United States v. Solomon, Criminal No. 11-245

• Decision Date: 12 June 2013
• Docket Number: Criminal No. 11-245
• Citation: United States v. Solomon, Criminal No. 11-245 (W.D. Pa. Jun 12, 2013)
• Parties: UNITED STATES OF AMERICA, v. DONALD ABRAHAM SOLOMON, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

UNITED STATES OF AMERICA,

v.DONALD ABRAHAM SOLOMON, Defendant.

Criminal No. 11-245

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date: June 12, 2013

MEMORANDUM OPINION AND ORDER

CONTI, District Judge.

Pending before the court is the government's motion for reconsideration, (ECF No. 67), the response in opposition (ECF No. 71) filed by defendant Donald Abraham Solomon ("defendant"), the government's court-ordered reply to defendant's response, (ECF No. 72), and defendant's sur-reply. (ECF No. 75.) The government seeks reconsideration of the court's order during the sentencing hearing in the present case directing the government to produce the confidential informant involved in making certain recordings admitted in evidence at the May 16, 2013 hearing.

I. Background

Defendant was charged in a three-count indictment of violations of the Hobbs Act, 18 U.S.C. § 1951. On January 4, 2013, defendant withdrew his pleas of not guilty and entered pleas of guilty to the charges at counts one, two and three of the indictment at Criminal No. 11-245. (ECF No. 47.) The government and defendant both filed objections to the presentence investigation report (PIR) prepared by the Probation Office, and defendant filed a motion for downward departure or variance (ECF No. 61) to which the government responded. (ECF No. 64.)

The court commenced the sentencing proceeding on May 16, 2013, at which time the court made rulings on the parties' objections to the PIR. The sentencing proceeding was continued until June 14, 2013. The court has not yet ruled on defendant's motion for a downward departure or variance. The government presented several audio and video clips at the sentencing hearing in support of its opposition to defendant's motion. Certain clips presented by the government involved a confidential informant ("CI") who worked with the government as part of its investigation of defendant. Before the government played the clips, defense counsel requested that the government produce evidence establishing that the recordings were consensual and provide the court and defendant with evidence of any and all inducements provided to the CI in exchange for his cooperation. (May 16 Afternoon Tr. at 4.)

During a recess in the sentencing proceedings, the government indicated to defense counsel that the CI was paid $31,200 over two years for his cooperation in defendant's case and two others, and that the CI is now employed by the Federal Bureau of Investigation (the "FBI"). (ECF No. 68 at 11-12.) Following the recess, defense counsel moved for the court to schedule a hearing to determine the voluntariness of the CI's consent to create the recordings at issue. (May 16 Afternoon Tr. at 54-55.) The court ordered the government to "have the [CI] come in and testify [so the court] can make a decision about whether it would affect the admissibility" of the clips. (Id. at 56.) The court granted defendant's request that the government turn over "all documentation, including all enrollment forms for [the CI] as an informant, all consideration provided and all of the documentation concerning his application, offer, [and] subsequent hiring by the FBI." (Id.) The hearing was adjourned and continued until June 14, 2013.

The government filed the present motion for reconsideration, asking the court to reverse its order requiring the government to present testimony from the CI with respect to thevoluntariness of the CI's consent to create the recordings. Defendant opposes the motion, arguing that the testimony is necessary to determine the admissibility of the clips featuring the CI. On June 6, 2013, the court ordered the government to reply to defendant's arguments with respect to the admissibility of the recordings at the sentencing hearing. The matter is fully briefed and ripe for disposition, and, for the reasons set forth below, the motion will be GRANTED in part, and DENIED in part.

II. Standard for a Motion to Reconsider

"Motions for reconsideration may be filed in criminal cases." United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003). A trial judge exercises broad discretion over motions to reconsider, especially as they pertain to interlocutory orders. The Court of Appeals for the Third Circuit has noted that "'[s]o long as [a] district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so.'" In re Anthanassious, 418 F. App'x 91 (3d Cir. 2011) (quoting United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). A trial judge "'should exercise that discretion whenever it appears that a previous ruling, even if ambiguous, might lead to an unjust result.'" In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 438-39 (3d Cir. 2009) (quoting Swietlowich v. Bucks Cnty., 610 F.2d 1157, 1164 (3d Cir. 1979)).

The purpose of a motion to reconsider is "'to correct manifest errors of law or fact or to present newly discovered evidence.'" Bootay v. KBR, Inc., 437 F. App'x 140, 146 (3d Cir. 2011) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). There are three circumstances in which a court may grant a motion for reconsideration: (1) there has been an intervening change in the controlling law; (2) new evidence is now available that was not available when the court entered judgment; or (3) there is a need to correct a clear error of law orfact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 667 (3d Cir. 1999) (cited by United States v. Trenk, No. 06-1004, 2009 WL 1298420, at *2 (D.N.J. May 8, 2009)). In applying this standard, if a "'trial judge decides to change or explain an earlier ruling, he should state his reasons on the record.'" In re Pharmacy Benefit, 582 F.3d at 438-39 (quoting Swietlowich, 610 F.2d at 1164). It follows that, although a motion for reconsideration may be granted, it is within the court's discretion to not alter or change its previous ruling.

III. Discussion

At the outset, the court notes that the government did not couch its motion in terms of either an intervening change in the controlling law or newly discovered evidence. The motion, therefore, must satisfy the final ground for reconsideration by demonstrating a need to correct a clear error of law or fact or to prevent manifest injustice.

A. The Parties' Arguments

In support of its motion, the government argues that the court should follow the rationale of United States v. Ruiz, 536 U.S. 622 (2002), in which the United States Supreme Court held that the government is not required to disclose impeachment evidence related to informants or other witnesses prior to entering into a binding plea agreement with a defendant. Ruiz, 536 U.S. at 625. In essence, the government maintains that it was not obliged to turn over to defendant any evidence of inducements once defendant pled guilty, and therefore the government's refusal to turn over such evidence cannot form the basis of a motion to withdraw defendant's guilty plea.¹

Defendant responds that the issue is whether pursuant to the Wiretap Act, 18 U.S.C. § 2510 et seq., he should be permitted to test the admissibility of the clips involving the CI at the sentencing hearing by applying the standards set forth by the Court of Appeals for the ThirdCircuit in United States v. Starks, 515 F.2d 112 (3d Cir. 1975), and United States v. Antoon, 933 F.2d 200 (3d Cir. 1991). Defendant maintains that the Wiretap Act prohibits disclosure of any intercepted communications unless one of the parties has given prior consent to interception of the communications, 18 U.S.C. § 2511(2)(c), and that Starks and Antoon outline the test for such consent.

In Starks, the court of appeals determined that the foundation for admissibility of a tape recording requires a showing that, inter alia, "the conversation elicited was made voluntarily and in good faith, without any kind of inducement." Starks, 515 F.2d at 121 n.11. Starks involved a question of admissibility of the tape at trial. Id. at 118-19. The court of appeals refined the voluntariness test in Antoon, and acknowledged that voluntary consent requires the court to consider "whether, under the circumstances, the consent was an exercise of free will or whether the actor's free will 'has been overborne and his capacity for self-determination critically impaired.'" Antoon, 933 F.2d at 203 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). The admissibility issue in Antoon arose in the context of a pretrial motion to suppress. Id.² Defendant maintains that an evidentiary hearing pursuant to Starks / Antoon is the only appropriate method by which to determine whether the clips featuring the CI should be admissible at his sentencing hearing.

The government responds to defendant's arguments with respect to the recordings' admissibility at the sentencing hearing in its reply brief. First, the government argues that defendant possessed the recordings and had several opportunities to object to most of them during the course of proceedings—specifically, at defendant's initial detention hearing before a magistrate judge on October 31, 2011 (when most of the recordings were entered into evidence), at the appeal of the pretrial detention order before this court on November 22, 2011, and again during a presentence status conference before this court on May 13, 2013. The government maintains that defendant failed to make a "colorable attack" on the consensual nature of the recordings, as required by United States v. Harris, No. 10-cr-40, 2013 WL 1828549, at *5 (W.D. Pa. Apr. 30, 2013). Second, the government argues in the alternative that if a hearing is held, it is prepared to meet its burden of showing that the recordings were voluntarily made.

B. Analysis

At this stage, the government appears to be correct in its assertion that the Supreme Court decision in Ruiz likely bars defendant's argument that the government's...