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United States v. Landersman

United States District Court, E.D. Virginia, Alexandria Division

November 23, 2016



          Leonie M. Brinkema United States District Judge.

         Defendant David W. Landersman ("defendant") faces a two-count indictment alleging in Count 1 conspiracy to commit mail fraud, unlawful manufacturing and dealing in firearms, and unlawful delivery of unregistered firearms, and in Count 2 theft of government property, respectively in violation of 18 U.S.C. § 371 and § 641. Indictment, [Dkt. 1] at 1, 9. Before the Court is defendant's Motion to Dismiss the Indictment or in the Alternative to Suppress Evidence ("Motion"), in which he alleges that the government violated his due process rights by destroying potentially exculpatory evidence in bad faith. The government has replied to the Motion, and evidentiary hearings were held on August 30 and September 16, 2016.[1]For the reasons that follow, defendant's Motion will be denied.

         I. BACKGROUND

         Defendant was Director of Naval Intelligence during all times relevant to the indictment. The government alleges that defendant conspired with his civilian brother, Mark Landersman, and the then-Deputy Director of Naval Intelligence, Lee Hall ("Hall"), to secure an unauthorized and unnecessary contract for Mark Landersman to provide unregistered firearm suppressors to the Navy.[2]

         In late January 2013, the Navy Criminal Investigative Service ("NCIS") was investigating allegations, unrelated to this case, that the Office of Naval Intelligence ("ONI") was engaged in improper conduct relating to the issuance of travel credentials. Def. Ex. 1. Acting on a belief that the ONI was on the verge of destroying documents related to that investigation, the NCIS obtained a search warrant for the ONI's office space in the Pentagon. Def. Ex. 1. The office consisted of one or two rooms in which there were several desks, including those for Hall, defendant, and defendant's assistant Sterling Michelle Gill ("Gill"). Motion Ex. 2, [Dkt. 31-3] at 82. The NCIS executed that warrant on Friday, February 1, 2013, in a search that continued over the weekend. While that search was being conducted, defendant, Hall, and others were not permitted to access their workspace. Ford Tr. 20:16-19; Def. Ex. 2 at 2. The entire ONI office suite is a Sensitive Compartmented Information Facility ("SCIF"); however, some of the NCIS agents conducting the search lacked a security clearance high enough to be in the facility alone. See Ford Tr. 20:13-19. In such situations, the Pentagon assigns a Special Security Officer ("SSO") to ensure that classified information is appropriately protected. See Ford Tr. 20:13-19. The SSO assigned to the February search of the ONI SCIF was Richard "Kent" Ford ("Ford"). See Ford Tr. 20:13-19. Ford's office was not part of the NCIS.

         On Monday, February 4, 2013, ONI staff were permitted to return to the office. In an e-mail sent that day, Ford described the SCIF as being in a "state of disarray." Def. Ex. 5 at 1. Undisputed testimony from Gill establishes that the bin for the shredder was empty when NCIS agents arrived on Friday and full when she and the others returned on Monday. Gill Tr. 21:3- 22:1. Defendant, Hall, and Gill resumed working in the SCIF until Friday, February 8, 2013, when they were administratively suspended without warning and required to leave the Pentagon immediately. Gill Tr. 26:12-27:6. Although Gill's description of the shredder supports a conclusion that the NCIS destroyed documents, there is no evidence in the record that defendant noticed any missing personal items or government records during the four days he was in the office after the search. It was not until some time after defendant's suspension began that the investigation shifted to focus on the unauthorized purchase of suppressors which ultimately resulted in the indictments of Hall, Mark Landersman, and later David Landersman.

         On February 11, 2013, in an e-mail to Catherine Donovan, counsel in the Office of Naval Research, defendant's counsel requested "the immediate return" of "everything taken from Mr. Landersman's office, including notebooks, calendars, files, and all other items, " asking in the alternative for "an immediate inventory" of those items. See Motion Ex. 1 [Dkt. 31-2]. That email did not request either an inventory or return of any materials remaining in the SCIF. In an e-mail sent on February 14, the government refused to return any items the NCIS had seized under the warrant on the grounds that the items had evidentiary value and could not "be returned until the Assistant U.S. Attorney (AUSA) conclude[d] that the items no longer have evidentiary value and provide[d] authorization to release them." Id. For the next six months, non-suspended ONI personnel were permitted to continue working in the SCIF. For example, a Commander Phan started working at Hall's desk. Motion Ex. 2, [Dkt. 31-3] at 93. There is no evidence in the record as to what, if anything, these employees may have done with defendant's work records or personal property.

         No evidence was presented during this hearing that defense counsel ever requested the return of any items remaining in the SCIF until some time in November 2013. As Ford explained, Lorin Readmond ("Readmond"), an ONI intelligence specialist who continued to work in the SCIF and who admitted being a close friend of defendant, contacted the Human Resources office on Hall's behalf to ask for the return of his personal property. Motion Ex. 2, [Dkt. 31-3] at 59. Human Resources then contacted Ford because Hall's office was in the SCIF "to make sure that Mr. Hall's effects did not include any classified information." Id. According to Ford, he had "a limited amount of discretion" to destroy classified information, Id. at 77, and had not been given any guidance by either the NCIS or U.S. Attorney's office about being careful to avoid "the destruction of any possible evidentiary information, " Id. at 81.

         Before Ford and his assistant Francine Cox ("Cox") entered the SCIF in November 2013, Readmond had already separated the Hall and David Landersman's personal effects, and it was Ford and Cox's job to review the materials before they could be returned. As Cox testified, "[W]e needed to go and make sure that there were no classified documents in those personal belongings before Petty Officer Readmond delivered them to the member." Motion Ex. 2, [Dkt. 31-3] at 91. On November 13, 2013, Ford and Cox began separating defendant's personal items in the SCIF from official-use Navy materials so the personal items could be returned to the defendant. They continued that process on November 15 and finished on November 19.

         On November 13, 2013, the first day that Ford and Cox were in the SCIF, the Washington Post featured an article about the suppressor investigation. Ford forwarded that article to several colleagues, commenting, "The article is lengthy, I've included the link for your review." Def. Ex. 18. The e-mail included the lead paragraphs of the article, which described three senior Navy intelligence officials having allegedly "arranged for a hot-rod auto mechanic in California to build a specially ordered batch of unmarked and untraceable rifle silencers and sell them to the Navy at more than 200 times what they cost to manufacture." Def. Ex. 18. Defendant cites to this e-mail as direct evidence of Ford's awareness of the criminal investigation into suppressors before he began his review of the materials in the SCIF.

         As Ford and Cox combed through defendant's desk and files for personal items, they placed any documents marked for Navy official use into burn bags. Although Ford maintains that his supervisors authorized him to destroy such material, no documentary evidence supports Ford and his direct supervisor has testified that she only learned of the destruction of documents four or five days after it happened. See Ford Tr. 43:7-20. Readmond testified that she protested Ford's decision to destroy these materials.[3] Readmond Tr. 47:24. Ford ignored Readmond's protests, filling as many as ten burn bags with documents taken from defendant's desk and files. See Ford Tr. 44:10-11. Readmond testified that Ford and Cox looked at every file individually before determining whether to burn it. Readmond Tr. 50:5. It is undisputed that Ford and Cox earmarked for destruction any document pertaining to Navy official business, regardless of classification level, and that the majority of the material was sent to the incinerator on November 20, 2013. See Ford Tr. 35:6-7; 29:21-22.

         Mark Landersman's counsel, Cary Citronberg, learned of the destruction as it was taking place, emailing Assistant United States Attorneys ("AUSAs") Morris Parker, Jr., and Patricia Haynes at 4:40 p.m. on November 19, saying there was a "distinct possibility that the government (not your office) is intentionally destroying documents regarding the need for and procurement of the suppressors, and/or other exculpatory and/or material evidence that is the subject of our case." Def. Ex. 57. David Landersman's counsel, Stephen M. Ryan and Cecilia Showalter, met with Haynes and Parker to discuss that possibility the same day. See Def. Ex. 58. Although Haynes and Parker promptly spoke with the NCIS case agent, because he was at the firing range that day, and he was not aware who might be destroying documents, nothing was done that day and by the time the NICS had determined that it was personnel from the Special Security Office the documents had been destroyed.


         Defendant argues that the government intentionally destroyed exculpatory evidence, violating his due process rights and requiring dismissal of the indictment. Def. Memo. 14. The government maintains that defendant has failed to show both that its agents acted in bad ...

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