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United States v. James

United States District Court, D. Nevada

May 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EVERLY JAMES, Defendant.

          ORDER AND REPORT OF FINDINGS AND RECOMMENDATION, (MOT DISMISS - ECF, 267)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE

         Before the court is defendant Everly James' (“James”) Motion to Dismiss Indictment (ECF No. 267), which is referred to the undersigned for a Report of Findings of Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice. The court has reviewed the motion, co-defendants Demani Dancy, Keenan St. Hillaire, Channing Williams, and Korregan Washington's Joinders (ECF Nos. 268, 271, 274, 280), the Government's Response (ECF No. 278) and Sealed Exhibit (ECF No. 279), and James' Reply (ECF No. 303).

         BACKGROUND

         Mr. James and 15 co-defendants are charged in a 13-count Indictment (ECF No. 1) returned June 14, 2017. James is charged with one count of conspiracy to commit transportation of stolen vehicles and wire fraud in violation of 18 U.S.C. § 371. The indictment arises out of a series of events that allegedly occurred from July 2015 to April 2017, involving the sale, transportation, and receipt of stolen vehicles. The indictment alleges 33 overt acts in furtherance of the conspiracy; however, James is only identified in five overt acts occurring from July 11-17, 2015.

         On October 5, 2017, James filed a Motion to Suppress (ECF No. 203) (“suppression motion”) seeking to suppress all evidence seized during execution of a July 18, 2015 Arizona warrant to search 5215 West Willetta Street, Room 310, Phoenix, Arizona (the “hotel warrant”), and any “fruits of the poisonous tree” attached to the seized items. This location is a room at a Red Roof Inn where police learned James was staying on or around the July 2015 dates alleged in the Indictment. The suppression motion also requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to allow James to establish instances of falsehoods or reckless disregard for the truth of information contained in the affidavit supporting the application for the hotel warrant. The government filed a Response (ECF No. 254) stating that, although the government did not concede that Franks violations occurred, or that the suppression motion was meritorious, it would not use any of the items obtained from the search during its case-in-chief at trial. The government requested that the suppression motion be denied as moot. The court: (1) denied the suppression motion as moot, (2) precluded the government from introducing any evidence seized pursuant to the hotel warrant during its case-in-chief, and (3) precluded the government from using any additional evidence obtained as a result of the hotel warrant during its case-in-chief under the fruit of the poisonous tree doctrine, Wong Sun v. United States, 371 U.S. 471 (1963). Feb. 7, 2018 Order (ECF No. 272).

         I. The Parties' Positions

         A. James' Motion to Dismiss (ECF No. 267)

         In the current motion, James argues he is entitled to dismissal of the indictment because the government's response to the suppression motion was tantamount to an admission that perjured testimony was used to indict him. Mr. James states that the Arizona officer provided deceptive and blatantly false facts in the hotel warrant affidavit to the issuing judge. Probable cause was therefore lacking to implicate James before the grand jury. He contends the government made no effort to defend the officer's credibility and the prosecution is now aware that James' prosecution was infected with misconduct from the inception of the case. Citing United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), James argues that due process is violated when a defendant must stand trial on an indictment the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached.

         In addition, Mr. James argues the preclusion of evidence related to the hotel warrant has eliminated any credible evidence linking him to the crimes charged in the indictment. James is charged with conspiracy involving overt acts over a six-day period between July 11-17, 2015. He asks, “if the government is not going to utilize evidence seized from the hotel room, what evidence is left?” Mot. at 4. The government opposed James' Motion to Reopen Detention Hearing (ECF No. 179) because James was found in possession of a laptop and printer that he used to create documents to sell stolen vehicles. Id. at 5. Because this evidence is now precluded, James asserts there is “no evidence linking Mr. James unless the government intends to utilize the perjurous [sic] statements of their affiant.” Mot. at 4.

         The motion argues James is entitled to dismissal because the officer made false material statements in the hotel warrant affidavit, and the government conceded it would not use the evidence seized at the hotel, which leaves no evidence linking James to the crimes charged.

         B. The Government's Response (ECF No. 278)

         The United States opposes the motion arguing that James' assertions are misguided and wholly speculative, and the motion should therefore be denied. Mr. James speculates he was indicted based on perjured testimony.[1] The government points out that its response to the suppression motion did not concede the merits of the motion. Rather, the government advised it would not use evidence from the hotel warrant and the suppression motion was therefore denied as moot. However, even if the court had granted the suppression motion on its merits, suppression is the remedy for a Fourth Amendment violation. Therefore, Mr. James has already received the relief he sought.

         Additionally, the government cites United States v. Calandra, 414 U.S. 338, 348 (1974), for the proposition that the Supreme Court has never interpreted the exclusionary rule to proscribe the use of illegally seized evidence in all proceedings or against all persons. Thus, even if the grand jury heard evidence related to the hotel warrant, it would not automatically result in a dismissal of the indictment. Citing Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988), the government maintains that a defendant seeking dismissal must establish that allegedly tainted evidence substantially influenced the grand jury's decision to indict or show grave doubt that the decision to indict was free from the substantial influence of such violations. James cannot meet this burden.

         The flaws in James' arguments are apparent, even without delving into the grand jury proceedings. James contends the indictment was based solely on perjured testimony due to allegedly false statements contained the hotel warrant affidavit. “That would require this Court, and ergo the Grand Jury, to believe that that one search warrant compromises the entirety of the investigation against the Defendant.” Resp. at 7. James' contention is undermined by his own exhibits to his suppression motion, which reveal a larger investigation of James and his coconspirators. See Suppression Mot. Exs. A, C-J (ECF No. 203-1). Mr. James was provided discovery in addition to the hotel warrant setting forth his role in the charged conspiracy, including police reports detailing surveillance and other aspect of the investigation, witness statements, summaries of witness statements, copies of fraudulent ads for the stolen vehicles, and more. See Gov't Resp. Ex. 1 (ECF No. 278-1). This discovery describes in detail what officers learned during the course of the investigation that resulted in James' arrest along with several co-conspirators. Thus, the evidence against Mr. James that resulted in his indictment was not limited to “one search warrant of one hotel room.” Id. at 8. Accordingly, the motion fails to demonstrate that James' indictment is the result of perjured testimony or that he has suffered a due process violation, and the court should deny the motion.

         C. James' Reply (ECF No. 303)

         In his reply, James argues the government's characterization of a two-year multi-jurisdictional investigation is a “misnomer” because the discovery establishes that the federal investigation lasted a mere four months.[2] Mr. James was not included in the federal investigation known as “Operation Blood Hertz” until March 2017, approximately one month before the investigation closed. The Las Vegas Metropolitan Police Department's Viper Auto Theft Task Force (“LVMPD”) sent a letter to the Mesa, Arizona Police Department requesting information regarding a stolen vehicle report in March 2017. During its review of the Arizona case files, Nevada law enforcement officers found a piece of evidence linking James and the suspected co-conspirators. An affidavit supporting an application for search warrant stated that James' computer, which was seized during the execution of the hotel warrant, contained a scanned copy of the title to a 1998 Chevrolet Monte Carlo. Reply at 3 (citing Discovery p. 38840). Co-defendant Channing Williams purchased the Monte Carlo in July 2015 and signed the title with his true name. The title served as a template for which defendants overlaid information for five stolen vehicles. James asserts the Nevada affidavit shows that the government's belated link to him are the fruits of the poisonous tree obtained through the perjured and false statements in connection with the Arizona hotel warrant.

         James argues he can clearly establish that law enforcement's misconduct and deception was utilized to influence the grand jury's decision to indict. Nothing connects the stand alone series of crimes in Arizona to the current conspiracy without the link discovered through perjured testimony in the hotel warrant. As a result, there is no doubt that the tainted evidence was presented to the grand jury which had a substantial influence on the grand jury's decision to indict. The government's response lacks any assurance that the deceitful facts presented to the issuing judge, or the fruits from the Arizona search were not used to indict Mr. James.

         With regard to the grand jury transcript, James contends that the government's argument regarding his speculation only casts more doubt on its position and shows that an evidentiary hearing is needed. “Why does the government claim that Mr. James is speculating when the government could simply prove Mr. James wrong. Why does the government inform this Court that none of this unlawful and deceitful information was presented?” Reply at 6. The reply argues that the court should authorize the disclosure of the grand jury transcripts pursuant to Rule 6(e)(3)(E)(ii) of the Federal Rules of Criminal Procedure.[3] He asks the court for disclosure because he has “proven a particularized need for the transcripts.” Id. at 7. The discovery shows that the evidence against James heavily relies on the July 2015 investigation and it “seems extraordinarily unlikely that the government has not presented the ...


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