U.S. v. Kelley

Decision Date24 February 1998
Docket NumberNo. 97-40024-02.,No. 97-40024-01.,97-40024-01.,97-40024-02.
Citation6 F.Supp.2d 1168
PartiesUNITED STATES of America, Plaintiff, v. James KELLEY, and Gerald Austin McCormick, Defendants.
CourtU.S. District Court — District of Kansas

Stephen J. Atherton, Emporia, Joseph D. Johnson, Joseph D. Johnson, Chartered, Topeka, KS, for James O. Kelley.

James O. Kelley, Lawrence, KS, pro se.

Steven L. Davis, Patton, Davis & Putnam, P.A., Emporia, KS, William K. Rork, Rork Law Office, Topeka, KS, for Gerald Austin McCormick.

Gerald Austin McCormick, Lawrence, KS, pro se.

Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.


CROW, Senior District Judge.

The case comes before the court on the defendant McCormick's second set of pretrial motions and the government's motion in limine. The defendant McCormick filed his first set of pretrial motions in July of 1997. (Dks.25, 26, 40-47). The court denied those motions in its order filed September 2, 1997. (Dk.54). Of those motions denied, one sought leave to file additional motions. (Dk.40). In denying that motion, the court said it would reconsider its ruling and possibly extend the time to file new or supplemental pretrial motions upon good cause shown, (Dk.54, p. 5).

On September 10, 1997, the defendant McCormick filed a "Notice of Intent to File Motion for Reconsideration and Memorandums in Support Thereof." (Dk.55). On September 29, 1997, McCormick filed the following motions:

Motion for Continuance (Dk.56).

Motion to Suppress Items Seized from McCormick/Sloan Residence (Dk.57).

Motion to Dismiss Charges and/or to Suppress Evidence Found in Motor Vehicle or Residence (Dk.59).

The government has filed a consolidated response to this second set of pretrial motions. (Dk.61). By written order filed October 2, 1997, the court granted McCormick's motion for continuance and rescheduled the jury trial for December 9, 1997. (Dk.62). The court set McCormick's remaining motions for hearing on November 7, 1997, rescheduled the hearing for December 15, 1997, and then continued the hearing until February 6, 1998. During this time the government filed a motion in limine (Dk.65) seeking to keep the defendants from having Ed Rosenthal testify as an expert witness concerning the cultivation, harvesting and use of marijuana. The government subsequently filed a motion to have its limine motion decided upon the briefs. (Dk.75). Upon the agreement of all counsel on February 6, 1998, the court heard and had submitted to it all evidence relevant to these pending motions. The court gave counsel until February 23, 1998, to submit any supplemental briefs. The jury trial is scheduled to start March 3, 1998.


On April 1, 1997, the grand jury returned a two-count indictment against the defendants James Kelley and Gerald Austin McCormick. The first count charges the defendants with conspiring from June 1, 1996, to on or about August 29, 1996, to possess with the intent to distribute "approximately 106 marijuana plants" in violation of 21 U.S.C. § 846. The second count charges the defendants with possessing with the intent to distribute "approximately 106 marijuana plants" in violation of 21 U.S.C. § 841(a)(1).


In the defendant McCormick's supplemental brief, entitled "Closing Comments Reference Dismissal and/or Suppression Issues," defense counsel "reaffirm[s]" a rambling objection to one of the court's procedural rulings at the evidentiary hearing. Citing no legal authorities for his position, the defendant objects that he was required to proceed first with the production of testimony. The defendant makes the frivolous argument that this procedure prejudiced him and gave the government an unfair advantage, "in light of the fact the government was able to gain strategic advantages over what challenges this accused was making, the government very well may not have touched upon and gone into various issues of fact or examination of witnesses on testimony, but for, the accused having to present testimony and evidence first." (Dk.86, p. 2).

The record should reflect that the court directed defense counsel to proceed forward with his motion. Without articulating or proffering for the court his client's standing or a prima facie Fourth Amendment violation,1 the defense counsel simply objected and requested the government to meet its burden of proof. The court informed counsel that he understood where the burden of proof rested on the different issues. At that point, the defense counsel then called the Special Agent Bruce Coffman and examined him using leading questions. This is the only witness, other than the defendant's own witnesses, Ms. Sloan and Mr. McCormick, who was called and examined first by the defendant. After Coffman, the government called and examined Special Agent Hutchings, who was then cross-examined by the defendants. Any prejudice and unfair advantage that the defense counsel can possibly fathom from these innocuous circumstances is due exclusively to their own misunderstanding of the parties' respective burdens of proof and to their own strategy in offering certain testimony.2 The defendant's objection is devoid of merit.


The following facts are based on the testimony presented at the hearing and gleaned from the affidavits submitted in support of the search warrants. On August 19, 1996, Special Agent Christy was flying at an altitude of 1000' in Lyon County, Kansas, when he observed certain green vegetation that he believed to be marijuana. The suspected marijuana was surrounded by trees, brush and weeds which kept it from being viewed from the road. The small field was between a creek and a gravel road that ran east and west. The color of the marijuana differed from the native vegetation growing around it and resembled the color of marijuana seized on prior occasions. Agent Christy photographed the area from the aircraft. The aerial photographs were admitted at the evidentiary hearing.

On August 21, 1996, Special Agents Doug Jorgensen, Cathy Elser and Jim Young walked into the area that Christy had spotted and photographed from his aircraft. These agents observed marijuana plants of varying heights growing in a cleared area. Agents also observed in the mud along the pathway leading to the marijuana an impression made by a Converse gym shoe. This was an isolated area. The nearest farm house was over one-half mile away and was occupied by a 92-year-old man who also owned the land upon which the marijuana was growing. The elderly man was Special Agent Bruce Coffman's great uncle.

During the morning hours of August 29, 1996, law enforcement officers were watching the country road near this field of marijuana. The officers present that morning were Bruce Coffman and Jim Young, special agents with Kansas Bureau of Investigation, David Smith, an officer with Garden City Drug Enforcement Administration Task Force, and Gary Eichorn, an officer with the Lyon County Sheriff's office. Coffman and Smith hid themselves in the brush approximately thirty feet from the road. The other two officers were back another thirty feet also hidden in the brush and trees. Around 8:00 a.m., officers observed a pickup headed east driven by someone who was believed to be a local farmer. The pickup returned from the east approximately twenty minutes later. This pickup did not stop near the field and only slowed to turn the corner. For the next ninety minutes, no other vehicle drove along this gravel road.

Around 9:56 a.m., Agent Coffman heard a vehicle approach from the north and slow down. Coffman next heard the vehicle coming to a stop, a door slam, and the vehicle picking up speed again. When the vehicle came within his field of vision, Coffman saw a blue jeep-type vehicle with rusted wheel wells and no top driven by a white male, short brown hair, and a large upper body. The vehicle was moving away from the field headed west and then turning south. Coffman heard someone or something running through the woods that were between the road and the field.

Special Agent Jim Young and Lyon County Sheriff Officer Gary Eichorn saw a white male run into the trees wearing a backpack. The subject ran towards the entry path to the field, laid down the backpack, and moved southwest under the trees. The subject then returned to the backpack and removed a hand sprayer. With the sprayer, the subject walked down the pathway leading to the marijuana. The officers heard the subject pumping the hand sprayer three or four times. The subject then ran out of weeds and up the pathway where officers arrested him. The subject was identified as James Kelley living at 2006 Rhode Island, Lawrence, Kansas. Officers found on Kelley a backpack which contained insect repellant, fertilizer, garden fungicide, and a machete. Kelley asked if he was in trouble, and the officers told him, "Yes." Kelley, however, refused to tell officers who the driver was and when he was returning. One officer kept Kelley in the woods while the other three returned to the area near the road.

Around 10:23 a.m., Agent Coffman was taking photographs of footprints when he heard a vehicle approaching from the south and west. He observed that the vehicle was the same blue jeep-type vehicle that apparently had dropped off Kelley earlier. The driver slowed down, pulled off to the far right shoulder of the road, and stopped near one of the two trails leading through the trees and brush to the marijuana plants. Coffman saw the brake lights glowing on the vehicle. The driver looked into the trees and brush and then raced the engine three or more times. Two officers at that time shouted at the driver to exit the vehicle and then pulled him out of a vehicle and placed him under arrest. The driver had long hair and was wearing a light-brown ball cap, a flesh-colored T-shirt, and a pair of Converse gym shoes. The driver was identified as the defendant ...

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