U.S. v. Sterba

• Decision Date: 13 August 1998
• Docket Number: No. 97-441-CR-T-23E.,97-441-CR-T-23E.
• Parties: UNITED STATES of America v. James STERBA.
• Court: U.S. District Court — Middle District of Florida

22 F.Supp.2d 1333

UNITED STATES of America v. James STERBA.

No. 97-441-CR-T-23E.

United States District Court, M.D. Florida, Tampa Division.

August 13, 1998.

Stephen Kunz, U.S. Attorney's Office, Tampa, FL, for U.S.

Anthony Martinez, Federal Public Defender's Office, Tampa, FL, for Defendant.

ORDER DISMISSING INDICTMENT

MERRYDAY, District Judge.

The grand jury indicted James R. Sterba (Sterba) for allegedly violating 18 U.S.C. § 2422(b)¹ by soliciting a minor for an unlawful sexual encounter.² Sterba allegedly utilized a computer and the services of one of the adult "chat rooms" of America Online (AOL) to contact and persuade a putative minor to engage in sexual activity with him at an agreed time and place. A "chat room" is a service, available through the much-discussed "Internet," by which a participant sends to and receives messages from an unseen person who presumably shares some particular enthusiasm, in this instance, sexual intercourse.

After both the United States and Sterba completed their trial presentation and rested their respective cases, Sterba interposed a motion for mistrial based upon both the government's misidentification of a material witness and the consequent infringement of Sterba's sixth amendment right to confront the witnesses against him. I granted the motion. Sterba now seeks dismissal of the indictment based upon his fifth amendment immunity from being "for the same offence ... twice put in jeopardy ...", a right commonly called his immunity from "double jeopardy."

FINDINGS OF FACT

On October 15, 1997, the United States Attorney filed a grand jury indictment against Sterba and alleged a violation of 18 U.S.C. § 2422(b).³ On October 28, 1997, the magistrate judge entered a typical pretrial discovery order, paragraph II(B) of which states, among other things:

The Government shall disclose to the defendant the existence and substance of any payments, promises of immunity, leniency, preferential treatment, or other inducements made to prospective Government witnesses, within the scope of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The Government shall supply the defendant with a record of prior convictions of any witness who will testify for the Government at trial. The Government shall make available any application to the court for immunity of a witness as well as any order issued in response to the application.

On January 26, 1998, Sterba sought to interview an informant whose existence was revealed in response to this order. However, the United States declined to permit an interview and refused to reveal the informant's name until the beginning of trial. The magistrate judge agreed with the United States.

Trial began on May 18, 1998, without revelation to the defense of the informant's name. The United States' pretrial compliance included a witness list that named "Gracie Greggs" as a government witness. Both the defense and I accepted the representation that the name of the witness was "Gracie Greggs." In accord with established practice, I called upon the Assistant United States Attorney (the AUSA) to read the witness list to the venire, presumably to assist the prospective jurors' identifying any connection to or information about the United States' witnesses.

THE COURT: Let's do this, [AUSA], let me ask you on behalf of the United States to stand and identify any individuals that you think even possibly could be called as witnesses in this case, if you're prepared to do so; you are.

[AUSA]: Yes, sir.

THE COURT: Okay. Understand that all of these people probably are not going to be called. But it is better to err on the side of telling you who they are and see if you know any of them, rather than have a surprise in the middle of the case. [AUSA].

[AUSA]: Gracie Greggs, Carole Dumestre, Chuck Esposito, Christie Hargrove, Roger Joseph, Brian Christe, Alma Franklin, Ann Harafin, Jerry Herron, Linda Mitchell, A.J. Suarez, and John Bischoff.

THE COURT: Bischoff.

Do any of you think that you know any of those people from any source whatsoever or anything about them? Again, they ought to be strangers to you. If one of those people gets on the stand here they should be a stranger to you....

(emphasis added) Without informing the presiding judge, the United States commandeered this process to its own use by knowingly disguising the identity of a government witness and deceptively using the name "Gracie Greggs."

The trial began and in due course the United States summoned "Gracie Greggs" to the witness stand. The following exchange occurred:

THE COURT: All right, [AUSA], who is your first witness?

[AUSA]: Gracie Greggs.

THE COURT: Gracie?

[AUSA]: Greggs.

THE COURT: Greggs.

[RULE 615 WAS INVOKED AND EXPLAINED.]

GRACIE GREGGS, GOVERNMENT'S WITNESS, SWORN

THE COURT: All right. Have a seat. Mr. Murray will assist you.

DIRECT EXAMINATION

BY [AUSA]:

Q. Good morning.

A. Hi.

[SEQUESTRATION RULE DISCUSSED]

Q. Good morning. Are you Gracie Greggs?

A. Yes

Q. Are you also Katie 16140?

A. Yes

Q. Okay. First off, can you tell us how old you are?

A. 35.

Q. And I want to ask you a little bit about your general background and experience in the field of computers. Have you attended any college courses in the field of information systems or computers?

A. Yes

Q. Okay. Tell — can you tell us a little bit about that.

A. I really enjoy working with computers. I enjoy working with the hardware versus the software, mostly. I have gone to college at University of Tampa and Mercer University. I currently am involved with an ISP, which is an Internet Service Provider. I've done it for years.

"Gracie Greggs" then presented a brief biography, which was not the biography of "Gracie Greggs" but of Adria Jackson. The witness was not Gracie Greggs nor, so far as the Court knows, does Gracie Greggs exist. (Probably, some innocent person somewhere has this now controversial name.) The testimony was false and manufactured ad hoc.

On Wednesday, May 20, 1998, I convened court to conduct a brief "charge conference," to entertain the summations of both the United States and the defense, and to begin jury deliberations. The discussion resolved some minor issues, among which was a proposed charge concerning statements by a defendant consequent upon an arrest. This exchange occurred with the AUSA:

THE COURT: I don't remember seeing [the instruction] in your set, but it seems to me that we ought to probably give it. We'll discuss where in just a minute.

Now, — help me [AUSA], Ms. Agent here from — who posed as the recipient of these communications, what was her name?

[AUSA]: Katie?

THE COURT: Well, yes, but what was the woman's name?

[AUSA]: Her name was Gracie Greggs.

THE COURT: Greggs. I guess — is that who you are talking about here in number 8? She wasn't using addictive drugs or promised any favoritism in any case. Is this necessary? Or who is this directed toward? Mr. Sterba is, at worst, a first offender, if he's an offender at all. So I'm not sure what we have got here.

It seems like this is inapplicable, Mr. Martinez.

MR. MARTINEZ: It is, Your Honor.

In short, the AUSA continued to further the deception that a witness named "Gracie Greggs" had appeared and testified.

The discussion then turned to entrapment. The defense expressed a concern about the absence of evidence of any predisposition of the defendant to commit a sexual offense against a minor. I inquired about "Gracie Greggs's" history with law enforcement.

THE COURT: [AUSA], with respect to — and I still cannot remember her name— what is her name?

[AUSA]: Gracie Greggs.

THE COURT: Greggs, is this an isolated instance of her serving as an informant or is she a regular government — I mean does she have any other relationship with the government other than this isolated episode?

[AUSA]: She had — with regard to other cases, she has one other case that resulted in an arrest. Her general status is that there was an understanding that she could work for a period of up to a year, but I don't think that she is currently working for the United States Customs. So at this point she isn't, but she has done one other case, if that helps —

THE COURT: Was she some sort of — has she some sort of history in law enforcement?

[AUSA]: Not that I'm aware.

THE COURT: And I think she testified to this, I just don't remember what it was, how did law enforcement find her and her skills and —

[AUSA]: She was — Customs was investigating another crime.⁴ And as a result of that, she was interviewed. And at the time that she was interviewed, although it wasn't an investigation that Ms. Dumestre was conducting, she was associated or assisting the investigation, so that's how —

THE COURT: Who is she now?

[AUSA]: Carole Dumestre. Carole Dumestre, the agent, was assisting another Customs agent from Oklahoma on an investigation in which the witness was questioned —

THE COURT: Her name popped up and she got interviewed.

[AUSA]: Exactly. She got interviewed. And then Agent Dumestre thought, hey, she's local and she obviously knows a lot about computers and let's bring her on in.

THE COURT: Okay. But she's not a repetitive source —

[AUSA]: She was acting —

THE COURT: She was what?

[AUSA]: Well, she's not a repetitive source, but she was clearly acting as a Customs informant at the time she did this. I mean this all happened before she had been signed up by customs before her contact with Mr. Sterba.

THE COURT: And I take it recruited for that by your case agent?

[AUSA]: Yes. Absolutely.

Prompted by this discussion about "Gracie Greggs," Mr. Martinez raised in behalf of the defense some serious questions about "Gracie Greggs."

MR. MARTINEZ: Well, the government indicates that the informant's name is Gracie Greggs. This witness, as you may recall, did testify that her name was Gracie Greggs. Well, I sent my investigator...