U.S. v. Mayhew, No. 2:03-CR-165.
| Citation | 337 F.Supp.2d 1048 |
| Decision Date | 27 September 2004 |
| Docket Number | No. 2:03-CR-165. |
| Parties | UNITED STATES of America, Plaintiff, v. John Richard MAYHEW, Jr., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
David Devillers, United States Attorney, Columbus, OH, for Plaintiff.
This matter is before the Court on the following motions filed by Defendant, John R. Mayhew, Jr.: Motion for a Bill of Particulars on Count One; Motion for a Bill of Particulars on Counts Three, Four, and Five; Motion to Dismiss Count One; Motion to Dismiss Count Six; Motion for Relief from Prejudicial Joinder; Motion to Strike the Nature of His Prior Felony Conviction from Count Two of the Indictment and Prevent the Government from Introducing Evidence as to the Nature of His Prior Felony Conviction; and Motion to Suppress Physical Evidence Seized from 28 N. Princeton Ave. The Court conducted an evidentiary hearing on Defendant's Motion to Suppress on August 6, 2004. For the following reasons, the Motion for a Bill of Particulars on Counts Three, Four, and Five and the Motion to Strike the Nature of Defendant's Prior Felony Conviction from Count Two of the Indictment and Prevent the Government from Introducing Evidence as to the Nature of the Prior Felony Conviction are GRANTED; the remaining Motions are DENIED.
The essential background facts, as alleged by the government, are as follows. On the night of August 7, 2003, Defendant went to a home at 2258 Springmont Avenue, Columbus, Ohio, where he shot and killed his ex-girlfriend, Tamara McKibben, and her fiance, Frank Rigsby. While at the residence, he threatened Tamara McKibben's son, Andy Aspell, Jr., with his gun. Defendant then kidnaped his and Tamara McKibben's daughter, Christina McKibben, from the home. Defendant took Christina McKibben with him in his car and drove with her to West Virginia. On August 9, 2003, Defendant, still with Christina McKibben in the car, was pulled over by a West Virginia state trooper for a minor traffic offense. When the officer approached the car, Defendant drew a gun and shot the officer. A 30-minute car chase ensued.
Defendant ultimately was stopped by a roadblock and tire spikes. While police were ordering him to exit the car, Defendant shot Christina McKibben twice, then shot himself once. Police pulled both people from the car, and Christina McKibben told the police that she was from Columbus and that there was a bomb in the car. Two bombs were found under the front seats of the vehicle. Christina McKibben died en route to the hospital. Shortly after his arrest, Mayhew was interviewed by Lieutenant David Livingston of the Greenbrier County Sheriff's Department. Mayhew admitted to having shot Tamara McKibben, Frank Rigsby, the West Virginia state trooper, and Christina McKibben. He stated that he committed all of these shootings with the Tech-9 weapon recovered at the scene of his arrest. He informed Livingston that there were additional firearms — namely a 12-gauge shotgun and a .22 Magnum Marlin bolt-action rifle — at his home at 28 North Princeton Avenue in Columbus.
On October 2, 2003, the government issued a seven count Indictment charging Defendant with the following offenses:
(1) that he "did willfully and unlawfully kidnap, abduct and carry away Christina McKibben and willfully transport Christina McKibben in interstate commerce from the Southern District of Ohio to the state of West Virginia, and did hold her for ransom, reward or otherwise, resulting in the death of Christina McKibben";
(2) that, having been convicted of a felony in 1992, for the offense of kidnaping with gun specification, he "knowingly possessed a firearm, that is, an Intratec, Model Tec 9, .9mm pistol, the said firearm having been shipped and transported in interstate commerce";
(3) that he "did knowingly transport or receive, in interstate commerce, an improvised explosive device with the knowledge or intent that it would be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy a vehicle, or other real or personal property";
(4) that he "did knowingly possess a firearm, that is, an improvised explosive device, not registered to him in the National Firearms Registration and transfer record as required in 26 U.S.C. § 5841";
(5) that he "did knowingly possess an unregistered firearm, that is, an improvised explosive device, not identified by a serial number, as required in 26 U.S.C. § 5842";
(6) that he "did knowingly travel in interstate commerce, with the intent to injure, harass and intimidate ... Christina McKibben ..., and in the course of and as a result of such travel ... placed Christina McKibben in reasonable fear of death and serious bodily injury, and such acts resulted in the death of Christina McKibben"; and
(7) that he "did knowingly use, carry, brandish and discharge a firearm, that is, a pistol, and did knowingly carry an unregistered destructive device, all during and in relation to a crime of violence, for which he may be prosecuted in a court of the United States [for] interstate stalking in violation of 18 U.S.C. § 2261A(1), and in so doing, [he] committed murder ... with malice aforethought, such murder being willful, deliberate, malicious and premeditated."
On February 25, 2004, Defendant filed all of the Motions at issue in this Opinion and Order. The government filed a Consolidated Response on March 19, 2004. On August 6, 2004, the Court conducted an evidentiary hearing on Defendant's Motion to Suppress. The parties submitted post-hearing briefs on August 27, 2004. This matter is now before the Court on the following Motions: (1) Defendant's Motion to Suppress Physical Evidence Seized from 28 N. Princeton Ave.; (2) Defendant's Motion to Strike the Nature of His Prior Felony Conviction from Count Two of the Indictment and Prevent the Government from Introducing Evidence as to the Nature of His Prior Felony Conviction; (3) Defendant's Motion for Relief from Prejudicial Joinder; (4) Defendant's Motions to Dismiss Counts One and Six; and (5) Defendant's Motion for a Bill of Particulars on Count One and Motion for a Bill of Particulars on Counts Three, Four, and Five.
Defendant seeks to suppress all physical evidence seized from his home at 28 North Princeton Avenue in Columbus. The evidence was seized pursuant to a search warrant issued and executed in the early morning hours of August 10, 2003. The search warrant was ordered by Franklin County Municipal Court Judge Harland Hale on the affidavit of Columbus Police Department Detective Kathie Justice. Justice never interviewed Mayhew; instead, she spoke by telephone with Livingston, who had interviewed Mayhew following his arrest in West Virginia. Justice testified at the hearing before this Court that Livingston told her that Mayhew had told him that both firearms and explosives could be found at 28 North Princeton Avenue. The contemporaneous notes that Justice generated during this conversation support her contention. It is undisputed, however, that Mayhew did not actually tell Livingston that there were explosives at his home; he told Livingston only that he had firearms stored at his home.
After speaking with Livingston, Justice prepared her search warrant affidavit, which states, Justice concluded the search warrant affidavit by stating, "Therefore, a search warrant is requested for 28 N. Princeton Ave. to locate any more firearms and explosives that Mr. Mayhew have [sic] as well as his computer, which may have information concerning his relationship with the victim." The warrant authorized the government to search "[f]or articles of property used as a means of the commission of a crime, property which may identify or trace the suspect or victim together with other fruits, instrumentalities and evidence of the crime of Aggravated Murder section number 2903.01(A) of the Ohio Revised Code, at this time unknown."
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a search warrant "must be voided" if, after a hearing, the defendant establishes by a preponderance of the evidence that (1) "a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit," and (2) "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause." Franks at 155-56, 98 S.Ct. 2674; accord United States v. Keszthelyi, 308 F.3d 557, 566 (6th Cir.2002). When an affidavit is based on information obtained from a government official, Franks suppression may be appropriate if either the affiant or the government informant knew that the information provided was false or recklessly disregarded its falsity. United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997); United States v. Wapnick, 60 F.3d 948, 956 (2d Cir.1995); United States v. DeLeon, 979 F.2d 761, 764 (9th Cir.1992); United States v. Delgado, 121 F.Supp.2d 631, 640-41 (E.D.Mich.2000); see also Franks, 438 U.S. at 171, 98 S.Ct. 2674 () (emphasis added).
Defendant contends that Livingston either lied or acted with reckless disregard for the truth when he told Justice that Mayhew had admitted to the presence of explosives at his home. Defendant asserts that the false statement thus must be excised from the search warrant affidavit. According to Defendant, once the words "and explosives" are...
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