Opinion
No. CR 00-1003 MJM
September 20, 2000
OPINION AND ORDER
I INTRODUCTION
The Defendant, Ronald Frazier, was indicted in Federal Court on January 12, 2000, for two counts of knowingly possessing a counterfeited security in violation of 18 U.S.C. § 513(a). (Doc. 1) On March 22, 2000, the Defendant moved to suppress the introduction of evidence obtained at the time of his arrest on June 11, 1999, on the grounds that the arresting officer lacked reasonable suspicion to conduct a warrantless Terry Stop. (Doc. 15) In the same motion, the Defendant also moved to suppress proposed identification testimony on the grounds that the identification procedure violated the Defendant's due process rights. (Doc. 15) In addition, the Defendant filed a motion to dismiss the indictment in its entirety on the grounds that the transfer of this case from state court to federal court amounted to an improper method of prosecution. (Doc. 14) The Court referred these motions to United States Chief Magistrate Judge John A. Jarvey for a report and recommended disposition pursuant to 28 U.S.C. § 636(b)(1) (1999). After an evidentiary hearing, Judge Jarvey issued a Report and Recommendation on April 20, 2000, recommending that all of the Defendant's motions be denied. (Doc. 28) Subsequently, the Defendant filed objections to the Report and Recommendation. (Doc. 59).
On April 13, 2000, the United States superseded the original indictment, alleging same charges with only minor changes to charging language. (Doc. 21).
On July 21, 2000, the Defendant filed two additional motions; a motion to suppress the introduction of evidence seized in the inventory search of the Defendant's vehicle (Doc. 58), and a motion to dismiss the pending indictment on three additional grounds — vindictive prosecution, selective prosecution and destruction of evidence. (Doc. 60)
The Defendant also filed a motion to dismiss for lack of jurisdiction (Doc. 60), but later withdrew that motion (Doc. 62). In the interest of precision, the Court notes that the Defendant's motion to withdraw actually states he is withdrawing his motion to suppress for lack of jurisdiction. (Doc. 62) Because no such motion was pending, the Court will assume that the Defendant was referring to his motion to dismiss on jurisdictional grounds and recognizes the withdrawal of that motion.
The Court will address each of the Defendant's motions in turn.
The Court accepts the factual findings made by Judge Jarvey in his Report and Recommendation. As such, the Court will not reiterate those facts here, but instead address those facts relevant to the inquiry where necessary.
II DISCUSSION
A. Initial Motions to Suppress and Dismiss/ Objections to Judge Jarvey's Report and RecommendationIn his original motion to suppress, the Defendant moved this Court to suppress the introduction of evidence which was gained at the time of his arrest challenging the propriety of the Terry Stop and the identification procedures used at the time of the arrest. The Defendant's motion to dismiss is premised on a due process challenge to the preindictment delay.
After conducting an evidentiary hearing, Judge Jarvey found the arresting officer had reasonable suspicion to properly effectuate a Terry Stop of the Defendant's vehicle; that the show-up identification procedures did not create a risk of irreparable misidentification; and the Defendant did not meet his burden on the issue of preindictment delay because he had not shown the delay was intentional, done to gain tactical advantage, or that he suffered any actual prejudice. (Doc. 28).
The Defendant objects to each of Judge Jarvey's findings. When a party objects to a Report and Recommendation, it is the duty of this Court to conduct a de novo review of those portions of the report, specific findings, or recommendations to which the party objects. See 28 U.S.C. § 626(b)(1)(B); United States v. Hamell, 931 F.2d 466, 468 (8th Cir.), cert. denied, 502 U.S. 928 (1991); Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990). The Court reviews for plain error those portions to which there are no objections. See Thompson, 897 F.2d at 357. In so doing, the Court "`will consider the record which has been developed before the magistrate and make [its] own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate.'" United States v. Raddatz, 447 U.S. 667, 675 (1980) (citation omitted). However, the Court is entitled to "accept, . . . in whole or in part, the findings or recommendations made by the magistrate." § 28 U.S.C. § 636(b)(1).
1. Propriety of the Terry Stop
The Defendant objects to Judge Jarvey's finding that Officer Fairchild, the officer who effectuated the traffic stop, had a reasonable suspicion of criminal activity when he stopped the Defendant. The Defendant contends that although Judge Jarvey found that Officer Fairchild was provided with "significant information about the person who had defrauded the AAA Travel Agency," Officer Fairchild's view of the Defendant was significantly impeded and he could not have observed whether the Defendant fit the description outlined in the police bulletin. Specifically, the Defendant maintains that only his shoulders and head could be seen from his vehicle, the windows of his vehicle were tinted and his vehicle was in motion. Moreover, Officer Fairchild only had a description of the individual, not a description of a vehicle. Given these circumstances, the Defendant argues that Officer Fairchild's decision to stop the Defendant was not based on the information he received in the police bulletin but instead was illegally based on unparticularized suspicion and the Defendant's race.
The police bulletin described the suspect as a black male, around the age of forty (40), 5'7", and approximately 140 lbs. (Gov. Ex. 2). It also states that the suspect was wearing a "Jamaican Style knit cap," a blue sports coat, tan trousers, work shoes and he was carrying a small oxygen tank. (Gov. Ex. 2)
"The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981) (citations omitted). An officer can "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989), citing Terry v. Ohio, 392 U.S. 1, 30 (1968); United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999) (stating "[t]he level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.") In other words, the officer "must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch.'" Sokolow, 490 U.S. at 7, citing Terry, 392 U.S. at 27. The reasonableness of an officer's suspicion must be tested against the backdrop of the totality of circumstances surrounding a challenged stop. See Alabama v. White, 496 U.S. 325, 330 (1990) (holding that anonymous telephone tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop of defendant's vehicle).
Officer Fairchild contends he stopped the Defendant because the distinctive hat the Defendant was wearing, the Defendant's apparent age and his race all coincided with the published description of the suspect in the police bulletin. As explained by Judge Jarvey in his Report and Recommendation, courts have upheld numerous stops with similar or less justification than that given by Officer Fairchild. See Report and Recommendation, pp 5-6 and cases cited therein. (Doc. 28)
Even assuming Officer Fairchild could only see the Defendant's head and shoulders, and the tinted windows and the movement of the vehicle impeded Officer Fairchild's view to some degree, his ability to see the distinctive hat worn by the Defendant and ascertain the Defendant's age and race, all of which were described in the police bulletin, constitute "specific and articulable facts," sufficient to support reasonable suspicion to effectuate a Terry Stop.
The Court also finds that these facts do not support a finding that Officer Fairchild's stop of the Defendant amounts to racial profiling. It is clear that Officer Fairchild took the Defendant's race into consideration when he effectuated the stop. However, when an officer receives a police bulletin describing a possible suspect, and the suspect's race is included in the description, a police officer could legitimately consider race as a factor when stopping him. Were this the only basis, or even the primary basis for Officer Fairchild's decision to stop the Defendant, the issue of racial targeting would be a concern. By contrast, Officer Fairchild based his stop on the Defendant's distinctive hat and his apparent age as well as his race, all of which together, coincided with the published description of the suspect. Under these circumstances, the Court finds Officer Fairchild had reasonable suspicion to stop the Defendant. Cf, Hoi Chio v. Gaston, 220 F.3d 1010, (9th Cir. 2000) (finding evidence sufficient to support claim of racial profiling when officers first apprehended subject they were presented with following facts: (1) Choi was next to a man who was seen running from the direction of the CHP vehicle the suspect stole from his victim; (2) Choi's clothing was similar to the suspect's, although not identical; (3) Choi was shorter and significantly older than the suspect; (4) Choi was Korean while the suspect was Vietnamese, and when officers took subject into `custody,' only minutes later, they removed his wallet only to discover that his name did not match suspect's).
Thus for these reasons, and those articulated in Judge Jarvey's Report and Recommendation, the Defendant's motion to suppress evidence obtained through the fruits of the Terry Stop is denied.
2. Identification Procedures
The Defendant maintains that the identification procedures used in this case were impermissibly suggestive and left the witnesses with no alternative but to identify the Defendant. The Defendant's objections to the Report and Recommendation, as it pertains to the identification procedures, are essentially identical to his original challenges raised in his initial brief and during the evidentiary hearing held by Judge Jarvey. This Court has thoroughly reviewed the briefs and transcripts of the evidentiary hearing and agrees with Judge Jarvey's well reasoned findings of fact and law. Therefore, for the reasons stated in Judge Jarvey's Report and Recommendation, the Defendant's motion to suppress the introduction of identification testimony is denied.
3. PreIndictment Delay
The Defendant argues that his Fifth Amendment due process rights were violated because of a preindictment delay. To establish "preindictment delay violated the Due Process Clause, a defendant must first show the delay actually and substantially prejudiced the defense." United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir. 1998). If the defendant successfully "establishes actual, substantial prejudice, then the court balances the reasons for the delay against the prejudice shown." Id. "Furthermore, [the Defendant] must demonstrate that the government intentionally delayed either to gain a tactical advantage or to harass [him]." United States v. Meyer, 906 F.2d 1247, 1251 (8th Cir. 1990), citing, United States v. Lovasco, 431 U.S. 783, 789-90 (1977).
In his objections to the Report and Recommendation, the Defendant vigorously contends he is prejudiced by the delay for two reasons: (1) he exhausted his financial resources at the state level and is now precluded from retaining a private attorney of his choice to defend him in federal court; and (2) the government improperly disposed of his vehicle limiting his ability to defend himself in the present charge. First, the latter of the two contentions has been resolved as the government has since located the vehicle and had made it available to the Defendant. As to the former reason, this Court has not found a case, nor has the Defendant pointed to one, which would support the contention that the Defendant's financial inability to continue to retain the attorney of his choice constitutes actual prejudice.
Nevertheless, the Court need not make this determination because there is no evidence which would support a finding that the government intentionally delayed with the purpose of harassing him or gaining a tactical advantage. Simply because the government pursued a federal indictment against the Defendant, while a state indictment was pending, does not demonstrate that the government intentionally delayed indictment for an improper purpose or a tactical advantage. See Meyer, 906 F.2d at 1251, citing, United States v. Marion, 404 U.S. 307, 324 (1971) (finding no due process violation when defendant failed to prove delay intended to gain tactical advantage or harass defendant); also citing United States v. Sebetich, 776 F.2d 412, 430 (3d Cir. 1985) (finding no due process violation although government had enough information for indictment two years before defendant indicted when delay due to confusion between state and federal authorities), cert. denied, 484 U.S. 1017 (1988). Indeed, as pointed out by Judge Jarvey, the fact that the Defendant was first indicted in state court allowed him to conduct discovery he would not otherwise have been able to conduct had he been indicted initially in federal court.
For these reasons, and those given by Judge Jarvey in his Report and Recommendation, the Defendant's motion to dismiss based on preindictment delay is denied.
B. Motion to Dismiss Based on Vindictive or Selective Prosecution, or the Destruction of Evidence
1. Vindictive Prosecution
"A prosecutor's discretion to charge is very broad but cannot be based upon vindictiveness or exercised in retaliation for a defendant's exercise of a legal right." United States v. Rodgers, 18 F.3d 1425, 1429 (8th Cir. 1994), citing United States v. Jacobs, 4 F.3d 603, 604 (8th Cir. 1993). A defendant may establish prosecutorial vindictiveness by one of two ways. A defendant may prove "through objective evidence that the prosecutor's decision was intended to punish the defendant for the exercise of a legal right." Rodgers, 18 F.3d at 1429 , citing, United States v. Beede, 974 F.2d 948, 951 (8th Cir. 1992), cert denied, 506 U.S. 1067 (1993). Or "a defendant may in certain circumstances rely on a presumption of vindictiveness." Rodgers, 18 F.3d at 1429; see also Beede, 974 F.2d at 951.In the present case, the Defendant concedes there is no objective evidence of a vindictive motive on the part of the government. Instead, the Defendant maintains certain circumstances allow this Court to presume vindictiveness. A court may presume "an improper vindictive motive `only in cases in which a reasonable likelihood of vindictiveness exists.'" Rodgers, 18 F.3d at 1430, quoting, United States v. Goodwin, 457 U.S. 368, 373 (1982).
In the present case, the Defendant was originally charged by the State of Iowa on June 21, 1999, with one count of Forgery as a Habitual Offender, one count of Theft in the Fourth Degree, and one count of Theft in the Second degree as a Habitual Offender. Pursuant to these charges, the Defendant filed two motions to suppress in state court and an application for interlocutory appeal. After the Iowa Supreme Court set the Defendant's application for interlocutory appeal for consideration, the Defendant was indicted in federal court on two counts of possessing and uttering a counterfeited security in violation of 18 U.S.C. § 513 (a). The State of Iowa then dismissed all three counts pending against the Defendant and the application for interlocutory appeal became moot.
The Defendant contends it is this sequence of events that gives rise to a presumption of vindictiveness. In support of his argument, he directs the Court to United States v. Andrews, 633 F.2d 449 (6th Cir. 1980), cert denied, 450 U.S. 927 (1981). In Andrews, the Sixth Circuit held when determining whether there exists a "realistic likelihood of vindictiveness" a court must balance two factors. Id. at 454. "First, there is the prosecutor's `stake' in deterring the exercise of some right." Id. Second, the Court must examine a prosecutor's conduct. Id. By way of explanation, the Sixth Circuit gives the following example:
A prosecutor who adds on extra charges after the exercise of a procedural right is arguably acting less vindictively than a prosecutor who substitutes a more severe charge for a less severe one. In the first situation, a prosecutor might well have made an honest mistake. This is especially true where a defendant has committed multiple criminal acts. However, in the second situation, the prosecutor will have already exercised his discretion, and the probability that the prosecutor acted vindictively is higher.Id. at 454. Presumably, the Defendant here is arguing his situation falls under the second scenario; that is, by prosecuting him in federal court rather than state court, the government is essentially bringing a more severe charge for the exercise of his legal right to file motions to suppress and application for interlocutory appeal.
At the outset, the Court does not accept the blanket proposition that a federal charge by definition is more severe than a parallel state charge. Indeed, apart from making this proposition, the Defendant has offered no evidence to support his contention that he is subject to a greater penalty in federal court than the penalty he might have received in state court.
More importantly, however, the Eighth Circuit has spoken directly to the issue of whether a federal prosecution pursued on the heels of a state prosecution, creates a presumption of vindictiveness. See United States v. Beede, 974 F.2d at 952. In Beede the Eighth Circuit held:
Courts have permitted a subsequent federal prosecution after a conviction for the same conduct in state court, United States v. Simpkins, 953 F.2d 443, 444-45 (8th Cir.), cert. denied, 504 U.S. 928, 112 S.Ct. 1988, 118 L.Ed.2d 585 (1992); after an acquittal for the same conduct in state court, United States v. Staples, 747 F.2d 489, 490-91 (8th Cir. 1984); after a defendant successfully obtains the suppression of evidence in the state court and the consequent dismissal of the state charges for lack of evidence, Amuny, 767 F.2d at 1116, 1119; United States v. Renfro, 620 F.2d 569, 573-74 (6th Cir.), cert. denied, 449 U.S. 902, 101 S.Ct. 274, 66 L.Ed.2d 133 (1980); after the state court prosecution is dismissed for failure to provide a speedy trial, United States v. Nelligan, 573 F.2d 251, 254-55 (5th Cir. 1978); or after a successful challenge to the jurisdiction of the state court. United States v. Bartlett, 856 F.2d 1071, 1074-75 (8th Cir. 1988).Id. at 952. In the present case, the Defendant allegedly committed these crimes while on federal supervised release. Therefore, "[i]f prosecution in both the state and federal systems is permissible in those circumstances," outlined in the cases cited by the Beebe court, "a deferral of prosecution to the federal system" under the present circumstances does not give rise to a presumption of vindictiveness. Id. The Defendant's motion to dismiss based on vindictive prosecution is denied.
2. Selective Prosecution
To establish a prima facie case of selective prosecution "a defendant must demonstrate: 1) that he has been singled out for prosecution while others similarly situated have not been prosecuted for similar conduct and 2) that the government's action in thus singling him out was based on an impermissible motive such as race, religion, or the exercise of constitutional rights." United States v. Deering, 179 F.3d 592, 594-95 (8th Cir.), cert denied, 120 S.Ct. 361 (1999), quoting, United States v. Parham, 16 F.3d 844, 846 (8th Cir. 1994). "Absent a substantial showing to the contrary, governmental actions such as the decision to prosecute are presumed to be motivated solely by proper considerations." Id. Therefore, as long as "the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
In the present suit, the Defendant maintains he was singled out for prosecution based on his race. To substantiate this claim, the Defendant proffers multiple reports which provide statistics showing minorities are prosecuted at a higher rate than whites for ostensibly the same offenses. (Def. Ex. F).
The government has objected to these reports on multiple grounds including, in part, that the reports have not been authenticated, and some of the reports deal with the prosecution of violent crimes rather than nonviolent crimes like the one at issue in this case.
While the Court finds the aforementioned statistical data compelling, it is insufficient to meet the Defendant's prima facie showing of selective prosecution in the present case. The data does not show, as the Defendant must, that he was singled out for prosecution while others similarly situated have not been prosecuted for similar conduct. In order to meet this burden, the Defendant must show others on federal supervised release with lengthy criminal records were treated differently. "The defendant's burden is a heavy one, and because we afford broad discretion to prosecuting authorities, we require a showing of intentional and purposeful discrimination." United States v. Kelley, 152 F.3d 881, 885 (8th Cir. 1998) (internal quotations omitted). Because the Defendant has not met this burden, his motion to dismiss based on selective prosecution is denied.
3. Destruction of Evidence
The Defendant argues that the indictment should be dismissed because the government seized and disposed of his vehicle in bad faith, thereby leaving the Defendant to defend himself without the vehicle being available for inspection and production. Since the Defendant filed the present motion, the government has found the vehicle and notified defense counsel as to its whereabouts. Nevertheless, the Defendant does not wish to concede this point until he, or a representative has had the opportunity to inspect the vehicle to ensure it has not been altered since its acquisition on June 11, 1999.
The Defendant is entitled to remain by his original position with regard to the treatment of his vehicle. Having said that however, there is nothing in the record as it stands to date that would suggest the condition of the vehicle has been altered since June 11, 1999. For this reason, the Court is not inclined to dismiss the indictment based on the government's treatment of the Defendant's vehicle.
C. Motion to Suppress Items in Inventory Search
The Defendant moves this Court to suppress the traveler's checks found by the towing company that possessed the Defendant's vehicle subsequent to the government's release of the vehicle after the inventory search. The Defendant contends that the government failed to find the traveler's checks during its inventory search of the vehicle, failed to notify the Defendant they abandoned his vehicle as required by Section 321.89 of the Code of Iowa, and thereafter allowed the vehicle to go unattended for some two months prior to the discovery of the checks. Consequently, the Defendant alleges that the government is unable to establish a chain of custody for these checks, and they should therefore be suppressed from introduction into evidence.
"A district court may admit physical evidence if the court believes a reasonable probability exists that the evidence has not been changed or altered." United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996), citing, United States v. Miller, 994 F.2d 441, 443 (8th Cir. 1993). "In making this determination, absent a showing of bad faith, ill will, or proof of tampering, the court operates under a presumption of integrity for the physical evidence." Cannon, 88 F.3d at 1503.
The Court finds that the government's failure to discover the traveler's checks during its inventory search of the vehicle, thereby allowing them to go undiscovered for some two months in an abandoned vehicle, does not create a reasonable probability that they or the vehicle were altered in some way. While the break in the chain of custody is indeed fodder for the Defendant to challenge the probative value of this evidence, the Court does not find it renders the checks inadmissible. Indeed, many circuits have held that challenges to the chain of custody go to the weight of the evidence and not whether the evidence should be suppressed. See, e.g., United States v. Scharon, 187 F.3d 17, 22 (1st Cir. 1999) (finding chain of custody arguments usually goes to weight of evidence, not admissibility); United States v. Sparks, 2 F.3d 574, 582 (5th Cir.), cert denied, 510 U.S. 1080 (1993) (same); United States v. Allen, 106 F.3d 695, 700 (6th Cir.), cert denied, 520 U.S. 1281 (1997) (finding merely raising possibility that someone tampered with evidence insufficient to render it inadmissible where government showed there was no reasonable probability marijuana was altered); United States v. Brown, 136 F.3d 1176, 1182 (7th Cir. 1998) (finding where there is no evidence of tampering, presumption that evidence in official custody remained unaltered is not rebutted by a break in chain of custody); United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995), cert denied, 519 U.S. 1118 (1997) (finding defects in chain of custody did not dismantle government's showing that tapes were unaltered); United States v. Humphrey, 208 F.3d 1190, 1205 (10th Cir. 2000) (finding defects in chain of custody go to weight of evidence and not its admissibility).
Having said this however, the Court is cognizant of the defense counsel's arguments at the hearing on this matter in which he speculated as to whether the towing facility was locked during the two months prior to the discovery of the traveler's checks, questioned who at the facility might have had access to the vehicle, and how often someone might have had access to it. He also speculated as to whether the vehicle was ever inspected to determine if the windows were broken or the vehicle was otherwise altered. Thus while in the absence of evidence of actual tampering, a defect in the chain of custody is insufficient grounds to suppress this evidence, the Court notes that the government has the burden to lay a proper foundation in order to enter these checks into evidence. This may include testimony from an employee at the towing facility who could verify whether or not the vehicle had been altered.
For these reasons, the Defendant's motion to suppress the introduction of the traveler's checks into evidence is denied.
III CONCLUSION
To summarize, the Defendant's motion to suppress evidence gathered at the time of his arrest based on lack of reasonable suspicion to effectuate a Terry Stop and impermissibly suggestive show-up identification is denied. The Defendant's motion to dismiss his indictment due to preindictment delay is also denied. Likewise, the Defendant's second motion to dismiss based on vindictive prosecution, selective prosecution, and destruction of evidence is denied. And finally, the Defendant's motion to suppress based on an improper inventory search of his vehicle is denied.
ORDER
Accordingly, it is ORDERED:
The Defendant's motion to dismiss, filed March 22, 2000, is DENIED. (Doc. 14)
The Defendant's motion to suppress, filed March 22, 2000, is DENIED. (Doc. 15)
The Defendant's motion to suppress, filed July 21, 2000, is DENIED. (Doc. 58)
The Defendant's motion to dismiss, filed July 21, 2000, is DENIED. (Doc. 60)