United States v. Dowling

• Decision Date: 05 March 2019
• Docket Number: Criminal Action No. 2017-0035
• Parties: UNITED STATES OF AMERICA v. ROOSEVELT DOWLING, Defendant.
• Court: U.S. District Court — Virgin Islands

UNITED STATES OF AMERICA v. ROOSEVELT DOWLING, Defendant.

Criminal Action No. 2017-0035

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

March 5, 2019

Attorneys:

Meredith J. Edwards, Esq.,

St. Thomas, U.S.V.I.

For the United States

Jason Gonzalez-Delgado, Esq.,

Hato Rey, PR

For Defendant

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER is before the Court on two pre-trial motions filed by Defendant Roosevelt Dowling ("Dowling" or "Defendant")—Defendant's "Motion to Suppress Evidence and/or Frank's Hearing," ("Motion to Dismiss"), where he seeks, inter alia, to dismiss the Indictment due to the alleged presentation of perjured testimony to the Grand Jury (Dkt. No. 17), and Defendant's "Motion to Suppress Evidence" ("Motion to Suppress"), where he argues that law enforcement exceeded the scope of the search warrant executed on his property and that the fruits of the unauthorized search should therefore be suppressed (Dkt. No. 51). The Government opposed both motions (Dkt. Nos. 49 and 54), and the Court heard the parties' oral arguments at a hearing. For the following reasons, the Court will deny both of Defendant's Motions.

I. PROCEDURAL BACKGROUND

On August 15, 2017, Dowling was charged by Indictment with: (1) Possession of Crack Cocaine with Intent to Distribute; (2) Possession of Cocaine Powder with Intent to Distribute; and (3) Possession of Marijuana with Intent to Distribute—all violations of 21 U.S.C. §§ 841(a)(1) and (b)(1).¹ (Dkt. No. 1).

Dowling's Motion to Dismiss dealt primarily with his request for a Frank's hearing, wherein he contested the veracity of statements made by Drug Enforcement Administration ("DEA") Task Force Officer David Wyrzykowski ("TFO Wyrzykowski") in his application for the search warrants executed upon Dowling's residence and vehicle on January 30, 2017. (Dkt. No. 17). The Court ruled that Dowling had failed to make the requisite substantial preliminary showing to warrant a Frank's hearing. (Dkt. No. 57). However, Dowling's Motion² also contained a request to dismiss the Indictment based on the presentation of allegedly perjured testimony to the Grand Jury (Dkt. No. 17 at 14-17), which the Government had not addressed in its Opposition. Thus, the Court ordered the Government to file a supplemental response addressing this issue. (Dkt. No. 46 at 1). The Government subsequently submitted its supplemental response opposing Dowling's motion to dismiss the Indictment. (Dkt. No. 49).

Further, during the hearing, Dowling raised orally, for the first time, an argument regarding the sufficiency of the warrant—in terms of its scope and specificity—to support the search of his residence. Thus, the Court allowed Dowling to submit a supplemental filing addressing this issue(Dkt. No. 51), to which the Government filed its opposition (Dkt. No. 54). The Curt now addresses both of Defendant's Motions.

II. DEFENDANT'S MOTION TO DISMISS INDICTMENT

A. Factual Background

For purposes of the instant motions, the following facts are not in dispute.³ Law enforcement officials executed search warrants on Dowling's property on January 30, 2017.⁴ (Gov't Ex. Nos. 1 and 2). TFO Wyrzykowski's applications for the search warrants were supported, in large part, by statements from an individual named Mae Agnes Brewster ("Brewster"), who was working as a Confidential Source ("CS") for the DEA and who Dowling contends is a "known drug addict." (Dkt. No. 17 at 2). On April 13, 2017, Brewster gave testimony before the Grand Jury which, in some instances, contradicted information she had previously provided to the Government. These inconsistencies were pointed out to the Grand Jury by the prosecutor during Brewster's examination. Id. at 7-9. Following her grand jury testimony, Brewster sent Magistrate Judge George W. Cannon, Jr., two letters: one dated June 9, 2017 and the other dated September 13, 2017. (Dkt. No. 17-1). In these letters, Brewster claimed that she lied to law enforcement about the allegations she made against Dowling. She explained that she lied because: (1) she was mad at Dowling for putting her out of his house, having a relationshipwith another woman, and trying to get her to stop using drugs; and (2) she needed money to buy drugs, so she lied to the authorities to get money. Id. at 1-2. In her letter dated June 9, 2017, Brewster further stated:

I think [the DEA] already know that I use drugs and was lying to them[,] all they wanted was Dowling[,] they know that I use drugs and needed money . . . now I am afraid they keep telling me they will put me in jail if I don't want to keep on lying . . . I [caused] big problem for me and Mr. Dowling with lies and my drug[] use . . . Please judge I don't want to go to jail but I lie and they the [DEA] know that I needed the money for drug[] use . . .

Id. at 1. Brewster also stated that she wanted the Government to "leave me alone. I don't want to go back to jail but I don't want to lie anymore." Id. at 2. In her letter dated September 13, 2017, Brewster also stated that she no longer wanted to be involved in the case against Dowling, noting that:

I lied for the money to get drugs. I don't want to keep on lying. I do not remember, I was high all the time . . . Since that day, when all this began, whatever I say or what they want me to say will be a lie or a make-up story. I was using drugs too hard to really remember what was real and what wasn't real.

Id. at 4. Before the Grand Jury returned a true bill, TFO Wyrzykowski read the contents of the June 9, 2017 letter to the body.⁵ On August 15, 2017, the Grand Jury returned an Indictment against Dowling. (Dkt. No. 1).

B. Applicable Legal Principles

The Fifth Amendment requires that an indictment be returned by a legally constituted and unbiased grand jury. See Costello v. United States, 350 U.S. 359, 363 (1956) ("An indictmentreturned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more."). One basis for dismissing an indictment is prosecutorial misconduct in the grand jury proceedings. See United States v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979) (noting that "[a]ware of the potential for [government] abuse inherent in grand jury proceedings, this court and others have increasingly exercised our supervisory power over the administration of justice to regulate the manner in which grand jury investigations are conducted," which may include "order[ing] the dismissal of the indictment as a remedy for prosecutorial misconduct before the grand jury."); see also United States v. Martino, 825 F.2d 754, 758-59 (3d Cir. 1987) (noting that "[t]he law is clear, at least in this circuit, that prosecutorial misconduct encompasses at a minimum improper conduct by a prosecutor both at trial, . . . and in connection with grand jury proceedings."); cf. United States v. Fisher, 692 F. Supp. 495, 505 (E.D. Pa. 1988) (denying dismissal of indictment due to prosecutorial misconduct partly because the government's "negligence and [its] inadvertent errors" in front of the first grand jury that returned the indictment, "do not rise to the level of prosecutorial misconduct warranting dismissal of an indictment."). Prosecutorial misconduct includes instances where a prosecutor knowingly submits perjured testimony to the grand jury. Fisher, 692 F. Supp. at 501.

When faced with a motion to dismiss an indictment based upon prosecutorial misconduct before the grand jury, the Third Circuit requires a trial court to conduct a two-part inquiry. See Martino, 825 F.2d at 759; Fisher, 692 F. Supp. at 502. First, the court must determine whether prosecutorial misconduct has actually occurred. Martino, 825 F.2d at 759; Fisher, 692 F. Supp. at 502. "In order to warrant dismissal of an indictment[,] prosecutorial misconduct must be so flagrant that there was some significant infringement on the grand jury's ability to exerciseindependent judgment." Fisher, 692 F. Supp. at 501 (internal citation and quotation marks omitted). Misstatements or mistakes alone do not warrant the dismissal of an indictment otherwise valid on its face, nor is dismissal appropriate "when there is no evidence of a deliberate attempt by the witness and the prosecutor to mislead." Id.

Second, if such conduct has occurred, the court must consider whether any sanction, such as the dismissal of the indictment or the suppression of evidence, is warranted. Martino, 825 F.2d at 759. Dismissal of an indictment is appropriate only when there is a finding of prejudice to the defendant. Bank of Nova Scotia, 487 U.S. 250, 263 (1988) (a district court may "not dismiss [an] indictment on the basis of prosecutorial misconduct" before the grand jury without making a factual finding that the defendant was "prejudiced by such misconduct); Martino, 825 F.2d 754, 759 (3d Cir. 1987) (holding that in determining whether prosecutorial misconduct occurred before the grand jury which would warrant dismissal of the indictment, "in every case we looked to prejudice."); United States v. Soberon, 929 F.2d 935, 940 (3d Cir. 1991) ("[T]he presentation of the allegedly perjured testimony to the grand jury" requires "a showing of prejudice," in order to warrant dismissal of the indictment.); see also Fisher, 692 F. Supp. at 502 (citing Martino, 825 F.2d at 759 (collecting cases)). In turn, a finding of prejudice exists only if it is established that the prosecutor's "'violation substantially influenced the grand jury's decision to indict,' or . . . there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Soberon, 929 F.2d at 939-40 (quoting Nova Scotia, 487 U.S. at 256 (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986))).

The Third Circuit has cautioned that "dismissal of an indictment on the basis of governmental misconduct is an extreme sanction which should be infrequently utilized." United States v. Birdman, 602...