United States v. Gamble
| Decision Date | 21 July 2022 |
| Docket Number | 2:21-cr-142-CCW |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL GAMBLE, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL GAMBLE, Defendant.
No. 2:21-cr-142-CCW
United States District Court, W.D. Pennsylvania
July 21, 2022
MEMORANDUM OPINION AND ORDER
CHRISTY CRISWELL WIEGAND, UNITED STATES DISTRICT JUDGE
Before the Court are six pretrial Motions filed by Defendant Michael Gamble. For the reasons that follow, Mr. Gamble's Motions will be resolved as follows:[1]
1. Motion to Produce Evidence the Government Intends to Use under Federal Rules of Evidence 404(b) and 609, see ECF No. 62, will be GRANTED IN PART and DENIED IN PART
2. Motion to Reveal Identity of Confidential Information see ECF No. 67 (ECF No. 63), will be DENIED
3. Motion to Produce Exculpatory Evidence and Impeachment Evidence, see ECF No. 68 (ECF No. 64), will be DENIED AS MOOT
4. Motion for Severance of Count One from Counts Two and Three, see ECF No. 65, will be DENIED;
5. Motion for Discovery, see ECF No. 69, will be DENIED WITHOUT PREJUDICE; and
6. Motion to Suppress Evidence and Statements, see ECF No. 70 (ECF No. 66), will be DENIED.
I. Background
Mr. Gamble is charged by the United States in a three-count indictment with (1) possession with the intent to distribute 40 grams or more of a mixture and substance containing a detectible amount of fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vi) (Count One); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two); and (3) possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Three). See ECF No. 3.
In short, the facts underlying the charges against Mr. Gamble are as follows:
On December 8, 2020, following a pair of controlled purchases of narcotics carried out by a confidential informant (“CI”), Pennsylvania Office of Attorney General law enforcement officers applied for and received a search warrant for the residence at 1029 Rice Avenue in Ambridge, PA, which both the CI and law enforcement's independent investigation determined to be Mr. Gamble's. See ECF No. 70-2. Pennsylvania Office of Attorney General and Pennsylvania State Police law enforcement officers executed the search warrant on December 10, 2020. See ECF Nos. 70-2 & 70-3 at 1. Mr. Gamble, his mother, and another woman were present at the time the search warrant was executed; all three were detained. See ECF 70-3 at 1. Agents gave Mr. Gamble Miranda warnings at the time he was detained. See id. The investigative report on the execution of the search warrant further notes that the “entry team” located Mr. Gamble in the basement of the residence and observed Mr. Gamble holding a handgun, which he then “threw [] under the couch cushion while the team was making entry to the basement” where Mr. Gamble was located. Id. In executing the search, law enforcement seized various drugs, drug paraphernalia, a firearm, and cash. See ECF No. 70-2 at 6; 70-3 at 1. Mr. Gamble admitted that at least some of the drugs and related paraphernalia belonged to him. See ECF No. 70-3 at 1-2. At the conclusion of the search, Mr. Gamble's mother was released, while Mr. Gamble and his
female associate (who is not indicted in this case) were transported to a local police station. See id. at 1.
After again giving Miranda warnings, law enforcement officers learned from Mr. Gamble's associate that “[she] and Gamble had just returned from Philadelphia, PA with one hundred (100) grams of fentanyl and that it was hidden inside of the property.” ECF No. 70-4 at 5. Confronted with this statement, Mr. Gamble “stated that he and [his associate] did recently get back from Philadelphia where he purchased approximately 100 grams of Heroin/Fentanyl from an individual,” ECF No. 70-3 at 5, and further admitted to “Agents that there was more fentanyl located in the property and [he] would show Agents were it was located.” Id. Based on Mr. Gamble's statements and the items seized in the initial search, Pennsylvania law enforcement officers applied for, and received, a second search warrant, which they executed that same day, i.e., December 10, 2020, and which resulted in the seizure of an additional quantity of fentanyl from the residence. See ECF No. 70-4.
Mr. Gamble filed the above-listed Motions on April 25, 2022, the same day his pretrial motions deadline expired. See ECF No. 58. The United States filed an omnibus response in opposition to the Motions, see ECF No. 74, to which Mr. Gamble filed a reply. See ECF No. 78. As such, Mr. Gamble's Motions were fully briefed as of June 21, 2022, and are ripe for disposition.
II. Analysis
A. Motion to Produce Evidence the Government Intends to Use under Federal Rules of Evidence 404(b) and 609
In his first Motion, Mr. Gamble seeks “an Order requiring the government to provide Mr. Gamble with reasonable notice of any evidence the government plans to offer at trial” under Fed.R.Evid. 1404(b) and 609. ECF No. 62 at 1. Specifically, Mr. Gamble asks that the United States be required to provide “a statement containing the nature, dates, and places of occurrences of any
criminal offense or acts of misconduct other than those specified in the Indictment which the government will attempt to prove at trial, and the purpose for which the government will seek to admit such evidence.” Id. The United States “submits that notice of this evidence three weeks prior to trial is adequate and does not object to such an order.” ECF No. 74 at 6. As such, the United States says that “at least three weeks prior to trial, the prosecution will inform the Defendant of ‘the general nature of any such evidence' that it intends to admit pursuant to Rule 404(b), as well as provide any required notice under Rules 609(b).” Mr. Gamble, however, contends that the United States should be required to disclose such information 30 days before trial, and that it should be required to specifically describe in its notice “the conduct, place, time, dates, and specific theory of admissibility.” ECF No. 78 at 2.
Federal Rule of Evidence 404(b) states, in relevant part, as follows:
(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial - or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
Before the 2020 amendment to Rule 404(b), “[t]he rule require[d] only the disclosure of the general nature of the evidence the government intends to introduce.” United States v. Johnson, 218 F.Supp.3d 454, 461 (W.D. Pa. 2016) (Cercone, J.). Like Rule 404(b), Rule 609(b)(2) requires the proponent of criminal conviction impeachment evidence to “give[] an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use,” if more than 10 years have passed since the witness' conviction or release from confinement (whichever is later). In any case, “[w]hat constitutes ‘reasonable notice in advance of trial' is
determined by the circumstances and complexity of the prosecution.” Johnson, 218 F.Supp.3d at 462.
Having reviewed and considered the parties' positions, the Court will GRANT IN PART and DENY IN PART Mr. Gamble's Motion at ECF No. 62. First, the Court is not persuaded that the “circumstances and complexity of the prosecution” here warrant requiring notice to be given 30 days before trial, given that Mr. Gamble is the sole defendant and is charged with crimes stemming from two searches executed on his alleged residence on the same day. As such, to the extent Mr. Gamble seeks to require the United States to provide notice under Rules 404(b) and 609 at least 30 days before trial, that request will be DENIED. Instead, the Court will require any such notice to be given at least 21 days before trial.
That said, the Court agrees with Mr. Gamble that, following the 2020 amendment to Rule 404(b), more is required of the prosecution than simply the “disclosure of the general nature of the evidence.” Johnson, 218 F.Supp.3d at 261; see also United States v. Coles, 511 F.Supp.3d 566, 593 (M.D. Pa. 2021) (noting that, under Rule 404(b), “[t]he notice must be in writing and must articulate the permitted purpose for which the government seeks to offer the evidence.”). Accordingly, Mr. Gamble's Motion will be GRANTED to the extent that, in its Rule 404(b) notice, the United States shall describe the evidence with reasonable particularity “so that the defendant has a fair opportunity to meet it” and must “articulate.. .the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.” Fed.R.Evid. 404(b).
B. Motion to Reveal Identity of Confidential Informant
Mr. Gamble's second Motion seeks an order requiring the United States to disclose the identity of the Confidential Informant (“CI”) who conducted the controlled purchases on behalf of law enforcement that were part of the basis for the relevant search warrants. See ECF No. 67.
Mr. Gamble argues that “he will be unduly prejudiced if the confidential informant's identity is not given prior to trial, as the confidential informant's identity and an opportunity to litigate the Motion to Suppress and to investigate is essential to his defense and to a fair determination of the case against him.” Id. at 2. In opposition, the United States maintains that (1) Mr. Gamble has “failed to meet his burden to overcome the qualified ‘informer's privilege,” and (2) disclosure is not necessary because “the prosecution does not...
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