United States v. Dorsey
| Decision Date | 13 August 2019 |
| Docket Number | Criminal No. RDB-18-0347 |
| Parties | UNITED STATES OF AMERICA v. JAMES DORSEY, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
On October 12, 2015 twenty-year-old Markel Benson was robbed as he was selling marijuana on a street corner near 2300 W. North Avenue in Baltimore, Maryland. A short time later, he was murdered. Defendants James Dorsey ("Dorsey"), Ameer Khalil Baker ("Baker"),1 Deonta Douglas ("Douglas"), and Sim Redd ("Redd") are alleged to have participated in the criminal acts surrounding Benson's death. The Superseding Indictment charges Dorsey, Baker, and Douglas with conspiracy to interfere with commerce through robbery in violation of 18 U.S.C. § 1951(a) (Count One); interference with commerce through robbery in violation of 18 U.S.C. § 1951(a) (Count Two); and using, brandishing, and discharging a firearm during a crime of violence (Count Three). Redd, the alleged getaway driver, is charged with accessory after the fact (Count Four).
Now pending before this Court are: Defendant Dorsey's Motion to Suppress Warrant Evidence (ECF No. 44); Defendant Sim Redd's Motion for Severance (ECF No. 71-1); Defendant Dorsey's Motion to Sever (ECF No. 72-1); and Defendant Dorsey's Motion toDismiss (ECF No. 73), which is joined by Defendants Baker and Douglas. On July 18, 2019, this Court conducted a Motions Hearing and heard argument and testimony in support of the pending motions. For the reasons stated herein, Defendant Dorsey's Motion to Suppress Warrant Evidence (ECF No. 44) is DENIED; Defendant Sim Redd's Motion for Severance (ECF No. 71-1) is DENIED; Defendant Dorsey's Motion to Sever (ECF No. 72-1) is DENIED; and Defendant Dorsey's Motion to Dismiss (ECF No. 73) is DENIED. A joint trial will commence on Monday, September 9, 2019.
This case arises from the murder of Markel Benson on October 12, 2015 at 6:56 p.m., in the 2100 block of Clifton Avenue in Baltimore, Maryland. At trial, the Government will attempt to prove that several men, including Defendants Dorsey, Baker, and Douglas conspired to rob Benson after seeing him sell marijuana on a street corner outside of the Pak Man Chicken Restaurant situated on 2300 W. North Avenue in Baltimore, Maryland. Three of the men, including Douglas, allegedly approached Benson on foot. A coconspirator pointed a gun at Benson and robbed him of marijuana, cash and two cellular phones. After the robbery, the men fled the scene. At trial, the Government will attempt to elicit testimony from eyewitnesses who claim to have seen Dorsey, Baker, and Douglas participate in the robbery and can recount their roles in the crime.
After he was robbed, Benson allegedly obtained his own gun and searched for the defendants in an ill-fated attempt to retrieve his stolen property. The Government representsthat CCTV street camera footage depicts Benson and his associate walking together minutes before shots were fired. As Benson searched for the robbers, Douglas allegedly directed codefendants Baker and Dorsey to ambush and shoot Benson. At 6:56 p.m., the Government alleges that Baker and Dorsey heeded Douglas's orders, shot Benson, and fled. Benson did not return fire and was killed.
Several phone calls allegedly followed the robbery and homicide. Moments after the shooting, Baker allegedly used Benson's stolen cell phone to attempt to contact his "step" grandmother (the mother of his stepfather) and a coconspirator. Later that evening, Redd allegedly accepted two calls from an inmate in a Baltimore correctional facility named Delonte Lang.2 The Government intends to rely heavily on Redd's calls at trial; in its view, they present a "chilling timeline of Baker and Dorsey's flight after the shooting." (Gov't Resp. 3, ECF No. 51.)
In the first call, recorded at 7:47 p.m., Redd makes a series of statements which a jury could interpret as both implicating Redd as the getaway driver for his codefendants and corroborating the allegations that Dorsey robbed and shot Benson. Recounting the evening's events, Redd can be heard bragging that his "little man" (an apparent reference to Dorsey) "earned his way . . . about half an hour ago" and showed "no hesitation." (Gov't Ex. A at 5, ECF No. 85-1.) Redd also recounts that "he" (Dorsey) called him (Redd) and exclaimed"come get me, come get me, come get me, come get me[!]" (Id. at 12.) Redd recalls to Lang that he replied, "I'm on my way." (Id.)
Another jail call followed at 9:21 p.m. Redd's statements in this call could support the conclusion that Redd and his codefendants were together shortly after the robbery and homicide. In the recording, Redd tells Lang that "We just pulled up down outback" and that he has (Gov't Ex. B at 3, ECF No. 85-2.)
Lang and Redd have denied that these conversations reference anything incriminating. Federal authorities interviewed both Lang and Redd and questioned them before the grand jury. In these exchanges, Redd claimed that he was discussing a basketball tournament and that the "Boosie" and "Meer"3 he referenced in the call were not Dorsey and Baker. (ECF No. 72-1 at 8.) The Government maintains that both Redd and Lang committed perjury by providing different and contradictory explanations for the call. (ECF No. 85 at 16.)
During the investigation of this case, the FBI seized Dorsey's cell phone and subsequently obtained a warrant from U.S. Magistrate Judge Stephanie A. Gallagher to search its contents. The Baltimore Police Department had originally seized the phone after state authorities arrested him for drug trafficking and a handgun violation on December 29, 2015. (Gov't Consolidated Motions Response to Defendants' Pretrial Motions 4, ECF No. 51.) On April 5, 2016, Dorsey pled guilty to the handgun charge. (Def.'s Supp. Resp. 1, ECF No. 90.)On August 7, 2016, the Baltimore Police Department arrested Dorsey for attempted first degree murder. (Id.) Throughout this period, Dorsey's cell phone remained in police custody. Although it is undisputed that Dorsey was not in custody for at least some period between the initial seizure of his phone and his August 2016 arrest (see Def.'s Reply 2 n.1, ECF No. 95), Dorsey made no attempt to retrieve his cell phone. Dorsey maintains that any efforts to reclaim the phone would have been futile as it was considered evidence and would be retained by local authorities until the time had expired for him to challenge the sentence imposed for the firearm offense. (Id.)
On November 4, 2016, the FBI learned that the phone remained in Baltimore Police Department custody and retrieved it from that agency. Before searching the phone, Special Agent William Filbert of the FBI began drawing up the paperwork necessary to obtain a warrant from a United States Magistrate Judge. His collaboration with the Office of the United States Attorney is memorialized in a series of emails introduced as an Exhibit and presented to Agent Filbert during his testimony at the Motions Hearing. On November 17, 2016, Agent Filbert provided a draft affidavit in support of a warrant application to Assistant United States Attorney Sandra Wilkinson. On November 21, 2016, Wilkinson returned her edits to the affidavit to Filbert and indicated, in effect, that the final warrant application should await submission to the federal magistrate until work on another warrant could be completed. This separate warrant application sought judicial authorization to search a store containing bullet holes believed to be connected to Benson's murder and involved coordination with an FBI evidence team based in Quantico, Virginia. On December 22, 2016, Wilkinson sent Filbertan email indicating that both warrant applications were ready to be submitted on December 27, 2016—after the Christmas holiday.
In the final version of the warrant affidavit, Agent Filbert set forth the grounds supporting probable cause to search Dorsey's phone. Filbert suspected that Keyon Hawkins ("Hawkins") was among those who had robbed Benson at gunpoint on October 12, 2015 in front of the Pak Man Chicken Restaurant. (Affidavit of Special Agent William Filbert (the "Affidavit") at ¶ 8, ECF No. 44-1.) On October 19, 2016 Keyon Hawkins admitted that he had robbed Benson of his two cell phones and a bag of weed4 and that he had been with Dorsey and Baker at the time. (Id. at ¶¶ 9-10.) After the robbery, Hawkins claimed to have seen Baker and Dorsey run down an alley towards Clifton Avenue just as Benson and his associates were walking on Pulaski toward Clifton. (Id. at ¶ 11.) Hawkins then heard three gun shots. (Id.) Agent Filbert also averred that cell phones were being used during these events. The affidavit explains that Agent Filbert knew "based on phone records and interviews with witnesses, that Benson's stolen cell phone was used after the murder" and that, in his estimation, it was "highly likely" that Baker had made the calls. (Id. at ¶ 12.) The affidavit also stated the following:
I know that cellular phones were used to communicate with individuals with knowledge of and who participated in the Benson robbery and murder as described herein. I know that there are unidentified cellular telephone numbers that communicated with Hawkins and others both before and after the Benson homicide and that this information is likely relevant to the investigation herein.
On December 27, 2016, United States Magistrate Judge Stephanie A. Gallagher of this Court issued two search warrants. (ECF Nos. 44-1, 90-1.) The first warrant authorized the search of Dorsey's phone, a "A Dark-colored Verizon Samsung Telephone, Model SM-B311V, MEID HEX: A000004BEC923A." (ECF No. 44-1.) The second warrant authorized the search of the exterior structure of 2101 N. Pulaski St., Baltimore, MD 21217. (ECF No. 90-2.)
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