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United States v. Smith

United States District Court, E.D. Pennsylvania

July 18, 2018

UNITED STATES OF AMERICA,
v.
KHALIL SMITH MARK WOODS TERRANCE MUNDEN ROBERT HARTLEY LEVERN JACKSON

          MEMORANDUM OPINION

          Goldberg, J.

         From September of 2012 through April of 2014, Defendants Khalil Smith, Mark Woods, Terrance Munden, Robert Hartley, Levern Jackson, and others engaged in a rampage aimed at ambushing and robbing drug dealers. These acts included armed home invasion robberies, kidnappings, and carjackings, and involved the use of GPS tracking devices, police scanners, and an array of firearms. Often, Defendants beat and tortured their victims in order to learn the location of drugs and drug proceeds. On one occasion, Defendants targeted the wrong house, violently assaulting an innocent couple and threatening to sexually assault the pregnant wife. And on another occasion, one of Defendants' cohorts was shot and killed by a home owner.

         Defendants were charged in a multi-count indictment, and on April 19, 2017, were convicted by a jury on multiple counts of Hobbs Act robbery, attempted Hobbs Act robbery, kidnapping, carjacking, and brandishing a firearm while committing the other offenses. Defendants were also found guilty of participating in a single overarching conspiracy that covered eleven separate incidents. The jury's verdicts were not surprising because the evidence presented by the Government was substantial and compelling.

         All Defendants have moved for a mistrial premised on various alleged Brady violations that occurred during the trial. I held this Motion under advisement until post-verdict motion briefing could be completed. Defendants have also filed motions pursuant to Federal Rules of Criminal Procedure 29, 33, and 34.

         For the reasons that follow, I will deny all of Defendants' Motions.

         I. PROCEDURAL BACKGROUND

         On April 28, 2015, a federal grand jury returned a seventeen-count indictment charging the five Defendants named here, as well as eleven co-defendants.[1] The grand jury subsequently returned a thirty-count superseding indictment on May 26, 2016, charging the original Defendants and adding the following four Defendants: Sei Stone, Edwin Robinson, Louis Miller, and James Haines. Marcus Bowens, Michael Queen, Daniel Hayes, Jeffrey Bellamy, and Eric Scott entered into cooperation plea agreements with the Government prior to the filing of the superseding indictment, and Louis Miller entered a cooperation plea agreement thereafter.

         Both the original indictment and superseding indictment charge conspiracy “[f]rom in or about September 2012 through April 29, 2014, ” in violation of the Hobbs Act, 18 U.S.C. § 1951(a). The superseding indictment charges eleven incidents as part of the conspiracy, as well as one independent incident, amounting to twelve total incidents.[2] These incidents were alleged in separate counts as follows:

- An armed home invasion robbery on September 3, 2012 (Counts Two and Three) (“Railroad Avenue”);
- An attempted possession with intent to distribute cocaine on September 11, 2012 (Counts Four and Five) (“Bristol Street”);
- An attempted armed home invasion robbery on October 9, 2012 (Counts Six and Seven) (“Cherry Hill”);
- An attempted armed robbery on July 15, 2013 (Counts Eight and Nine) (“Platinum Jewelers”);
- A kidnapping, carjacking, and armed home invasion robbery on October 18 and 19, 2013 (Counts Ten, Eleven, Twelve, Thirteen, and Fourteen) (“Master Street”);
- An armed home invasion attempted robbery on November 7, 2013 (Counts Fifteen, Sixteen, and Seventeen) (“Leas Way”);
- An armed home invasion robbery on December 28, 2013 (Counts Eighteen and Nineteen) (“Lansford Street”);
- An armed home invasion robbery on January 27, 2014 (Counts Twenty and Twenty-One) (“Pulaski Avenue”);
- An armed kidnapping on March 19, 2014 (Counts Twenty-Two and Twenty-Three) (“Mayfair Street”);
- An armed home invasion attempted robbery and carjacking on April 16, 2014 (Counts Twenty-Four, Twenty-Five, and Twenty-Six) (“Regent Street”);
- An armed home invasion robbery on April 24, 2014 (Counts Twenty-Seven and Twenty-Eight) (“Ridge Avenue”); and
- An armed home invasion attempted robbery on April 29, 2014 (Counts Twenty-Nine and Thirty) (“Wyndale Avenue”).

         Smith, Woods, Munden, Hartley, and Jackson proceeded to trial on January 31, 2017 in “Phase I” of this case.[3] Woods insisted on representing himself but maintained the assistance of back-up counsel throughout the trial. The eleven-week trial began on January 31, 2017 and concluded on April 17, 2017. With a few exceptions, the jury returned guilty verdicts against all Defendants on April 17, 2017.[4]

         II. FACTUAL BACKGROUND

         A. Overview of the Twelve Incidents

         The twelve incidents charged include five armed robberies, five attempted armed robberies, two kidnappings, three carjackings, and one attempted possession with intent to distribute cocaine. Generally, with Smith and sometimes Woods acting as leaders, Defendants solicited information regarding the location of drugs and money kept by drug dealers and then devised plans to steal from the dealers. The details of the twelve incidents were presented to the jury through the testimony of cooperating witnesses, victim witnesses, law enforcement officers, and the presentation of substantial physical evidence. A brief overview of each incident follows.

         1. Railroad Avenue (Counts Two and Three)

         Cooperating witness Eric Scott testified that in the summer of 2012 he informed Smith that a girl he was dating and her mother were dealing drugs out of their home on Railroad Avenue in Ambler, Pennsylvania. Smith, Scott, and Jefferson planned the home invasion beginning in the summer of 2012. On the evening of September 2, 2012, Scott went to the house and spent the night, notifying Smith and Jefferson via cell phone the next day when they should enter the house. Scott, now posing as a victim, unlocked the front door and three men wearing partial masks and carrying guns entered the home around 12:50 p.m.

         Inside of the home with Scott were C.W., the homeowner, her daughter (and Scott's girlfriend) A.G., her son D.W., and her son's friend T.H. C.W. and A.G. testified that the three men pointed guns at them, directed them to lie on their beds, and then secured them with shoelaces. Demanding money and drugs, and hunting through drawers and purses, the men warned C.W. that if she did not cooperate they would harm the other people in the home. The men fled after taking jewelry, cocaine, and Percocet pills. A.G. identified Smith as one of the perpetrators when she was later interviewed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

         2. Bristol Street (Counts Four and Five)

         Philadelphia police officers testified that Smith and Scott were observed on the rooftop of a building on the 4300 block of N. 5th Street on September 11, 2012, which prompted a call to the police. When the police arrived, Smith and Scott ran from the rooftop but were stopped and arrested by the police, along with Jefferson who had been on the roof as well.

         Officers testified that they recovered from the scene two black masks, a black baseball hat, a bag containing a pair of jeans, and a laundry bag containing a quilt and black mask. Additionally, the owner of the building on which Smith and Scott were observed found two loaded firearms on the roof, as well as a bag containing a crowbar and other items. DNA testing revealed Smith's DNA on one of the firearms.

         Scott testified that Smith, Jefferson, and he were on the roof conducting surveillance of a target they planned to burglarize. Anthony and Bowens were waiting nearby as lookouts. The plan was to steal cocaine and a large sum of cash that they believed were inside of the target's home. Cooperating witness Marcus Bowens confirmed this plan.

         3. Cherry Hill (Counts Six and Seven)

         Bowens testified that on October 9, 2012, Smith, Jefferson, and Haines drove to the Bishops View Apartments in Cherry Hill, New Jersey with the intention of committing an armed robbery of H.H. Woods met them there and stayed in his vehicle as a lookout while Smith, Jefferson, and Haines approached the home of H.H. armed with a firearm. At approximately 8:50 a.m., H.H. woke up to a sound coming from his living room. Upon entering the living room, H.H. noticed that a window near the front door was open and the blinds were moving. He returned to bed, but again heard a sound and returned to the front window, observing a male with his hands inside of the window's screen. H.H. saw two other men standing near the first man, one of whom had a firearm in his waistband, and H.H. shouted “I see you.” The three men then fled.

         H.H. reported the incident to the police, providing descriptions of the men and a vehicle in which the men fled. The police observed that the window screen had been cut and the lock on the window was pried open. Other police units stopped the vehicle described by H.H. and brought H.H. to the scene of the stop for a “show up” of the vehicle's occupants (Smith, Jefferson, and Haines). H.H. identified Jefferson as the man who had the gun in his waistband. Smith, Jefferson, and Haines were arrested and charged with robbery, burglary, and related offenses in New Jersey state court. A search of the vehicle uncovered a loaded firearm, a GPS tracking device, a police scanner, three pairs of gloves, and four cell phones.

         4. Platinum Jewelers (Counts Eight and Nine)

         Cooperating witnesses Bowens, Daniel Hayes, and Jeffrey Bellamy all testified that while wearing disguises, Segers and Hayes entered Platinum Jewelers, a store located on Market Street in Philadelphia, at approximately 11:45 a.m. on July 15, 2013. Once inside, Segers and Hayes talked with store employees and pretended to be customers. Meanwhile, cooperators Bellamy and Michael Queen, and another conspirator Anthony McFarland (killed in a later incident), waited outside serving as lookouts and/or getaway drivers. Wearing vests that said “Police” on the front and masks, Smith and Bowens entered the store shortly after Segers and Hayes and shouted, “Police.” A female employee pressed the panic alarm beneath the counter and Smith pulled out his gun and approached her behind the counter, saying “Bitch did you hit the alarm.” The four men then fled the store and the area without stealing any items.

         A video of this incident was shown multiple times at trial and Bowens, Queen, and Hayes each identified the four men in the video.

         5. Master Street (Counts Ten, Eleven, Twelve, Thirteen, and Fourteen)

         Cooperating witness Louis Miller testified that on October 18 and 19, 2013, Woods, Munden, Chaney, and he went to the 3000 block of Master Street in Philadelphia to look for G.T., a drug dealer they planned to rob. The four men watched G.T. walk toward his car and approached him purporting to be police officers. They frisked G.T., took money from his wallet, took his car keys and cell phone, and demanded to know where he stored his drugs and drug proceeds. When G.T. attempted to escape, the four men assaulted him, forcing him into the back of Chaney's vehicle where they bound his ankles and covered his head. Woods, Munden, Chaney, and Miller then transported G.T. to Munden's garage and held him there for several hours while they continued to beat him and demanded information regarding the location of drugs and drug proceeds.

         Miller testified that G.T. was eventually moved to Miller's garage where he was forced to contact another drug dealer named S.P. As a ruse, the captors forced G.T. to tell S.P. that he was going to stop by his apartment. Instead of G.T., Woods, Munden, and Miller (along with a non-indicted co-assailant, Charles Wardlaw) went to S.P.'s apartment. The men waited for S.P. to open his door, and when he did, confronted him with guns drawn and forced him back into his apartment. Once inside, the men assaulted S.P. and stole cocaine, money, and other items of value before fleeing the apartment. G.T. was later released on October 19, 2013 at another location where he was left handcuffed to the armrest of his own vehicle.

         6. Leas Way (Counts Fifteen, Sixteen, and Seventeen)

         Bowens and Queen testified that on November 7, 2013, Smith, Bowens, Queen, Ballard, and Doggett met in the parking lot of the Cheltenham Mall and drove to Hatfield, Pennsylvania to rob a drug dealer named M.M. who they had been monitoring for weeks. Bowens and Queen explained that Doggett served as lookout and informed the others, who were lying in wait, when M.M. was approaching his home. Smith, Bowens, Queen, and Ballard approached M.M. as he pulled into his driveway, pointing their guns at him and threatening him. They then took M.M.'s car keys and subdued him before bringing him into his home. After restraining and assaulting M.M., the men ransacked the house, taking electronics, firearms, and personal items. Leaving M.M. restrained, Bowens testified that the men packed M.M.'s BMW with the stolen items and Bowens drove off in the car. Bowens abandoned the BMW on the highway when it ran out of gas, but not before taking a backpack containing a laptop computer, cellphones, and money from the vehicle.

         7. Lansford Street (Counts Eighteen and Nineteen)

         Bowens and Bellamy testified that they met with Smith, Woods, Stone, and Robinson on Lansford Street in Philadelphia on December 28, 2013 to rob a drug dealer named T.H. Bowens and Bellamy stayed outside as lookouts as Smith, Woods, Stone, and Robinson broke into T.H.'s home dressed in dark clothes and wearing masks. R.H., T.H.'s brother, testified that he was inside on the lower level of the home, and the men forced him at gunpoint to walk upstairs to the second level where a friend and child were located. The men forced R.H. and the friend to strip down to their underwear and demanded money and drugs. Toting guns, the men searched the home, and then forced R.H. and his friend to walk to the basement and lie on the floor. Smith, Woods, Stone, and Robinson then left the home, stealing marijuana, money, and Christmas gifts.

         8. Pulaski Avenue (Counts Twenty and Twenty-One)

         Bowens and Bellamy testified that on the morning of January 27, 2014, Smith, Woods, Jackson, Bowens, and Bellamy met at J.B.'s house on Pulaski Avenue in Philadelphia. According to Bowens, he and Smith entered the home through an upstairs window and then unlocked the front door for Woods to enter. The three men scoured the house for items to steal. Meanwhile, Jackson and Bellamy remained outside as lookouts. Sometime thereafter, J.B. and his girlfriend J.P. arrived at home, where J.B. was confronted by one male pointing a gun and demanding money. J.B. was assaulted, handcuffed, and forced to the floor while two other men searched through his home holding a hammer and a second firearm. All three men wore masks and gloves. Bowens testified that the men stole cocaine, approximately $10, 000.00, and other items of value, stuffed those items into a red Puma bag, and then fled.

         9. Mayfair Street (Counts Twenty-Two and Twenty-Three)

         Bowens and Bellamy testified that on March 19, 2014, Smith, Woods, Munden, Hartley, Chaney, Jackson, Bowens, and Bellamy met near victim O.T.'s home on Mayfair Street in Philadelphia with plans to rob and kidnap O.T. Woods and Chaney waited in a parked van in front of O.T.'s house while the others waited nearby for O.T. When they observed O.T. arrive, Smith, Munden, Hartley, Chaney, and Bowens exited their vehicles and rushed and subdued O.T. Woods, Jackson, and Bellamy served as lookouts. Video footage showed five men attacking O.T. Bowens identified Smith, Munden, Hartley, Chaney, and Bowens as those five men.

         Bowens testified that Smith, Munden, Hartley, Chaney, and Bowens presented themselves to O.T. as police officers, and then assaulted and subdued him before throwing him into Woods's van. O.T. was transported to Hartley's van and eventually Munden's garage, while being continuously assaulted. Once in Munden's garage, the men violently beat and tortured O.T., demanding to know where he stored drugs and drug proceeds. Jackson remained behind at O.T.'s house to monitor for police activity.

         Bowens and O.T. testified that when O.T. would not tell the men where his drugs or drug proceeds were, the men forced O.T. to call his sister J.T. to arrange for a ransom payment of $50, 000.00. J.T. testified about this phone call. Once the ransom money was collected, O.T. was released.

         10. Regent Street (Counts Twenty-Four, Twenty-Five, and Twenty-Six)

         Bowens and Bellamy testified that on April 16, 2014, Smith, Woods, Munden, Hartley, Chaney, Bowens, Bellamy, and McFarland went to A.C.'s home on Regent Street in Philadelphia with the intention of robbing him. Smith, Munden, Bowens, and McFarland entered the home around 1:15 a.m. through a window in the dining room. Bellamy and Hartley remained outside as lookouts. Bowens explained that once inside, the men confronted A.C.'s wife I.C., who was downstairs getting water. Bowens and I.C. testified that I.C. was bound at her wrists and ankles by shoestrings before Woods was let in through the front door carrying a shotgun. Munden remained downstairs with I.C., covering her mouth with his hand and pointing a gun at her, as Smith, Woods, Bowens, and McFarland proceeded upstairs. I.C. later identified Munden as the man who held her downstairs.

         According to Bowens, once upstairs, the men confronted A.C. who had woken from sleep at the sound of commotion downstairs. They assaulted A.C., handcuffed him, bound his ankles, and began demanding to know where drugs and drug proceeds were located. The men brutally assaulted and tortured A.C., punching him in the face, slamming his head against a wall, waterboarding him, and pouring boiling water on his upper leg and groin area. They also repeatedly threatened to sodomize A.C. and I.C., who was six months pregnant and at one point forced to strip naked and get on her hands and knees as the men prodded her with a broomstick and threatened to force her to perform oral sex on one of them.

         Eventually the men concluded they had the wrong house, mistakenly thinking A.C. was involved in drug dealing. Before leaving, the men stole jewelry and an iPad. Bowens took the keys to the family's Toyota Camry and the vehicle.

         11. Ridge Avenue (Counts Twenty-Seven and Twenty-Eight)

         Bowens and Bellamy testified that on April 24, 2014, Smith, Woods, Munden, Hartley, Bowens, and Bellamy met at victim O.W.'s house on Ridge Avenue in Philadelphia to rob him. Smith and Bowens initially went inside of the house and stole money and other items of value. Woods, Munden, Hartley, and Bellamy remained outside.

         According to Bowens, Smith instructed him to leave the house with the stolen items and drive his car back to Lenox Street. Bowens did so, and in his absence, Hartley and Munden joined Smith inside of the home because O.W. had arrived home. Bowens later learned that the men confronted O.W. with guns, tying him at the wrists and ankles using electrical cords, and demanding to know where he kept his drugs and drug proceeds. O.W. also testified that multiple men confronted him with firearms and tied him at his wrists and ankles using a cell phone cord. O.W. directed the men to an alarm box, from which they stole money. They also stole designer shoes, bags, and belts, as well as more money from other areas of the home. Smith, Munden, and Hartley then left the house and all of the men fled the scene.

         12. Wyndale Avenue (Counts Twenty-Nine and Thirty)

         Bowens testified that on April 24, 2014, Smith and he entered the home of victim L.T. and stole money, jewelry, designer bags, and electronics when L.T. was not home. Believing they had missed drugs and drug proceeds, the men planned to return to L.T.'s home. On the evening of April 29, 2014, Smith, Woods, Munden, Bellamy, and McFarland returned to Wyndale Avenue to commit an armed home invasion.

         Bellamy and Bowens testified that they later learned the details of what occurred inside from Smith and Munden. They testified that Smith, Munden, and McFarland broke into L.T.'s home and waited for him to arrive, while Woods and Bellamy remained outside serving as lookouts. Bellamy alerted Woods when L.T. arrived home, and Woods then notified the men inside. When L.T. and his fiancé S.L. entered the home, they were confronted at gunpoint by Smith, Munden, and McFarland. L.T. and S.L. were subdued, however, L.T. struggled for a gun and was shot in the leg. L.T. wrestled the gun away from Smith and shot Smith in the buttocks as Smith fled through a window. L.T. then shot Munden in the arm, and Munden fled through a window. Finally, L.T. fatally shot McFarland. Woods and Bellamy also left the scene.

         Woods and Smith were arrested by the Philadelphia Police Department following this incident. After fleeing Wyndale Avenue, the two had staged a shooting on Chew Avenue in an attempt to create a scenario where they could call 9-1-1 for Smith, who was bleeding from the wound incurred at Wyndale Avenue. Following the staged shooting, Woods dropped Smith off on a nearby street before leaving in a white van. Smith called 9-1-1 claiming he had been shot and was taken to Einstein Hospital. Police officers in the area heard radio calls regarding the Wyndale Avenue shooting, the staged shooting on Chew Avenue, and Smith's 9-1-1 call, and eventually pulled Woods over in the white van. As detailed below, the white van contained substantial physical evidence tying many of the Defendants to the crimes at issue.

         B. Specific Evidence Presented at Trial

         The evidence presented by the Government was overwhelming. Six cooperating witnesses-Bowens, Bellamy, Queen, Scott, Hayes, and Miller-provided extensive details regarding the events charged in the superseding indictment and pinpointed each Defendant's involvement. The Government provided substantial corroborating evidence for the testimony of each of these cooperators. Testimony from victims was presented for each incident, as was testimony from police officers who responded to the scenes of the incidents. Additionally, the ATF agents assigned to this case provided testimony regarding the overall investigation.

         Physical evidence tying these Defendants to the various incidents was also introduced. After Woods was arrested on April 29, 2014, the police obtained search warrants for his cell phone and the white van he was driving when arrested. A search of Woods's cell phone revealed receipt of text messages from two GPS tracking devices. Cooperating witnesses explained that the white van was used by the Defendants for surveillance and to commit robberies. An initial search of the van revealed walkie talkies, handcuffs, ski masks, gloves, blood stains, keys, cell phones, and jewelry. Subsequent DNA analysis confirmed the blood stains in the van matched Smith's blood, DNA on several of the masks in the van matched that of Smith and Woods, and a fingerprint in the van belonged to Jackson. Two subsequent searches of the van uncovered a gun that matched the cartridge casings recovered from the staged shooting on Chew Avenue, a ladder, a pry bar, a screw driver, and multiple items of clothing. Additionally, blood inside of Wyndale Avenue contained DNA matching that of Munden.

         After the incident on Wyndale Avenue, Smith's Cadillac was found two blocks from the residence where the home invasion transpired. A search of that vehicle revealed a receipt, bearing Smith's phone number, for the wipe and install of an Apple computer from an electronics store. ATF agents retrieved the computer, which they determined belonged to L.T.'s girlfriend (L.T. was the victim in the Wyndale Avenue incident). The search of Smith's car also uncovered gloves, masks, and a lease to Smith's apartment at the Towers at Wyncote, as well as a bag belonging to the deceased McFarland, containing his wallet, identification, cell phone, money, two of Smith's cell phones, and a key fob to enter the Towers at Wyncote.

         On May 6, 2014, Woods's car was located in a storage lot in North Philadelphia. A search of that car revealed two cell phones and a tool used for breaking into things. Woods was arrested on May 13, 2015 by Abington Township Police. The police seized and searched the vehicle Woods was driving at the time, finding three walkie talkies, a financial responsibility card in Jackson's name for a white Pontiac, a screwdriver, and a pry bar. ATF subsequently searched the home of Woods's mother and found a bag containing a GPS tracker and black skull cap. This tracker was the same brand of tracker from which Woods was receiving alerts on the recovered cell phones.

         On May 12, 2015, ATF agents arrested Munden at his house. After searching the entirety of the home, agents found Munden hiding on the first floor behind a dryer. Munden consented to the search of the home and his vehicle after he was arrested, where agents found a telescoping ladder, zip-ties, a backpack containing medical supplies, a bolt cutter, two pry bars, a screwdriver, dark colored skull caps, a digital scale, binoculars, a scraping tool, and a Comcast bill in Munden's name bearing the address where G.T. and O.T. were held captive. Munden later made various statements to the agents, including “I know the difference between right and wrong”; “I'm built to do life”; and “I was going to try to escape through the [sunlight] in the bathroom . . . I'm tired right now, so I didn't really try to escape, but I will in prison.” On May 14, 2015, ATF agents arrested Jackson and conducted searches on two homes and Jackson's car. Agents found Jackson's cell phone, a police scanner, binoculars, a holster, and a Philadelphia Police patch.

         On May 22, 2014, ATF agents executed a search warrant at Smith's apartment located in the Towers at Wyncote. There the agents found a large sum of cash hidden in the closet, two firearm magazines that matched the make and model of a firearm recovered from Wyndale Avenue, black hats, prison letters, a key fob to a Cadillac, various notes and receipts, a designer bag later identified as stolen from Wyndale Avenue, and various other electronics.

         Additional physical evidence provided by Bowens, Queen, and Bellamy to law enforcement was presented to the jury, including firearms, ammunition, masks, holsters, cell phones, police scanners, bolt cutters, pry bars, police patches, ballistic vests, boots, and gloves.

         Lenox Street was described as the home base for members of the conspiracy. Thousands of hours of footage from a poll camera installed on Lenox Street depicted Defendants and other members of the conspiracy meeting before and after many of the robberies. Cooperators testified that Smith grew up on that block and Bowens's ex-girlfriend lived there. Cooperating witnesses identified members of the group gathering on Lenox Street, both before and after many of the incidents described above, as well as their cars driving or parked on the block. Footage also showed various members of the conspiracy carrying items identified as stolen during robberies. For example, pole camera footage showed Smith, Bowens, Woods, Bellamy, and Jackson on Lenox Street after the Pulaski Avenue robbery. The men are seen carrying the red Puma bag taken from the Pulaski incident into a home and Woods is later seen carrying that same bag out of the house and to his car. That same footage shows Bowens taking a ladder he testified they had intended to use that day from the backseat of Bellamy's car.

         The Government also presented compelling cell site evidence, which methodically linked the Defendants to the locations where crimes occurred. ATF Agent Mark Sonnendecker, an expert in cell site location information, testified to the location of Defendants' cell phones in relationship to cell sites near the various crime scenes. Agent Sonnendecker's testimony placed certain Defendants within .75 miles of cell sites that were in close proximity to the location of an incident at the time of the incident. For example, cell site location information established that Smith and Jefferson's cell phones were in the area of Railroad Avenue before and during the home invasion. Specifically, Smith and Jefferson's phones accessed a cell site that was .84 miles from the location of the Railroad Avenue incident. This type of testimony was presented for most of the charged incidents.

         Finally, the Government presented telephone records detailing the call history between each Defendant before, during, and after robberies. For example, records show telephone calls between Scott and Jefferson, and Jefferson and Smith, on the evening prior to the Railroad Avenue robbery and in the early morning hours before the robbery.

         III. MOTION FOR MISTRIAL

         Over the course of the eleven-week trial, Defendants moved for a mistrial three times, all premised on the belated disclosure of Brady material. I denied the first two motions but held the third under advisement. Defendants contend that the following late disclosures amount to a cumulative Brady violation warranting a new trial:

- Bellamy informed the Government during a pretrial meeting that he had made two mistakes in previous testimony before the Grand Jury;
- The federal Government adopted Bellamy's unrelated state case, which resulted in a guilty plea;
- Detective Christopher Marano was present for a meeting with the state court judge and prosecutor regarding the withdrawal of Bellamy's conviction and sentence in the state court case;
- Bellamy entered a plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) in the adopted case before the Honorable John R. Padova;
- G.T. and S.P., both Government witnesses, were subjects of an ongoing FBI investigation;
- Bellamy received approximately $3, 300.00 in subsistence payments from ATF while acting as a confidential informant; and
- Scott received approximately $1, 000.00 in subsistence payments from ATF while acting as a confidential informant.

         I will refer to the first four disclosures noted above as “the Bellamy disclosures, ” the fifth disclosure as “the G.T. and S.P. disclosures, ” and the final two disclosures as “the cooperator subsistence disclosures.”

         Before examining each of the alleged Brady violations, it is important to state the context in which the evidence in this case was presented and the types of crimes that were planned and committed. Defendants robbed and victimized drug dealers. Consequently, many of the Government's witnesses were either drug dealers or associated with drug dealing activity. And the six cooperating witnesses presented by the Government were also criminals with extensive records.

         The reality with this type of case is that a majority of the Government's evidence was presented through witnesses with checkered pasts, and whose discoverable misdeeds were not always readily apparent or immediately available to the Government. While the timing of certain disclosures was not optimal, all occurring mid-trial, in every instance, counsel for the Government acted diligently and any possible prejudice was cured. Importantly, despite certain defense counsel's accusations, I found at trial, and repeat here now, that none of the belated disclosures were intentional.

         A. Brady Standard

         It is well established “that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). “Impeachment evidence . . . as well as exculpatory evidence falls within the Brady rule.” United States v. Bagley, 473 U.S. 667, 675 (1985) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Prosecutors must disclose exculpatory and impeachment evidence even if the defendant does not request it. United States v. Agurs, 427 U.S. 97, 106-07 (1976).

         “A valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense.” United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (citing Moore v. Illinois, 408 S.Ct. 786 (1972)). The Supreme Court of the United States has stated that “implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” Id. (quoting Agurs, 427 U.S. at 105). The United States Court of Appeals for the Third Circuit has observed that a defendant is entitled to a new trial where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is [defined as] a probability sufficient to undermine confidence in the outcome.” Id. (quoting Bagley, 473 U.S. at 682). This materiality inquiry “requires consideration of the totality of the circumstances, including possible effects of non-disclosure on the defense's trial preparation.” Id. (citing Gov't of Virgin Islands v. Martinez, 780 F.2d 302, 206 (3d Cir. 1985)).

         B. The Bellamy Disclosures

         1. Background

         On March 6, 2017, a few days before Bellamy was scheduled to testify, counsel for the Government emailed all defense counsel the following:

I write to advise that in preparation for Jeffrey Bellamy's testimony, he advised me on February 24, 2017, that he made two errors in previously recounting events to include the following: Bellamy incorrectly included “Money, ” Marcus Bowens, in the Wyndale Home Invasion because he remembered him being involved in the burglary days earlier and forgot that Money was not involved the night of the home invasion[;] and, Bellamy did not drive his truck to the Regent Street home invasion, but rather went in Khalil Smith's Escalade from Lenox Street.

         (Gov. Resp. at 79.)

         On March 7, 2017, the Government explained that in preparation for his trial testimony, Bellamy corrected these mistakes. Hartley's counsel requested that I instruct the jury under Third Circuit jury instruction 4.19 (Credibility of Witnesses - Witness Who Has Pleaded Guilty to Same or Related Offense, Accomplices, Immunized Witnesses, Cooperating Witnesses) before Bellamy's testimony. I declined to do so because it would “place undue emphasis on one witness, ” however, I advised counsel that I would allow defendants “tremendous latitude to cross-examine” Bellamy about his corrections. (N.T. 3/7/17 at 169.)

         Also on March 7, 2017, I heard argument on a request made by Smith's counsel to play a video of Bellamy committing an unrelated robbery of a grocery store. I had previously granted Smith's motion to compel production of that video, which he sought pursuant to Federal Rule of Evidence 404(b)(2) in order to demonstrate Bellamy's “knowledge and ability to plan and conduct robberies.” During argument, Government counsel explained that the grocery store robbery was originally charged by the Philadelphia District Attorney's Office in state court, and that Bellamy had already pled guilty and was sentenced by the state court judge when the District Attorney's Office withdrew the charges and the United States Attorney's Office adopted the case. It was explained that thereafter Bellamy pled guilty in federal court on February 8, 2015 before the Honorable John R. Padova pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (“C Plea”). Government counsel advised that the vacated state court sentence had been seven-and-a-half to fifteen years, whereas the recommended sentence pursuant to the C Plea in federal court was seven years.

         Government counsel also stated that the United States Attorney's Office had worked with the District Attorney's Office to have Bellamy's case dismissed in state court and adopted federally. Government counsel acknowledged that these events were “unusual, ” but explained that there had been concerns about Bellamy's safety in state custody because of his cooperation in a previous case. In light of these disclosures, I directed the Government to produce a letter or memorandum detailing this information, which they did the same day. (Id. at 171-87, 92.)

         All defense counsel protested that this was the first time they had learned about the involvement of the United States Attorney's Office in Bellamy's state court case. Smith's counsel orally moved for a mistrial, contending this disclosure constituted a Brady violation, which all Defendants joined. I held this motion under advisement. (Id. at 233-34, 262-63.)

         The Government produced its letter on the morning of March 8, 2017, ...


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