLICATION FOR RECONSIDERATION OF MOTION FOR DISMISSAL OF INDICTMENT (Doc. #69)/MOTION TO DISMISS FOR LACK OF PROBABLE CAUSE (Doc. #76)
In his motion for reconsideration, the defendant seeks dismissal of the indictment because he contends that he has documents that show that Officer Wheeles and Officer Endsley committed perjury during their testimony at the hearing on the motion to suppress. The defendant points to the following evidence: (1) dispatch records show that Officer Wheeles knew that the car he was stopping belonged to the defendant; (2) dispatch records show that Officer Wheeles never informed the dispatcher he was following a car because he suspected that the driver was intoxicated; (3) dispatch records show that Officer Wheeles never sought information from the dispatcher on the defendant's Kentucky or Kansas driver's licenses; (4) dispatch records show he was searched prior to any contact with the dispatcher and any information received from dispatcher; and (5) Kentucky records show that his Kentucky driver's license was valid.
In his motion to dismiss for lack of probable cause, the defendant contends that the indictment must be dismissed because (1) the stop of his vehicle was illegal, and (2) he never possessed any crack cocaine.
It is well-settled that an indictment returned by a legally constituted grand jury, if facially valid, is sufficient to require a trial on the merits. See United States v. Calandra, 414 U.S. 338, 345 (1974); United States v. Diaz, 675 F. Supp. 1382, 1389 (E.D.N.Y. 1987). Moreover, "[a]n indictment, if valid on its face, may not be challenged on the ground that it is based on inadequate evidence." United States v. Casamento, 887 F.2d 1141, 1182 (2nd Cir. 1989), cert. denied, 493 U.S. 1081 (1990). Any challenge to the sufficiency of the evidence must be made at trial at the close of the government's case pursuant to Fed.R.Crim.P. 29. Accordingly, these motions are denied.
MOTION FOR DISMISSAL FOR LACK OF JURISDICTION (Doc. #73)
The defendant contends that the court lacks jurisdiction to hear this case because it occurred in Kansas, and not on federal property. He suggests that the federal government has no authority to prosecute him because he is a resident of the "sovereign" State of Kansas. He further contends that this case must be brought in state court because there is no allegation that the drugs in question were from out of state.
The law is well-settled that Congress may regulate both intrastate and interstate drug trafficking under commerce clause powers because of the effect that intrastate drug activity has upon interstate commerce. See United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995); see also United States v. Davis, 288 F.3d 359, 362 (8th Cir. 2002); United States v. Brown, 276 F.3d 211, 215 (6th Cir. 2002). The findings which Congress made in enacting the Controlled Substances Act, 21 U.S.C. § 801(2)-(6), demonstrate that local manufacture and distribution of controlled substances substantially affect interstate traffic in those substances. Wacker, 72 F.3d at 1475. Accordingly, since Congress acted within its commerce clause authority in enacting the Controlled Substances Act, there is federal jurisdiction over the charges against the defendant. In addition, the defendant's suggestion that the federal government lacks jurisdiction to prosecute him for narcotics offenses because he is a resident of the "sovereign" State of Kansas is frivolous. See 18 U.S.C. § 3241; United States v. Lorenzo, 995 F.2d 1448, 1456 (9th Cir. 1993) (district court has criminal jurisdiction over Hawaiian residents who claim that they are citizens of the Sovereign Kingdom of Hawaii and not of the United States). Therefore, this motion must be denied.
MOTION TO HAVE NEW EVIDENCE HEARING FOR NEW UNHEARD EVIDENCE (Doc. #75)
The defendant seeks to have a new hearing because Officer Wheeles and Officer Endsley committed perjury in the hearing on the motion to suppress on May 20, 2002.
This is essentially the same motion as the one recently filed by the defendant's present appointed counsel. For the reasons set forth above, this motion shall be granted.
MOTION FOR POST CONVICTION RELIEF UNDER 28 U.S.C.A 2254 (Doc. #77)
The defendant contends that this action should be dismissed because there has been a violation of the Interstate Agreement On Detainers Act. He asserts in the motion that (1) the court lacks jurisdiction; (2) he has not been timely tried; and (3) no probable cause has been shown to extradite him.
The court sees no merit to any of these contentions. As set forth previously, the court does have jurisdiction in this matter and there is probable cause to proceed. Finally, the provisions of the Speedy Trial Act have not been violated in this case. All of the delay that has occurred has been excludable time under that Act. Accordingly, this motion is denied.
IT IS THEREFORE ORDERED that defendant's motion for continuance (Doc. #101) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for defense inspection of documents (Doc. #94) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to reopen suppression hearing (Doc. #95) and defendant's pro se motion to have new evidence hearing for unheard evidence (Doc. #75) be hereby granted. The court shall conduct a new hearing on the defendant's motion to suppress on December 18, 2002 at 2:00 p.m.
IT IS FURTHER ORDERED that defendant's pro se motion to dismiss due to Supreme Court new ruling on routine traffic stops (Doc. # 57) be hereby denied.
IT IS FURTHER ORDERED that defendant's pro se motion for reconsideration of motion for dismissal of indictment or other alternative relief (Doc. #69) be hereby denied.
IT IS FURTHER ORDERED that defendant's pro se motion for dismissal for lack of jurisdiction or, in the alternative, writ of habeas corpus (Doc. #73) be hereby denied.
IT IS FURTHER ORDERED that defendant's pro se motion to dismiss for lack of probable cause or, in the alternative, writ of habeas corpus (Doc. #76) be hereby denied.
IT IS FURTHER ORDERED that defendant's pro se motion for post conviction relief under 28 U.S.C. § 2254 (Doc. #77) be hereby denied.
IT IS SO ORDERED.