U.S. v. Fulcher
| Citation | 188 F.Supp.2d 627 |
| Decision Date | 08 February 2002 |
| Docket Number | No. 7: 98CR00102.,7: 98CR00102. |
| Parties | UNITED STATES of America v. Michael FULCHER, Ethel Fulcher, Rosanna Fulcher. |
| Court | U.S. District Court — Western District of Virginia |
Charles David Whaley, Morchower, Luxton & Whaley, Richmond, VA, for Michael Edward Fulcher.
David Preston Baugh, Richmond, VA, for Ethel Vest Fulcher.
Gerald T. Zerkin, Gerald T. Zerkin & Assoc., Richmond, VA, Carolyn V. Grady, Epperly, Follis & Schrok, P.C., Richmond, VA, for Rosanna Sue Nichols Fulcher.
Rosanna Sue Nichols Fulcher, Roanoke, VA, pro se.
Before me is the United States' (hereafter, the "Government's") Motion to Reinstate Jury Verdict and Motion in Limine on Remand from the Fourth Circuit Court of Appeals filed June 13, 2001.
In United States v. Fulcher, 250 F.3d 244 (4th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 313, 151 L.Ed.2d 233 (2001), the Fourth Circuit affirmed this Court's decision ordering a new trial on all charges against the defendants. See United States v. Fulcher, No. 7:98CR00102, slip opinion (W.D.Va. Feb.16, 2000). On remand, the Government moves to reinstate the jury's convictions of the Fulchers based upon evidence which the Government placed in the record before this Court at a hearing on November 8, 2001. In the alternative, the Government argues that statements by Drug Enforcement Administration (DEA) Special Agent Donald O. Lincoln, produced since the first trial (hereafter "the Lincoln evidence"), be barred from evidence on retrial.
The parties fully briefed the issues and were heard in oral argument, making this matter ripe for disposition. For the reasons set forth herein, the Government's Motion to Reinstate the Verdict is DENIED and its Motion in Limine OVERRULED. The Lincoln evidence will be admissible for the defendants' public authority defense, and other defense uses previously recognized by this Court.
The facts have discussed exhaustively in this Court's Memorandum Opinion of February 16, 2000 (hereafter, "Mem.Op.") and in Fulcher, 250 F.3d at 246-248. In 1999, a Government named twenty two individuals in an indictment for engaging in drug and money laundering conspiracies. Specifically, the indictment charged that correctional officers at Bland Correctional Center ("BCC"), as well as wives, mothers, and girlfriends of inmates, smuggled marijuana into this Virginia state prison. The inmates then sold the marijuana in teaspoon-sized servings for twenty-five dollars each to fellow inmates. Unable to use cash behind bars, the inmates purchased the marijuana through money orders made out to friends and relatives of the inmate sellers. Of five defendants tried in August, 1999, three were found guilty of at least some the charges against them: inmate Michael Fulcher, his mother Ethel, and his wife Rosanna.
Prior to trial, Michael and Ethel filed notices under Fed.R.Crim.P. 12.3, stating that they intended to rely upon a "public authority" defense. They stated they "believed that, based upon past experience and circumstances, while not authorized at the time of commission, [their cooperation] would be subsequently ratified and permitted by federal and state law enforcement in the discharge of their duties." Specifically, they argued that Michael's communications with state and federal law enforcement officers in this case, along with his past work as a confidential informant for the Drug Enforcement Administration ("DEA") and other federal agencies, gave the Fulchers the impression that the Government had granted Michael permission to develop evidence against correctional officers and his fellow inmates. According to the proffered testimony, Rosanna and Ethel Fulchers' alleged money laundering activities, in particular, consisted solely of the maintenance of a "paper trail" of such evidence to use against the guards and inmates. The Fulchers wished to testify that their activities with regard to BCC were not significantly different from undercover cooperation they had given federal law enforcement agents in the past. In response, the Government filed a motion in limine barring any evidence of Michael's previous cooperation with law enforcement, and I granted the motion.
Following the Fulchers' convictions on drug and money laundering charges, and on the eve of sentencing, this Court received an ex parte letter from DEA Special Agent Donald O. Lincoln, in which Lincoln stated his concern that he, along with state law enforcement officers participating in a DEA Task Force at the time of the Fulchers' activities, may have provided BCC inmate Michael Fulcher and his family with the mistaken impression that Michael had approval to investigate alleged drug dealing involving guards at the prison. Lincoln also acknowledged that on previous occasions Michael, trying to reduce his prison time, had investigated illegal activities without obtaining permission from government agents. In at least one instance, no agent ever told Michael that he could be prosecuted for aiding and abetting criminal activity; rather, the Government simply accepted and used the information which Michael obtained. In discussing the BCC marijuana ring, Lincoln admitted that he may have communicated to Michael and Ethel that a case could be presented to the DEA if it involved a larger quantity of marijuana or if interstate or international implications were raised. Lincoln also reaffirmed his previous testimony that, in his opinion, Michael had in fact gathered this evidence for potential prosecution. See Mem.Op. at 6-11 ().
Following disclosure of the letter to the parties, I granted the Fulchers' motion for a new trial, holding that the Lincoln evidence was relevant and favorable to the Fulchers: (1) on their public authority defense; and (2) on their mistake of fact defense. Mem.Op. at 14-26. I also held that the Lincoln evidence: (3) corroborated the Fulchers' position — not asserted at trial because uncorroborated at the time — that Michael never actually sold any drugs at BCC, and (4) made relevant Michael and Ethel Fulcher's proffered testimony of past, pre-indictment cooperation with federal law enforcement authorities — testimony which I had previously barred from trial.1 Mem.Op. at 17-27. In addition, I held that: (5) new evidence putting prosecution witness Victoria Hairston's credibility in question, and (6) lack of evidence for Michael's Continuing Criminal Enterprise (CCE) conviction, might themselves warrant a new trial. Mem.Op. at 28-30.2
In discussing the relevance of the Lincoln evidence to the public authority defense, I held — as the Fourth Circuit would subsequently — that in order to prevail on this defense, the Fulchers would have to show that law enforcement officials had actual authority to authorize their otherwise illegal activities:
With this affirmative defense, the defendant seeks exoneration based on the fact that he reasonably relied on the authority of a government official to engage him in a covert activity. The validity of this defense depends upon whether the government agent in fact had the authority to empower the defendant to perform the acts in question. If the agent had no such power, then the defendant may not rest on the "public authority"; reliance on the apparent authority of a government official is not a defense in [the Eleventh Circuit], because it is deemed a mistake of law, which generally does not excuse criminal conduct.
Mem.Op. at 19 (quoting United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (11th Cir.1994)). At this stage of proceedings, the elements of the public authority defense were not in dispute.
On appeal, the Fourth Circuit took up the Government's contention that the Lincoln evidence did not warrant a new trial because it was not "material" as required by United States v. Custis, 988 F.2d 1355 1359 (4th Cir.1993). See Fulcher, 250 F.3d at 251.
The Government directed its argument at two of this Court's bases for granting a new trial — namely, that the Lincoln evidence was material to the "innocent intent" and public authority defenses. The Government argued that Lincoln's testimony at the December 27, 1999 post-trial hearing showed "that Lincoln and his colleagues possessed, at most, only apparent authority to approve the operation undertaken by the Fulchers, and that such authority was insufficient to either negate intent or to support the defense of public authority." Id. The defendants responded by arguing that if the defendants Id. Because of the defendants' particular position, which appears to have been advanced for the first time on appeal, the Fourth Circuit took up the issue. Consistent with other federal circuit courts which had the issue, the Fourth Circuit held that the defense of public authority "requires reasonable reliance upon the actual authority of a government official to engage him in covert activity." 250 F.3d at 253 (). The court also rejected defendants' argument that reliance upon a government actor's merely apparent authority constituted a mistake of fact, reiterating its prior holding that such a mistake arose not from a mistake of fact as to actor's status, "but resulted from a misconception of the legal prerogatives attached to that status." 250 F.3d at...
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