The opinion of the court was delivered by: Baylson, J.
MEMORANDUM ON DEFENDANT'S MOTIONS (1) TO DISMISS OR FOR OTHER RELIEF FOR PROSECUTORIAL MISCONDUCT AND (2) FOR SUPPRESSION OF EVIDENCE AND (3) FOR BIFURCATION
Before the Court are three motion submitted by Defendant Stephen Lashley: Defendant's Motion to Dismiss the Indictment (ECF No. 77) on the grounds of prosecutorial misconduct; Defendant's Motion to Suppress the testimony of Officer Troy Jones (ECF No. 76); and Defendant's Motion to Bifurcate the Trial (ECF No. 81). For the reasons discussed below, Defendant's Motion to Dismiss the Indictment will be DENIED, Defendant's Motion to Suppress will be DENIED, and Defendant's Motion to Bifurcate the Trial will be GRANTED. However, the Court will strike certain paragraphs from the Second Superceding Indictment for the reasons stated below.
II. Procedural Background
On May 5, 2009, Defendant was charged in this District in a two-count indictment. (ECF No. 1.) Trial began on December 7, 2009, and the following day the jury returned with a guilty verdict on both counts.*fn1 The Court sentenced Defendant on March 11, 2010 (ECF No. 47), and appointed new counsel, Carolyn Goldner Cinquanto, Esquire, for purposes of appeal (ECF No. 50).
On appeal, Ms. Cinquanto, after her detailed review of the record, discovered that the government's trial prosecutor had failed to provide Defendant's trial counsel with a copy of the plea agreement signed by the government's chief witness at trial and had made misstatements of fact to the jury. In a brief filed by Ms. Cinquanto with the Third Circuit, Defendant argued that his conviction should be reversed due to misconduct by the trial prosecutor before and during trial. See Def. Ex. A to Motion to Dismiss, Lashley Appellate Br. The government conceded that a new trial was appropriate. See Def. Ex. B to Motion to Dismiss; Government Appellate Br. at 1. The Third Circuit accordingly remanded the case to this Court for a new trial. (ECF No. 59.) In preparation for his new trial, Defendant filed the Motions that are the subject of this Memorandum. (ECF Nos. 76, 77, 81.) The Court held an evidentiary hearing on the motions on September 21, 2011. (ECF No. 88.)
A. Motion to Dismiss the Indictment
The parties do not dispute the following facts. Prior to Defendant's trial, Jason Mack, who would later become the government's chief witness against Defendant, pleaded guilty in the District of South Carolina to two counts related to the illegal purchase and transfer of firearms. His plea agreement required him to cooperate and testify on behalf of the government. The agreement further contemplated that the government would file a Federal Rule of Criminal Procedure 35(b) motion to reduce Mr. Mack's sentence if Mr. Mack were sentenced before his cooperation was complete. Mr. Mack testified at Defendant's trial but the trial prosecutor, Assistant United States Attorney Arlene Fisk, had never produced Mr. Mack's plea agreement to Defendant as part of discovery.The government and Defendant do not dispute that this failure to produce the plea agreement violated Defendant's rights as set forth in Brady v. Maryland, 373 U.S. 83 (1963).
In addition, during the Government's closing argument, Ms. Fisk represented to the jury that Mr. Mack had nothing to gain from his testimony at Defendant's trial. Specifically, she stated:
You have heard Jason Mack was charged with the illegal purchases by lying on forms of these guns, and he didn't get a slap on the wrist for it. And it's not like he's looking to benefit by virtue of his continued testimony to you. He's been sentenced to these offenses. He was sentenced to three years in Jesup . . . for the illegal purchase of those guns. He could at this point come in and say, look, you know, I did it, I got caught, and the heck with all of you, I'm not talking about this anymore, but he did not do that. He came in and said I did it, I got caught, but there were other people involved in the distribution of these guns. 12-8-09 Tr. at 89, ECF No. 55.
Additionally, nine days after trial, Ms. Fisk e-mailed the South Carolina prosecutor stating:
I know that [ATF agent] Dave Ford gave you the good news about Stephen Lashley's conviction, but I wanted to be sure you knew that Jason Mack fully complied with the terms of his cooperation guilty plea agreement by providing full and complete testimony at Lashley's trial. Let me know whether you need anything else in order to pursue a Rule 35 sentence reduction on behalf of Mack.
Govt. 9-15-11 Br. at 12, ECF No. 83.
Defendant also argues that other statements the prosecutor made during closing argument were improper. Def. Letter Br. at 2 (citing Def. Ex. A to Motion to Dismiss, Lashley Appellate Br., at 40). These include "misstatements about the possible prosecution of another government witness, Faheem Berry, repeated references to the danger of guns in Philadelphia, invitations to speculate about incriminating evidence, improper vouching, and a bizarre suggestion that the police were not in the courtroom to hurt the jurors." Id. at 2-3 (internal citations omitted).
At the evidentiary hearing on this and other pending motions, Ms. Fisk testified that her failure to turn over the plea agreement was unintentional. Audio File, Courtroom_3A_9-21-2011, ECF No. 88. Ms. Fisk conceded that she had failed to keep accurate records of all of the material she turned over to the defense. She described how she received Mr. Mack's plea agreement from the South Carolina prosecutor via e-mail roughly six months before the original trial, printed it, and put it in her grand jury file. Later she received a hard copy of documents from the South Carolina prosecutor, which his assistant indicated constituted Mr. Mack's case file. Ms. Fisk instructed her paralegal to copy, Bates stamp, and produce the file. Mr. Mack's plea agreement had not been in the case file; however, Ms. Fisk did not realize her failure to provide a copy of the plea agreement to Defendant until after the trial, when Ms. Cinquanto requested proof that it had been turned over.
Ms. Fisk testified that the government's original Trial Memorandum had indicated that Mr. Mack had entered into a guilty plea agreement, Trial Mem. at 2, ECF No. 28, but despite this, Defendant's trial counsel had never asked the government to produce the missing plea agreement.
At trial, neither side questioned Mr. Mack about his plea agreement. Ms. Fisk testified that in telling the jury during closing argument that Mr. Mack was not looking to benefit from his testimony, she had been influenced by a conversation she had had with Mr. Mack while preparing for trial, in which Mr. Mack told her he had other reasons to testify and was not looking to get a benefit from his testimony. Ms. Fisk acknowledged that her statement to the jury was nevertheless inaccurate. She testified that her practice is to give her closing argument without notes, and that she forgot her statement to the jury immediately after she said it. She also testified that when she wrote the e-mail to the South Carolina prosecutor, she was not focused on the statement she made about Mr. Mack in closing argument.
After the trial, the government submitted a Sentencing Memorandum in which it stated in a footnote that Mr. Mack had pleaded guilty and that the government had filed a motion to reduce Mr. Mack's sentence pursuant to Federal Rule of Criminal Procedure 35(b). Govt. Sentencing Memorandum at 2, ECF No. 42. Still, Ms. Fisk testified, it did not occur to her that she had made an incorrect statement during closing argument, until Ms. Cinquanto quoted the argument in her Third Circuit brief. Ms. Fisk testified that she was embarrassed and disappointed with herself upon realizing her mistakes. She went immediately to her direct supervisor as well as Robert Zauzmer, Esquire, who supervises appeals in the U.S. Attorney's Office for the Eastern District of Pennsylvania to discuss her errors and to determine the appropriate course of action. The result was the government's joining in the Defendant's request for a new trial.
The Third Circuit has held that "[w]hile retrial is normally the most severe sanction available for a Brady violation, where a defendant can show both willful misconduct by the government, and prejudice, dismissal may be proper." Government of the Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005). Because a new trial has already been ordered in this case, the Court must apply the two-prong test of willfulness plus prejudice to determinewhether the facts at hand justify the rare remedy of dismissing the indictment.