United States v. Davis

• Decision Date: 05 November 2014
• Docket Number: No. 13CR986–LTS.,13CR986–LTS.
• Citation: 57 F.Supp.3d 363
• Parties: UNITED STATES of America v. Tyrone DAVIS, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

57 F.Supp.3d 363

UNITED STATES of America

v.Tyrone DAVIS, et al., Defendants.

No. 13CR986–LTS.

United States District Court, S.D. New York.

Signed Nov. 5, 2014.

United States Attorney for the Southern District of New York by Edward B. Diskant, AUSA, New York, NY, for the United States of America.

Sullivan & Brill, LLP by Steven Brill, Esq., New York, NY, for Defendant Tyrone Davis.

Baldassare & Mara, LLC by Michael A. Baldassare, Esq., Newark, NJ, for Defendant Charles Bonner.

Opinion and Order

LAURA TAYLOR SWAIN, United States District Judge.

Defendants Tyrone Davis (“Davis”), Damon Chappelle (“Chappelle”), Jamil Speller (“Speller”), and Charles Bonner (“Bonner” and together, “Defendants”) seek the dismissal of the above-captioned indictment against them on account of alleged “outrageous government conduct.” Alternatively, Defendants move to compel the Government to produce impeachment material immediately and reveal the identity of a confidential informant and confidential witness earlier than they have otherwise undertaken to make such disclosure.

The Court has carefully reviewed the submissions of the parties and, for the following reasons, the motion is denied in its entirety.

Background

The Court accepts as true the facts proffered by the Defendants solely for the purposes of this motion practice. Unless otherwise noted, the facts recited herein are taken from the Defendants' motion papers.¹

Defendants, along with two non-moving co-defendants, are charged in the above-captioned indictment (the “Indictment”) with one count of conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and one count of conspiracy to interfere with commerce by threats or violence in violation of 18 U.S.C. § 1951(b)(1) and (b)(3). Defendants Chappelle, Bonner, and Speller are also charged in the Indictment with one count of possession of a firearm during a crime of violence and drug trafficking offense in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.

Defendants allege that the Government utilized a plan, common to a number of other otherwise unrelated cases, to lure Defendants into attempting to commit a drug-related armed robbery. A confidential source, referred to pseudonymously as “CS–1” in the underlying Complaint (13 Mag. 2712), informed agents of the Government that Davis and his crew, apparently including the other Defendants, had committed robberies of drug dealers in the past and were capable of committing the violent robbery that was allegedly the object of the charged conspiracy. The Government's plan was to introduce Davis to a confidential witness, referred to as “CW–1” in the Complaint, in order to entice Defendants into traveling from Philadelphia to New York City with the intention of intercepting and robbing a fictitious group of drug couriers supposedly traveling with large quantities of cocaine and heroin from Miami to New York City. CW–1 arranged with Davis for a meeting with the other Defendants on October 24, 2013, to discuss the robbery. CW–1 met with defendants Chappelle and Bonner at a McDonald's restaurant in Manhattan. CW–1 warned Defendants that the couriers were armed and dangerous, and encouraged Defendants to bring firearms for the robbery. CW–1 and an unnamed “partner” (actually a team of Government agents) were the architects and instigators of the robbery and drug distribution conspiracies. CW–1 provided the amount of drugs, the timing of the robbery, and suggested that the Defendants should “come ready, [because] they got guns.” (Def. Mem. Supp., docket entry no. 66, at 10.) This statement, Defendants allege, was designed to ensure that the Government could charge Defendants with possession of a firearm during a crime of violence and drug trafficking offense.

The Government alleges in its opposition papers that, at the October 24, 2013 meeting, Bonner and Chappelle made clear that they were experienced robbers of drug dealers, and that they asked CW–1 for the details of the robbery plan. Furthermore, the Government alleges that Bonner stated “I can move like 10 [kilograms] a week easy” and “I can move the heroin or the coke, but it has got to be grade A.” (Gov't Opp., docket entry no. 80, at 5–6.) The Government alleges that Chappelle insisted on an allocation of the expected profits of the robbery, 60% for Defendants and 40% for CW–1, because he had to pay a portion to “Ty” (Davis) for arranging the meeting of Defendants and CW–1. The Government also proffers that CW–1 did not provide the weapons to the Defendants. Defendants do not dispute these allegations.

After a series of phone calls and another meeting on November 7, 2013, CW–1 and Defendants finalized the details of the robbery and planned it for November 18, 2013. On November 18, 2013, Chappelle, Bonner, Speller and two non-moving co-defendants traveled from Philadelphia to Manhattan, arriving in the afternoon. Defendants allege that the Government allowed the Defendants to roam Manhattan, armed and unsupervised, until the planned robbery at 8:30 p.m.

On the evening of November 18, 2013, Bonner, Chappelle, Speller and two non-moving co-defendants made their way to the prearranged robbery location in three vehicles. Government agents stopped the vehicles and arrested Bonner, Chappelle, Speller and two co-defendants.² The Government agents found five firearms in two hidden compartments in two of the vehicles in which the five defendants were driving or riding. The Government also found two ski masks, a pair of handcuffs, and zip ties (plastic restraints).

Defendants proffer that the Government has employed a similar strategy to ensnare other people in at least 15 investigations, resulting in the arrest of 66 defendants in various states. Because the scheme has been employed in other cases, Defendants argue that they could not have been “[t]argeted in any meaningful way.” (Mem. in Supp. at 5.) Defendants also allege that, in another case, this common strategy led to a shooting of one of the suspects on a public street, and that a federal prosecutor lied to a district judge in another case. Defendants do not allege that any such violence or official misrepresentations were perpetrated in connection with this Indictment but, nonetheless, contend that the conduct of the investigation here, seen in the context of the similar cases, warrants dismissal of the Indictment for outrageous government conduct.

Discussion

The Application for Dismissal of the Indictment

The Fifth Amendment to the Constitution of the United States provides, in pertinent part, that: “No person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. In Hampton v. United States, 425 U.S. 484, 493–94, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Supreme Court recognized the possibility that government involvement in a crime might become so “outrageous” that it violates the Fifth Amendment Due Process rights of a defendant. See also United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir.2011) (“Government involvement in a crime may in theory become so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped.”). To establish a violation of due process on this basis, a defendant must show government conduct so outrageous that “common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.” Al Kassar, 660 F.3d at 121 (quoting United States v. Schmidt, 105 F.3d 82, 91 (2d Cir.1997) ); see also United States v. Bout, 731 F.3d 233, 238 (2d Cir.2013) (same). “Generally, to be ‘outrageous,’ the government's involvement in a crime must involve either coercion or a violation of the defendant's person.” Al Kassar, 660 F.3d at 121 (citing Schmidt, 105 F.3d at 91 ); United States v. Rahman, 189 F.3d 88, 131 (2d Cir.1999) ( “The paradigm examples of conscience-shocking conduct are egregious invasions of individual rights.”).

Defendants' burden is a heavy one because courts are required to be deferential to the Government's “choice of investigatory methods.” See Rahman, 189 F.3d at 131 (internal citation omitted). “It does not suffice to show that the government created the opportunity for the offense, even if the government's ploy is elaborate and the engagement with the defendant is extensive. Likewise, feigned friendship, cash inducement, and coaching in how to commit the crime do not constitute outrageous conduct.” Al Kassar, 660 F.3d at 121 (internal citations omitted). Therefore, even a sting operation that involves “government creation of the opportunity to commit an offense, even to the point of supplying defendants with materials essential to commit crimes, does not exceed due process limits.” United States v. Cromitie, 727 F.3d 194, 219 (2d Cir.2013), cert. denied, ––– U.S. ––––, 135 S.Ct. 53, 190 L.Ed.2d 55 (2014). Moreover, “[t]he Second Circuit has ‘yet to identify a particular set of circumstances in which government investigative conduct was so egregious that it shocked the conscience and violated fundamental guarantees of due process.’ ” United States v. Sessa, No. 92CR351, 2011 WL 256330, at *39 (E.D.N.Y. Jan. 25, 2011) (quoting United States v. Heyward, No. 10CR84, 2010 WL 4484642, at *3 (S.D.N.Y. Nov. 9, 2010) ), aff'd, 711 F.3d 316 (2d Cir.2013).

Defendants allege no facts indicative of coercion, intimidation, or use of physical force by the Government agents in this case. Defendants rely principally on two decisions from the Central District of California insofar as they argue that the sting that resulted in their indictment violated their due process rights. Both decisions purport to apply a Ninth Circuit standard that places the burden of disproving outrageousness on the government, and each is factually distinguishable.³ Neither decision persuades this Court that further inquiry is warranted in this case as to whether the Government...