United States v. Graham, CASE NO.: 2:20-cr-47
| Decision Date | 24 June 2021 |
| Docket Number | CASE NO.: 2:20-cr-47 |
| Parties | UNITED STATES OF AMERICA, v. JAMES LAMOUNT GRAHAM |
| Court | U.S. District Court — Southern District of Georgia |
This matter is before the Court on Defendant's Motions, docs. 174-84, and the Government's Motion for Reciprocal Discovery, doc. 217. The Government filed a Consolidated Response to eight of Defendant's Motions. Doc. 216. The Government also filed individual Responses to Defendant's Motion to Dismiss, Motion to Suppress Cell Phone, Motion to Search Real Property, and Motion to Suppress Electronic Surveillance. Docs. 218-21. Defendant filed a Response to the Government's Motion for Reciprocal Discovery. Doc. 237. Additionally, the Court held a hearing on April 12, 2021, where the parties addressed Defendant's Motion to Dismiss, doc. 178, Motion to Suppress Cell Phone, doc. 179, Motion to Suppress Search of Real Property, doc. 180, Motion to Suppress Electronic Surveillance, doc. 184, and the Government's Motion for Reciprocal Discovery, doc. 217. See Doc. 248. Following the hearing, the parties submitted a Notice of Joint Stipulation and Notice of Second Joint Stipulation. Docs. 245, 246.
For the reasons that follow, I GRANT as unopposed:
I DENY:
8. Defendant's Motion Requesting Additional Peremptory Challenges, doc. 181.
I also RECOMMEND the Court GRANT as unopposed:
9. Defendant's Motion to Suppress Cell Phone, doc. 179.
Additionally, I RECOMMEND the Court DENY:
Defendant has been indicted on: one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846; two counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and 33 counts of use of a communication facility, in violation of 21 U.S.C. § 843(b). Doc. 3. These charges stem from allegations Defendant and others, from at least April 7, 2018, knowingly conspired to possess with intent to distribute methamphetamine. Id.
Defendant filed 11 Motions, and the Government filed a Motion for Reciprocal Discovery, which the Court now addresses. Docs. 174-84, 217. Additionally, the Court conducted a hearing on April 12, 2021, at which the parties addressed Defendant's Motion to Dismiss, doc. 178, Motion to Suppress Cell Phone, doc. 179, Motion to Suppress Search of RealProperty, doc. 180, Motion to Suppress Electronic Evidence, doc. 184, and the Government's Motion for Reciprocal Discovery, doc. 217. At the hearing, Defendant was represented by counsel, John Ossick, and John Harper and Karl Knoche appeared on behalf of the Government. Doc. 248. The undersigned's Order and Report and Recommendation is based on the entire record before the Court, including the parties' written submissions and argument presented at the April 12, 2021 hearing.
Several of Defendant's Motions are unopposed, doc. 216, or have been resolved by the Notices of Joint Stipulation, docs. 245, 246. Additionally, the Government's Motion for Reciprocal Discovery is not opposed and is due to be granted. Doc. 217.
The Government does not oppose Defendant's Motion for Rule 807 Residual Exception Disclosure, doc. 174. Doc. 216 at 8. The Government explains it will notify the defense prior to trial of any hearsay statements it intends to introduce and otherwise comply with Federal Rule of Evidence 807. Id. Similarly, Defendant's Motion for Information Regarding Bad Prior Acts, doc. 175, is not opposed, as the Government represents it has already filed the requested notice. Doc. 216 at 6 (citing Doc. 116). The Government also does not oppose Defendant's Motion for Notice by the Government of the Intention to Use Evidence, doc. 176. Doc. 216 at 7. In its Response, the Government explains it intends to use all its evidence during the case-in-chief or during rebuttal, absent an explicit expression to the contrary. Id. Additionally, Defendant filed a Motion to Preserve Evidence. Doc. 182. In it, Defendant explains he is only seeking preservation and the Motion does not demand any disclosure, discovery, inspection, orproduction. Id. at 1. The Government does not oppose Defendant's Motion to Preserve Evidence. Doc. 216 at 4-5. Likewise, Defendant filed a Motion for Substance of Promises or Plea Bargains Between Witnesses and Government, doc. 183, which the Government does not oppose and represents it will file a Brady-Giglio notice, doc. 216 at 4.
Finally, Defendant filed a Motion for Co-conspirators' Hearsay Exceptions. Doc. 177. The Government initially opposed Defendant's Motion. Doc. 216 at 5-6. In the parties' status report, they do not mention Defendant's Motion for Co-conspirator's Hearsay Exceptions. See Doc. 242. However, at the hearing, Defendant's counsel explained the status report only contained the opposed motions and, in his opinion, all other pending motions are due to be granted as unopposed. The Government confirmed it does not oppose any pending motions which are not contained in the parties' status report. Thus, based on the parties' representations at the April 12, 2021 hearing, the Government has withdrawn any opposition it had to Defendant's Motion for Co-conspirators' Hearsay Exceptions. Doc. 177.
Accordingly, I GRANT as unopposed Defendant's Motion for Rule 807 Residual Exception Disclosure, doc. 174, Defendant's Motion for Information Regarding Bad Prior Acts, doc. 175, Defendant's Motion for Notice by the Government of the Intention to Use Evidence, doc. 176, Defendant's Motion for Co-conspirators' Hearsay Exceptions, doc. 177, Defendant's Motion to Preserve Evidence, doc. 182, and Defendant's Motion for Substance of Promises or Plea Bargains Between Witnesses and Government, doc. 183.
In Defendant's Motion to Suppress Cell Phone, doc. 179, he asks the Court to suppress evidence obtained from an LG Model LGL84VL cell phone seized on August 9, 2018. Doc. 179 at 1. Initially, the Government opposed Defendant's Motion. Doc. 219. However, theGovernment has since filed a Notice of Joint Stipulation and Notice of Second Joint Stipulation. Docs. 245, 246. In the Notices of Joint Stipulations, the Government explains it does not intend to offer at trial any evidence regarding the August 9, 2019 discovery or seizure of the LG Model LGL84VL cell phone. Doc. 245 at 1-2; Doc. 246 at 1. Thus, the Government stated it had no opposition to the Court granting Defendant's Motion to Suppress Cell Phone. Doc. 245 at 1.
Accordingly, I RECOMMEND the Court GRANT as unopposed Defendant's Motion to Suppress Cell Phone. Doc. 179. To be clear, this recommendation should not be read as a ruling on whether Defendant's Fourth Amendment rights were violated. Instead, the cell phone is only excluded based on the Government's stipulations.
The Government filed a Motion for Reciprocal Discovery, in which it seeks reciprocal discovery based on Federal Rule of Criminal Procedure 16(b)(1). Doc. 217. Defendant responded, stating he will comply with any reciprocal discovery as provided in the Federal Rules of Criminal Procedure. Doc. 237. However, at the hearing, Defendant's counsel explained while Defendant does not oppose the Government's Motion, it does not currently have any discovery to disclose. Nonetheless, Defendant's counsel reiterated Defendant does not oppose the Motion. Accordingly, I GRANT as unopposed the Government's Motion for Reciprocal Discovery. Doc. 217.
Defendant moves for additional peremptory challenges under Federal Rule of Criminal Procedure 24(b). Doc. 181. Defendant argues because he is being tried jointly with other co-defendants, the Court should grant him additional peremptory challenges to place him in the same position as if he were tried separately from his co-defendants. Id. at 2. The Governmentresponded, stating the Motion is directed to the discretion of the trial court and, thus, the Government will neither oppose nor concur on the Motion. Doc. 216 at 7.
The Federal Rules of Criminal Procedure provide in a non-capital felony case the government is entitled to six peremptory challenges and the defendants are collectively entitled to ten. Fed. R. Crim. P. 24(b)(2). The court has discretion to allow additional challenges or to allow defendants to exercise their challenges separately or jointly. Id. Whether to grant additional peremptory challenges in a case involving multiple defendants is a matter left to the court's discretion. See United States v. Tucker, 526 F.2d 279, 283 (5th Cir. 1976); United States v. Bentley, 503 F.2d 957, 958 (5th Cir. 1974). The district court also has discretion over whether to require multiple defendants to exercise challenges separately or jointly. See United States v. Franklin, 471 F.2d 1299, 1300 (5th Cir. 1973); United States v. Williams, 447 F.2d 894, 896-97 (5th Cir. 1971), overruled on other grounds by United States v. Archer, 733 F.2d 354 (5th Cir. 1984).
At this time, Defendant has not provided compelling reasons as to why he should be granted additional peremptory challenges. Indeed, co-defen...
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