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United States v. Porter

United States District Court, W.D. Pennsylvania

August 22, 2019

UNITED STATES OF AMERICA
v.
RASHIKA PORTER, Defendant.

          MEMORANDUM OPINION

          NORA BARRY FISCHER JUDGE

         I. Introduction

         Presently before the Court is a Motion to Preclude Evidence About Destroyed Videotape Footage and brief in support (Docket Nos. 59, 60) filed by Defendant Rashika Porter (“Defendant”). The Government filed its Response in opposition thereto, and the Court held a hearing and oral argument on Defendant's motion on May 6, 2019, the official transcript of which has been filed of record and considered by the Court. (Docket Nos. 61, 63, 65). At the Court's direction, the parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law (“FOF/COL”), (Docket Nos. 66, 68), but did not file responses to same by the established deadline of July 24, 2019. (Docket No. 69). After careful consideration of the parties' submissions, and for the following reasons, Defendant's Motion is denied.

         II. Background

         A. Procedural History

         On March 14, 2018, Defendant was charged in a one-count indictment with possession with intent to distribute less than 500 grams of cocaine on or about March 21, 2017, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Defendant was arraigned on March 21, 2018, he pled not guilty to the charge, waived a detention hearing, and he is detained pending trial.

         Defendant originally was represented by court-appointed counsel Stephen Begler. On August 6, 2018, Attorney Begler filed a motion for discovery and a motion in limine to prohibit the Government from using at trial a recorded jail telephone call made by Defendant. (Docket Nos. 19, 20). A motion hearing was scheduled, but Attorney Begler moved to continue the hearing and to file additional pretrial motions, which the Court granted. Attorney Begler subsequently filed a second motion in limine to preclude the Government from introducing evidence that Defendant was involved in a high-speed chase on March 22, 2017, (Docket No. 29), and a motion hearing was scheduled to occur on November 21, 2018.

         On November 13, 2018, Attorney Begler filed a motion to withdraw as counsel. Consequently, the scheduled motion hearing was continued until further order of court and a hearing on Attorney Begler's motion to withdraw instead was held at that time. Following the hearing, the Court granted Attorney Begler's motion to withdraw as counsel and Attorney Dietz was appointed to represent Defendant.

         On April 10, 2019, Attorney Dietz filed the following additional pretrial motions: for disclosure of Brady materials; for additional discovery; for early disclosure of Jencks material; to preserve rough notes; for disclosure of Rule 404(b) material; and the pending motion to preclude evidence about destroyed video tape footage. (Docket Nos. 49, 51, 53, 55, 57, 59). The Government filed an omnibus response to these motions. (Docket No. 61). As noted, on May 6, 2019, a hearing was held on Defendant's motion to preclude evidence, the parties submitted their respective proposed FOF/COL and the matter is now ripe for disposition. At issue is whether the law enforcement officers who previously viewed now-missing videotape footage related to this case may testify at trial concerning what they observed on that footage.

         B. Facts [1]

         At the hearing, the Government called Daniel Kinzel, who is a Task Force Officer (“TFO”) of the Drug Enforcement Administration (“DEA”). In sum, TFO Kinzel testified that the missing videotape footage was accidentally erased for unexplained reasons and various efforts to restore the video have been unsuccessful, and defense counsel vigorously cross-examined him on these matters. In this Court's estimation, based on TFO Kinzel's demeanor and testimony in response to the questioning of the attorneys and the Court at the motion hearing, he offered credible testimony concerning the matter at issue, despite the defense's efforts to impeach him. See United States v. Garcia, 521 Fed.Appx. 71, 73 (3d Cir. 2013) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985)) (“‘[w]hen findings are based on determinations regarding the credibility of witnesses ... for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.'”). In addition, TFO Kinzel presented as an experienced officer, having been employed as a police officer for West Homestead Borough since 2000, where he currently is a detective with the narcotics squad and a task force officer with the DEA. (Docket No. 65 at 16). In his capacity with the DEA, TFO Kinzel is one of the case agents assigned to this case, along with TFO Tom Dunlevy. (Id. at 16, 23).

         By way of background, the Government alleges that on March 21, 2017, Defendant stored cocaine in the trash at Al's Fish and Chicken, a restaurant in Duquesne, Pennsylvania, he left the scene, and he returned later that day and searched the dumpster for the discarded cocaine as captured on the restaurant's surveillance video cameras. (Docket No. 61 at 1). Defendant claims that the video provided to him in discovery does not contain any footage of him disposing of narcotics in the trash at Al's Fish and Chicken. (Docket No. 59, ¶ 4). According to the Government, it has been unable to access that portion of the video because of technical difficulties, despite efforts by the case agent and others to restore the video.[2] (Docket No. 61 at 2). The parties disagree whether law enforcement officers who reviewed the missing video footage should be permitted to testify at trial concerning what they observed on the footage.

         Turning to the testimony adduced at the hearing, TFO Kinzel testified that he went to Al's Fish and Chicken restaurant on April 11, 2017, along with TFO Dunlevy and DEA communications technician Brian Volpert, to download surveillance video related to this case onto a thumb drive. (Docket No. 65 at 16, 36-37). The restaurant had two different surveillance systems - an older Nuvico surveillance system inside and a newer system outside. (Id. at 34-35, 39). The DEA representatives made separate copies of each system. (Id. at 35).

         Upon returning to the DEA office with the thumb drive, TFOs Kinzel and Dunlevy reviewed the video surveillance, which included footage from inside the restaurant. (Docket No. 65 at 17). In addition, TFO Kinzel's supervisor, two other DEA agents and Mr. Volpert also viewed the video because of the open layout of the office space. (Id. at 17, 27). TFO Kinzel testified that he did not observe anything exculpatory on the video showing that Defendant did not have possession of the cocaine. (Id. at 19). TFO Kinzel further testified that the DEA would prefer to have the missing video footage available at trial because it “shows exactly what went on. It's the main meat and potatoes.” (Id.).

         After TFO Kinzel and the other DEA representatives reviewed the video, it was reproduced for purposes of providing it to defense counsel and presenting it at trial. (Docket No. 65 at 17). When that occurred, a portion of the video, which happened to be the most relevant portion, went missing. (Id.). The original video ...


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