U.S. v. Glover
| Decision Date | 03 October 2008 |
| Docket Number | Criminal Action No. 07-153 (TFH). |
| Citation | 583 F.Supp.2d 5 |
| Parties | UNITED STATES of America v. Lonnell G. GLOVER, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Cynthia Katkish, Washington, DC, for John Smith.
Brian Keith McDaniel, McDaniel & Associates, Washington, DC, for Cornell Anthony Glover.
Howard Bernard Katzoff, Law Offices of Howard Katzoff, Washington, DC, for Daniel Maurice Thompson.
Stephen F. Brennwald, Brennwald & Robertson, LLP, Washington, DC, for Henry Brown.
Edward Charles Sussman, Washington, DC, for Leslie Wood.
Frances M. D'Antuono, Attorney at Law, Washington, DC, for Christian Donaldson.
John James Carney, Carney & Carney, Washington, DC, for Diane Holmes.
Nathan I. Silver, II, Law Offices of Nathan I. Silver, Bethesda, MD, for Jerome Hampton.
Teresa Grey Kleiman, Washington, DC, for Lena Brown.
Pending before the Court are the following pretrial motions filed by the defendants: (1) Jerome Hampton's Motion To Dismiss Indictment [Docket No. 210]; (2) Lonnell Glover's Motion For Discovery Of Co-Defendant And Co-Conspirator. Statements [Docket No. 228], which was joined by John Smith, Velma Williams and Charles Gladden; (3) Lonnell Glover's Motion To Disclose Identities Of Each Confidential Informant Regardless Of Whether They Will Be Called At Trial [Docket No. 231], which was joined by John Smith, Velma Williams, Charles Gladden and Herbert Young; (4) Velma Williams' Motion For A Bill Of Particulars And Memorandum Of Law In Support Thereof [Docket No. 237]; (5) Velma Williams' Motion For Disclosure Of Confidential Informants, For Timely Disclosure Of Brady/Giglio Exculpatory Evidence, And For Early Production Of Jencks Material And Memorandum Of Points And Authorities In Support Thereof [Docket No. 239], which was joined by Joe Brown, John Smith, Jerome Hampton, Lonnell Glover, Charles Gladden, and Herbert Young; (6) Lena Brown's Motion For Severance And Relief From Prejudicial Joinder With Points And Authorities In Support Thereof [Docket No. 196]; (7) Jerome Hampton's Motion To Sever Defendants (Relief From Prejudicial Joinder Under Rule 14) [Docket No. 290]; (8) Velma Williams' Motion To Suppress Any Evidence Der[ived] From Warrantless Searches Conducted In Violation Of The Fourth Amendment [Docket No. 242]; and (9) Lonnell Glover's Motion To Suppress Physical Evidence And Memorandum Of Points And Authorities In Support Thereof [Docket No. 252]. For the following reasons, the Court will deny the motions with the exception of Lonnell Glover's Motion To Suppress Physical Evidence And Memorandum Of Points And Authorities In Support Thereof [Docket No. 252], which will be denied in part.
On November 8, 2007, sixteen defendants were indicted by a federal grand jury pursuant to a superceding indictment changing them with one count of conspiring to possess with the intent to distribute, and conspiring to distribute, mixtures and substances containing a detectable amount of phencyclidine ("PCP") and heroin.1 The scope of the conspiracy allegedly extended to at least seven states and involved an additional ten co-conspirators who were charged in a separate indictment. The defendants in this case have been divided into two groups depending on whether they are accused of being involved principally in the alleged conspiracy to possess and distribute PCP or the conspiracy to possess and distribute heroin. Four of the defendants alleged to be involved in the PCP conspiracy—namely Lonnell Glover, Velma Williams, Jerome Hampton, and Lena Brown—are scheduled to be tried before a jury beginning October 20, 2008.2 In anticipation of the trial, the defendants filed motions seeking evidentiary rulings regarding a number of issues, each of which is discussed below.
Jerome Hampton moves to dismiss his indictment on the ground that the grand jury's "decision to indict ... was infected by false information." Hampton's Mot. ¶ 11. According to Hampton, during an initial pretrial detention hearing government counsel stated that Hampton was observed engaging in suspicious conduct during the surveillance of an alleged drug delivery being investigated by law enforcement agents. Hampton alleges that during a detention hearing that took place several months later, however, government counsel retracted that claim and conceded that it was another defendant, Henry Brown, who engaged in the suspicious conduct. More specifically, during Hampton's initial detention hearing government counsel reportedly claimed that during surveillance of a business parking lot where Hampton is accused of receiving packages of PCP delivered by commercial carriers, Hampton approached a law enforcement agent's vehicle, tried to look into the vehicle, and otherwise engaged in conduct suggesting that he was worried about the vehicle and whether anyone was in it.3 Hampton's Mot. ¶ 7. At the later detention hearing, however, government counsel asserted that it was Henry Brown—and not Hampton—who engaged in this conduct. Hampton asserts that if the grand jury was misled to believe that he tried to look into the agent's vehicle, this false information might have swayed the grand jurors to indict him. Hampton therefore seeks "to order the disclosure of all grand jury material that pertains to defendant; to conduct, if necessary, an evidentiary hearing on this; and to dismiss the indictment if it appears to the Court that such a remedy is appropriate." Hampton's Mot. ¶ 11.
The Federal Rules of Criminal Procedure provide that "[t]he court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter ... at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury. . . ." Fed.R.Crim.P. 6(e)(3)(E)(ii) (emphasis added). The problem is that Hampton has not shown that a ground exists to dismiss the indictment, so there is no need for the Court to proceed further. In response to Hampton's motion, the government now contends that "it was actually both Brown and Hampton, who on separate occasions drove up to the law enforcement vehicle to determine if it was occupied by law enforcement." Govt's Br. 47. The government further proffers that "[l]aw enforcement will testify that Hampton did in fact drive up to the law enforcement vehicle and look inside the vehicle." Id. Because Hampton did not contest the government's assertions that both he and Henry Brown peered inside the law enforcement agent's vehicle, there is no longer any basis for concluding that the presentation of such evidence to the grand jury was "false."4 Accordingly, Jerome Hampton's Motion To Dismiss Indictment [Docket No. 210] will be denied.
Lonnell Glover moved for an order mandating that the government disclose in advance of trial any co-defendant or co-conspirator statements that the government plans to admit against him.5 Glover's Mot. 1. The government responded by stating that (1) it has no intention of admitting any co-defendant's custodial statements that implicate another defendant in the same trial,6 (2) the bulk of any co-conspirator statements that might be used at trial have been disclosed during the discovery process, and (3) the only co-conspirator statements that have not been disclosed involve cooperating witnesses who are expected to testify at trial. Govt's Br. 13-14. Given that the government will not use codefendant custodial statements and "the substantial portion of co-conspirator statements that the government plans to introduce at trial have already been provided in discovery on the Suggs wiretap, the Glover wiretap, and Glover truck bug,"7 it appears that the only real issue is whether the government should be ordered to disclose those co-conspirator statements that were not previously disclosed during the discovery process.8
As the United States Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") has concluded, courts in this jurisdiction have no authority to order the pretrial discovery of co-conspirator statements, regardless of whether the co-conspirator will testify at trial. See United States v. Tarantino, 846 F.2d 1384, 1417-18 (D.C.Cir.1988) (per curiam). The D.C. Circuit has "decline[d] to extend the defendant's right to discovery beyond that required by statute or the Constitution" and neither the Jencks Act nor the Federal Rules of Evidence mandate such disclosures. Id. at 1418. This Court therefore has no authority to order the government to disclose co-conspirator statements and will deny the motion for that reason.
Lonnell Glover and Velma Williams each filed motions seeking the disclosure of confidential informants' identities.9 Both Glover and Williams cite Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and McLawhorn v. North Carolina, 484 F.2d 1 (4th Cir.1973), for the proposition that disclosure is necessary to ensure fundamental fairness and due process. Glover's Mot. 2; Williams' Mot. 20. The government retorts that "[t]he motions should be denied because the government's interest in protecting the safety of potential witnesses far outweighs the defendants' interest in preparing for opening statements and cross-examinations well in advance of trial." Govt's Br. 6. The government also takes the position that the defendants already know the identities of cooperating informants...
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