United States v. Thompson
| Decision Date | 04 January 2019 |
| Docket Number | Criminal Action No.: 2:17-cr-00094 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JASON THOMPSON, Defendant. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Defendant Jason Thompson ("Defendant") has been charged with a four-count indictment for (1) conspiracy to commit Hobbs Act robbery, (2) attempted Hobbs Act robbery, (3) brandishing a firearm during a crime of violence, and (4) possession of a firearm by a convicted felon. Presently before the Court is Defendant's amended superseding omnibus motion and the Government's motions in limine. (ECF Nos. 64, 70).1 Having considered all of the submissions filed in connection with these motions, and having heard oral argument concerning the motions on October 18, 2018 and November 7, 2018, the Court makes the following determinations with respect to the motions.
On or about the morning of August 12, 2015, Defendant, co-conspirator Clemente Carlos, and a third, unidentified individual approached an apartment building in Paterson, New Jersey, with a flashing police light visible from their vehicle's windshield. Defendant and Carlos, neither of whom was employed by law enforcement agencies, dressed as police officers with holsters on their waists that contained firearms. Defendant carried a black firearm, and Carlos carried a silver firearm. A woman emerged from the building with her one-year-old child, and Carlos approached the woman to tell her that he and Defendant were looking for someone and provided a picture of a male individual. He then told the woman that he and Defendant needed to search the woman's apartment, at which point Defendant approached the woman and took her apartment keys. Defendant then used the keys to enter the building, and the woman with her child, led by Carlos, followed.
When they entered the apartment, the woman told Defendant and Carlos that her brother was asleep in one of the bedrooms. Defendant and Carlos forced open the door and Defendant removed the gun from his holster and pointed it at the woman's brother. Defendant directed the man at gunpoint into the living room and ordered him to kneel on the floor, where the woman joined soon thereafter. Defendant and Carlos ordered the woman and her brother to look down and not at their faces. Defendant then restrained the man's hands behind his back using a white zip tie.
Defendant and Carlos searched the apartment, during which either Defendant or Carlos broke open the back of a wooden dresser in the woman's bedroom. At one point, Carlos asked the woman if the furniture in the apartment was new, to which the woman responded affirmatively and explained that the previous occupants—the woman's aunt and uncle—had moved out of the apartment approximately two weeks beforehand. Carlos asked the woman where they could locate her aunt, and the woman responded that she did not know. A short while later, Defendant and Carlos collected the zip ties they had used to bind the man's hands and left the apartment.
Throughout the course of the subsequent investigation, authorities learned that the woman's aunt and uncle had lived in the apartment for twenty-five years and that they had moved out approximately eleven days before the attempted home invasion robbery. The woman's aunt and uncle own a Paterson-based business known as JQ National Distributors, which supplies convenience stores, restaurants, and liquor stores in the Passaic County, New Jersey area with a variety of products. JQ National Distributors maintains a large warehouse in Paterson where it stores the products it supplies, and companies outside of New Jersey manufacture some of these products. One vendor that the company used to supply its products, Sultana Distribution Services, Inc., is located in New York.
Defendant made several post-arrest statements to authorities, where he noted that Carlos had received information that a "business person" was storing one million dollars in cash inside a hidden compartment in a dresser at the apartment, and it was Defendant's belief that the intended victim was evading taxes. Defendant and Carlos left the apartment when they realized that the intended victims were not present. A summary of a subsequent unrecorded conversation with Defendant stated that the intended victim was the owner of a factory in Paterson called "JQ."
The investigation also led to a warrant to search Defendant's residence, where law enforcement officers recovered a silver handgun from Defendant's bedroom that was loaded with five rounds of ammunition.
Defendant filed his amended brief in support of his superseding omnibus motion on April 29, 2018. (ECF No. 64). The Government filed an opposition on May 24, 2018, (ECF No. 67) and Defendant filed a reply on May 31, 2018. (ECF No. 68). Defendant raises eight issues in his omnibus motion, which the Court will address below.3
An out-of-court photographic identification procedure violates a defendant's constitutional right to due process when it is (1) "so [unnecessarily] suggestive" that it (2) creates "a very substantial likelihood of . . . misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); see also United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991). Under this two-step approach, where a photo array is unnecessarily suggestive, suppression is not an inevitable consequence. "[I]f the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth." Perry v. New Hampshire, 565 U.S. 228, 232 (2012); see also Manson v. Brathwaite, 432 U.S. 98, 116 (1977) ( ). Unless the evidence is "so extremely unfair that its admission violates fundamentalconceptions of justice," no due process violation occurs by admitting the evidence and allowing the jury to weigh the credibility of competing witnesses. Dowling v. United States, 493 U.S. 342, 352 (1990) (internal citations omitted); see also Perry, 565 U.S. at 237 ().
The Court finds that the photo array and identification procedure from which Defendant was identified by the female robbery victim ("Victim 1") was not "unnecessarily suggestive." The Court reviewed the photo array, video footage of the identification, and a transcript of the identification. The Court then held a hearing on October 18, 2018 in which the individual who conducted the photo array identification procedure, Detective Sergeant Ralph Garcia, testified and was cross-examined by Defendant (the "suppression hearing").
At the suppression hearing, Detective Sergeant Garcia testified that he had not conducted a photo array prior to the one at issue and that he was chosen because he "was the only officer available at the time" that was bilingual and not involved in the investigation. Suppression Hr'g Tr. at 20:13-14 (Oct. 18, 2018). He further testified that he did not know Defendant was a suspect at the time he conducted the photo array and therefore did not know that Defendant's photo was the seventh and final photograph in the array. Suppression Hr'g Tr. at 19:24-20:10; 23:20-25:11 (Oct. 18, 2018). The video of the identification procedure shows Detective Sergeant Garcia explain the instructions to Victim 1 in English and Spanish.4 The photo array contained seven photographs, and Detective Sergeant Garcia displayed them to Victim 1, one at a time. His voice,movements, and mannerisms remained essentially the same throughout the process. While conducting the photo array, Detective Sergeant Garcia initially stated that Victim 1 would view six photographs when there were actually seven photographs.5 Prior to showing the sixth photograph, he remarked that it appeared there were more than six photographs. He then cleared his throat directly after Victim 1 stated that she did not recognize the individual in the sixth photograph, prior to showing her the seventh photograph.
As Detective Sergeant Garcia was displaying each photograph to Victim 1, he did not state the alphabetical label of each photograph, and when Victim 1 identified the seventh and last photograph, which was of Defendant, Detective Sergeant Garcia failed to state the alphabetic label of that photo and did not circle the corresponding letter on the photo array form. Each individual photograph shown by Detective Sergeant Garcia is not clearly visible in the video of the photo array. However, in the video each time he shows a photograph to Victim 1, Detective Sergeant Garcia then places the photograph in a face-up position on the table to his right. When Victim 1 identified the photograph of Defendant, which was marked letter E, Detective Sergeant Garcia instructed her to sign the back of the photograph and include the date and time underneath, which she did. In the video of the procedure, Detective Sergeant Garcia's head covers the photograph that Victim 1 is signing, however the Government produced a copy of the photograph and of thesigned back of the photograph to Defendant.6
Defendant further argued that Defendant was "dark skinned" (ECF No. 64 at 17-18) and that he was "the ONLY dark toned individual among six brown tone filler photos," which added another element of suggestiveness. (ECF No. 68 at 4). During the suppression hearing, Detective Sergeant...
To continue reading
Request your trial