U.S. v. Smith
| Decision Date | 30 August 1996 |
| Docket Number | No. 95-40083-03-SAC.,No. 95-40083-04-SAC.,Nos. 95-40083-06-SAC to 95-40083-08-SAC.,95-40083-03-SAC.,95-40083-04-SAC.,s. 95-40083-06-SAC to 95-40083-08-SAC. |
| Citation | 941 F.Supp. 985 |
| Court | U.S. District Court — District of Kansas |
| Parties | UNITED STATES of America, Plaintiff, v. Lexie Lee SMITH, Jr., aka "Lex," aka "Fresh Lex," aka "Fresh," Lester Ervin Smith, Jr., aka "Dink," aka "Les," aka "Mike Harris," aka "Ronell Harris," aka "Michael J. Harris," Lori Smith, aka "Laurie Smith," Edward Tyrone Merritt, James Wardel Quary, aka "Z," aka "Zulu," aka "Zado," Defendants. |
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.
James G. Chappas, Jr., Topeka, KS, for defendant Lexie Lee Smith, Jr.
Lexie Lee Smith, Jr., Emporia, KS, pro se.
Joseph D. Johnson, Topeka, KS, for defendant Lester Ervin Smith, Jr.
Michael M. Jackson, Topeka, KS, for defendant Lori Smith.
Lori Smith, Topeka, KS, pro se.
F.G. Manzanares, Topeka, KS, Steven D. Rosel, Topeka, KS, for defendant Edward Tyrone Merritt.
Alan G. Warner, Warner, Bixler & Associates, L.L.C., Topeka, KS, for defendant James Wardell Quary.
On February 1, 1996, the grand jury returned a sixty-eight page, seventy-nine count superseding indictment charging the defendants as follows:
Count 1:
Conspiracy to possess with the intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 846, with reference to 21 U.S.C. § 812, 21 U.S.C § 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2.
Counts 2, 4, 5, 7, 9, 12, 16, 17, 21, 40 and 78:
Possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), with reference to 21 U.S.C. § 846, 21 U.S.C. § 812, and 21 U.S.C. § (b)(1)(C), and 18 U.S.C. § 2.
Counts 3, 6, 8, 10 and 13:
Maintaining a building or room for the purpose of unlawfully storing cocaine base in violation of 21 U.S.C. § 856.
Using a communication facility in committing, causing and facilitating a drug trafficking crime in violation of 21 U.S.C. § 843(b).
Counts 17, 24, 28, 32, 36, 40, 45, 49, 57, 63, 64, 69, 71, 73 and 75:
Possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), with reference to 21 U.S.C. § 846, 21 U.S.C. § 812, and 21 U.S.C. § (b)(1)(B), and 18 U.S.C. § 2.
Counts 70, 74 and 79:
Acquiring and possessing food stamp coupons in a manner not authorized, constituting a violation of 7 U.S.C. § 2024(b).
Since the time the indictment was filed, three defendants, Demond Bridges, Elinor Preston, and Bernard Preston, have entered guilty pleas pursuant to plea agreements.
On April 5, 1996, this court entered a seventy page memorandum and order ruling on the then-pending pretrial motions filed by the defendants. See United States v. Preston, 1996 WL 254379 (D.Kan. April 5, 1996). Since the time that memorandum and order was filed, the grand jury has returned a second and a third superseding indictment. The third superseding indictment adds two defendants, Edward Tyrone Merritt and James Wardel Quary. In addition, the third superseding indictment adds the following charges:
Count 80: Possession with intent to distribute crack cocaine [All defendants]
Count 81: Felon in possession of a firearm [Edward Merritt]
Count 82: Carrying and/or using a firearm during and in relation to drug trafficking crimes [All defendants]
This case comes before the court upon the following pretrial motions filed by the defendants:
Lexie Lee Smith, Jr. (represented by James G. Chappas):
1. Motion for Bill of Particulars (Dk. 298).
2. Motion for disclosure of confidential informant(s) and incorporated memorandum of law (Dk. 299).
3. Motion for severance (Dk. 244);1 Motion for severance (Dk. 300).
4. Motion to strike surplusage from indictment (Dk. 302).
5. Motion for discovery and inspection (Dk. 303).
6. Motion for grand jury transcript (Dk. 304).
7. Standing Objection to Continuance Motions (Dk. 305); Standing objections to any continuance in the case and to any further superseding of indictment (Dk. 243).
8. Motion pursuant to F.R.E. Rule 803(24) (Dk. 306).
9. Motion to compel retention of notes, logs, recordings, reports and statements of government agents (Dk. 307).
10. Motion for James hearing (Dk. 308).
11. Motion for disclosure of information regarding prior or subsequent bad acts (Dk. 309).
12. Motion for grand jury selection information (Dk. 310).
13. Motion to compel the disclosure of existence and substance of promises of immunity, leniency or preferential treatment (Dk. 311).
14. Motion to quash third superseding indictment count 82 (Dk. 312).
15. Motion in limine to exclude use of audio tapes and transcripts (Dk. 297).2
16. Motion to quash counts 22, 23 and 24 of the second superseding indictment (Dk. 241).3
17. Adoption of previously filed pre-trial motions (Dk. 242).4
18. Motion to compel discovery (Dk. 195).5
19. Motion to quash government's consolidated responses to defendant's pretrial motions (Dk. 328).6
Lester Ervin Smith, Jr. (represented by Joseph D. Johnson):
1. Motion to sever (Dk. 323).
2. Motion to join in responses [to government's motion to compel discovery] (Dk. 208).
3. Motion for continuance of trial (Dk. 330).
Lori Smith (represented by Michael M. Jackson):
1. Motion for extension of time to file pretrial motions (Dk. 284).7
Edward Tyrone Merritt (represented by Steven D. Rosel):
1. Motion to join and adopt (Dk. 239).
2. Motion dismiss count (Dk. 259).
3. Motion for evidentiary hearing (Dk. 272).
James Wardel Quary (represented by Alan G. Warner):
1. Motion to Adopt and Conform (Dk. 285).
Other Motions Previously Taken Under Advisement:
Dk. 144 [Motion in Limine to Exclude Tapes], Dk. 153 [Motion for daily Transcript], and Dk. 154 []. See Preston, 1996 WL 254379 (D.Kan. April 5, 1996 (Dk. 178)).
The government has filed a consolidated response to the defendants' motions (Dk. 326). The government also responded to Lexie Smith's "Motion to compel discovery (Dk. 195) in a pleading titled "Government's response to defendant's motion to compel discovery" (Dk. 200).
Government's Motion:
1. Motion to compel discovery (Dk. 167)
Defendant's Responses:
1. Defendant's [Lexie Smith's] Response to Government's motion to compel discovery (Dk. 231).
2. Lori Smith's response to government's motion to compel discovery (Dk. 180).
3. Lester Smith's "Motion to join responses" of other defendant's to government's motion to compel discovery (Dk. 208).
On August 27, 1996, the court conducted a hearing to consider the defendants' pretrial motions. The court, having considered the briefs and arguments of counsel, the evidence presented, and the applicable law, is now prepared to rule.
Several of the motions filed by Lexie Lee Smith, Jr., are identical or virtually identical to the motions previously decided by the court in its April 5, 1996, memorandum and order. So that the record is clear, the court considers all of the previous motions filed by all of the defendants in this case to apply, to the extent applicable, to the third superseding indictment. The court, reconsidering its prior rulings, rules in the same manner on the following motions:
1. Motion for Bill of Particulars (Dk. 298).
2. Motion for disclosure of confidential informant(s) and incorporated memorandum of law (Dk. 299).8
6. Motion for grand jury transcript (Dk. 304).
8. Motion pursuant to F.R.E. Rule 803(24) (Dk. 306).
10. Motion for James hearing (Dk. 308).
11. Motion for disclosure of information regarding prior or subsequent bad acts (Dk. 309).
12. Motion for grand jury selection information (Dk. 310).
All of these motions are denied as moot in light of the court's previous rulings.
15. Motion in limine to exclude use of audio tapes and transcripts (Dk. 297).9
This motion is taken under advisement until the time of trial.
Motion to Adopt and Conform (Dk. 285 and 239):
Quary seeks to "adopt and conform" to all of the pretrial motions filed by codefendants "which may be applicable and beneficial" to him. Similarly, Merritt seeks to join in and adopt all of the pretrial motions which are beneficial to him. The government opposes the motion as each defendant does not articulate how the motion filed by codefendants is applicable to his respective position.
The defendants' motions are granted subject to the conditions imposed by this court's Criminal Procedural Guidelines. See I.C. ( ).
Motions for severance (Dks. 244, 300 and 323):
The defendants again seek severance from the other defendants. The defendants primarily argue that the jury will find them guilty by association and that the volume of evidence against other defendants will prevent each other defendant from receiving a fair trial as the jury will be unable to compartmentalize the evidence. Lester Smith requests that counts 80, 81 and 82 be severed, or in the alternative that he receive a separate trial on all counts. Because count 81 charges Edward Merritt only with felon in possession with a firearm, the defendants contend that the inclusion of Count 81 will result in unfair prejudice to their own case. The defendants also contend that certain codefendants have made extrajudicial statements that inculpate other defendants, causing a Bruton problem.
As to counts 80-82, Lester Smith contends that he was incarcerated and therefore could not have...
To continue reading
Request your trial
-
United States v. Murphy
...before a Franks hearing is warranted). 5. United States v. McCurdy, 40 F.3d 111, 1119 (10th Cir. 1994). 6. See United States v. Smith, 941 F. Supp. 985, 989 n.3 (D. Kan. 1996) (noting that the defendant's motion to quash indictment was moot because the alleged omissions were corrected by a ......