Opinion
Crim. No. 3:99-CR-27-H.
April 17, 2000.
MEMORANDUM
Both Defendants moved to dismiss their cases on double jeopardy grounds after the Court sustained their motions for mistrial. As a necessary background, the Court will review its decision to grant the mistrials. Under these circumstances, dismissal is only appropriate if the government intentionally goaded the Defendants to seek a mistrial. See Oregon v. Kennedy, 456 U.S. 667 (1982). Following a hearing and a review of all memoranda, this Court finds that the government's error or action was not intended to cause a mistrial. See United States v. White, 914 F.2d 747 (6th Cir. 1990). Consequently, Defendants' motion for dismissal is denied.
I.
The central event in the underlying criminal cases occurred on June 26, 1997 when Consolidated Freightway made a controlled delivery of a package to Cheryl Norfleet's house. Norfleet accepted the package which was addressed to "Mike English". James Freeman and James Scales arrived shortly thereafter and opened the package. At that time, officers who had been monitoring the transaction, descended on Norfleet, English and Scales. The package was found to contain 137 pounds of marijuana, and all three were arrested. In February 1999, a grand jury indicted James Freeman and Cheryl Norfleet on four counts of conspiracy to possess with intent to distribute marijuana.
Javier Martinez was also indicted, but he remains at large and was not a party to later proceedings. James Scales was not indicted. Count 1 charges Defendants with conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. Counts 2 and 3 charge Freeman and Martinez with aiding and abetting each other in the possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2. Count four charges Freeman, Norfleet and Martinez with aiding and abetting each other in the possession with the intent to distribute marijuana, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2.
Prior to trial on these charges, Norfleet requested that the government disclose the substance of all oral statements she made to known government agents intended to be used at trial, pursuant to F.R.Crim.P. 16(a)(1)(A). In response, the government provided Norfleet with a paragraph summary of the interview she gave at the time of her arrest. [The government told Norfleet that this summary was all of the Rule 16 information it planned to use and that it recognized its continuing duty of disclosure should additional evidence come to light.] The magistrate judge granted Norfleet's motion for disclosure and recognized the government's promise to comply on April 12, 1999.
Norfleet and Freeman also asked the government to provide exculpatory and impeachment evidence as mandated by Brady v. Maryland, 373 U.S. 83 (1963) (exculpatory evidence) and Giglio v. United States, 405 U.S. 150, 154 (1972) (impeachment evidence). The government agreed to comply with its Brady/Giglio obligations, and the magistrate judge granted Norfleet and Freeman's Brady/Giglio motions on April 12, 1999.
At trial, the government told the jury in opening statement that it would prove that Freeman used the alias Mike English in drug transactions. The government claimed that it would also show that Norfleet knew that Freeman used the name Mike English and allowed him to use her house for the delivery of drugs. Freeman gave no opening statement. In opening, Norfleet argued that Mike English was a handyman from the neighborhood whom she had hired to do work for her. She told the jury that she thought the package that arrived at her house addressed to Mike English contained tile for her basement and that she called Freeman, who cuts her grass, to help her move the box to the basement because it was heavy. Norfleet's counsel stressed that she told the government all of this at the time the box was opened.
On the second day of trial, Agent Michelle Patterson, a Customs Service agent who had interviewed Norfleet at her house after the package was opened, testified on direct examination that Norfleet told her that she had thought that the box contained tiles for her house. This corroborated Norfleet's version of the facts, but Agent Patterson also testified to new details that tended to impeach Norfleet. In particular, Agent Patterson reported that Norfleet had told her that she had Mike English's phone number written on a brown paper bag but that she could not locate the bag at that time. Moreover, Norfleet told Agent Patterson that she had not spoken to English in a week and that she did not know his address.
After Agent Patterson's testimony, Norfleet moved for mistrial. Norfleet argued that the government had not disclosed the substance of her statements to Agent Patterson as required by Rule 16. The United States had provided Norfleet with a paragraph summary of her interview based on Danny Triplett's DEA-6 report, but that report lacked the detail of Customs Service Agent Patterson's three page report.
The government responded that it was unaware of Patterson's report when it gave Norfleet the summary. When it received Patterson's report, the report appeared to contain the same information as the DEA report. Therefore, the government did not provide it to Norfleet until immediately before Agent Patterson's testimony at trial. Defense counsel had not thoroughly read the report prior to Agent Patterson's testimony, but the government argued that the full report was not substantially different and the failure to turn it over had been inadvertent. The prosecutor suggested that the Court instruct the jury to disregard the testimony, but Norfleet insisted on a mistrial, arguing that her case had been prejudiced beyond repair.
II.
After careful consideration, the Court determined that the summary of Norfleet's statement that the government produced prior to trial did not satisfy Rule 16's requirement that all relevant oral statements be disclosed. Agent Patterson's full report gave several important pieces of information that were not included in the summary given to Norfleet. Having concluded that the government violated Rule 16, the Court turned to the appropriate remedy for such a violation.
In addition to the statements discussed above, Agent Patterson's report records Norfleet having described Mike English as a white man, 5' 9", around 170 pounds, with mid-length brown hair and a moustache. Freeman is a tall, clean shaven African American man. These statements did not have to be disclosed to Norfleet under Rule 16 if the government did not intend to use them at trial. The government's intent here is not clear. On direct exam, the government asked Agent Patterson if Norfleet had provided any identifying information for Mike English, but Agent Patterson never answered the question.
Agent Patterson also testified to several details that were not in the summary but had been mentioned by Norfleet in opening. For instance, Patterson testified that Norfleet told her that Mike English had done gutter work for her in the past. Some of these details were also technical violations of Rule 16, but the Court does not address them because they caused Norfleet no prejudice.
The government recommended a recess during which the defense attorneys would have ample opportunity to interview Agent Patterson or an instruction to the jury to disregard parts of her testimony. The Court carefully weighed these possibilities but ultimately concluded that the damage could not be undone. The Court had been struck by the weight of Agent Patterson's testimony, and Norfleet's attorney described feeling sick to his stomach upon hearing it. Several witnesses had testified prior to Agent Patterson that Freeman used the name Mike English. Then, Agent Patterson testified that Norfleet told her that she had not talked to Mike English in a week, when Freeman there. Moreover, Norfleet was unable to produce a phone number or address for Mike English, in spite of the work he was doing for her. These statements made it appear that Norfleet was lying to the agent, trying to hide the fact that Freeman was Mike English. Obviously, the believability of Norfleet's initial statement to the government bears great weight on the jury's opinion of her credibility more generally. If her initial story was plausible, the jury might believe that she was unaware that the box contained drugs, but if her original statement was a lie to cover for Freeman, her complicity would appear certain.
The government also voluntarily gave Norfleet's attorney copies of all reports, including statements made to non-government agents, in an attempt to compensate for the failure to disclose.
While Norfleet's case may have been hurt by these statements even if she had been aware of them in advance, her attorney would have had an opportunity to address them in his opening statement. In this way he could have given his client's explanation of them in advance and mitigated their impact by warning the jury they were coming. There is a strategic significance to preparing the jury for inculpatory evidence. Moreover, the defense attorney loses credibility when the evidence contradicts what he told the jury in his opening. The attorney cannot get back the jury's trust and this can have an impact on how the jury views his client. Under these circumstances, the Court found that the unexpected testimony had unfairly prejudiced Norfleet.
This assessment proved correct. During juror interviews about the case after mistrial, several jurors commented that they thought the government's case against Norfleet was weak until Agent Patterson testified. They said Agent Patterson's testimony stood out in their minds because it suggested that Norfleet had been lying.
III.
Freeman also moved for a mistrial after Agent Patterson's testimony but on different grounds. Freeman argued that the government had committed a Brady violation by not providing him with Norfleet's statements about Mike English prior to trial. Because Norfleet's description of Mike English could not conceivably be said to describe Norfleet, Freeman claimed that her statements were exculpatory evidence to which he was entitled under Brady. Freeman argued that had he known of these statements, he would have made an opening statement laying blame on the real Mike English, a smaller, white male and requested a severance so that he could call Norfleet as a witness. Moreover, Freemen argued that he would have hired an investigator to locate Mike English. The government countered that Freeman knew all along that it was Norfleet's position that there was a real Mike English and that it had not disclosed Norfleet's statements because it had determined that they were fraudulent.The Court adjourned for the day and called the parties back together the next morning. During the course of the morning discussions, the prosecutor revealed other evidence that Freeman argued exculpated him. In particular, the government admitted that Norfleet had turned over a tape recording that she claimed was Mike English calling and apologizing to her for getting her into trouble. Norfleet also gave the government documentation of deliveries she had accepted for Mike English in the past.
The government testified that it did not provide Freeman with the audiotape or the documentation because it did not deem them exculpatory. To support this contention, the prosecutor argued that the government had thoroughly investigated and come to the conclusion that Mike English did not exist. Mike English was not listed in the phone book, nor did he have a criminal record. No one at the number on Norfleet's caller identification for the recorded call had ever heard of Mike English. Therefore, the government concluded that Norfleet's evidence was fabricated, not material to Freeman's guilt or innocence. The government also argued that testimony of an indicted co-conspirator is not truly exculpatory and that Agent Patterson's report was covered by the Jencks Act.
The Jencks Act states that the United States cannot be compelled to disclose information in a report in its possession made by a government witness until after that witness testifies on direct examination at trial. See 18 U.S.C. § 3500. If a report covered by the Jencks Act includes Brady material, the Sixth Circuit has held that the Jencks Act governs and the government need not disclose the report until after the witness testifies on direct. See United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988); United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994). Therefore, the government need not have provided Freeman with Agent Patterson's report until after her direct exam, even though the report contained Norfleet's statements that tended to exonerate him. On the other hand, neither the tape recording nor the delivery receipts are covered by the Jencks Act. Therefore, the government should have produced them prior to trial if they are Brady material.
Brady requires disclosure of evidence that is both favorable to the accused and "material either to guilt or punishment." See Brady, 373 U.S. at 87. The tape recording and delivery receipts, if believable, both tend to exonerate Freeman. The question, therefore, is whether they are material. Evidence is "material if 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 a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). In determining if suppressed evidence is material, the Court should consider the cumulative effect of all suppressed evidence. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
While the evidence in question may not have enabled Freeman to locate Mike English and indeed may be false, it would have provided the jury with an alternative to Freeman's guilt. Moreover, it would have provided Freeman with an opportunity to request a severance and attempt to convince Norfleet to testify. Freeman would have had arguments to make in his opening statement and evidence to present at trial. In short, this evidence would have radically altered Freeman's trial strategy. See Schledwitz v. United States, 169 F.3d 1003, 1016-17 (6th Cir. 1999) (setting aside a conviction because an FBI report that demonstrated one witness' bias and contained testimony of a witness favorable to the defendant was not disclosed when the Court found that this evidence would have radically altered the defendant's trial strategy). While the suppressed evidence may not ultimately be strong enough to convince a jury to acquit Freeman, it was sufficient to undermine this Court's confidence in the outcome of the trial. Therefore, the Court granted Freeman's motion for mistrial.
This is not a decision that the Court made lightly. Indeed, only two days into trial, the government's case against Freeman appeared strong. However, most of the government's witnesses against Freeman were convicted felons or others involved in the drug trade. If Freeman had received the tape recording and delivery receipts prior to trial, that evidence might have planted enough seeds of doubt in the jury's mind to gain an acquittal. The Court need not speculate whether the evidence would ultimately prove convincing. The Court did determine that a mistrial was necessary to protect Freeman's rights and to remind the government that to withhold exculpatory evidence for lack of credibility is a serious matter.
IV.
Defendants now ask that the Court dismiss their cases on double jeopardy grounds. Because Defendants moved for mistrial, dismissal is only appropriate if the government's deliberate conduct was intended to provoke them into requesting the mistrial. See Oregon v. Kennedy, 456 U.S. at 675-76. The Court has carefully reviewed Oregon v. Kennedy and United States v. White, 914 F.2d 747 (6th Cir. 1990) to determine the correct standard for this analysis. It is not enough that the government's conduct may be viewed as harassment or overreaching, nor is it enough that the government violated its Brady obligations. It is not even enough that the government's conduct was deliberate. See id.; see also White, 914 F.2d at 752. In order to warrant dismissal, the government must have specifically intended to goad the defendants into requesting a mistrial. Otherwise, retrial does not violate the defendants' constitutional rights.
The government's behavior in this case does not appear to have been intended to provoke Defendants into seeking a mistrial. As to Norfleet, the government should have noticed that Agent Patterson's report contained important information not included in the summary given to the defendant. Nonetheless, the prosecutor's failure to disclose that information was probably inadvertent. This does not lessen the prejudice it caused Norfleet, nor excuse the government's carelessness, but it does counsel against dismissing Norfleet's case. Similarly, in Freeman's case, while the government deliberately decided not to disclose exculpatory evidence, that decision seems to have been motivated by an evaluation of the evidence's credibility, not by a desire to prompt Freeman to declare a mistrial. While the Court views this misjudgment as significant in the context of this case, the circumstances do not suggest an intent to create a mistrial.
The trial had proceeded well and fairly to that point. Certainly, it was not plagued by government overreaching generally, and when Defendants moved for mistrial, the government resisted and provided several realistic alternatives to remedy any prejudice. See White, 914 F.2d at 752 (weighing the government's overreaching throughout the trial and its reaction to the motion for mistrial in determining the prosecutor's intent). While the Court ultimately rejected these alternatives, that the government argued vigorously for them suggests a good faith effort to avoid mistrial. Because this Court finds no countervailing evidence that the government intended to provoke Defendants into seeking a mistrial, Defendants' motion to dismiss is denied.
The Court will enter an order consistent with this Memorandum Opinion.
cc: Counsel of Record
ORDER
Having read Defendants' motion to dismiss and the government's response, conducted a hearing, and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants' motion to dismiss is DENIED.
cc: Counsel of Record