Opinion
Case No. 02-40154-02-JAR.
January 11, 2005
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTIONS FOR BILL OF PARTICULARS AND TO SUPPRESS STATEMENTS
This matter comes before the Court on defendant Randall Terrell's Motions for a Bill of Particulars (Doc. 108) and to Suppress (Doc. 106). An evidentiary hearing was held November 1, 2004, and the parties were permitted to submit supplemental briefing. The Court has reviewed the evidence and submissions and is now ready to rule. For the reasons set forth below, defendant's motions are denied.
Facts
On November 5, 2002, defendant was stopped by Kansas Highway Patrolman Mario Rios for a traffic infraction. Subsequent to the traffic stop, approximately two kilograms of cocaine were found in the rental van the defendant was driving. The defendant was arrested on state charges of possession of cocaine with the intent to distribute and a controlled substance tax stamp violation.
On November 6, 2002, defendant appeared before a Riley County judge via close circuit television hook up from the Riley County Jail. At that time, based on an indigency affidavit provided by the defendant, the state public defender's office was appointed to represent him. No specific attorney was identified.
On November 7, 2002, Task Force Officer ("TFO") Ray Bailiff, who is assigned to the DEA Task Force by the Kansas Highway Patrol, traveled to Junction City to question the defendant in relation to a federal investigation based on the cocaine seizure. Trooper Rios accompanied TFO Bailiff. TFO Bailiff testified that he had no knowledge of the defendant's previous court proceedings that were held at the jail. TFO Bailiff testified that the goal of his interdiction interviews is to determine where seized contraband is coming from and where it is going — that is, the source, brokers, suppliers and distributors — in order to determine whether federal drug conspiracy charges are appropriate. He further testified that all of his investigations and cases involve federal conspiracy charges. In this case, he was concerned that more than the two charged defendants were involved, given the fact that two kilograms of cocaine were seized from defendant's vehicle. In his experience, large quantities of drugs indicates a conspiracy.
TFO Bailiff also met with co-defendant Vercher, who declined to consent to an interview.
Prior to beginning the interview, TFO Bailiff read the defendant his rights, utilizing a card that recited the Miranda warning. TFO Bailiff testified that he told defendant that he did not have to talk to him and that defendant did not mention that an attorney had been appointed. The defendant indicated that he understood his rights and agreed to talk. Defendant provided TFO Bailiff with biographical information, including phone numbers, and discussed several topics related to the rental car and the trip. When defendant refused to talk about the cocaine, saying that he couldn't "snitch" on his family, TFO Bailiff testified that he did not push him further. The interview lasted approximately ten minutes.
TFO Bailiff testified that defendant had a cell phone in his possession at the time of his arrest, and in fact, was talking on the phone when the officers took the van away. Bailiff testified that the phone numbers defendant gave during the interview were the same as those obtained from the cell phone, and that defendant did not give him any information in the interview that was not acquired elsewhere.
On December 30, 2002, the defendant and co-defendant Vercher were charged in federal court with conspiring to possess with the intent to distribute cocaine and possession with the intent to distribute cocaine. On June 16, 2004, a Superseding Indictment was filed that expanded the conspiracy charge.
Analysis
1. Bill of Particulars
The defendant requests a bill of particulars to answer the following questions: 1) the identity of others who may be involved in the conspiracy; 2) the nature of any uncharged overt acts committed by any participant in furtherance of the conspiracy; and 3) the overt acts and circumstances of defendant's participation in the conspiracy. The government responds that it has verbally informed defense counsel of the nature of the defendant's participation in the conspiracy and will provide defendant with the identity of any co-conspirators as well as grand jury testimony five days in advance of trial. The government also notes that it is not required to prove an overt act in drug conspiracy charges.
Rule 7(f) of the Federal Rules of Criminal Procedure states that a court may issue a bill of particulars. The decision to issue a bill of particulars falls within the discretion of the court. This discretion is exercised while adhering to the recognized scope of a bill of particulars. A bill of particulars is not a discovery device. It cannot be used to take measure of the government's case. The purpose of a bill of particulars is to inform the defendant of the substantive facts of the charges against him, but not to discover the evidentiary basis of the charges. The defendant is not entitled to know all the evidence the government will use against him at trial. However, the defendant must be adequately apprized of the charges against him so that he may prepare a defense for trial. Additionally, a bill of particulars is unnecessary where the information the defendant seeks is available through "some other satisfactory form." Courts have found an open file discovery policy is a satisfactory means of obtaining such information.
United States v. Kunzman, 54 F.3d 1522 (10th Cir. 1995).
United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988).
Id.
United States v. Rogers, 617 F.Supp. 1024 (D.Colo. 1985).
United States v. Daniels, 95 F.Supp.2d 1160, 1166 (D. Kan. 2000) (citing Dunn, 841 F.2d at 1029).
United States v. Levine, 983 F.2d 165, 166-67 (10th Cir. 1992).
United States v. Higgins, 2 F.3d 1094, 1096 (10th Cir. 1993).
Daniels, 95 F.Supp.2d at 1166 (quoting United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991)).
Id. at 1166 (citing United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir. 1992)).
In order for the defendant to persuade the Court to grant his motion, he must show, specifically, how he would be prejudiced absent a bill of particulars. Defendant has shown no reason why he would be prejudiced absent a bill of particulars. The Superseding Indictment in this case sets out the approximate dates of the conspiracy. The co-defendant in this case has entered into a plea agreement with the government in which he admits to certain facts. The government has an open file policy in this case and has stated that any disclosure not already provided will be made within five days of trial. This will fairly apprize the defendant of the charges against him. Defendant's motion is denied.
2. Suppression
The defendant seeks to suppress the statements he made to TFO Bailiff during the interview, arguing that his Sixth Amendment right to counsel was violated, given that the interview occurred after his initial state court appearance and the appointment of counsel.
Statements elicited by police officers in violation of a criminal defendant's Sixth Amendment right to counsel must be suppressed. As the Supreme Court has explained,
Massiah v. United States, 377 U.S. 201 (1964).
Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Brewer v. Williams, 430 U.S. 387, 398 (1977) (internal quotation marks and citation omitted).
In this case, before TFO Bailiff interviewed him, the defendant's initial appearance had occurred and he was represented by a state public defender. Thus, the Court assumes for purposes of this motion that criminal proceedings against the defendant had been initiated and that his Sixth Amendment right to counsel had attached before the interview occurred.
"The Sixth Amendment right [to counsel] . . . is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Here, the defendant was charged with violating state charges of possession of cocaine with the intent to distribute and a controlled substance tax stamp violation in state court, while he is being prosecuted for violating federal charges of conspiracy to possess with the intent to distribute cocaine. Thus, the question becomes whether defendant is now being prosecuted for the same or different offense.
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (internal quotation marks and citation omitted).
In Texas v. Cobb, the Supreme Court discussed the question of how to determine whether a defendant is being prosecuted for the same or a different offense. In that case, defendant Cobb confessed to committing a home burglary; however, he denied any knowledge of the disappearance of the woman and her child who lived in the burglarized home. As a consequence of that confession, Cobb was charged with the burglary. He later told his father that he had murdered the woman and child, after which his father informed the police what Cobb had said. Police then interviewed Cobb, who confessed to the murders. At trial, Cobb's confession to the police was admitted into evidence, and he was convicted. On appeal, the Texas appellate court reversed the conviction, concluding that Cobb's confession to the murders should have been suppressed. Specifically, the court concluded that Cobb's Sixth Amendment right to counsel attached not only to the offense with which he was then charged, the burglary, but also to the closely related murders. The Supreme Court reversed, explaining that the Sixth Amendment is offense specific and attaches only to the offense with which a defendant has been charged. The Court then discussed the definition of offense:
532 U.S. 162 (2001).
Id. at 172-173.
Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have recognized in other contexts that the definition of an "offense" is not necessarily limited to the four corners of a charging instrument. In Blockburger v. United States, 52 S.Ct. 180, 76 L.Ed. 306 (1932), we explained that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. 180. We have since applied the Blockburger test to delineate the scope of the Fifth Amendment's Double Jeopardy Clause, which prevents multiple or successive prosecutions for the "same offense." See, e.g., Brown v. Ohio, 432 U.S. 161, 164-166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). We see no constitutional difference between the meaning of the term "offense" in the contexts of double jeopardy and of the right to counsel.
Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.
Id. at 173.
In this case, at the time TFO Bailiff interviewed him, defendant was charged with possession of cocaine with intent to distribute in violation of K.S.A. § 65-4161 and failure to have a controlled substance tax stamp in violation of K.S.A. §§ 79-5204 and 5208. He is now charged with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 as well as conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846.
The elements of the state crime of possession with intent to distribute cocaine are essentially the same as the elements of the federal crime. However, defendant is also charged in federal court with conspiracy. The Court disagrees with defendant's argument to the contrary — possession and conspiracy are not the same offense under the Blockburger test. "It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes. . . ." The Tenth Circuit has repeatedly held that conspiracy to commit a drug offense is not the same as the commission of the drug offense that is the object of the conspiracy.
Pereira v. United States, 347 U.S. 1, 11 (1953) (citing Pinkerton v. United States, 328 U.S. 640, 643-44 (1946)).
See, e.g., United States v. Jenkins, 313 F.3d 549, 558 (10th Cir. 2002) (holding that possession, possession with intent to distribute, and distribution are not lesser included offenses of conspiracy to commit the same offenses). Accord United States v. Callwood, 66 F.3d 1110, 1115 (10th Cir. 1995); United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992); United States v. Abreu, 962 F.2d 1425, 1430 (10th Cir. 1992); United States v. Horn, 946 F.2d 738, 744 (10th Cir. 1991). See also United States v. Frayer, 9 F.3d 1367, 1372-73 (8th Cir. 1993) (possession with intent to distribute cocaine and conspiracy to distribute cocaine are not the same offenses under the Blockburger test); United States v. Rodriquez, 858 F.2d 809, 817 (1st Cir. 1988) (holding that conspiracy to distribute cocaine and aiding and abetting the possession of cocaine with intent to distribute are distinct offenses and may be charged separately even if both arise out of the same transaction because each requires proof of an element that the other does not).
TFO Bailiff testified that one of his objectives in questioning defendant was to have him admit his knowledge and possession of the cocaine as part of his conspiracy investigation. The Court agrees with the government that this is analogous to Cobb in that, in order to get to the murders that were being investigated, the officers had to question the defendant about the burglary for which he was then represented by counsel. As TFO Bailiff testified, he was concerned with expanding the investigation to include other co-conspirators, including those on the sending and receiving ends.
Thus, the Court concludes that at the time the defendant was questioned, his Sixth Amendment right had attached to the state court charges of possession and tax stamp violation. There was no conspiracy charge pending. Since the defendant's right to counsel had not attached to the conspiracy charge, TFO Bailiff was free to interrogate him regarding that offense.
See United States v. Hudson, 267 F.Supp.2d 818 (S.D.Ohio 2003) (state charge of possession of a concealed weapon and a federal charge of felon in possession were not the same charge under Blockburger, therefore a federal agent's interrogation concerning the 922(g) charge did not violate the defendant's Sixth Amendment right to counsel on pending state charge).
Further, there is no evidence that the defendant's statement was not voluntary. In his supplemental brief, defendant claims that his statement to TFO Bailiff was involuntary because his Miranda warnings were deficient. Defendant contends that TFO Bailiff did not advise him that anything he said could be used against him in a court of law. The Court has reviewed the transcript from the November 1 hearing. TFO Bailiff testified that he read defendant his rights from a card, which he then paraphrased in his answer to the government's question:
Q: How did you advise him of his rights?
A: I just read his rights to him.
Q: From what?
A: I got this little card right here.
Q: Okay. What rights did you read to him?
A: You have a right to remain silent. Anything you say can and will be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have a lawyer with you during the questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
Thus, the warnings provided by TFO Bailiff were adequate and effectively notified defendant of his rights. Because the defendant voluntarily waived those rights and agreed to talk to the officer, the Court will not suppress his statements on these grounds.
Finally, assuming arguendo that defendant's statement is subject to suppression, the telephone numbers would still be admissible because they would have been inevitably discovered. The inevitable discovery exception to the exclusionary rule applies when "the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." In this case, the defendant's residential telephone numbers were obtained from the cellular phone that was seized when defendant was arrested. This activity took place, and would have occurred, in the absence of any information provided by the defendant. TFO Bailiff testified that it is routine for officers investigating drug conspiracy cases to obtain these telephone numbers and research their origin, as such numbers often provide links between co-conspirators. Consequently, discovery occurred independent of the defendant's statement, and information concerning the numbers is not subject to suppression.
United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)).
IT IS THEREFORE ORDERED BY THE COURT that defendant's Motions for a Bill of Particulars (Doc. 108) and to Suppress (Doc. 106) are DENIED.
IT IS SO ORDERED.