U.S. v. Johnson

• Decision Date: 09 December 1998
• Docket Number: No. Crim. 94-50015-17.,Crim. 94-50015-17.
• Citation: 34 F.Supp.2d 535
• Parties: UNITED STATES of America, Plaintiff, v. Steven Floyd JOHNSON, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

34 F.Supp.2d 535

UNITED STATES of America, Plaintiff, v. Steven Floyd JOHNSON, Defendant.

No. Crim. 94-50015-17.

United States District Court, E.D. Michigan, Southern Division.

December 9, 1998.

David S. Steingold, David S. Steingold Assoc., Detroit, MI, Thomas J. Plachta, Plachta & Coash, P.C., Bay City, MI, Federal Defender, Federal Defender Office, Flint, MI, for Steven Floyd Johnson, defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE TESTIMONY OF SELECT GOVERNMENT WITNESSES AND DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS FRUIT OF AN ILLEGAL SEARCH AND SEIZURE OF A PRIVATE RESIDENCE

GADOLA, District Judge.

Presently before the Court are two motions filed by defendant Steven Floyd Johnson, also known as Floyd Johnson or Floyd Sean Johnson. Johnson is charged in Count One of the First Superseding Indictment with Conspiracy to Distribute Controlled Substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Defendant's motion to exclude testimony of select government witnesses was filed on October 22, 1998. The motion to suppress evidence as fruits of an illegal search and seizure of a private residence was filed on October 15, 1998. The government responded to the above-enumerated defendant's motions on November 2, 1998. At the hearing held on November 13, 1998, defendant requested an opportunity to file a reply brief, with respect to his motion to suppress evidence as fruits of an illegal search and seizure of a private residence. The Court granted this request, and on November 19, 1998, defendant submitted his reply brief.¹

For the reasons set forth hereinbelow, this Court will deny defendant's motion to exclude testimony of select government witnesses. The Court also will deny defendant's motion to suppress evidence as fruits of an illegal search and seizure of a private residence.

I. BRIEF FACTUAL BACKGROUND

On August 12, 1998, the residence located at 18940 Hilton Drive, Southfield Michigan was searched by federal agents pursuant to a search warrant. The warrant was based upon information obtained from confidential informants, as well as the personal observations of Alcohol, Tobacco & Firearms (ATF) Special Agent Todd J. Bowen. Bowen had been conducting an investigation into the so-called "Eaddy drug organization," and had received information during the past seven months relating to defendant Johnson, Manuel Eaddy, and Maurice Eaddy. Seized from the residence were, among other items, marijuana, ammunition, scales, financial records, and photographs.

II. DEFENDANT'S MOTION TO EXCLUDE TESTIMONY OF SELECT GOVERNMENT WITNESSES

Defendant seeks to exclude testimony of "confidential informants" and/or other witness who have allegedly been given leniency in exchange for providing testimony against defendant Johnson. To substantiate this claim, defendant points to several paragraphs in the affidavit in support of the search warrant relating to Johnson's home and vehicle. See Exh. A to Defendant's Motion to Exclude, p. 10. As a threshold matter, defendant has not presented any evidence that an exchange of leniency for testimony has been made in the case at bar. The mere fact that the government relied upon confidential witnesses in support of its affidavit for search warrant does not automatically entail that these witnesses have made a deal with the government in exchange for their testimony.²

Assuming arguendo that the government did promise leniency in exchange for the testimony of confidential witnesses, the defendant still must come forward with some legal authority to support his position that the testimony should thereby be excluded. In an attempt to advance some authority for this position, defendant cites 18 U.S.C. § 201(c)(2), which is entitled "Bribery of public officials and witnesses." The statute prohibits the offering or promising "of anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding...." 18 U.S.C. § 201(c)(2). Defendant argues that Section 201(c)(2) should be interpreted so as to apply when the government "rewards" witnesses who assist the prosecution, either through offering plea agreements or immunity. See U.S. v. Singleton, 144 F.3d 1343 (10th Cir.1998), vacated pending en banc reconsideration; see also U.S. v. Lowery, 15 F.Supp.2d 1348, 1351 (S.D.Fla.1998) (following Singleton).

The government argues that the Executive Branch is charged under the Constitution with the unique obligation of executing federal law, including the investigation and prosecution of federal crimes. U.S. Const. art. II, § 3. In carrying out its obligation to investigate and prosecute federal crimes, the government maintains that the practice of providing some benefit to criminals in exchange for truthful testimony against coconspirators is both longstanding and pervasive, and a bedrock of the criminal justice system. This practice has been recognized and approved on many occasions by the Supreme Court. See Ullmann v. U.S., 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (immunity); Kastigar v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (same); Hoffa v. U.S., 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (paid informants); Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (leniency for accomplices). Moreover, the practice of "rewarding" witnesses for assisting in a prosecution is approved by statutes, court rules, and sentencing guidelines. See 18 U.S.C. § 3059(B) (permitting payment of rewards "to any individual who assists the Department of Justice in performing its functions"); 18 U.S.C. § 3521 (compensation relating to protection of witnesses); 18 U.S.C. § 3553(e) ("rewarding" an individual with a recommendation for a lower sentence based on his or her "substantial assistance"); 18 U.S.C. § 6003 (specifically authorizing the grant of immunity); 28 U.S.C. § 994(n) (guidelines are to reflect the appropriateness of imposing a sentence lower than the statutory minimum based on defendant's substantial assistance); Fed.R.Crim.Proc. 35(b) (reduction for post-sentence cooperation); U.S.S.G. § 5K1.1; see also U.S. v. Arana, 1998 WL 420673 (E.D.Mich. July 24, 1998); U.S. v. Guillaume, 1998 WL 462199 (S.D.Fla. Aug.3, 1998); and U.S. v. Dunlap, 1998 WL 477435 (D.Co. Aug.12, 1998).

In opposition to the great weight of authority referenced by the government, defendant relies upon U.S. v. Singleton, 144 F.3d 1343 (10th Cir.1998), holding that 18 U.S.C. § 201(c)(2) does apply to promises of immunity or leniency by the government in a criminal cases. See Singleton, 144 F.3d at 1360. As the government points out, however, Singleton has been stripped of its precedential value due to the Tenth Circuit's decision to vacate pending en banc rehearing. See Exhibit A to Government's Response, Tenth Circuit Order filed July 10, 1998; see also Tenth Circuit Rule 35.6; Wright v. Tennessee, 628 F.2d 949, 950 (6th Cir.1980).³

The U.S. District Court for the Eastern District of Michigan has recently considered the Singleton decision, and rejected both its reasoning and precedential value. See U.S. v. Arana, 18 F.Supp.2d 715 (E.D.Mich.1998) (Rosen, J.). In Arana, a case very similar to the instant action, the court held that the government's plea agreements with co-defendants and witnesses did not violate the anti-bribery statute, 18 U.S.C.A. § 201(c)(2). As the court reasoned,

[t]he prosecutor is not "giving" anything; in the Rule 11 agreements at issue here, the Government has simply agreed to recommend reduced sentences. It is a matter for the court to decide whether or not to "give" the downward departure. That application of Section 201(c)(2) to federal prosecutors would work an "absurdity" is further demonstrated by the inconsistency that would exist between the anti-bribery statute and the federal sentencing statutes, 18 U.S.C. § 3553(e), and the sentencing guidelines.

Arana, 18 F.Supp.2d at 718. This Court sees no reason to stray from the cogent analysis of the Singleton decision set forth in the Arana decision.

In light of the above, the Court will deny defendant's motion to exclude testimony of select government witnesses. Defendant has not shown that leniency was given in exchange for testimony. Even if such a deal were made, the arrangement would not run afoul of the Constitution, and thus exclusion of the confidential informants' testimony and/or other witnesses is not required.

III. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS FRUIT OF AN ILLEGAL SEARCH AND SEIZURE OF A PRIVATE RESIDENCE

Defendant has submitted two motions challenging the execution of a search warrant at 18940 Hilton, Southfield, Michigan, conducted by ATF agents on August 12, 1998. The motion which will be discussed herein concerns the search of Johnson's residence. Defendant's other motion, attacking the validity of the search of defendant's automobile, has been denied as moot because the government has no present intention of introducing any evidence obtained from the vehicle. As a result of the search of the residence, the agents seized, among other items, marijuana, ammunition, scales, financial records, and photographs. Both searches were made pursuant to a warrant issued by Magistrate Judge Goldman, and premised upon an affidavit of Special Agent Todd J. Bowden. See Exh. 3 to the United States' Answer and Brief in Response to Defendant's Motions to Suppress Evidence Seized from a Residence and a Vehicle.

A. THE STANDING ISSUE

As the government points out, a threshold issue which first must be resolved is whether in fact the defendant has standing to challenge the execution and legality of the search in question. Although defendant neglected to explicitly address the standing issue in his motion, the government, at the hearing on November 13, 1998, agreed to withdraw its objection to defendant's standing to contest the search and seizure...