United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States.
Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Defendant.
Douglas Eugene Stephens, and Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant Cecil A. McConnell, Jr.
JAMES P. JONES, District Judge.
Defendants Douglas Eugene Stephens and Cecil A. McConnell, Jr., were convicted by a jury in this court of offenses related to the distribution of controlled substance analogues, and now jointly move for a new trial pursuant to Federal Rule of Criminal Procedure 33. The defendants assert that the government violated their due process rights by failing to disclose evidence regarding the ongoing criminal conduct of one of the government's witnesses. See Brady v. Maryland, 373 U.S. 83, 86-88 (1963). They contend that the undisclosed information would have impeached the credibility of several government witnesses and undermines confidence in the jury's guilty verdict. Because I am persuaded that the government had no duty to disclose the evidence and that, even if it had such a duty, the evidence was not material to the outcome of the trial, I will deny the defendants' motion.
The facts relevant to the defendants' motion are as shown in the record and in the parties' submissions. The case involves a conspiracy of numerous individuals to distribute controlled substance analogues, specifically synthetic cannabinoids, from retail establishments located in this judicial district. On September 27, 2013, state and federal search warrants were executed at locations operated by certain of the defendants. These searches yielded large quantities of synthetic cannabinoids, cash, and other evidence.
On February 25, 2013, Stephens and McConnell, along with other co-defendants, were indicted for conspiracy to possess and distribute synthetic marijuana in violation of the Controlled Substances Analogue Enforcement Act, 21 U.S.C. § 802(32), and other related offenses. Prior to trial, most of the defendants pleaded guilty pursuant to plea agreements with the government, and only McConnell and Stephens ultimately proceeded to trial. One of the codefendants, J.P., pleaded guilty to charges of misbranding in violation of 21 U.S.C. § 331 and § 332(a)(2), and conspiracy to commit misbranding in violation of 21 U.S.C. § 371. As part of J.P.'s plea agreement, the parties agreed to recommend to the court a sentence of thirty-six months imprisonment. The plea agreement also provided that J.P. would not receive a reduced sentence based on substantial assistance to the government. J.P.'s wife, L.P., pleaded guilty pursuant to a plea agreement to a charge of conspiracy to distribute controlled substance analogues in violation of 21 U.S.C. § 846.
Prior to Stephens' and McConnell's joint trial, the government disclosed to the defendants voluminous evidence regarding the conspiracy. The discovery included a report of a law enforcement interview with J.P. and L.P., during which they discussed their involvement in the distribution of synthetic marijuana from their retail store. During the interview, they explained that their main supplier was their codefendant Emmanuel Vestal, but that they also purchased the substances from other, unindicted suppliers. Further, the government disclosed various other interview reports that corroborated J.P.'s and L.P.'s admissions, including that they received synthetic marijuana from multiple suppliers. Finally, the government disclosed an email from Detective Richard Stallard of the Southwest Virginia Drug Task Force confirming that synthetic marijuana was still available for purchase at J.P.'s store in February 2014, several months after the search warrants were executed at the store.
On October 14, 2014, the jury trial for defendants McConnell and Stephens commenced. J.P. and L.P. testified on behalf of the government, detailing their involvement in the drug conspiracy and inculpating McConnell and Stephens. In particular, they confirmed that McConnell and Stephens had purchased large amounts of synthetic cannabinoids from Emmanuel Vestal and other suppliers and held them out to the public for retail sale. Each witness was subject to rigorous cross-examination regarding their plea agreements and possible incentives to testify for the prosecution. J.P. maintained that, because his plea agreement recommended a minimum sentence, he lacked an incentive to testify in exchange for leniency, whereas L.P. acknowledged that she was cooperating with the government in hopes of receiving a reduced sentence. On October 22, 2014, the jury returned verdicts of guilty against both defendants for conspiracy to distribute controlled substance analogues, as well as other related offenses.
On November 4, 2014, defense counsel learned from documents filed with the court, including a petition to revoke J.P.'s bond and an agreement with the government to modify his sentence (ECF Nos. 333 and 334), that J.P. had continued to purchase and sell large quantities of synthetic cannabinoids after his arrest, up to and during Stephens' and McConnell's trial. In response to defense counsel's request for more information, the prosecutor advised that prior to trial, on October 14, 2014, L.P. had met with him and ATF Special Agent Ryan Temm in preparation for her testimony. During this meeting, she informed the prosecutor and the agent that she believed that J.P. was continuing to receive shipments of synthetic drugs from Florida, although she could not provide any other details. Special Agent Temm elaborated that he had received information from Detective Stallard, who would later also testify for the government at trial, that there were "rumors" in the community that J.P. was continuing to receive shipments of synthetic drugs. As a result of this information, on October 17, 2014, Special Agent Temm requested that postal inspectors notify him of any packages sent to J.P. through the post office in Coeburn, Virginia. None of this information was disclosed to Stephens' or McConnell's defense counsel.
On October 29, 2014, Special Agent Temm was notified by a U.S. Postal Inspector that a package addressed to J.P. with a return address in Florida had arrived at the Coeburn Post Office. A check revealed that the Florida return address did not exist. The package was opened the next day at a meeting with J.P., his attorney, the prosecutor, and federal agents, and found to contain approximately 1.3 kilograms of synthetic marijuana. J.P. then provided further details about his continued involvement with the synthetic drug trade, including the identity of his supplier in Florida. He agreed to a revocation of his bond and an increase in the proposed sentence contained in his plea agreement.
Based on this information, the defendants contend that the government deprived them of the opportunity to mount an effective defense at trial by failing to disclose the following: (1) L.P.'s statement that J.P. was continuing to sell synthetic marijuana; (2) Detective Stallard's comment to Agent Temm about rumors of J.P.'s activities; and (3) Agent Temm's request that postal inspectors monitor J.P.'s packages. In particular, the defendants claim that disclosure of this information prior to trial would have enabled them to impeach the credibility of J.P. as a government witness due to his continued engagement in criminal activity after his arrest and while testifying during trial. They contend that information regarding suppliers other than Emmanuel Vestal may have cast doubt on the government's theory of the case, which identified Vestal as a main supplier of the conspiracy. Further, the defendants assert that the information could have been used to attack the ...