United States v. Cooper
| Decision Date | 31 July 2014 |
| Docket Number | No. CR 09-00156 SI,No. CR 13-00693 SI,CR 09-00156 SI,CR 13-00693 SI |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ELIJAH COOPER, Defendant. |
On July 25, 2014, the Court held a hearing on various motions brought by defendant. Having considered the arguments of counsel and the papers submitted, the Court hereby rules as follows.
On February 5, 2013, a confidential human source ("CHS"), working with the FBI, engaged in a controlled narcotics purchase with suspect Anthony Knight. Declaration of Ethan A. Balogh ("Balogh Decl.") Ex. B. While the CHS was discussing the terms of the buy with Knight, a white Mercedes pulled into the parking lot and Knight went to meet with the driver of the Mercedes. Id. The Mercedes then drove away again. Id. Knight then got into the CHS's car, gave the CHS an ounce of crack cocaine, and told the CHS that Knight's supplier had to go back and get the remainder of the drugs. Id. When the Mercedes returned to the parking lot, Knight went to meet with the Mercedes's driver again, and then gave the CHS the remainder of the drugs the CHS had paid for. Id.
The FBI sought to ascertain who had been driving the white Mercedes. A query to the California Department of Motor Vehicles, based upon the car's license plate number, revealed that the car was registered to a Johnny Ray Trammell. Id. Ex. H ¶ 64 n.11. The CHS was shown a photo of Trammell, but the CHS said that the driver of the Mercedes was younger looking. with close cropped hair. Id. ¶ 71. The CHS was then shown a photo of Tony Befford; the CHS identified Befford as the driver. Id.
Agents then tried to verify the CHS's identification of the driver as Befford. Id. ¶ 72. The agents conducted further surveillance of the white Mercedes, but concluded that the driver was not Befford. Id. The agents then asked the San Francisco Police Department ("SFPD") to conduct a traffic stop to determine who the driver was. Id. The SFPD complied, and identified the driver as defendant Elijah Cooper. Id. Cooper was wearing a royal blue hooded sweatshirt when the SFPD conducted the traffic stop. Id.
On February 6, 2013, federal agents asked CHS about the misidentification of Cooper as Befford. Id. ¶ 73. The CHS was then shown a photo of Cooper; the CHS identified Cooper as the driver of the white Mercedes. Id. The CHS stated that, during the controlled buy, Cooper's hair was "a bit longer" than depicted in the photo. Id. Ex. D. One agent asked the CHS what the driver had been wearing during the controlled drug buy. Id. Ex. H. ¶ 73. The CHS responded that the driver of the white Mercedes had been wearing a "royal blue hoodie." Id.
On February 21, 2013, the government sought a wiretap for Knight's telephone, and named several individuals, including Cooper, as target subjects for surveillance. Id. Ex. G, at 2. On April 4, 2013, the government sought two more wiretaps, one of which was for Cooper's mobile phone. Id. Ex. L.
The FBI agents were aware that Cooper, at that time, was serving a term of supervised release for a prior narcotics trafficking conviction. Declaration of Jacob D. Millspaugh ("Millspaugh Decl.") ¶ 2. The agents decided not to contact Cooper directly because they believed that the contact would be noticed and Cooper would be considered a snitch, and thereby placed in danger. Id. Therefore, the agents decided to contact Cooper's probation officer, Octavio Magaña, to see if he could help arrange a meeting. Id.
On August 16, 2013, FBI agents, SFPD officers, and an Assistant U.S. Attorney ("AUSA") went to Mr. Magaña's office to meet with Cooper. Id. ¶ 3. After Cooper arrived and learned who all the individuals were, Cooper was advised that they had evidence he was engaged in drug dealing, and that it was in his interest to cooperate with them. Id. Cooper was not questioned about the crimes under investigation; rather, he was told about some of the evidence against him. Id.
On September 26, 2013, following weeks in which Cooper never responded regarding his willingness to cooperate, agents swore out a criminal complaint against Cooper for distribution of cocaine base and conspiracy to distribute. Id. ¶ 5. On October 4, 2013, the FBI agents, SFPD officers, and an AUSA, again went to Mr. Magaña's office to meet with Cooper. Id. ¶ 6. The AUSA asked Cooper if he had considered what had been discussed at the August, 2013 meeting. Id. Cooper stated that he wanted to see a lawyer. Id. He was immediately arrested. Id.
Two SFPD officers then transported Cooper to the San Francisco Hall of Justice for post-arrest processing. Id. ¶ 7. According to Cooper, he was placed in an interrogation room, shown photos of men from his neighborhood, and asked questions about the activities of those men. Declaration of Elijah Cooper ("Cooper Decl.") ¶ 6. Cooper declined to answer any questions. Id. Because Cooper was arrested after the Friday morning magistrate calendar had already concluded, Cooper was lodged at the San Francisco County Jail until he could be arraigned on the following Monday. Millspaugh Decl. ¶ 7.
On October 17, 2013, the grand jury returned a two-count indictment against Cooper, charging him with: (1) distribution of cocaine base, in violation of 21 U.S.C. §§ 841 (a)(1), 841 (b)(1)(B)(iii); and (2) conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846.
Cooper now brings the following motions: (1) a motion to dismiss the Form 12 supervised release violation pursuant to his prior conviction; (2) a motion to dismiss the indictment in the instant case; (3) a motion for a bill of particulars and other discovery relief; (4) a motion to suppress evidence of identification obtained through the traffic stop; (5) a motion to suppress evidence of the CHS's out-of-court identification of Cooper; (6) a motion to suppress statements and to dismiss the indictment for violation of Cooper's Sixth Amendment right to counsel; (7) a motion to suppress evidence derived fromwiretaps; and (8) a motion to suppress evidence obtained by pen registers and trap and trace devices. The Court shall address each motion in turn.
On October 18, 2013, after Cooper was arrested in this case, Cooper's Probation Officer, Mr. Magaña, filed a Form 12, asserting several violations of the terms of Cooper's supervised release. Cooper now moves to dismiss the Form 12, arguing that Mr. Magaña's conduct violated Cooper's due process rights because Mr. Magaña's actions were those of a law enforcement officer, rather than an officer of the court. In the alternative, Cooper asks the Court to exercise its supervisory powers to dismiss the Form 12.
"Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed." United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995) (citation omitted). To satisfy this standard, a defendant must allege conduct "so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991) (internal quotation marks omitted). "The standard is not met when the government merely infiltrates an existing organization, approaches persons it believes to be already engaged in or planning to participate in the conspiracy, or provides valuable and necessary items to the venture." United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003).
Where a court finds that the government has engaged in outrageous conduct that falls short of a due process violation, it may exercise its supervisory powers to dismiss the pending indictment. United States v. Ross, 372 F.3d 1097, 1109 (9th Cir. 2004). However, to justify an exercise of the court's supervisory powers, the alleged misconduct "must (1) be flagrant and (2) cause substantial prejudice to the defendant." United States v. Fernandez, 388 F.3d 1199, 1239 (9th Cir. 2004) (citation and internal quotation marks omitted).
The Court finds that the asserted conduct in this case did not violate Cooper's due process rights, and could not justify the exercise of the Court's supervisory powers to dismiss the indictment. Cooperargues that Mr. Magaña abdicated his role as a judicial officer because he took part in discussions wherein the U.S. Attorney's Office asked Cooper to work with it as a cooperating witness. Cooper contends that Mr. Magaña's presence at two meetings where an AUSA spoke to Cooper, as well as his failure to tell Cooper that he could not agree to cooperate without obtaining the Court's permission, warrants dismissal of the Form 12. Additionally, Cooper submitted a declaration stating that, between the two meetings, Mr. Magaña visited Cooper's home on three or four occasions, and each time he asked Cooper whether Cooper was going to agree to be an informant. Cooper Decl. ¶ 5. Accepting Cooper's version of the facts as true, the Court finds that Mr. Magaña's conduct was not "so grossly shocking and so outrageous" as to violate defendant's due process rights. See Barrera-Moreno, 951 F.2d at 1092. Nor was Mr. Magaña's conduct so flagrant and prejudicial to Cooper as to warrant the exercise of the Court's supervisory powers. See Fernandez, 388 F.3d at 1239.
However, as the Court noted on the record at the hearing on this motion, the Court is troubled by the practice of using a probation officer as Mr. Magaña was used here. Probation officers have an obligation to those they supervise, as well as an obligation to the Court, and have important ongoing relationships with both groups. In this Court's view, these obligations and relationships could be impaired by enlisting probation officers in the kinds of investigatory and prosecutorial activities that occurred here. At the hearing, counsel for the government explained that the government arranged the meetings through Mr. Magaña both...
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