United States v. Bibbs
| Decision Date | 10 June 2021 |
| Docket Number | No. 3:19-CR-151-TAV-DCP,3:19-CR-151-TAV-DCP |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DEMETRIUS D. BIBBS et al., Defendants |
| Court | U.S. District Court — Eastern District of Tennessee |
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate.
Now before the Court are Defendant Bibbs' Motion for Disclosure of Specific Items of Impeaching Information [Doc. 214], Defendant Bibbs' Motion for a Bill of Particulars [Doc. 215], Defendant Bibbs' Motion for Pretrial Disclosure of Rule 404(b) Evidence [Doc. 216], Defendant Bibbs' Motion for Disclosure of Material Witnesses [Doc. 217], Defendant Bibbs' Motion for a Pretrial Hearing on the Existence of a Conspiracy [Doc. 218], Defendant Bibbs' Motion to Sever [Doc. 220], Defendant Antoinette Turner's Motion to Adopt [Doc. 238], Defendant Bibbs' Motion to Amend/Revise [Doc. 319], Defendant Billips' Motion to Sever [Doc. 340], and Defendant Billips' Motion for Pretrial Notice of Government's Intent to Use Rule 404(b) Evidence [Doc. 343].
The Court held a motion hearing with Defendant Bibbs and Defendant Antoinette Turner on November 20, 2020. [Doc. 290]. Assistant United States Attorney David Lewen appeared on behalf of the Government, Attorney Randall Reagan appeared on behalf of Defendant Bibbs, and Attorney Loretta Cravens appeared on behalf of Defendant Antoinette Turner. On May 7, 2021, the Court held a motion hearing on several of Defendant Billips' motions—including Docs. 340 and 343. [Doc. 379]. Assistant United States Attorney David Lewen appeared on behalf of the Government, while Attorney Stephen McGrath appeared on behalf of Defendant Billips.
Accordingly, for the reasons set forth below, Defendant Bibbs' First Specific Brady Motion for Disclosure of Specific Items of Impeaching Information [Doc. 214], Motion for a Bill of Particulars [Doc. 215], Motion for Disclosure of Material Witnesses [Doc. 217], Motion for a Pretrial Hearing on the Existence of a Conspiracy [Doc. 218], and Motion to Sever [Doc. 220] will be DENIED. Defendant Bibbs' Motion for Pretrial Disclosure of Rule 404(b) Evidence [Doc. 216] will be GRANTED in part and DENIED in part, and Defendant Bibbs' Motion to Amend [Doc. 319] will be GRANTED. Lastly, Defendant Antoinette Turner's Motion to Adopt [Doc. 238], as well as Defendant Billips' Motion to Sever [Doc. 340] and Motion for Pretrial Notice of Government's Intent to Use Rule 404(b) Evidence [Doc. 343] will be DENIED AS MOOT.
Defendant Bibbs was charged in the Second Superseding Indictment [Doc. 243]1 with conspiracy to distribute fifty grams or more of methamphetamine, as well as a quantity of fentanyl, oxycodone, alprazolam, marijuana, buprenorphine, and heroin, from on or about July 15, 2018 through on or about November 22, 2019—in violation of 21 U.S.C. § 846 (Count One); aiding and abetting possession of a firearm in furtherance of drug trafficking—in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (2) (Count Two); aiding and abetting another (Defendant Billips) to knowingly and intentionally possess with intent to distribute heroin—in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(C), and 18 U.S.C. § 2 (Count Twelve); aiding and abetting another (Defendant Billips) to knowingly possess and brandish a firearm in furtherance of a drug trafficking crime—in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), and (2) (Count Thirteen); and being a felon in possession of a firearm—in violation of 18 U.S.C. § 922(g)(1) (Count Fifteen).
Defendant Antoinette Turner was charged in Count One of the Second Superseding Indictment, as well as with two counts of knowingly and intentionally distributing a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts Sixteen and Seventeen). Defendant Billips was charged in Counts One, Two, Twelve, and Thirteen of the Second Superseding Indictment, as well as knowingly and intentionally possessing with the intent to distribute heroin—in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Ten); knowingly and intentionally possessing with the intent to distribute fentanyl—in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Eleven); and being a felon in possession of a firearm—in violation of 18 U.S.C. § 922(g)(1) (Count Fourteen).
However, a plea agreement [Doc. 391] was filed as to Defendant Billips on May 26, 2021. Additionally, a plea agreement [Doc. 395] was filed as to Defendant Antoinette Turner on May 28, 2021. Accordingly, due to the presence of these plea agreements, Defendant Billips' Motion to Sever [Doc. 340] and Motion for Pretrial Notice of Government's Intent to Use Rule 404(b) Evidence [Doc. 343], as well as Defendant Antoinette Turner's Motion to Adopt [Doc. 238], will be DENIED AS MOOT.
Defendant Bibbs seeks [Doc. 214] for the Court to order the Government to provide specific impeachment evidence. In relevant part, Defendant Bibbs seeks the existence and manner of execution of any agreement or understanding between the Government or any other lawenforcement agency and any informants or witnesses for the Government; any testimony, statements, or memorandum referencing statements by witnesses describing the charged offenses that do not include any references to Defendant Bibbs; all previous statements made by any witness to law enforcement officials that are inconsistent with the witness's testimony; any record of any witness's arrest or conviction; any allegations concerning the misconduct of any witness that is not reflected on the witness's criminal record, including probation files; material related to any witness's mental or physical history that tends to reflect adversely on their reliability; whether any witness was given a polygraph examination and the results thereof; any information showing that any witness's identification of Defendant Bibbs was motivated to any degree by personal animosity; and whether any witness has tested positive for the presence of illegal controlled substances while cooperating with the Government or while any criminal charges were pending.
The Government responds [Doc. 231] that the Court's Order on Discovery and Scheduling [Doc. 11]2 addresses this type of evidence, and therefore the Government maintains that it will comply with its obligations under the Court's previous order. The Government asserts that numerous courts nationwide have "rejected such sweeping requests made by Defendant Bibbs." [Doc. 231 at 56]. However, the Government states that "to the extent that the government's witnesses may be impeached because they have entered plea agreements with the government, received reductions in their sentences, or promised benefits in exchange for their cooperation . . . the government will provide the defendants with that information pursuant to ¶ E of the Court's Order on Discovery and Scheduling." [Id. at 57]. Further, the Government alleges that certain ofDefendant Bibbs' requests are prohibited by Rule 16(a)(2), as "this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case." [Id.].
The discovery available in criminal cases is generally detailed in: (1) Federal Rule of Criminal Procedure 16; (2) the Jencks Act, 18 U.S.C. § 3500; and (3) the doctrine set forth in Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. The Supreme Court has held that the Government violates due process when it withholds from the defendant favorable evidence that is "material either to guilt or punishment." Id. at 87. This rule also extends to evidence which could be used to impeach the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 154-55 (1972) ().
Rule 16 requires the Government to disclose, upon a defendant's request, any oral or written statements of the defendant, the defendant's prior record, any documents or tangible evidence within the government's possession, custody or control, reports of examinations or tests, and a summary of any expert witness testimony. Fed. R. Crim. P. 16(a). The Jencks Act "generally requires the government, on motion of a defendant, to produce statements in its possession of witnesses who testify at a trial." United States v. Short, 671 F.2d 178, 185 (6th Cir. 1982). The Government is only required to produce the statement after the witness has testified on direct examination. 18 U.S.C. § 3500(a).
In United States v. Presser, the Sixth Circuit found that "so long as the defendant is given impeachment material, even exculpatory impeachment material, in time for use at trial," the defendant's Constitutional rights are not violated. 844 F.2d 1275, 1283 (6th Cir. 1988). Further,the Sixth Circuit detailed that the Supreme Court "has made it clear that while the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure." Id. at 1281 (internal citations omitted).
In the present case, the Court's Order on Discovery and Scheduling [Doc. 11] provides:
The government shall reveal to the defendant and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence),...
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