United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
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.For the reasons that follow,
defendant's Motion will be denied.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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 ...