United States v. Stewart
| Decision Date | 20 November 2019 |
| Docket Number | Case No. 2:18-cr-00030-1 |
| Parties | UNITED STATES OF AMERICA, v. KOREY STEWART, Defendant. |
| Court | U.S. District Court — District of Vermont |
(Docs. 265-1 & 265-2)
Pending before the court are two motions filed by Defendant on September 18, 2019. Defendant moves to suppress all evidence obtained during his detention on August 27, 2015 under Federal Rule of Criminal Procedure 5 on the grounds that he was not presented to a magistrate judge following his arrest, and to suppress a pretrial identification procedure conducted using a single photograph. (Doc. 265-1.) Defendant also moves to dismiss the Third Superseding Indictment (the "Indictment") against him, arguing that the delay between his arrest and indictment violated Federal Rule of Criminal Procedure Rule 48(b) and the Speedy Trial Act, 18 U.S.C. §§ 3161(b) and 3162(a)(1). (Doc. 265-2.)
On October 2, 2019, the government opposed Defendant's motion. Defendant filed a reply on October 22, 2019, at which time the court took the pending motions under advisement.
Defendant is represented by Kevin M. Henry, Esq. and Avi J. Springer, Esq. The government is represented by Assistant United States Attorneys Jonathan Ophardt and Spencer Willig.
The facts are derived from the court's prior findings of fact set forth in its February 8, 2019 Opinion and Order Denying Defendant's Motion to Suppress as well as from the parties' briefing. On August 27, 2015, as part of an interdiction detail, Drug Enforcement Administration ("DEA") agents were conducting surveillance of a known heroin user who had arrived in a vehicle with a female passenger at the La Quinta hotel in South Burlington, Vermont. The known heroin user was later identified as Cody Sargent. DEA Special Agent Mark Persson ("SA Persson"), an experienced DEA Agent, was part of the interdiction detail. Based on his observations at the La Quinta hotel, he followed Mr. Sargent's vehicle to the Cumberland Farms gas station in Colchester, Vermont. At the gas station, SA Persson observed Mr. Sargent exit his vehicle and enter the vehicle of a female, later identified as Stephanie Banfield. A few moments later, Mr. Sargent exited Ms. Banfield's vehicle and returned to his vehicle.
SA Persson and DEA Special Agent Tom Doud ("SA Doud") approached Ms. Banfield and questioned her. She initially denied selling heroin to Mr. Sargent and stated she had money in her vehicle which was from her father and from an unemployment check. She later admitted that she had just engaged in a heroin transaction with Mr. Sargent and provided substantial information regarding her drug dealing activities in three interviews. While Ms. Banfield was questioned by SAs Persson and Doud, other DEA agents questioned Mr. Sargent who stated that he had purchased heroin from Ms. Banfield. Agents searched Mr. Sargent's car, found what they suspected to be heroin, and Ms. Banfield was arrested. A search of her car yielded plastic baggies, suspected heroin, and $900 in cash. A search of Ms. Banfield's person yielded approximately $2,623 in cash in her bra.
In the course of interviews by law enforcement, Ms. Banfield admitted that she was a heroin user and drug dealer. She identified two men, known to her as "T" and "Skip," as her primary sources for heroin and crack cocaine. She stated that she would typically contact Skip or T to have narcotics delivered to her by a "runner." She described Skip as being "the boss" for whom T worked. She noted that Skip had approximately six to eight runners working for him as well as various females who transported drugs from New York City to Vermont. Although Skip would typically distance himself from the drugs he distributed and would leave drugs at a runner'sresidence rather than hold them himself, she saw Skip occasionally when he was in Vermont. She advised that Skip and T sometimes used the same phone to conduct drug transactions with their customers. She provided the agents with two telephone numbers for T and one for Skip.
Ms. Banfield described T as a tall, skinny, African American male from New York with no tattoos, dreadlocks, or facial hair. She further advised that T drove a white Volvo with out-of-state license plates from which the front license plate was missing. She noted that she had seen T the day before and that he would "often" show up at her house and on occasion was accompanied by Skip. She identified Skip as an African American male from New York. Ms. Banfield told SA Persson that a woman named "Amber" was associated with T and Skip and that she had made two deposits of drug proceeds into Amber's bank account, one in the amount of $8,000 and the other for approximately $8,400. Ms. Banfield noted that she had received a text from Skip or T advising her how to make the deposits and providing Amber's account number. She reported that an individual named "Raj" had also made deposits into Amber's account. Ms. Banfield asserted that she had drugs and money belonging to T in her apartment at 79 Susie Wilson Road, Essex Junction, Vermont and that T had given her twenty bags of heroin the day before, for which she owed him $1,600. Ms. Banfield stated that there was a large quantity of crack cocaine in her couch and a TD Bank receipt from a deposit of drug proceeds into Amber's account located in one of her closets. Ms. Banfield provided names, phone numbers, and certain other identifying details regarding approximately seven other drug associates of Skip and T.
Ms. Banfield told law enforcement that she was selling drugs on a daily basis and explained that after she sold the drugs T provided her, T would either come to her residence to collect the proceeds from her or she would deposit the money into Amber's bank account. She explained that she and T had an agreement whereby he sold narcotics to her at a flat rate and she was entitled to keep any proceeds she made beyond that rate. She stated that T would be stopping by to collect money but she was unsure when hewould arrive. Ms. Banfield provided written consent for law enforcement to search her apartment.
SA Persson relayed the information from Ms. Banfield to members of the interdiction team. A search team proceeded to Ms. Banfield's apartment which was located in a two-building apartment complex with twelve units on a dead-end road accessed via Susie Wilson Road which terminates approximately a quarter of a mile past the complex. The parking area in front of the complex has spaces for approximately twenty vehicles. At the time of the search, there were approximately ten other vehicles in the parking lot.
At approximately 7:30 p.m. on the evening of August 27, 2015, nine law enforcement officers searched Ms. Banfield's apartment. During their search, DEA Special Agent Brian Villella ("SA Villella"), the Resident Agent in Charge of the Burlington DEA office, conducted surveillance from an unmarked law enforcement vehicle on the dead-end portion of Susie Wilson Road with his vehicle parked facing the driveway of Ms. Banfield's apartment. He was watching for individuals who might approach Ms. Banfield's apartment during the search based on information relayed to him by SA Persson. During an approximately half-hour period of surveillance, SA Villella observed only one vehicle drive past him as it departed from another apartment complex.
Inside Ms. Banfield's apartment, law enforcement agents located a quantity of crack cocaine in her couch and crack cocaine and cocaine elsewhere along with a tan powdery substance in her bedroom that Ms. Banfield had not previously mentioned. Although she had estimated she had approximately $1,000 in her apartment, agents located $2,323 in a pink wallet. In Ms. Banfield's bedroom closet, the agents located a TD Bank receipt indicating an $8,460 deposit. They also found a Western Union receipt.
While agents were searching Ms. Banfield's apartment, SA Villella observed somebody driving towards Ms. Banfield's apartment who matched the description the interdiction team had provided him. The person was operating a white Volvo with a Florida back license plate and a missing front plate. The white Volvo turned into thedriveway leading to Ms. Banfield's apartment complex and parked facing Ms. Banfield's apartment with its headlights illuminated. In less than two minutes, SA Villella saw a brown Nissan Maxima with out-of-state license plates pull into the driveway to the apartment complex and park next to the white Volvo, approximately two car widths away. This vehicle also faced Ms. Banfield's apartment with its headlights illuminated. SA Villella could not see how many people were in the Nissan Maxima or what they looked like. He advised the search team that two vehicles were outside, and that the occupants remained in the vehicles. He directed them to make contact with the vehicles' occupants.
After receiving SA Villella's report, the agents inside Ms. Banfield's apartment stopped their search and, due to a concern that the individuals outside the apartment might be armed, put on their tactical gear. A few minutes later, at approximately 8:00 p.m., they exited the apartment building in two groups and approached both vehicles. Upon exiting the apartment building, the agents could see the vehicles which were facing them, parked approximately 100 feet away, but because it was growing dark outside, they were unable to see into the vehicles or determine the number of occupants. The agents ran toward the vehicles due to a concern that the vehicles would leave or attempt to hit them. DEA Special Agent Timothy Hoffmann ("SA Hoffmann") credibly testified at the December 11, 2018 hearing on Defendant's first motion to suppress that the law enforcement agents drew their weapons to ensure officer safety as they were leaving a known drug house and one of the vehicles was associated with Ms....
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