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United States v. Kennedy

United States District Court, W.D. Pennsylvania

May 1, 2014





Presently before the Court is Defendant's Pro Se [1] Motion to Dismiss Indictment, filed on March 24, 2014. (Docket No. 45). The Government filed its Response on April 4, 2014, (Docket No. 54), and Defendant replied on April 21, 2014, (Docket No. 55). The Court held an evidentiary hearing and oral argument as to such motion on April 23, 2014. (Docket No. 56). Upon consideration of the parties' submissions and the evidence of record, and for the following reasons, Defendant's Motion to Dismiss [45] is denied.


Through this Motion, Defendant alleges that Assistant United States Attorney Craig Haller and ATF Agent Maurice Ferentino knowingly presented false information to the grand jury in order to secure the indictment. (Docket Nos. 45; 56). During the April 23, 2014 hearing, Defendant moved three exhibits into evidence in order to demonstrate the alleged prosecutorial misconduct. (Docket Nos. 56-2; 56-3; 56-4).[2]

The relevant facts are as follows. On November 26, 2012, at approximately 7:40 p.m., an individual entered an AT&T Wireless retail store located at 970 Greentree Road, Pittsburgh, PA 15220, and proceeded to rob the store. (Def. Ex. 1 at 3, Docket No. 56-2). Video surveillance camera images and statements by witnesses indicate that the suspect was an African American male wearing a grey hooded sweatshirt, black shoes with brown laces, and a mask. ( Id. ). Additionally, the suspect carried a chrome and black semi-automatic pistol. ( Id. ). The suspect ordered the two employees into a back inventory room and then handed the employees two bags, ordering them to fill the bags with Apple mobile devices. ( Id. ). Once they complied, the suspect ordered the employees to the ground and left the store. In all, fourteen Apple iPhones, twelve Apple iPads, three Samsung mobile devices, and one Asus tablet were stolen, along with $67.00. ( Id. ).

Later that evening, at approximately 11:40 p.m., South Rockwood (Michigan) Police Officer David Salamas conducted a traffic stop on a 2011 white Chevrolet Aveo, on Northbound Interstate 75 and South Huron River Drive, in South Rockwood, Michigan.[3] ( Id. at 3-4). Defendant was in the car's passenger seat, and Amanda Lang was driving. ( Id. at 4). Officer Salamas later recalled that Defendant was wearing "an athletic grey sweatshirt, grey sweatpants with elastic bottoms and dark boots with lighter colored (than the boots) stitching and laces." ( Id. ).[4] Defendant was arrested on an outstanding warrant, and Ms. Lang was arrested for driving under the influence. ( Id. at 1). The vehicle was then towed. An inventory search of the vehicle revealed two bags in the car's trunk that contained twenty-six iPhones and iPads. ( Id. ). These items were later determined to be the electronics that were stolen from the AT&T store on Greentree Road. ( Id. ). Additionally, a Ruger.45 caliber Model P345 chrome and black firearm was found inside the vehicle. ( Id. ).

When questioned that night about the Apple products found in the trunk, Defendant told Officer Salamas that he had purchased these items from a friend in Ohio for $1200. ( Id. ). Defendant averred during the April 23, 2014 Motion Hearing that he regularly buys, sells, and repairs Apple products. (Docket No. 56).

On September 10, 2013, Defendant was indicted with three offenses relating to the November 26, 2012 robbery of the AT&T store. (Docket No. 1). At Count 1, Defendant is charged with Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a). At Count 2, Defendant is charged with Using and Carrying a Firearm During and In Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). At Count 3, Defendant is charged with Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1).[5]


The Fifth Amendment to the United States Constitution provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." The grand jury serves as a referee or buffer between the government and photograph of the suspect taken from the AT&T store's surveillance equipment. (Def. Ex. 1 at 2). Officer Salamas confirmed that the suspect was wearing the exact clothing as he had described Defendant as wearing during the traffic stop. ( Id. ). the people. United States v. Williams, 504 U.S. 36, 47 (1992). It is an accusatory body that sits "not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge." Id. at 51; Bracy v. United States, 435 U.S. 1301, 1302 (1978). In light of "the grand jury's singular role in finding the probable cause necessary to initiate a prosecution, " courts generally lack authority "for looking into and revising" the grand jury's judgment. Kaley v. United States, ___ U.S. ___, 132 S.Ct. 1090, 1097-98 (2014) (citing Costello v. United States, 350 U.S. 359, 362-63 (1956)).

A defendant who seeks to set aside an indictment bears a heavy burden. United States v. Fenton, Crim. No. 98-01J, 1998 WL 356891, *4 (W.D. Pa. June 29, 1998) (Brooks, J.). A district court generally lacks supervisory power over the grand jury proceedings. Williams, 504 U.S. at 47 ("as a general matter at least, no such supervisory' judicial authority exists"). Courts may exercise this narrow degree of authority only "if it is established that the violation substantially influenced the grand jury's decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56 (1988) (citing United States v. Mechanik, 475 U.S. 66 (1986)).[6] Well-developed case law establishes that "only where violations of positive law embodied in a rule of criminal procedure, a statute or the Constitution are raised may a court review an indictment with a view toward possible prejudice in the grand jury proceedings." Fenton, 1998 WL 356891, at *6 (citing In re Grand Jury, 103 F.3d 1140, 1145 (3d Cir. 1997) ("Judicial supervision and interference with grand jury proceedings should always be kept to a minimum")). "Whatever supervisory power does exist, it does not permit judicial review of errors which impact only upon the quality and reliability of the evidence considered by the grand jury." Id.


In his Motion to Dismiss the Indictment, Defendant contends that the Government intentionally misled the grand jury and used perjured testimony to secure the charges against him. (Docket Nos. 45; 55 at 4; 56). He points to materials he obtained through discovery which, he asserts, establish that he was not wearing the same clothes as the suspect who robbed the AT&T store, and therefore demonstrate his innocence. (Docket No. 56). Defendant argues that this evidence leaves no doubt that the Government was aware that he did not commit the crimes for which he is charged, bolstering his claim that the Government intentionally misled the grand jury. (Docket Nos. 45; 55; 56). In response, the Government asserts that, with respect to Defendant's claims ...

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