U.S. v. Nelson, Criminal No. L-07-0203.
| Decision Date | 08 January 2008 |
| Docket Number | Criminal No. L-07-0203. |
| Citation | 530 F.Supp.2d 719 |
| Parties | UNITED STATES of America v. Samuel NELSON and Warren Polston. |
| Court | U.S. District Court — District of Maryland |
J. Wyndal Gordon, The Law Office of J. Wyndal Gordon PA, Baltimore, MD, for Samuel Nelson.
Defendants Samuel Nelson and Warren Polston are each charged with a single count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (2000). The indictment was returned on May 1, 2007. Now pending are the following pretrial motions:
(1) Polston's Motion to Dismiss the Indictment;
(2) Polston's Motion to Compel Co-Conspirator Proffer Pursuant to Rule 801(d)(2)(E);
(3) Nelson's Motion to Dismiss the Indictment and to Adopt Arguments Contained in Polston's Motion to Dismiss the Indictment;
(4) Nelson's Motion to Dismiss for Excessive Pre-Indictment Delay;
(5) Nelson's Motion to Compel Co-Conspirator Proffer Pursuant to Rule 801 (d)(2)(E);
(6) Nelson's Motion to Suppress Physical Evidence;
(7) Nelson's Motion for Reconstruction of Evidence (or, in the alternative, to Strike the Use of Vacuum-Sealed Samples);
(8) Nelson's Motion for Discovery; and
(9) Nelson's Motion for Disclosure of Relevant Witness Statements.
The Court held a hearing on the Defendants' motions on December 13, 2007. The Government called one witness at the hearing, Special Agent Todd Edwards of the Drug Enforcement Administration (DEA). Neither Defendant called any witnesses, but both presented oral argument.1
Having considered the evidence and arguments of counsel, the Court is now ready to rule on the Defendants' motions. For the following reasons, the Court will, by separate Order, GRANT Nelson's Motion to Adopt Arguments Contained in Polston's Motion to Dismiss the Indictment. The remaining motions are DENIED.
Nelson and Polston are charged with conspiring, together with a group of confederates from Houston, Texas, to transport narcotics from Houston to Baltimore from January through May 2002. According to the Government, the Houston suppliers drove to Baltimore on four or five occasions during this period for the purpose of selling kilogram quantities of cocaine. The Government asserts that the suppliers sold cocaine to Nelson on each of these trips and that they also sold to Polston at least twice.
On May 15, 2002, three of the Houston suppliers were arrested by Baltimore County Police officers outside an apartment complex in Nottingham, Maryland. At the time of the arrests, the officers had placed the complex under surveillance in connection with an unrelated, credit card fraud investigation. While conducting their surveillance, the officers observed the suppliers' vehicle arriving at the building followed by a white minivan. Although the minivan left the scene and never returned, the suppliers exited their vehicle and, attempted to enter one of the building's apartments. They were then approached by the police.
In response to police questioning, one of the suppliers admitted that their vehicle contained narcotics. The officers then searched the vehicle and discovered approximately five kilograms of powder cocaine hidden in a secret compartment. The vehicle was seized and the three suppliers were arrested.
The Government continued to investigate the Houston suppliers after the May 15 arrests. According to the testimony of Special Agent Edwards, the DEA learned from cooperating witnesses that a man known as "Uncle Sam" had purchased cocaine from the suppliers in kilogram quantities on multiple occasions, and that he sometimes strived to pick up the drugs in a white minivan. On at least one occasion, Uncle Sam was also observed driving a maroon BMW.
To discover Uncle Sam's true identity, the DEA reviewed the phone records of participants in the events leading up to the May 15 arrests. This inquiry led the Agents to Defendant Samuel Nelson. After identifying Nelson as a suspect, the DEA obtained his photograph from the Motor Vehicle Administration (MVA) and presented it, on separate occasions, to two of its cooperating witnesses.2 Both witnesses positively identified Nelson as Uncle Sam.3
The DEA also obtained MVA records indicating that Nelson's wife owned a white Dodge minivan and a maroon BMW. According to Special Agent Edwards, this evidence was corroborated on multiple "drive-by" visits to Nelson's home, during which Edwards personally observed Nelson operating both vehicles. On the last of his visits, Edwards also discovered counterfeit U.S. currency in the trash outside Nelson's home.
Based on this information, the DEA and Secret Service obtained a warrant to search Nelson's residence. The warrant was executed on September 4, 2002. During the search, agents seized Nelson's minivan and BMW and placed the vehicles in forfeiture proceedings pursuant to 21 U.S.C. § 881.4 Two days later, DEA analysts conducted ion vacuum scans on both vehicles. Particulate matter obtained from each of the vehicles tested positive for the presence of cocaine.5
Over the next few years, the Government continued to investigate the conspiracy involving Nelson and the Houston suppliers. Sometime in 2003, the Government obtained testimony from additional confidential informants with personal knowledge of the scheme. It was these informants who first identified Defendant Warren Polston as the "other" individual who purchased cocaine from the Houston suppliers in early 2002.6 Govt's Mem., 9.
After identifying Polston as a potential participant in the conspiracy, the Government continued its efforts to prosecute additional suspects. According to evidence presented at the December 13th hearing, the last of the Government's cooperating witnesses was sentenced in June 2005. After these proceedings were concluded, a major Houston drug dealer with ties to the conspiracy was indicted in the Southern District of Texas in late 2006. Nelson and Polston were eventually indicted on May 1, 2007.
After reviewing the Defendants' motions in light of the arguments presented at the December 13th hearing, the Court hereby GRANTS Nelson's Motion to Adopt Arguments Contained in Polston's Motion to Dismiss the Indictment. The remaining motions are DENIED. Each is addressed in turn below.
As an initial matter, the Court notes that Nelson's Motions for Discovery and Disclosure of Relevant Witness Statements have either been resolved or are currently being resolved by the Government pursuant to its continuing discovery obligations. Accordingly, Nelson's discovery motions are either premature or moot at this point in the proceedings. The motions will therefore be denied.
Polston makes three arguments in support of his Motion to Dismiss the Indictment. We take up each of his claims below.
Polston first contends that there is insufficient evidence that he participated in a conspiracy to distribute cocaine. According to Polston, the Government's evidence will at best reveal that he "was only a customer of the individuals who ran the conspiracy alleged in the indictment." Mem. in Supp. of Polston's Mot. to Dismiss, 4. Even if it is established that he purchased cocaine from the Houston suppliers, Polston argues that the Government is unable to prove that he "had knowledge of the overall conspiracy charged in this case or an intent to participate in it." Id. at 5.
To prove conspiracy to possess with intent to distribute cocaine, the Government must establish (1) an agreement to possess cocaine with intent to distribute; (2) that the defendant knew of the conspiracy; and (3) that the defendant knowingly and voluntarily became a part of the conspiracy. See United States v. Wilson, 135 F.3d 291, 306 (4th Cir.1998); United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (en banc). "Once it is shown that a conspiracy exists, the evidence need only establish a slight connection between the defendant and the conspiracy to support [a] conviction." United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.1992). "[A] defendant need not have knowledge of his co-conspirators, or of the details of the conspiracy, and may be convicted despite having played only a minor role[]." United States v. Strickland, 245 F.3d 368, 385 (4th Cir.2001). As the Fourth Circuit has, consistently recognized, "evidence of a buy-sell relationship," coupled with evidence concerning the quantity of drugs sold, is sufficient to sustain a conspiracy conviction. See, e.g., United States v. Mills, 995 F.2d 480, 485 (4th Cir.1993); United States v. Nelson, 237 Fed.Appx. 819, 2007 WL 2174596 (4th Cir.2007) (unpublished disposition).
In its filings with the Court and in arguments presented during the December 13th hearing, the Government has stated that it will present evidence that Polston purchased kilogram quantities of cocaine from the Houston suppliers on at least two occasions. See, e.g., Govt's Mem. at 11. This evidence would establish a buy-sell relationship between Polston and the Houston suppliers and also that Polston purchased "distribution quantities" of Cocaine.7 Id. at 13. Under settled Fourth Circuit law, such evidence is adequate on its own to support a conspiracy conviction.
The Government has also indicated that it will call three new cooperating witnesses at trial,8 at least one, of whom will testify that Nelson and Polston were present at the same meeting with Wilbert Sejuelas, one of two Houston drug dealers at the heart of the 2002 conspiracy. Such testimony would establish that Polston and Nelson had knowledge of one another and that they "purchased cocaine from...
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