United States District Court, W.D. Virginia, Lynchburg Division
K. MOON UNITED STATES DISTRICT JUDGE
Norman K. Moon This matter is before the Court upon Defendant
Les Christopher Burns' ("Burns" or
"Defendant") Motion to Dismiss Superseding
Indictment with Prejudice or, in the Alternative, Motion for
New Trial. Dkt. 542. Burns claims that the Government, in
violation of Brady v. Maryland, 373 U.S. 83 (1963)
and Giglio v. United States, 405 U.S. 150 (1972),
suppressed information concerning Investigator Christopher
Cook's misconduct with a grand jury witness. Accordingly,
Burns argues he is entitled to dismissal of the indictment or
a new trial.
that the Government suppressed-from both Defendant and the
Court-material impeachment evidence about its chief witness,
I will deny Burns' motion for dismissal but grant his
motion for a new trial.
The "Pain Train" Investigation
Dryden ("Dryden"), a Bedford City Police Officer,
conducted a routine traffic stop on October 26, 2012. The
occupants of the vehicle were Les Burns and Jonathan Kara.
Dkt. 461 at 2-3. Dryden discovered narcotics in the vehicle
and arrested Burns. Id. at 4-5. After his arrest,
Burns told Dryden that he would like to work as a
confidential informant in hopes of receiving leniency.
Id. at 5-6. Dryden relayed Burns' request to
Investigator Christopher Cook ("Cook") who was
spearheading an ongoing investigation of a prescription drug
trafficking group investigators called the "Pain
Train." Cook agreed to use Burns as an informant in this
investigation. Id. at 5.
the investigation, Cook learned Burns was "playing both
sides of the field, " so when the investigation ended,
he arrested Burns on March 27, 2013 for his involvement in
the conspiracy. Dkt. 366 at 84. Burns was read his
Miranda rights at the police station. Cook, along
with the case prosecutor, Assistant U.S. Attorney
("AUSA") Ashley Neese ("Neese"),
interviewed Burns, who allegedly made self-incriminating
statements. Dkts. 366 at 7 & 468. On December 19, 2013, a
grand jury in the Western District of Virginia indicted
eleven individuals in an eight-count Superseding Indictment.
Dkt. 126. Count One charged Burns with conspiracy under 21
U.S.C. §§ 841 and 846. Id.
Cook's Misconduct and the Government's
April 15, 2013, Neese learned that Cook had engaged in
misconduct during the Pain Train investigation. In
particular, the attorney for a grand jury witness
("EC") told Neese that Cook had met
"unofficially" with EC on or about December 8,
2012. EC claimed that Cook picked her up in his police
vehicle and began drinking alcohol. Moreover, he: (1) told EC
that he was not married when in fact he was; (2) kissed EC;
(3) tried to pull EC onto his lap, causing her knee to hit
the emergency brake; (4) "unbuttoned and unzipped his
pants and was playing with his penis"; (5) told EC that
she was a target of the Pain Train investigation when she was
only a witness; and (6) stated to EC that if she was arrested
he would give her a "strip search." Dkt. 550-1 at
6-7, 36-40. Neese did not disclose this potentially
impeaching evidence to Burns; however, Cook was immediately
terminated from his involvement in the Pain Train
investigation and was reassigned. The Bedford County Sheriff
also demoted Cook.
December 6, 2013, Jennifer Bockhorst, a fellow AUSA and
in-house Giglio expert, reviewed EC's claims.
She emailed Neese, instructing her that the documents
"need[ed] to be turned over" and "I don't
see what else there is to talk about." Dkt. 556-9 at 3.
Neese did not comply because she claims that: (1) the
prosecution did not intend to call Cook at Burns' trial;
(2) she interpreted Department of Justice policies to prevent
this disclosure; and (3) she read the Privacy Act to also
preclude disclosure because of the embarrassment that it
would bring Cook. Neese was reassigned to a new
Giglio expert, AUSA Elizabeth Wright, after
Pretrial Proceedings Regarding Cook's Conduct
trial approached, Burns filed a Motion to Suppress on May 5,
2014, seeking to exclude evidence of his confession to Cook.
Dkt. 324. He claimed his confession was coerced by Cook and
days later, the Government filed an Ex Parte Sealed Motion
for In Camera Review of Potential Giglio Material,
asking the Court whether disclosure of Cook's actions was
necessary. Dkt. 339. The motion pertained to Cook's
misconduct as a member of the sheriff's offices in
Botetourt and Bedford counties. In Botetourt County, Cook was
investigated for misuse of the Virginia Criminal Information
Network (VCIN). He was not indicted, but instead resigned and
subsequently was hired by Bedford County.
Bedford County misconduct related to Cook's meetings with
EC. Despite having EC's detailed account of the incident,
the Government provided this Court with only a bare summary
of Cook's encounter with EC-innocuously describing the
conduct as flirtatious-that omitted significant details, such
as Cook's lewd actions and his false statements to
Dkt. 339 at 7.
at the Ex Parte hearing, the Government submitted seventeen
pages of documents detailing the Botetourt County misconduct.
However, the Government presented no testimony or
documentation concerning Cook's Bedford County
misconduct, stating it did not "particularly want to ask
[Cook] any questions" about the topic. Dkt. 513 at 14.
the Government's soft-peddling, on May 14, 2014, I
entered an Ex Parte Order finding that "Cook's
[Bedford County misconduct] occurred during the course of
conduct involving Burns, involved a witness in the same
overall investigation, and were officially deemed
inappropriate, . . . this information does ‘tend to
impeach, ' and that it therefore ‘must be disclosed
to the defendant due to Giglio.'" Dkt. 350.
Two days later, the Government submitted a letter to
Burns' attorney in response to my order concerning the
information I determined needed to be disclosed. The
Government's letter failed, however, to provide more than
a summary description of Cook's misconduct similar what
was provided to me-lacking details and containing
mischaracterizations-in the Ex Parte motion. Compare
dkt. 339 with dkt. 550-2. Significantly, it omitted
reference to Cook's lewd behavior with EC and his false
statements to her. Id.
20, 2014, at the hearing on the Motion to Suppress Burns'
confession, the Government sought to prohibit Burns from
cross-examining Cook about the Bedford County misconduct,
arguing that-even though its disclosure was required-it
should be excluded on evidentiary grounds. In support of her
motion, Neese stated to the Court: "you're the fact
finder in this and know everything that's going on behind
that." Dkt. 366 at 2.
suppression hearing, Cook took the stand and testified that
Burns made post-Miranda admissions about his
involvement in the Pain Train conspiracy. Burns also
testified and denied making many of the incriminating
statements. Dkt. 366 at 85, 89, 91-98, 108-09. Burns'
wife further testified that-while she was never threatened by
Officer Cook or Neese- Detective Dryden made a comment
concerning "taking" her job and children that she
"perceived" as a threat "at the time";
she, in turn, told Burns of this threat. Id. at
45-47, 49, 52.
did admit that he confessed to taking a data storage card
from a Government-issued device when he was making controlled
buys as an informant because, he claims, he was threatened.
Id. at 93. Finally, Burns admitted that "[a]
lot of stuff in there is truth [sic] as far as how I met
Bryant Reynolds or who I was getting pills from. . . ."
Id. at 94. I denied Burns' Motion to Suppress.
Burns' Trial and Sentence
Burns' trial, the Government called Cook as its second
witness. Cook described Burns' theft of the Drug Task
Force's data storage card and his purported confession.
Dkt. 468 at 10-11; 16-21. Before cross-examination, I
prohibited Burns' counsel from asking questions relating
to Cook's misconduct with EC, because I found that the
information made available did not "go to the
truthfulness of the witness." Id. at 36-37.
Dryden and other Government witnesses also testified and
linked Burns to the Pain Train distribution network. Dkt. 461
at 19-22, 57-61; Dkt. 462 at 28-30, 56-59, 71-75, 85-86,
100-03, 112-16, 126-40, 148-51, 163-67, 187-89; Dkt. 469 at
17-18. The ...