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United States v. Burns

United States District Court, W.D. Virginia, Lynchburg Division

July 14, 2016

United States of America
v.
Les Christopher Burns, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE

         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.

         Finding 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.

         I. Background

         A. The "Pain Train" Investigation

         Sarah 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.

         During 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.

         B. Cook's Misconduct and the Government's Response

         On 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.

         On 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 Bockhorst's email.

         C. Pretrial Proceedings Regarding Cook's Conduct

         As 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 Neese. Id.

         Eight 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.

         The 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 EC.[1] Dkt. 339 at 7.

         Moreover, 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.

         Despite 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.

         On May 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.

         At the 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.

         Burns 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. Dkt. 364.

         D. Burns' Trial and Sentence

         At 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."[2] Id. at 36-37.

         Detective 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 ...


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