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United States v. Carey

United States District Court, M.D. Pennsylvania

December 13, 2019

UNITED STATES OF AMERICA
v.
JESSE CAREY, Defendant

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.

         Before 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)[1]; and three motions to suppress evidence, (Doc. 86; Doc. 108; Doc. 111).[2]

         Carey 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. 121).

         For the 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.

         I. BACKGROUND

         The 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.

         In 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 arrest.

         Police 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.

         In 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.

         Carey 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).

         On 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.

         Now 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.

         On 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.

         On 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).

         On 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. 115).

         On 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; Doc. 123).

         II. DISCUSSION

         a. MOTION TO SEVER

         It 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.

         In this 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 months apart.

         The 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 ...


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