U.S. v. Dessesaure

• Citation: 323 F.Supp.2d 211
• Decision Date: 02 July 2004
• Docket Number: No. CRIM.03-10191-NG.,CRIM.03-10191-NG.
• Parties: UNITED STATES of America, v. Earl DESSESAURE, Defendant.
• Court: U.S. District Court — District of Massachusetts

323 F.Supp.2d 211

UNITED STATES of America, v. Earl DESSESAURE, Defendant.

No. CRIM.03-10191-NG.

United States District Court, D. Massachusetts.

July 2, 2004.

Robert E. Richardson, United States Attorney's Office, Boston, MA, for USA, Plaintiff.

Steven L. Winniman, Winniman & Winniman, Springfield, MA, for Earl Dessesaure (1), Defendant.

MEMORANDUM AND ORDER RE: MOTION TO RECONSIDER

GERTNER, District Judge.

I. INTRODUCTION

The government (Assistant United States Attorney Robert E. Richardson) filed a motion to reconsider [document # 35] this Court's Memorandum and Order granting in part and denying in part the defendant's motion to suppress evidence [document # 31]. That motion is DENIED. The purpose of this memorandum is to address some of the issues raised by the government, but perhaps more importantly, to address the troubling tone of the government's submissions.¹

The core of the government's most recent submission is that the Court's decision was "based in significant respects on an erroneous summary of the facts." The government further notes "neither the Court nor the government has the advantage of the completed record." True enough. There was no completed record, however, the Court's findings were based on the court reporter's unofficial transcript (known as a "dirty ASCII" transcript) supplemented with annotations.² Indeed, the government goes on to say that the "government has ordered the hearing transcript," which presumably is also true.

But then the government represents that its recitation in the motion to reconsider is "based on its best memory of the testimony."³

The latter statement is, at best, a misrepresentation. The government had more than its own memory of the testimony. Like the Court, the government had the same unofficial transcript from the court reporter, Harry Hagopian, albeit one which is not to be quoted directly because it is not the official version. In short, the government had precisely the same "unofficial" information as the Court and deliberately did not acknowledge it.⁴

The government must therefore have been aware, when filing its motion to reconsider, that the Court's summary of the testimony was entirely accurate. The government's argument cannot be that witnesses were misquoted or that the Court has the record wrong. Rather, what the government is faulting is the inferences the Court drew from the facts it found and the Court's judgment of the credibility of the witnesses who testified. While it is always fair to ask the Court to reconsider those inferences and even those credibility determinations, it is not fair to do so on what is a ruse, in this case that the Court's view of the facts somehow conflicts with the memory of the government.

Nor is it appropriate to argue, as I describe below, that because Dessesaure is allegedly the "prototype of a criminal that Congress had in mind when it enacted certain statutes to combat gun and drug violence," the Court should look the other way when the government presents unlawfully obtained evidence, and be unconcerned when an officer presents contrived testimony. In bringing this case and pursuing it despite the transparent unlawfulness of at least some parts of the investigation, the government has chosen to do just that. This Court will do no such thing.

II. DISCUSSION

Based on that record, the following facts, as I found in my original decision, are also true:

1. That the government decided to prosecute Dessesaure based on the Boston Police investigation, even though there were "serious problems" with that investigation — informants as to whom there was no information on reliability, notes that were "discarded" ten months before the hearing, an apartment search conducted by officers without a warrant or facts excusing a warrant, and information from that improper search used in a subsequent warrant application.

The government counters with a non-sequitur by stating, "it is appropriate to note at the outset that [Dessesaure] is the prototype of the criminal that Congress had in mind when it enacted certain statutes to combat gun and drug violence," as if Congress were suggesting that a defendant who fits a certain prototype forfeits his constitutional rights. The United States Attorney's Office is obliged to screen its prosecutions to determine whether they conform to federal constitutional standards, regardless of the defendant's past history or present conduct.⁵ Perhaps other counsel would not have been as vigilant as Dessesaure in moving to suppress an unlawful search; perhaps other counsel would have encouraged him to plead guilty or cooperate. That does not detract from the government's independent obligation here to screen its prosecutions to determine their fealty to constitutional — federal constitutional — law,⁶ not an abstract reference to "certain statutes" or "prototypes."

2. That the Court suggested that Broderick "destroyed" his notes, even though the term "destroyed" was not one that the government "recalls" Officer Broderick using. The Court never suggested that Broderick had used that very word. Rather, the Court's characterization is a fair one based on Broderick's testimony that he "discarded" his notes (Memorandum p. 6.)

3. That the argument that police officers have a right to "freeze" a private apartment before they get a search warrant (when "freezing" means entering and searching it, and communicating the fruits of that search to the officer preparing the warrant affidavit), was "improbably, adopted by government counsel." The government contends that it did not "adopt" the argument that "freezing" the scene in this fashion was appropriate. It only addressed the issues that the defendant raised, and a challenge to "freezing" the scene was not one of them.

The government's position does not remotely respond to the Court's concerns. As noted, the government has an independent obligation to screen its prosecutions that does not depend upon whether defense counsel is or is not attentive to the issue.

4. That Broderick contrived the story that Dessesaure yelled "call my people/peeps" upon his arrest, as if to signal to someone in the crowd to warn his girlfriend to destroy evidence. The government argues that Broderick did not fabricate the statement — that all he did was "misremember" it and "conflat [e] in his mind the concern the other officers expressed."

As the government must have been aware, during the hearing Broderick did not refer to "other officers." He referred only to Officer Seoane, and Officer Seoane, even in his less-than-credible testimony on this topic, came nowhere near recounting the statement that Broderick described.

Put simply, the Court found Broderick's testimony not to be credible. He was not at Dessesaure's arrest. He characterized what he claims Officer Seoane said to him. But Seoane did not say anything like that during the hearing, and even what he did say was noticeably absent from the police report. (Memorandum, pp. 14-15). Nevertheless, I agree that the memorandum should be amended to state the fact that the record is not clear about what Officer Broderick specifically knew or did not know of the Court's concerns at the moment he took the stand, or whether he gleaned that concern from his questioning at the hearing or from his pre-trial preparation, or was just "gilding the lily," as they say, on his own. What is clear, however, is that even the government concedes that what Broderick reported Dessesaure had said at his arrest was not true, and that no credible statement was made by any government witness that would have created the exigent circumstances necessary for a warrantless search in this case.

5. That while the government is correct that Broderick's statement was that he did not believe Dessesaure's girlfriend was an "active participant" in drug dealing, and Broderick did not believe she was involved at all, that this does not change the fact that Broderick's account of Dessesaure's station house confessions and waiver of rights was not credible. (Memorandum, p. 16). That conclusion suffices to vitiate any suggestion that the apartment search had been consented to (an alternative ground for a warrantless search).⁷

Nevertheless, the April 13, 2004, Memorandum is further amended to this extent: The issue is not what Broderick believed or did not believe regarding whether Dessesaure's girlfriend could be prosecuted. Whether Broderick believed Dessesaure's girlfriend was an "active participant" in drug dealing or not a participant at all, the issue is what he told Dessesaure and further whether Dessesaure waived his rights because of the threatened prosecution of his girlfriend. Even if I were to believe that Broderick told Dessesaure that they were going to "freeze" the apartment and that they would not charge his girlfriend with whatever was found in the apartment if he consented to the search, I do not believe Broderick's account that Dessesaure relented and gave the officers the information they needed.

6. That there is no merit to the government's argument that the officers had a right to take Dessesaure's girlfriend, Tina Tate, out of the apartment, in an arguable "protective sweep," and therefore, since they would have made the same observations of heroin and drug trafficking paraphernalia in doing so, the search was somehow lawful.

The government supposes in its motion for reconsideration that the Court "assumes ... that entering the apartment to remove the girlfriend would have been permissible." The Court assumes no such thing, since such a finding would be absolutely inconsistent with the Fourth Amendment, even under the most lenient reading.⁸

What is more, even if the circumstances were such that a protective sweep would have been justified, what the officers did in this case bears no resemblance to the "quick and limited search of premises ... to protect themselves or others" the Supreme Court described in Buie. 494...