United States v. Spencer

Decision Date11 December 2015
Docket NumberCase No. 14-cr-322 (SRN/TNL)
PartiesUnited States of America, Plaintiff, v. Marvin Spencer (1), Defendant.
CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota

REPORT & RECOMMENDATION

Thomas M. Hollenhorst, Assistant United States Attorney, United States Attorney's Office, 300 South 4th Street, Suite 600, Minneapolis, MN 55415 (for the Government); and

Paul Applebaum, Applebaum Law Firm, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for Defendant).1

This matter comes before the Court, United States Magistrate Judge Tony N. Leung, on the following motions:

1. Defendant's pro se Motion to Permit the Introduction of Rule 406 Habit and Routine Practice Evidence at Trial (ECF No. 139);
2. Defendant's pro se Motions in Limine and Supplemental Pre-Trial Motions (ECF Nos. 140, 142);
3. Defendant's pro se Motion to Re-Open the Suppression Hearing (ECF No. 141);
4. Defendant's pro se Motion to Dismiss under Crawford v. Washington (ECF No. 148);5. Defendant's pro se Motion for Relief and Money for Investigator (ECF No. 158);2 and
6. Defendant's pro se Pretrial Motion to Suppress Fruits of Unlawful Arrest and Search and Seizure (ECF No. 166).

These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Susan Richard Nelson, District Judge of the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

I. Background

On October 7, 2014, Defendant was indicted on charges of (1) Interference with Commerce by Robbery; (2) Conspiracy To Interfere with Commerce by Robbery; (3) Using, Carrying and Discharging a Firearm During and in Relation to a Crime of Violence; and (4) Felon in Possession of a Firearm and Ammunition - Armed Career Criminal. (Indictment, ECF No. 20). Defendant is alleged to have robbed a Pawn America store in Roseville, Minnesota, and to have shot the store clerk in the leg. (see Compl., ECF No. 1). On April 8, 2015, Defendant was charged in a Superseding Indictment with (1) Interference with Commerce by Robbery; (2) Conspiracy To Interfere with Commerce by Robbery; (3) Using, Carrying and Discharging a Firearm During and in Relation to a Crime of Violence; and (4) Felon in Possession of Ammunition - Armed Career Criminal. (Superseding Indictment, ECF No. 93).

This case has been delayed for various reasons. This Court has held several hearings to resolve suppression motions. The first motions hearing was held December 10, 2014, (ECF No. 40); a second motions hearing was held February 10, 2015, (ECF No. 61); and a third motions hearing was held on March 2, 2015, (ECF No. 69). Defendant has been represented by three different attorneys and has made demands to represent himself. (ECF Nos. 45, 61, 69, 80, 92, 102, 109-111). The Court has held several hearings on Defendant's requests for new counsel. (ECF Nos. 61, 69, 92, 109). Defendant twice refused to appear to be arraigned on the superseding indictment. (ECF No. 108). This case was scheduled for trial on July 27, 2015, but defense counsel, on Defendant's request, moved for a psychological examination to determine whether Defendant was competent to stand trial or to assist in his own defense. (ECF No. 133). The motion was granted, (ECF No. 135), and a psychological examination was completed. (ECF No. 151). With Defendant found competent to proceed, this matter is finally ready for trial, pending the resolution of the instant and other motions.3

II. Defendant's Pro Se Motions While Represented by Court-Appointed Counsel

Defendant has filed the instant motions pro se, even though he is currently represented by counsel. As the Eighth Circuit has stated, "[t]here is no constitutional or statutory right to simultaneously proceed pro se and with benefit of counsel." United States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994) (citations omitted). Thus, "[a] district court has no obligation to entertain pro se motions filed by a represented party." Abdullahv. United States, 240 F.3d 683, 686 (8th Cir. 2001). A court commits "no error" in refusing to rule on pro se motions raised by a represented party. Agofsky, 20 F.3d at 872.

While the Court would commit no error in declining to consider any of Defendant's pro se motions, other considerations prompt this Court to contemplate the merits of his motions. First, if the Court were to deny review of Defendant's motions, his remedy could be to terminate his attorney and reassert the arguments again or try to retain private counsel to raise the argument on his behalf. Abdullah, 240 F.3d at 686; see Miller v. Kemna, 207 F.3d 1096, 1098 (8th Cir. 2000) (Heaney, J., concurring) (reflecting on the "Hobson's choice" a petitioner faced when the court refused a pro se brief raising issues his appointed counsel refused to raise). In declining review, the Court might have to revisit the same arguments, just at a later date. This case has already seen many delays due to Defendant cycling through attorneys and otherwise attempting to delay these proceedings. The interests of justice would not be served by putting off these motions to a later date. Second, by resolving Defendant's outstanding grievances, this Court advances this matter towards trial, which has been rescheduled several times. Therefore, this Court will address Defendant's pro se motions even though he is represented by counsel.

III. Motion to Permit the Introduction of Rule 406 Evidence at Trial

Defendant seeks an order permitting him to introduce habit and routine practice evidence at trial pursuant to Federal Rule of Evidence 406. (ECF No. 139). Under Rule 406, "[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice." Fed. R. Evid. 406. The court "may admit this evidenceregardless of whether it is corroborated or whether there was an eyewitness." Fed. R. Evid. 406. However, only relevant evidence is admissible. Fed. R. Evid. 402. "Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Courts "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.

In his motion, Defendant lists several police reports and court transcripts and filings he seeks to admit under Rule 406. (ECF No. 139, at 1-3). As the Government points out, Defendant does not identify the person or organization whose habit or routine practice he seeks to establish. Nor does Defendant explain how the listed police reports and court filings would constitute evidence of a person's habit or an organization's routine practice. Defendant has not proffered, even minimally, how this evidence may be relevant, much less put the Court in a position to address evidentiary concerns, for example, such as those under Fed. R. Evid. 403. Defendant's motion should be denied at this time. Defendant may attempt to offer Rule 406 evidence at trial, subject to the Federal Rules of Evidence.

IV. Motions in Limine and Supplemental Pre-Trial Motions (ECF Nos. 140, 142)4 and Motion for Relief and Money for Investigator (ECF No. 158)

In his "Motions in Limine and Supplemental Pre-Trial Motions" (ECF Nos. 140, 142) and Motion for Relief and Money for Investigator (ECF No. 158), Defendant asserts various arguments that relate to previous suppression motions decided by this Court. (see, e.g., ECF No. 105). Defendant seeks to suppress photographic still images taken from the Pawn America surveillance system video, which he alleges have been altered to match his likeness. To prove this, Defendant requests an expert witness for the purpose of describing how the photographic still images have been altered. Defendant also requests that an image of a scar on his right arm be suppressed because his former attorney provided it to the Government.

In considering Defendant's previous motion to suppress the Pawn America video and request for an expert witness in its July 7, 2015, Report and Recommendation, this Court, found that:

Defendant's motion attacks the accuracy and authenticity of the Pawn America surveillance video of the alleged robbery, arguing that the images in the video have been altered by using Adobe Photoshop or some other photo-editing software. Although the accuracy and authenticity of the Pawn America video is very likely an important evidentiary issue for Defendant's trial, it is an evidentiary issue, not an issue of constitutional dimensions to be raised in a pretrial motion to suppress. . . . Moreover, notwithstanding Defendant's bald protestations to the contrary, he has presented no facts tending to support his assertions of foul play.

(R&R, ECF No. 138, at 7-8, July 7, 2015). The District Court agreed, stating that "the admissibility of this video is an evidentiary issue for Defendant's trial . . . . To the extent that Defendant seeks to challenge its accuracy or authenticity, he may raise this evidentiary issue at trial." (Order, ECF No. 145, at 6-7, Aug. 18, 2015).

As noted, the Pawn American surveillance video and photographic still images have not been suppressed. In fact, some of the photographic still images were submitted by Defendant at his first suppression hearing. (ECF No. 100, at 2, adopted by Order, ECF No. 129, June 15, 2015). To the extent that Defendant seeks to re-open the suppression hearing on this matter, it should be denied. The authenticity of evidence is a trial question to be determined by the trial court. Fed. R. Evid. 901. The Government states that it intends to offer witness testimony regarding the authenticity of the video and the methods used to capture and enhance...

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