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United States of America v. Kareem Jones

January 10, 2012

UNITED STATES OF AMERICA
v.
KAREEM JONES



The opinion of the court was delivered by: Pratter, J.

MEMORANDUM

INTRODUCTION

On May 5, 2010, Defendant Kareem Jones was charged with five violations of 21 U.S.C. § 841(a)(1), including distribution of crack cocaine and heroin and possession with intent to distribute crack cocaine and heroin, as well as with violating 18 U.S.C. 924(c)(1) and 18 U.S.C. 922(g)(1) by possessing a gun in furtherance of a drug crime and as a convicted felon. Counts one, two, and three of the indictment relate to events that took place on February 3 and 9, 2010, as part of an FBI controlled purchase operation. Counts four through seven arise from events that occurred during the course of a car stop by the Philadelphia Police on February 27, 2010. Mr. Jones has filed a number of pretrial motions, including a motion to dismiss the indictment and a motion for severance of the offenses. For the reasons discussed below, the Court will deny the motion to dismiss the indictment and grant the motion for severance of the offenses. FACTUAL BACKGROUND*fn1

On February 3, 2010, as part of an investigation of drug and gang activity in South Philadelphia, an FBI team observed Mr. Jones and another unidentified individual in a high drug-trafficking area and believed they were engaged in the sale of narcotics. The team then activated an audio/video recording device worn by a confidential informant and sent the informant around the block to attempt to purchase drugs from one of the individuals they had observed. The informant did so, purchasing five packets of crack cocaine.*fn2

Almost a week later, on February 9, 2010, the FBI instructed the same confidential informant to call the drug dealer involved in the February 3, 2010 controlled purchase and set up another purchase. He did so and, again wearing audio/video recording equipment, purchased heroin and crack cocaine at a residence at 525 McKean Street. Prior to that second purchase on February 9, 2010, the informant was unable to positively identify Mr. Jones as the dealer when presented with a photo array, but just after the second purchase, he identified Mr. Jones as the dealer on both February 3 and February 9, 2010.*fn3 An undercover officer also observed Mr. Jones walking on McKean Street some time prior to the confidential informant's arrival on February 9, 2010.

Later that same month, in the wee hours of February 27, 2010, Mr. Jones was a passenger in a vehicle that was stopped by a Philadelphia Police officer after the driver ran a red light. When a second police officer, Officer Stephen Haraszkiewicz, arrived on the scene and approached the vehicle, Mr. Jones exited the car and began running down the sidewalk, despite Officer Haraszkiewicz's instruction to stop. After a brief chase over icy streets and sidewalks, Officer Haraszkiewicz caught up with Mr. Jones, who had tripped on the ice, and placed him in handcuffs. When backup arrived, the officers did a protective pat-down of Mr. Jones, during which they felt "bulky objects" in the front pocket of his hoody. Upon further investigation, the officers discovered eight packets of drugs, which the officers later learned contained heroin, and placed Mr. Jones under arrest. After Mr. Jones was transported to the district station, the police found a few more packets containing crack cocaine, as well as a .38-caliber revolver and 24 pills later identified as Xanax.

On May 5, 2010, Agent Michael Attard testified before a federal grand jury regarding the events that form the basis of Mr. Jones's indictment.*fn4 He testified that video evidence shows Mr. Jones selling a confidential informant narcotics on February 3, 2010. As to the February 9, 2010 events, he testified that Mr. Jones also sold the same informant drugs on February 9, 2010 and that other FBI agents were able to see Mr. Jones at the McKean Street location at the time of the confidential informant's transaction. He further testified that the confidential informant positively identified Mr. Jones after the February 9, 2010 purchase, but he did not state that the informant was unable to make a positive identification earlier on Februrary 9, 2010. He also briefly described the events of February 27, 2010 and the items discovered in Mr. Jones's possession by the Philadelphia Police. The grand jury subsequently charged Mr. Jones in a seven-count indictment.

DISCUSSION

A. Motion to Dismiss the Indictment

The Court will first address Mr. Jones's Motion to Dismiss the Indictment. In that motion, Mr. Jones argues that the indictment must be dismissed because the Government abused the grand jury process by presenting "false or exaggerated testimony," testimony relating to evidence that was illegally seized on February 27, 2010, and testimony relating to evidence that was obtained through an illegal wiretap. He also argues that the Government's use of a confidential informant was "outrageous."

While Mr. Jones makes no attempt in his motion to flesh out these allegations, viewing them in context of his other pretrial motions and in light of oral argument, Mr. Jones claims that, as to counts one, two, and three, the FBI Agent's testimony gave the grand jury the false impression (1) that FBI agents were eyewitnesses to the controlled purchases; (2) that the videotape clearly shows Mr. Jones as the seller on both February 3 and 9, 2010; and (3) that the confidential informant was reliable, truthful and never had trouble identifying Mr. Jones as the seller. Counsel for Mr. Jones also clarified at oral argument that he was not arguing that the FBI Agent presented false testimony, but rather that the prosecutor deliberately presented a skewed picture to the grand jury.

Also, although counsel for Mr. Jones did not highlight these arguments at the hearing, the motion seems to contest the Government's presentation of evidence relating to the wiretap, perhaps because, as he argued in connection with a motion to suppress, he believes that the confidential informant failed to properly consent and, in a later incident wholly unconnected to the events involving Mr. Jones, attempted to deceive the FBI. Likewise, as he argues in another motion to suppress, he appears to take issue with the Government's presentation of evidence as to the events of February 27, 2010 that he believes was obtained in violation of his Fourth Amendment rights.

Essentially, Mr. Jones argues that the Government should have presented the grand jury with exculpatory evidence and should have excluded impermissibly obtained evidence from its presentation. The Supreme Court has held, however, that the Government is under no such obligation. See United States v. Williams, 504 U.S. 36 (1992); United States v. Calandra, 414 U.S. 338 (1974). Although a court may dismiss an indictment where grand jury misconduct violates one of those "few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions," United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Connor, J., concurring in judgment), the Supreme Court has repeatedly admonished courts not to otherwise interfere with the grand jury's functioning as independent body. See, e.g., Williams, 504 U.S. 36; Calandra, 414 U.S. at 345 ("[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence."); United States v. Costello, 350 U.S. 359, 363 (1956) (holding that the Fifth Amendment does not require a "preliminary trial" to assess the sufficiency of the evidence before the grand jury).

In Williams, 504 U.S. 36, a criminal defendant argued that the Government's failure to present to the grand jury evidence that would have negated an element of the offense had "substantially influenced the grand jury's decision to indict, or at the very least raised a grave doubt that the decision to indict was free from such substantial influence." Id. at 39-40 (internal quotation and citation omitted). The district court agreed and dismissed the indictment, the Tenth Circuit Court of Appeals upheld the decision, and the Supreme Court granted certiorari to consider whether ...


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