United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.
the court are the following motions filed by the defendant,
Jesse Carey (“Carey”): a motion to set aside
default judgment, (Doc. 100, at 1-3), attached to
which is a motion to sever, (Doc. 100, at 4-8); a
motion for return of property, (Doc. 101); a motion
for an extension of time to file pre-trial motions, (Doc.
102); a motion to dismiss the indictment, (Doc.
87); and three motions to suppress evidence,
(Doc. 86; Doc. 108; Doc.
filed eleven briefs some of which the court will construe as
supplemental or reply briefs in support, (Doc. 103;
Doc. 104; Doc.109; Doc. 109-1, at 1;
Doc. 110; Doc. 113; Doc. 114;
Doc. 115; Doc. 119; Doc. 122;
Doc. 123), and the government has filed briefs in
opposition to the motions, (Doc. 106; Doc.
reasons set forth below, the motions to set aside default
judgment and for return of property, (Doc. 100;
Doc. 101), will be DENIED; the
motion to sever, (Doc. 100, at 4-8), will be
DENIED; the motion for an extension of time,
(Doc. 102), will be DENIED AS MOOT;
motion to dismiss the indictment, (Doc. 87), will be
DENIED; and the three motions to suppress
evidence, (Doc. 86; Doc. 108; Doc.
111), will be DENIED.
following pertinent allegations, taken from the
government's briefs in opposition, (Doc. 106;
Doc. 121), will be considered only for purposes of
the court's disposition of the motions under review.
Count I, Carey is charged with possession with intent to
distribute controlled substances, namely, cocaine and a
mixture of heroin and fentanyl, on or about January 12, 2017,
in violation of 21 U.S.C. §841(a)(1). Relevant to this
Count, Carey is alleged to have been involved in an incident
which started when members of the Plymouth Township Police
Department (“Plymouth Police”) utilized a
confidential informant to make a controlled purchase of
heroin from Carey, who was going by the name,
“J.B.” Plymouth Police then obtained a search
warrant for Carey's residence in Plymouth Township and,
while it was being executed, Carey arrived in a vehicle and
parked in the driveway. The landlord of the property pointed
to Carey and identified him to police as “J.B.”
When Carey saw the police officers, he put his car in reverse
and nearly struck, but stopped before hitting, police
officers behind his vehicle. Carey was observed to have been
reaching behind his legs, where an aerosol can was
discovered, the bottom of which was ajar, exposing a hidden
compartment containing suspected cocaine. According to the
affidavit of probable cause, Carey uttered, “I
wasn't going to run you over. I'm a drug dealer.
I'm just a drug dealer. I wouldn't run you over. I
know many good cops.” (Doc. 121, at 5). Carey
was searched incident to arrest and police discovered $2,
086, which included $80 in serialized currency from the
controlled buy, as well as marijuana. The search of the
residence revealed a small quantity of drugs. Police
additionally learned that Carey had an active warrant for his
also obtained a search warrant for Carey's vehicle and
located a clear bag containing .18 grams of heroin, 8 baggies
containing 2.0 grams of cocaine, the aerosol can containing
12.02 grams of cocaine, a digital scale, small zip bags,
rubber bands, a cutting agent, a blue ink pad, and a Mohegan
Sun Casino card in the name of Jesse Carey. A search of the
vehicle's trunk revealed more drug paraphernalia,
including a strainer, disposable gloves, small zip bags,
three cell phones, and two black ink stampers.
Count II, Carey is charged with possession with intent to
distribute controlled substances, namely, cocaine and heroin,
on or about August 5, 2017, in violation of 21 U.S.C.
§841(a)(1). Pertinent to this Count, Carey is alleged to
have entered the Mount Airy Casino in Monroe County on August
5, 2017, where security personnel asked Carey to provide
identification. When Carey provided what appeared to be a
counterfeit Connecticut driver's license, security
officers asked him to step into a nearby security office and
contacted the Pennsylvania State Police (“PSP”).
Before PSP arrived, Carey pushed one of the security
officers, fled from the office, pushed a Pennsylvania Gaming
Control Board agent, and ran toward the lower bus lobby.
While running, Carey discarded a black sock on the ground,
which was located by casino personnel and discovered to
contain three baggies with 46.97 grams of cocaine and
twenty-nine packets of heroin weighing .68 grams. Carey then
tripped on the carpet, fell, and struggled with the casino
security officers. Eventually, Carey was taken into custody
by PSP troopers. When questioned about his identity, Carey
claimed to be the person on the Connecticut driver's
license, refusing to provide his real identity or to be
interviewed. A search of Carey's person revealed a
digital scale, $9, 777 in currency, a fraudulent United
States passport, and two cell phones.
was indicted on February 6, 2018, with one count related to
the Mount Airy Casino incident (Doc. 1), but on May
14, 2019, the superseding indictment was filed, (Doc.
61). On May 17, 2019, Carey was arraigned and pleaded
not guilty to both Counts. (Doc. 67). After having
been appointed two prior attorneys, on August 28, 2019, the
defendant again motioned for new counsel which was granted
and the court appointed Mr. Latella of the Federal Public
Defender's Office to represent Carey. (Doc. 80).
September 27, 2019, Mr. Latella filed a motion to suppress
physical evidence and statements, (Doc. 86), and a
motion to dismiss the superseding indictment based on alleged
pre-indictment delay, (Doc. 87). However, Mr.
Latella did not file briefs in support of either motion, as
Carey instructed him to withdraw the motions.
unhappy with his third appointed counsel, on November 4,
2019, after conducting a full pro se representation
colloquy, the court granted Carey's request to proceed
pro se. (Doc. 94; Doc. 96). The
court also directed that Mr. Latella would remain as
“stand-by counsel” for Carey. Further, the court
allowed Carey to withdraw the present pending motions filed
on his behalf, (Doc. 86; Doc. 87), or to
supplement the motions as he saw fit, and directed that his
filings must be submitted by Friday, November 8, 2019.
November 15, 2019, Carey filed the instant motions to set
aside default judgment, (Doc. 100), for return of
property, (Doc. 101), and for an extension of time
to file pre-trial motions, (Doc. 102). By order
dated November 20, 2019, the court granted the motion and set
November 29, 2019, as the final day for Carey to submit any
additional pre-trial motions. (Doc. 105).
Accordingly, Carey's motion for an extension of time,
(Doc. 102), will be DENIED AS MOOT.
November 25, 2019, Carey filed a letter requesting
“somebody [to] schedule me a change of plea hearing and
can you do it quick cause I wanna hurry up and take this 151
months cause I'm a career offender right so I can appeal
it please hurry.” (Doc. 107).
November 26, 2019, Carey filed a motion to suppress evidence,
(Doc. 108), briefs in support, (Doc. 109;
Doc. 109-1, at 1), and a supplemental brief in
support of his motion for return of property, (Doc.
109-1, at 2-6). On December 2, 2019, Carey filed six
additional documents, including (1) what appears to be
additional case law pertinent to his motion for return of
property, (Doc. 110); (2) a memorandum of law/motion
to suppress physical evidence, identification, and
statements, which included case law on prosecutorial
misconduct, (Doc. 111); (3) an additional brief in
support of his motion for return of property, which the court
will construe as a reply brief, (Doc. 112); (4) a
document with case law on forfeiture, which the court will
construe as another supplemental brief in further support of
his motions to suppress, (Doc. 113); (5) a document
titled, “Supplemental Brief, ” which the court
will construe as yet another supplemental brief in support of
his motion for return of property, (Doc. 114); and
(6) a brief in support of his motion for return of property,
which the court will again construe as a supplemental brief
in support of his motion for return of property, (Doc.
December 4, 2019, Carey filed a motion for a renewed
detention hearing, (Doc. 118), which the court
denied by order dated December 5, 2019, (Doc. 120).
Also on December 4, 2019, Carey filed another brief in
support of his motion to set aside default judgment and for
return of property, (Doc. 119). The government filed
another brief in opposition to Carey's motions. (Doc.
121). Carey then filed two reply briefs to the
government's brief in opposition. (Doc. 122;
MOTION TO SEVER
appears that Carey's motion to sever the Counts of the
superseding indictment, (Doc. 100, at 4), was
originally authored by his former counsel, Mr. Latella, but
was amended with Carey's handwritten annotations and
corrections. Although Carey has not filed a brief in support
of this motion, the government has addressed the motion in
its brief in opposition, (Doc. 106), and the court
will consider its merits.
motion, Carey argues that the purported factual bases of the
Counts are unrelated, separate in time, and occurred in
different jurisdictions, and that each Count involves
different witnesses. In response, the government, noting that
Rule 8(a) permits joinder of multiple offenses “of the
same or similar character, ” emphasizes that both
Counts involve possession with intent to distribute cocaine
and heroin and that the incidents occurred less than seven
purposes of Rule 8 and 14 are “to promote economy and
efficiency and to avoid a multiplicity of trials, [so long
as] these objectives can be achieved without substantial
prejudice to the right of the defendants to a fair
trial.” Bruton v. United States, 391 U.S. 123,
131 n.6 (1968) (internal ...