United States v. Ellis

• Decision Date: 17 August 2015
• Docket Number: Case No. 13–CR–00818 PJH
• Citation: 121 F.Supp.3d 927
• Court: U.S. District Court — Northern District of California
• Parties: United States of America, Plaintiff, v. Purvis Lamar Ellis, et al., Defendants.

121 F.Supp.3d 927

United States of America, Plaintiff,

v.Purvis Lamar Ellis, et al., Defendants.

Case No. 13–CR–00818 PJH

United States District Court, N.D. California.

Signed August 17, 2015

James Craig Mann, United States Attorney's Office, Oakland, CA, for Plaintiff.

ORDER ON DEFENDANTS' MOTIONS

PHYLLIS J. HAMILTON, District Judge

On August 5, 2015, this matter came on for hearing before the court on the following motions filed by defendants Purvis Lamar Ellis, Deante Terrance Kincaid, Damien Edward McDaniel, and Joseph Pennymon: motion for a bill of particulars filed by Ellis (doc. no. 83); motion for a bill of particulars filed by McDaniel on behalf of all defendants (doc. no. 87); motion to dismiss, or, in the alternative, for a bill of particulars, filed by Kincaid on behalf of all defendants (doc. no. 72); motion for discovery and disclosure of FRE 404(b) evidence and disclosure of identity of confidential informant filed by Ellis, and joined by Kincaid, on behalf of all defendants (doc. no. 80); motion for search and disclosure of electronic surveillance filed by Kincaid on behalf of all defendants (doc. no. 89); motion to suppress eyewitness identifications filed by Pennymon (doc. no. 71); motion to suppress pretrial and in-court identifications filed by Ellis (doc. no. 82); motion to suppress evidence seized from search on residential curtilage filed by Kincaid on behalf of all defendants (doc. no. 73); motion to suppress evidence from search of Apartment 212 and for a Franks hearing filed by Ellis on behalf of all defendants (doc. no. 81); motion to suppress evidence seized pursuant to arrest and for a Franks hearing filed by Ellis (doc. no. 77); motion to suppress evidence seized from digital devices filed by Ellis on behalf of all defendants (doc. no. 79); and application for issuance of Rule 17(c) subpoena filed by Ellis on behalf of all defendants (doc. no. 84).

Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and for the reasons stated on the record and set forth below, the court DENIES the motions for a bill of particulars; DENIES IN PART the motion for discovery and disclosure of Rule 404(b) evidence and REOPENS IN PART the motion for disclosure of the identity and communications of the confidential informant; DENIES the motion for search and disclosure of electronic surveillance; DENIES the motion to suppress eyewitness identifications filed by Pennymon; and DENIES the motion to suppress evidence seized from illegal search conducted on residential curtilage.

Because the court expects further briefing on the motion for disclosure of the confidential informant, whose communications to law enforcement were relied upon in the search warrant and arrest warrant affidavits, the motions to suppress evidence seized during the search of Apartment 212, seized pursuant to Ellis's arrest, and seized from digital devices remain under submission. The motion to suppress pretrial and in-court identifications filed by Ellis remains pending before the court, and will be taken under submission after the parties file supplemental materials related to the transcripts of audio recordings as set forth below. The application for issuance of a Rule 17(c) subpoena remains under submission, pending a determination by the court whether to grant defendants' request for an evidentiary hearing.

I. BACKGROUND

Defendants Purvis Lamar Ellis (aka "B.O.T."), Deante Terrance Kincaid (aka "Tay–Tay"), Damien Edward McDaniel (aka "Famous" and "Lil' Dame"), and Joseph Pennymon (aka "Junkie") are charged with racketeering as associates of the Sem City street gang in East Oakland. Sem City members allegedly conducted activities primarily in the Seminary neighborhood bordered by Seminary Ave., International Blvd., 62nd Ave. and Foothill Blvd.

The indictment alleges that defendants were involved in two specific incidents in furtherance of the racketeering conspiracy. On January 20, 2013, all defendants were allegedly involved in shooting at a victim ("Victim 1") who was waiting at a bus stop on the 5900 block of Foothill Blvd. On January 21, 2013, defendants Kincaid, McDaniel and Pennymon were allegedly involved in assaulting and shooting Oakland Police Officer K. ("Victim 2"), then taking his guns, after the officer drove in an unmarked car into the driveway of the apartment complex located at 1759 Seminary Drive.

After police responded to Officer K.'s shooting the evening of January 21, 2013, Oakland police secured the apartment complex and obtained search warrants to search Apartments 108, 110 and 212, based on information provided by a confidential informant ("CI"). A separate search warrant for Apartment 112 and an arrest warrant for Ellis were issued that afternoon on January 22, 2013, based in part on information provided by the CI in support of the probable cause affidavits. The search warrant and arrest warrant affidavits are subject to a sealing order issued by the court on November 18, 2014.

A. January 20, 2013 Shooting

At approximately 3:45 p.m. on January 20, 2013, a witness allegedly saw two suspects run after and then shoot a man who had been waiting at the bus stop near 5912 Foothill Boulevard in Oakland. Based on a statement given the day of the shooting, the witness was waiting at a bus stop in front of the diner at 2566 Seminary, at 3:30 p.m. Immediately before going to the bus stop, the witness was in C–Town Smoke Shop, located at 2550 Seminary Avenue at Fortune Boulevard. While in the store, the witness saw an African American male arguing with another man. One of the men was approximately 20 years old, 6', 170 lbs, medium complexion, faded hair with short waves on top, wearing a burgundy leather jacket, blue jeans, and sneakers that matched his jacket. Doc. no. 82, Ex. A (Alvarez report) at REPORTS–DOCUMENTS ("RD") 0012. The witness then left the store and waited at the bus stop in front of Al's Diner (2566 Seminary Avenue).

The witness then saw another black male go into the store, about 17–20 years old, 5'9?, medium complexion, wearing a black beanie, black hooded sweater and jeans. He kept walking in and out of the store with the first man in the leather coat. The second man was on the phone saying "Them boys around the corner," and the man in the leather coat asked, "Who? The police?" The man on the phone said yes.

A few minutes later, the witness saw the man in the leather jacket walk to the corner of Seminary and Foothill, looking to the bus stop on the other side of Foothill, where the 40 line stops. The man in the leather jacket came back to the store and nodded to the man in the black hooded sweater and they both went around the corner to Fortune Boulevard. A few seconds later, according to the witness, he saw the man in the black hooded sweater ("Suspect 1") running from Fortune to Foothill Blvd., passing right in front of the witness on Seminary Blvd., and holding a black semi-automatic pistol. When Suspect 1 reached the corner of Foothill Boulevard and Seminary Avenue, the witness saw him shooting at the 40 bus stop on the other side of Foothill Boulevard.

The witness went into the former Tom's Kitchen, located at 5907 Foothill Boulevard, on the corner of Foothill Boulevard and Seminary Avenue. The witness looked out the window and saw a man (Victim 1) running away from the shooter (Suspect 1). The witness also saw a second suspect ("Suspect 2") running toward Seminary Avenue from the direction of 60th Avenue; Suspect 2 also was reported as shooting at the fleeing victim. Suspect 2 was a black male wearing a black beanie, skeleton type mask that motorcyclists wear, black zip-up hoodie with white designs on front, and blue jeans. The second shooter was shooting a long gray and black handgun. The victim fell down and the second shooter ran by him. RD 0025. The witness then saw the second shooter run by the first shooter and get into the front passenger side of a white car that was stopped at the light behind the karate studio on Walnut Street. See Opp. to Ellis Mot. Suppress Witness Identifications (doc. no. 98) at 3 n.2 and Gov't Ex. 98–3.

The first shooter ran to where the victim was, but the witness didn't remember if the first shooter shot the victim when he was next to him. The first shooter ran back to the white car on Walnut and got into the backseat behind the driver. The witness wrote the license plate of the white car. The witness described the driver of the vehicle as a "black male in his 20's" who "was dark skinned with dreads past his shoulders, and he had a thick mustache and a thin goatee." Def. Ex. 82–A (Alvarez report) at RD 000013. A police officer showed the witness a picture of a 2012 Dodge Avenger on her tablet device, and the witness confirmed that it was the same as the vehicle that the shooters fled in. The witness heard about 15 gun shots.

From the license plate, the police determined that the car was a Hertz rental car rented to a Laron Means.

B. January 21, 2013 Shooting

1. Description of Incident

At the July 22, 2013 preliminary hearing in the state court proceedings against Kincaid, McDaniel and Pennymon, OPD Officer Eric K. testified about the events on January 21, 2013 leading up to his shooting. The parties have provided various excerpts of the July 22, 2013 Preliminary Hearing transcript. See Kincaid Mot. Suppress Search of Curtilage (doc. no. 73), Ex. A ("Def. Ex. 73–A"); Opp. to Pennymon Mot. Suppr. (doc. no. 97), Ex. A ("Gov't Ex. 97–A").

On January 21, 2013, OPD Officer Eric K. had just finished working the Warriors game, and at around 5:00 or 6:00 pm that evening, Officer K. was asked to drive to 1759 Seminary Ave. to attempt to locate a vehicle that was used in a shooting the night before, based on a tip from an informant that the getaway car from the shooting the day before was located in the parking area. Gov't Ex. 97–A at 3. The vehicle was described as 2012 Dodge Avenger four-door white car with license plate 6VEP025. Opp....