U.S. v. Weeks

• Decision Date: 23 October 2009
• Docket Number: Criminal File No. 1:08-CR-393-TWT.
• Citation: 666 F.Supp.2d 1354
• Parties: UNITED STATES of America, v. Jerome Julius WEEKS also known as Clarence Royden Weekes also known as Jerome J. Weekes also known as Jerome Week, Defendant.
• Court: U.S. District Court — Northern District of Georgia

Page 1354

666 F.Supp.2d 1354

UNITED STATES of America, v. Jerome Julius WEEKS also known as Clarence Royden Weekes also known as Jerome J. Weekes also known as Jerome Week, Defendant.

Criminal File No. 1:08-CR-393-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

October 23, 2009.

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Ryan Scott Ferber, U.S. Attorney's Office, Atlanta, GA, for United States of America.

Jerome Julius Weeks, pro se.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is a criminal case. It is before the Court on the Report and Recommendation [Doc. 53] of the Magistrate Judge recommending denying the Defendant's Motion to Suppress Evidence [Doc. 14] and Motion to Dismiss [Doc. 15]. For the reasons set forth in the thorough and well reasoned Report and Recommendation, the law enforcement agents possessed lawful authority to enter the apartment to execute a valid arrest warrant. They had a reasonable belief that the Defendant resided in the apartment and reason to believe that he was within the apartment at the time of entry. The agents then conducted a protective sweep of the premises for their protection and that of others. During the protective sweep, Inspector Warren saw in plain view a box of ammunition in the partially open drawer of the bedroom night stand. After the Defendant was apprehended and removed from the apartment, Ms. Edmonds consented to a search of the apartment. The consent was voluntarily given. Ms. Edmonds' testimony that she did not consent to the search is not credible for the reasons given by the Magistrate Judge. The Defendant concedes that there is abundant Eleventh Circuit authority upholding the constitutionality of 18 U.S.C. § 922(g). The Court approves and adopts the Report and Recommendation of the Magistrate Judge as the judgment of the Court. The Defendant's Motion to Suppress Evidence [Doc. 14] and Motion to Dismiss [Doc. 15] are DENIED.

SO ORDERED, this 22 day of October, 2009.

                UNITED STATES OF AMERICA
                v
                JEROME JULIUS WEEKS
                

ORDER FOR SERVICE OF MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

RUSSELL G. VINEYARD, United States Magistrate Judge.

Attached is the Final Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b) (1) and N.D. Ga. Cr. R. 58.1(A)(3)(a) and (b). Let the same be filed and a copy, with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983).

Pursuant to Title 18, U.S.C. § 3161(h)(1)(F), the above-referenced ten (10) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act, whether or not objections are actually filed. The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this 21st day of July, 2009.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

Defendant Jerome Julius Weeks ("Weeks")¹ is charged in a superseding indictment with one count of possessing a firearm after a felony conviction and while on pretrial release, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and 3147(1), one count of possessing a firearm while being a fugitive from justice and on pretrial release, in violation of 18 U.S.C. §§ 922(g)(2), 924(a)(2), and 3147(1), and two counts of making a felse statement in connection with the purchase of a firearm in violation of 18 U.S.C. § 924(a)(1)(A). [Doc. 24].² Weeks has filed a motion to suppress evidence from a warrantless search, [Doc. 14], and a motion to dismiss the first two counts, [Doc. 15], contending that § 922(g) is unconstitutional. Following an evidentiary hearing on the motion to suppress,³ the parties filed post-hearing briefs, [Docs. 39, 48, & 52], and the motions are now ripe for review. For the following reasons, the undersigned RECOMMENDS that Weeks' motion to suppress, [Doc. 14], and motion to dismiss, [Doc. 15], be DENIED.

I. STATEMENT OF FACTS

On September 21, 2006, Weeks was convicted in the United States District Court for the District of Massachusetts of one count of possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). [Doc. 39 at 3-4; Doc. 48 at 3]. Weeks was allowed to remain on bond pending sentencing, but he failed to appear at his sentencing hearing on January 31, 2007. [Doc. 39 at 4]. The District Court in Massachusetts issued a warrant for his arrest, and the Boston U.S. Marshals Service ("USMS") began a fugitive search for Weeks. [Id.]. In March 2007, the Boston USMS received a tip from the mother of Debra Edmonds ("Edmonds"), Weeks' girlfriend, that Weeks, Edmonds, and her two daughters⁴ were staying at an apartment at 415 Fairburn Road, Atlanta, Georgia. (Tr. at 85, 110, 132). The address provided was an apartment complex. (Tr. at 85).

Upon receiving the tip that Weeks was in Atlanta, the Boston USMS referred the fugitive investigation to the USMS Southeast Regional Fugitive Task Force ("SERFTF"), in Atlanta. Deputy United States Marshal Wendell Brock ("Deputy Brock") was assigned to the investigation, and he began conducting computer database searches for Weeks, but could not locate any information on Weeks in Georgia, so he performed searches using Edmonds' name. (Tr. at 86, 107). Deputy Brock contacted Georgia Power and learned that Edmonds was connected to apartment 1005 at 415 Fairburn Road. (Tr. at 85, 87).⁵ Deputy Brock could not recall whether the utility bill for apartment 1005 was in Edmonds' name or in the name of the person who actually leased apartment 1005, Latasha Woods ("Woods"), (Tr. at 107-08),⁶ but he believed that he connected Edmonds to the apartment through Georgia Power after he "called somebody and had somebody else speak with somebody" about the utility bill. (Tr. at 108).⁷

Deputy Brock conducted surveillance of apartment 1005 on at least two days and observed Weeks coming and going from the apartment on those occasions. (Tr. at 109-10).⁸ Cm April 20, 2007, one of the days Deputy Brock was surveilling apartment 1005, he observed Weeks enter the apartment, and Deputy Brock called for backup to assemble an arrest team, but before the team could arrive, Weeks exited the apartment and Deputy Brock lost sight of him. (Tr. at 85-86, 88-89). After Deputy Brock did not see Weeks return within approximately one hour, he called off the arrest. (Id.).

On April 26, 2007, Deputy Brock assembled an arrest team of approximately 8 to 9 agents who met for a briefing between 6:00 and 6:30 a.m. at a medical facility approximately one-fourth of a mile from the apartment complex. (Tr. at 8, 89-91). Most of the agents were in plain clothes, but they all wore bulletproof vests that had "U.S. Marshals" printed on the front and "Police" or "Police Southeast Fugitive Task Force" on the back. (Tr. at 90). No one was wearing a helmet or goggles, but each member of the arrest team had a firearm. (Id.). Deputy Brock went over Weeks' criminal history, the nature of the charges against Weeks in Boston, a physical description of Weeks' height and weight, the location of the apartment and its description, and showed the agents Weeks' photograph. (Tr. at 91).

The arrest team then proceeded to the apartment complex at 415 Fairburn Road. Apartment 1005 was at the front of the building on the second floor, facing the parking lot and located to the left of the stairs that led from the parking lot to the front of the apartment through an open-air breezeway. (Tr. at 9-10, 92, 131; Gov. Ex. 6). At least four agents were on the perimeter team that stayed on the ground. (Tr. at 92). There was a window at the corner of the apartment, so the perimeter agents watched the corner window and the front of the apartment. (Tr. at 10, 92; Def. Ex. 8). The rest of the agents, who were on the entry team, approached the apartment in a single-file line, commonly referred to as a "stack." (Tr. at 10, 92).

The first agent in the stack, SERFTF Special Agent Joel Sheppard ("Agent Sheppard"), knocked on the door and yelled "Police," but no one answered. (Tr. at 92-93, 249). He knocked several more times. (Tr. at 92, 249). Edmonds, who was sleeping in the master bedroom, located on the front left side of the apartment, was awakened by the knocking. (Tr. at 193). She nudged Weeks and told him to go open the door, but he did not wake up. (Id.). Edmonds detected a light at the window and she peeked through the blinds. (Id.). She saw agents and cars in the driveway of the parking lot, and one of the agents was flashing a light into the bedroom window. (Tr. at 193-94). Edmonds testified that she "[g]ot scared and tried to wake [Weeks], shaking him and telling him to get up." (Tr. at 195). Weeks then woke up, got out of bed, and ran to the back of the bedroom toward the closet and the bathroom. (Id.). Edmonds testified that she opened the bedroom door and "attempted to go get the kids." (Id.).

USMS Inspector Alexis Camacho ("Inspector Camacho"), one of the perimeter agents, noticed that someone had come to the corner window and looked out through the blinds. (Tr. at 249). He and other agents on the perimeter notified...