United States District Court, E.D. Pennsylvania
Legrome D. Davis, J.
AND NOW, this 15th day of June, 2015, upon consideration of pro se Defendant Wheeler Zamichieli’s “Motion to Dismiss Indictment” (Doc. No. 197), “Notice to the Court that the Government Has Omitted the 7/14/11 Unit Team Audio Recording from the Discovery Produced on December 8, 2014” (Doc. No. 202), “Second Motion for the Court to Review In Camera Discovery Materials Produced to the Court by the Government on 12/8/14” (Doc. No. 207), “Addendum in Support of the Motion to Dismiss Indictment” (Doc. No. 210), “Motion to Disqualify AUSA Virginia Paige Pratter and the U.S. Attorneys Within the Eastern District of Pennsylvania from the Matter” (Doc. No. 211), “Application for an Audio Expert Under the Criminal Justice Act” (Doc. No. 222), “Motion to Compel the Government to Produce to Defendant All Discovery Materials in Relation to Case Nos. 11-393, 12-182, in Order to File Motion for New Trial” (Doc. No. 223), “Second Addendum in Support of Motion to Dismiss Indictment” (Doc. No. 225), “Motion for the Court to Order the Government to Respond to Defendant’s Second Addendum in Support of Motion to Dismiss Indictment” (Doc. No. 228), “Motion to Reserve Objections to Government’s Response to Doc. Nos. 222, 223, and 233 Until Oral Argument on May 27” (Doc. No. 238), “Motion for the Courts’ In Camera Inspection of Government’s Bates Numbers 1-304” (Doc. No. 244), and “Objections to the Courts’ May 26, 2015 Order” (Doc. No. 245), the Government’s responses thereto (Doc. Nos. 218, 236), and Defendant’s “Objections to Government’s Response to Defendant’s Pro Se Motions” (Doc. No. 239) and “Reply to Government’s Response to Defendant Docket No. 222” (Doc. No. 242), it is hereby ORDERED that Defendant’s motions and applications (Doc. Nos. 197, 207, 210, 211, 222, 223, 225, 228, 238, 244) are DENIED.
Our Order of July 10, 2014 (Doc. No. 155) provided a thorough summary of the factual background and procedural history of this case, which we need not restate here. In this Order, we assess the many post-trial motions that Defendant has filed since January 2015, except those motions that this Court has already addressed. We first consider Defendant’s motions seeking dismissal of the indictment, which Defendant styled as one Motion to Dismiss Indictment, two addenda in support of this motion, and one motion requesting a response from the Government (Doc. Nos. 197, 210, 225, 228). We next address Defendant’s motion to disqualify members of the U.S. Attorney’s Office (Doc. No. 211), followed by Defendant’s application for expert services (Doc. No. 222). Finally, we consider Defendant’s various motions requesting in camera review and seeking discovery materials (Doc. Nos. 207, 223, 244), as well as Defendant’s remaining motion to reserve objections (Doc. No. 238). We deny each of Defendant’s motions and applications in turn.
II. Defendant’s Motion to Dismiss Indictment and Subsequent Addenda (Doc. Nos. 197, 210, 225, 228)
Defendant filed his Motion to Dismiss Indictment on January 6, 2015 (Doc. No. 197). Defendant does not allege any inadequacy of the indictment on its face. Rather, Defendant appears to argue that we should dismiss the indictment based on various forms of prosecutorial misconduct. In particular, Defendant argues for dismissal of the indictment on the bases that (1) the Government violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding evidence from him, (2) the Government engaged in “outrageous misconduct, ” and (3) the Government vindictively and selectively prosecuted him. (Def.’s Mot. to Dismiss 1.) We conclude that dismissal of the indictment is not warranted.
We note at the outset that Defendant’s motion is likely untimely, as Federal Rule of Criminal Procedure 12(b)(3) provides that certain claims and defenses, such as “selective or vindictive prosecution, ” “suppression of evidence, ” and “discovery under Rule 16, ” “must be raised by pretrial motion if the basis for the motion is then reasonably available.” Fed. R. Crim P. 12(b)(3). Rule 12(c)(3) further instructs that “[i]f a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). As Defendant did not file any pretrial motions to dismiss the indictment, he may have waived the claims presented in the instant motion. See United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005). Defendant asserts, however, that his claims are based on newly discovered evidence such that the bases for this motion were not reasonably available before trial and Defendant had good cause for failing to raise the claims earlier. (See Def.’s Mot. to Dismiss 4, 6.) Accordingly, out of an abundance of caution, we consider Defendant’s claims on the merits. See United States v. Williams, 591 F. App’x 78, 87 (3d Cir. 2014).
In general, a district court may dismiss an indictment on the basis of prosecutorial misconduct only where the defendant was prejudiced by this misconduct. Bank of Nova Scotia v. United States, 487 U.S. 250, 263–64 (1988). “The prejudicial inquiry must focus on whether any violations had an effect on the grand jury’s decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless.” Id. In other words, “[a]n indictment will only be dismissed on the basis of prosecutorial misconduct in front of a grand jury if the defendant suffers actual prejudice.” United States v. Polin, 824 F.Supp. 542, 548 (E.D. Pa. 1993). We will discuss each of Defendant’s specific claims.
A. Withholding Evidence
Defendant’s argument that the Government unlawfully withheld evidence in violation of Brady does not merit dismissal of the indictment. Defendant first argues that the Government failed to disclose photographs that Special Agent Patrick Henning allegedly took of Defendant’s car. (See Def.’s Mot. to Dismiss 11.) Defendant also contends, as he has repeatedly asserted throughout this case, that the Government has withheld a recording of a telephone call that Defendant allegedly made from his Federal Detention Center (“FDC”) case manager’s office on July 14, 2011. (Id. at 5.) Defendant claims that this recording would prove exculpatory because Santina Simmons, Defendant’s then-girlfriend, allegedly informed Defendant during that phone call that neighbors had observed Agent Henning searching Defendant’s vehicle on July 13, 2011. (Id.)
The Supreme Court held in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87. The Supreme Court has further established that evidence is considered “material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). In other words, “the touchstone of materiality is a ‘reasonable probability’ of a different result.” Johnson v. Folino, 705 F.3d 117, 128–29 (3d Cir. 2013) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Thus, “[n]o denial of due process occurs if Brady material is disclosed to [a defendant] in time for its effective use at trial.” United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983).
With respect to the photographs of Defendant’s car, Defendant acknowledges that the Government produced these photographs to him on January 29, 2013, nearly a month before the trial in the instant case. (See Def.’s Mot. to Dismiss 5; Gov’t’s Resp. Def.’s Mots. 9, Doc. No. 218.) As such, no misconduct occurred regarding disclosure of the photographs that might have prejudiced defendant. Cf. Higgs, 713 F.2d at 44 (holding that defendants’ due process rights were not violated where the government disclosed potential Brady material on the day that government witnesses were set to testify).
Regarding the alleged telephone call recording, the Government maintains that such a recording does not exist because the FDC does not record telephone calls made from case managers’ offices. (Gov’t’s Resp. Def.’s Mots. 11.) Even if such a recording did exist, we would nevertheless find that the Government’s failure to disclose the recording to Defendant did not constitute prosecutorial misconduct from which Defendant suffered actual prejudice. First, Defendant presents this claim in a motion to dismiss the indictment, which would ordinarily focus on behavior before the grand jury. Yet Defendant argues only that the Government unlawfully withheld the recording from him; he does not allege any misconduct before the grand jury. (Def.’s Mot. to Dismiss 4.) Second, even if we were to construe Defendant’s motion as asserting that the prosecution engaged in misconduct in neglecting to present the recording to the grand jury, “the prosecution is not obligated to search for and present exculpatory evidence to a grand jury.” United States v. Litman, 547 F.Supp. 645, 649 (W.D. Pa. 1982).
Finally, to the extent that a Brady violation itself might warrant dismissal of an indictment, we find no such violation here. Defendant asserts but fails to prove that the recording would in fact contain exculpatory evidence. (Def.’s Mot. to Dismiss 6.) Indeed, Defendant’s argument that Agent Henning illegally searched his car on July 13, 2011 has already been thoroughly considered and rejected by this Court. We held a series of two suppression hearings on this matter in January 2013, and we determined on the record that no such search occurred. (Order of Dec. 1, 2014, Doc. No. 184 (citing Tr. Mot. to Suppress Hearing, Jan. 30–31, 2013 46:9–12).) This Court will not permit Defendant to relitigate this issue. See Waldorf v. Shuta, 142 F.3d 601, 616 n.4 (3d Cir. 1998) (“Under the law of the case doctrine, once an issue has been decided, parties may not relitigate that issue in the same case.”). Moreover, Defendant has not demonstrated that the prosecution’s alleged failure to present the recording to him or to the grand jury caused him any prejudice or had any effect on the grand jury’s decision to indict or the jury’s decision to convict. See United States v. Hill, 976 F.2d 132, 139 (3d Cir. 1992). Dismissal of the indictment is not warranted on this basis.
B. Outrageous Government Misconduct
As for Defendant’s argument for dismissal based on “outrageous government misconduct, ” Defendant contends, among other things, that “the firearm in the instant indictment was in the possession and/or control of Agent Patrick Henning. Santina Simmons[, ] under duress and control of Henning, entrapped Defendant by using Simmons to transfer the firearm to Hokeem [sic] Harris.” (Def.’s Mot to Dismiss 11.) Defendant also argues once again that Agent Henning illegally searched Defendant’s vehicle on July 13, 2011 (id. at 11–12), notwithstanding our previous determination on the record that this search did not occur (see Order of Dec. 1, 2014 (citing Tr. Mot. to Suppress Hearing, Jan. 30–31, 2013 46:9–12)). In addition, Defendant argues that the Government’s alleged failure to disclose evidence constitutes outrageous government misconduct. (See Def.’s Mot. to Dismiss 11, 15.) Finally, Defendant claims that Agent Henning committed perjury ...