US v. Cox, Crim. No. L-92-0371.

• Decision Date: 31 August 1993
• Docket Number: Crim. No. L-92-0371.
• Parties: UNITED STATES of America v. Steven COX, et al.
• Court: U.S. District Court — District of Maryland

836 F. Supp. 1189

UNITED STATES of America v. Steven COX, et al.

Crim. No. L-92-0371.

United States District Court, D. Maryland.

August 31, 1993.

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William H. Murphy, Jr., Baltimore, MD, for defendant Cox.

Gary A. Ticknor, Baltimore, MD, for defendant Martinez.

Stanley Needleman, Baltimore, MD, for defendant Sinclair.

Lynne A. Battaglia, U.S. Atty., and Thomas M. DiBiagio, Asst. U.S. Atty., Baltimore, MD, for U.S.

MEMORANDUM & ORDER

LEGG, District Judge.

Defendants, who are charged with conspiracy to commit interstate murder for hire, have filed pretrial motions raising a number of issues.¹ The Court heard testimony from almost a dozen witnesses during the lengthy evidentiary hearing.² The following motions are ripe for decision:

1. Motion to suppress audio and video tapes and the fruits thereof, on the ground that the cooperating witness did not give his voluntary consent (paper 83);

2. Oral motion to compel the testimony of Bernard Christian on the ground that he waived his Fifth Amendment privilege either by (a) testifying at the motions hearing, (b) entering into a plea agreement with the government, (c) talking to the Probation Department in its preparation of his presentence investigation ("PSI"), and/or (d) his participation in the proffer session with the government;

3. Motion to unseal the PSIs of Christian, Calvin Deair, and Thomas Faulkner (paper 92);

4. Oral motion to allow defendants to conduct an evidentiary hearing concerning Christian's false statements to the government;

5. Motion for the government to turn over exculpatory evidence (paper 97); and

6. Motion for the government to produce notes taken during proffer sessions between the government and cooperating government witnesses (paper 50).

For the reasons which follow, the defendants' motions are DENIED.

I. FINDINGS OF FACT:

After hearing extensive testimony and the argument of counsel, the Court makes the following findings of fact for the purpose of resolving the pending motions:

1. On September 16, 1992, Bernard Christian voluntarily boarded an Amtrak train in New York City bound for Pennsylvania Station in Baltimore. On his arrival at the train station in Baltimore, Christian was approached by plain-clothed Baltimore City Police Officer Gary Cover who identified himself as a police officer. Cover made a consensual search of Christian's gym bag and then arrested Christian after finding two nine-millimeter pistols.

2. At the time of his arrest on September 16, 1992, Christian walked with a slight limp as the result of a March, 1992 gunshot wound to his right thigh. Christian underwent surgery in March, 1992 to correct damage to his femur and an artery in his right thigh. During this surgery a rod was implanted in the thigh because the gunshot had fractured Christian's femur. As a result of the gunshot wound and the subsequent surgery, Christian's right leg had extensive scars on both sides from ankle to hip.

3. After the March, 1992 surgery, Christian suffered an infection of his great right toe for which he was hospitalized at North Central Bronx Hospital on two occasions — first, from June 23 through June 29, 1992, and again, from July 1 through July 5, 1992. He was under the care of Dr. Lawrence Bizer on both occasions. Christian left the hospital against medical advice on June 29, and when he returned on July 1, Christian had osteomyelitis (a deep bone infection) of the great right toe. He received intravenous antibiotics, ameliorating the infection before his release on July 5, 1992.

4. Christian was again treated for osteomyelitis of the great right toe from August 3 through August 24, 1992 at Montefiore Hospital under the care of Dr. Sean O'Rourke. While hospitalized, Christian received intravenous antibiotics. Before he had completed the course of intravenous antibiotics, however, Christian checked out of the hospital against Dr. O'Rourke's advice. Dr. O'Rourke testified that Christian needed, at a minimum, another week of intravenous antibiotics and that an additional three or four weeks would have been optimal. Dr. O'Rourke prescribed oral antibiotics when Christian checked out. He also offered to prescribe a pain killer but Christian declined. O'Rourke told Christian that if he did not take the antibiotics his toe might get worse and that amputation might become necessary. As a result of the osteomyelitis, Christian's toe was partially insensate.

5. Following his departure from the hospital, Christian did not strictly follow Dr. O'Rourke's orders. Christian testified that he took the oral antibiotics but not as regularly as directed.

6. After his release from the hospital, but approximately two weeks before his arrival in Baltimore, Christian stubbed his great right toe. This aggravated the toe's condition, but Christian apparently did not appreciate the extent of the renewed infection. When he arrived in Baltimore, his toe was still infected and caused him some pain. Christian characterized his pain as "bearable" and akin to the pain of a sprained thumb. According to Christian, he was in pain no greater than he was experiencing when he checked himself out of Montefiore Hospital.

7. As evidenced by Christian's voluntary trip to Baltimore, the pain in his toe was not so severe that it stopped his daily activity. Nor was the pain so severe that it impeded his ability to think clearly.

8. Cover and other police officers involved in Christian's arrest noticed Christian's slight limp; when they asked Christian about it, he replied that he had been shot in the right thigh and had undergone surgery.

9. Immediately following his arrest, the police read Christian his Miranda rights and then led him to the police office at the train station. There he was patted down, his underwear was checked for drugs,³ and he was handcuffed to the bench in the holding cell. While in custody at the Amtrak station, Christian signed a Miranda form which acknowledged that he had been read his rights and understood them. At the hearing, Detective Sergeant Norman Meades was unable to produce the Miranda form signed by Christian; he testified that he had misplaced it. Defendants invited the Court to find that Meades was prevaricating and that no such form ever existed. Meades' story, however, is fully corroborated by Christian, who testified that he and an officer reviewed a Miranda form which he signed.

10. Christian testified that he was strip-searched in the holding cell. This testimony, however, was contradicted by the testimony of Detective Sergeant Meades, Amtrak Investigator Burns, and Detective Anita Hicks. This Court concludes that Christian was not strip-searched at the Amtrak station nor at any other time prior to the completion of his cooperation.⁴

11. Approximately fifteen minutes after being placed in the holding cell, Christian asked to speak to Meades. Christian then told Meades he had some information for him and would like to cooperate.

12. After Christian initiated his cooperation, he was taken to Baltimore City Police Headquarters where he was booked and then interviewed by Baltimore City Police officers and federal DEA agents. Christian told the police that the pistols were to be used to murder a man named "Pluck" in retaliation for Pluck's theft of drugs. Christian said that he was to meet certain individuals at a hotel and that these individuals would actually carry out the murder with the guns the police had confiscated from Christian. He remained at police headquarters until approximately 11:00 p.m., when he was taken to the Days Inn on Lombard Street in downtown Baltimore. The DEA had rented two adjacent rooms, one of which the agents wired for audio and video surveillance. Two of the defendants, Cox and Martinez, subsequently joined Christian in the room, and spent the night of September 16. No prior judicial approval for audio and video monitoring was obtained, but Christian was fully aware that he was being video and audio taped. Prior to being placed in the room under surveillance, Christian was informed that he could refuse to participate in the videotaping. Various DEA agents and Baltimore City Police officers then monitored the surveillance from the adjacent room.

13. Early in his direct examination (he was called by the defendants), Christian testified that he neither requested nor expected immediate medical attention during the period of his cooperation. Rather, he said that he mentioned the condition of his leg to the police soon after his arrest because he wanted the authorities to know that he was "not a healthy person." His aim was to see a doctor when he was eventually processed into jail. Christian testified that he had expressed no urgent need to see a doctor. Later on direct, however, under highly suggestive leading questions by defendants' counsel (because Christian was a former cooperating witness for the government, defense counsel were allowed to lead), Christian contradicted himself, claiming that he repeatedly asked for immediate medical attention throughout the evening of September 16 and into the morning of September 17, 1992.⁵

14. This Court credits Christian's early testimony when he told his story in a more narrative form. The Court finds that during his cooperation on September 16 and 17, Christian neither requested to see a doctor immediately nor complained to the police about pain in his leg or toe. The surveillance videotape provides the best evidence of Christian's then-existing state of health and mind. The tape shows Christian moving, acting, and conversing normally. He was not in enough pain to cloud his thinking.⁶ Also, during the surveillance, Christian had at least three opportunities (when he was alone in the hotel room) to tell the officers that he wished to terminate his cooperation and see a doctor. He did not do so, however.⁷

15. As Christian testified, he did not believe that...