United States v. Linder

• Decision Date: 05 March 2013
• Docket Number: No. 12 CR 22,12 CR 22
• Parties: UNITED STATES OF AMERICA v. STEPHEN LINDER
• Court: U.S. District Court — Northern District of Illinois

UNITED STATES OF AMERICA

v.STEPHEN LINDER

No. 12 CR 22

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Date: March 5, 2013

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

On January 12, 2012, a federal Grand Jury indicted Defendant Stephen Linder, a Deputy United States Marshal for the Northern District of Illinois, in a four count Indictment charging that he violated the civil rights of two individuals by using excessive force against them on two separate occasions and then attempted to conceal or prevent information regarding those incidents to be presented in the course of the investigations that followed. (Doc. 1, Indict. at 1-2.)¹ Specifically, the Indictment charges that Linder struck and choked Individual S.S. on July 8, 2010 (Count I) and head-butted Individual E.U. on May 18, 2008 (Count III), both acts in violation of 18 U.S.C. § 242. (Id.) The Indictment also charges that Linder then attempted to corruptly persuade two other individuals, known respectively as Individual H.S. and Individual S.M., to withhold evidence concerning the conduct charged in Counts I and III from federal authorities with the intent to hinder, delay, and prevent the communication of information relating to the possible commission of a federal offense in violation of 18 U.S.C. § 1512(b)(3)(Counts II and IV). (Id.) Linder moved to dismiss the Indictment against him, alleging that the prosecution team violated his Sixth Amendment right to compulsory process of witnesses in his favor and his Fifth Amendment right to due process of law through its intentional interference with his right to conduct a defense investigation and interview prospective witnesses. (Doc. 26, Def.'s Mot. to Dismiss the Indict.) Because after an evidentiary hearing on the matter, this Court finds that the prosecution team substantially interfered with Defendant's access to victims, exercised an overly aggressive approach to witnesses by threatening them with prosecution, and violated the Defendant's constitutional rights, the Court dismisses the Indictment.

PROCEDURAL HISTORY

On January 12, 2012, after presentation by assistant United States Attorneys for the Civil Rights Division of the Department of Justice, a grand jury returned the four-count indictment against Linder. (Doc. 1, Indict.) There is no explanation in the record as to why the United States Attorney for the Northern District of Illinois or Assistant United States Attorneys for the Northern District of Illinois did not participate in the investigation or presentation of the case before the grand jury. Although one might conjecture that the reason for the United States Attorney's Office for the Northern District of Illinois not participating in the investigation might be due to their reluctance to prosecute a deputy marshal from their own district, this has not been the case in the past. United States v. Ambrose, 668 F.3d 943, 948 (7th Cir. 2012).

On April 20, 2012, Linder filed five pretrial motions, requesting that the Court grant him assorted forms of relief and provide him with various remedies at law. (Doc. 22, Def.'s Mot. for the Early Ret'n of Tr. Subps.; Doc. 23, Def.'s Mot. for Disc'l. of Fav. Evid.; Doc. 24, Def.'s Mot. for a Bill of Partic's; Doc. 25, Def.'s Mot. to Suppress; Doc. 26, Def.'s Mot. to Dismiss the Indict.) On August 9, 2012, in a written Memorandum Opinion, the Court resolved two ofLinder's remaining motions. See United States v. Linder, No. 12 CR 22-1, 2012 WL 3264924, at *3, *15 (N.D. Ill. Aug. 9, 2012); (Doc. 42, Mem. Op. at 6, 35-36). First, the Court granted Linder's motion for a Bill of Particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, (Doc. 24, Def.'s Mot. for a Bill of Partic's) (citing Fed. R. Crim. P. 7(f) ("The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.")). See Linder, 2012 WL 3264924, at *3, *15; (Doc. 42, Mem. Op. at 6, 35-36). Second, the Court denied Linder's motion to suppress evidence obtained by the Government allegedly pursuant to a warrantless search and seizure of his electronic property in violation of the Fourth Amendment to the United States Constitution, (Doc. 25, Def.'s Mot. to Suppress at 1.) See Linder, 2012 WL 3264924, at *3, *15; (Doc. 42, Mem. Op. at 6, 35-36). However, the Court was unable at that time to resolve Linder's motion to dismiss the Government's Indictment against him, (Doc. 26, Def.'s Mot. to Dismiss the Indict.). See Linder, 2012 WL 3264924, at *23; (Doc. 42, Mem. Op. at 55) ("Based on the partially disputed factual record in this case it cannot be determined at this time whether Linder's Fifth Amendment right to due process of law or his Sixth Amendment right to compulsory process of witnesses have been violated.").

After reviewing the briefs, motions, and papers submitted by both parties, (Doc. 26, Def.'s Mot. to Dismiss the Indict.; Doc. 28, Gov.'s Resp. to Def.'s Mot. to Dismiss the Indict.; Doc. 33, Def.'s Reply in Supp. of Def.'s Mot. to Dismiss the Indict.), in addition to conducting a comprehensive independent assessment of the relevant governing caselaw, this Court entered an Order on August 9, 2012, requiring that an evidentiary hearing be held on Linder's Motion to Dismiss the Indictment because on the record then before the Court a determination was notpossible of whether Linder's constitutional rights had been violated or whether the Government had engaged in prejudicial misconduct against him. See Linder, 2012 WL 3264924, at *23; (Doc. 42, Order at 55-56) ("An evidentiary hearing is required in this case to resolve the issue of whether the indictment against Linder should be dismissed. On the record currently before the Court it is not possible to ascertain many of the facts that will be dispositive of the instant [m]otion.").

Specifically, the Court identified two principal areas in which inquiry at an evidentiary hearing was deemed necessary to making a determination of whether the motion now under consideration should be granted and the Government's Indictment against Linder dismissed. See Linder, 2012 WL 3264924, at *23; (Doc. 42, Mem. Op. at 56-57). The first area related to whether the United States Marshal for the Northern District of Illinois, Darryl McPherson, as well as those acting under his command, constituted part of the prosecution team and whether their acts in the investigation and prosecution of Linder could be imputed to the prosecution team. See Linder, 2012 WL 3264924, at *23; (Doc. 42, Mem. Op. at 56-57) ("First, the Court must determine whether McPherson was acting as part of the 'government' when he e-mailed the guidelines. The degree of participation of McPherson and the people under his command with the investigation is a necessary fact that must be adduced. It must be determined whether the guidelines can be imputed onto the prosecution.").

The second area of inquiry that the Court deemed critical to resolving the instant motion related to whether the Government's actions actually deterred witnesses from meeting with Linder and the defense team in violation of his Sixth Amendment right to compulsory process of witnesses in his defense, or otherwise violated Linder's constitutional rights—and if so—whether Linder suffered prejudice as a consequence. See Linder, 2012 WL 3264924, at*15, *23; (Doc. 42, Mem. Op. at 36, 56-57) ("This Court is empowered, and indeed it possesses a duty, to dismiss an indictment when it violates the Constitution or laws of the United States .... [I]t is necessary to know whether any USMS employees actually felt threatened or intimidated by the e-mails and for that reason chose not to speak with Linder's defense counsel. . . . Most importantly, the Court has to determine whether the government interfered with a potential defense witness's free choice to testify[.]").

Pursuant to its Order of August 9, 2012, (Doc. 42, Order at 55-56), the Court conducted a four-day evidentiary hearing on Linder's motion to dismiss the Indictment, commencing on September 18, 2012 and concluding on September 21, 2012. (Docs. 54-57, Min. Entries; Docs. 61-68, Tr. of Hr'g.) The Government called three witnesses to testify at the hearing: (1) Stanley Griscavage, Jr., former Chief, United States Marshals Service ("Marshal Service"), Office of Inspection, Internal Affairs; (2) Kimberly Thomas, Assistant Special Agent, United States Department of Justice, Office of the Inspector General ("OIG"); and (3) Darryl McPherson, United States Marshal, Northern District of Illinois. (Docs. 54-55, Min. Entries; Docs. 61-64, Tr. of Hr'g; Tr. at 4-306.)

Linder called eleven witnesses to testify for him: (1) John O'Malley, Chief Deputy, Marshal Service, Northern District of Illinois; (2) James Smith, Deputy United States Inspector, Judicial Security Division, Marshal Service, Northern District of Illinois; (3) Ed Farrell, Supervisory Inspector, Marshal Service, Northern District of Illinois and Supervisor, Great Lakes Regional Fugitive Task Force ("GLRFTF"); (4) Theodore Stajura, Lieutenant, Cook County Sheriff's Police Department; (5) John Hadjioannou, Detective, Berwyn Police Department; (6) Richard Walenda, Inspector, Marshal Service, Northern District of Illinois; (7) Paul Zitsch, Deputy United States Marshal ("DUSM"), Marshal Service, Northern District ofIllinois; (8) Troy Brejc, DUSM, Marshal Service, Northern District of Illinois; (9) Lorne Stenson, DUSM, Marshal Service, Northern District of Illinois; (10) George Peters, DUSM, Marshal Service, Northern District of Illinois; and (11) Kevin Shirley, Senior Special Agent, United States Department of Justice, OIG. (Docs. 56-57, Min. Entries; Docs. 64-68, Tr. of Hr'g; Tr. at 306-840.) All of the witnesses Linder called to testify at the...