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United States v. Maddicks

United States District Court, E.D. Virginia, Newport News Division

May 4, 2017




         This matter is before the Court on Defendant's motion to dismiss the indictment and "Notice" of intent to raise a "Public Authority Defense" at trial. ECF Nos. 14, 15. The Government filed a consolidated brief opposing dismissal and asserting that Defendant should not be permitted to present his public authority defense to the jury. ECF No. 19. The Court conducted two hearings on the pending motion/notice, and each party presented the live testimony of a different DEA special agent (Special Agent Michael Beam was called by the Government and Special Agent John Koeppen was called by the defense). Defendant did not testify at either hearing, did not call any third-party witnesses, nor did Defendant seek to proffer testimony that he anticipates presenting at trial.

         In addition to the written filings referenced above, the Court also has before it Defendant's oral "Notice" that he plans to pursue an "innocent intent" strategy at trial (based largely on the same facts underlying the "public authority" affirmative defense previously noticed). The Government challenges such alternative strategy, arguing that, for the same reasons the Government opposes the public authority defense, Defendant should not be permitted to pursue the innocent intent strategy at trial. At the conclusion of the second hearing, the Court afforded the parties additional time to submit supplemental evidence, and inquired into the availability of a transcript of Defendant's guilty plea proceedings in another criminal case in the Richmond Division of this Court.[1]

         On March 29, 2017, Defendant filed a motion for leave to file supplemental exhibits. ECF No. 40. The Government filed a brief in response that does not oppose the supplemental evidence, but disagrees with Defendant's characterization regarding the import of such evidence. ECF No. 42. Additionally, on April 26, 2017, Defendant filed a second supplement, consisting of the transcript of Defendant's guilty plea proceedings in the Richmond criminal case.[2] With the record supplemented, these matters are now ripe for review.

         A. Motion to Supplement

         Defendant's unopposed motion to supplement is GRANTED. The Court will consider the evidentiary materials filed by both parties after the hearings.

         B. Motion to Dismiss the Indictment

         On January 29, 2016, Defendant was arrested in Richmond, Virginia based on his involvement in an interstate marijuana trafficking conspiracy. Defendant agreed to speak with Richmond DEA agents, admitted his involvement in the marijuana conspiracy, and chose to cooperate pursuant to a written DEA "Confidential Source Agreement." Defendant was released, and he assisted the Richmond DEA Agents in apprehending a Maryland coconspirator, which occurred on February 10, 2016. After such apprehension, Defendant was permitted to continue living in Newport News, Virginia, and the Richmond DEA agents were hopeful that Defendant would be able to provide additional information on yet to be identified drug trafficking targets. Defendant stayed in contact with the Richmond DEA Agents throughout February and early March of 2016 through text messages and telephone calls. However, during this time, Defendant provided limited, if any, useful information, and the Richmond DEA agents supervising Defendant never asked him to engage in any controlled drug transactions (as a buyer, or as a seller) and never provided him with any controlled substances or firearms. Defendant likewise never informed the Richmond DEA Agents that he possessed any controlled substances or firearms during this time.

         On March 17, 2016, Defendant was arrested at his Newport News residence after a neighbor made a drug complaint and the local police identified a stolen car in front of Defendant's residence. A search of the residence (pursuant to a warrant) resulted in the seizure of over three pounds of marijuana, approximately 25 grams of crack cocaine, 20 grams of powder cocaine, 27 ecstasy pills, four firearms, four digital scales, multiple cell phones, and $29,985 in currency. The Richmond DEA agents were unaware of such search and arrest until days or weeks after it occurred, and upon discovery, Defendant was deactivated as a DEA cooperator.

         In April of 2016, a federal grand jury sitting in Richmond Virginia returned a single-count indictment in case number 3:16cr53, charging Defendant with conspiracy to distribute and possess with intent to distribute marijuana.[3] The Richmond indictment alleged that Defendant was involved in such conspiracy from mid-2015 "through and including January 29, 2016," the date Defendant was arrested in Richmond. Case No. 3:16cr53, ECF No. 1. Defendant was not charged with any crimes involving cocaine (in any form) or ecstasy, nor was he charged with the unlawful possession of any firearms.

         On September 13, 2016, a federal grand jury sitting in Newport News returned an indictment in the instant case charging Defendant with possession with the intent to distribute marijuana, cocaine, cocaine base, and ecstasy, as well as three separate firearm counts. ECF No. 1. On September 27, 2016, while such Newport News indictment was still under seal, Defendant pled guilty in Richmond to the marijuana trafficking conspiracy charged in case 3:16cr53. Defendant's plea of guilty in Richmond was made pursuant to a written Plea Agreement, which contained an immunity provision. Case No. 3:16cr53, ECF No. 15. Defendant also signed a written "Statement of Facts" indicating that the Richmond conspiracy continued "through and including February 10, 2016," the date Defendant's Maryland co-conspirator was arrested. Case No. 3:16cr53, ECF No. 16. Defendant was subsequently sentenced to 46 months imprisonment in the Richmond case, and: (1) his Guideline range was not enhanced based on the drug seizure in Newport News; (2) his Guideline range was not enhanced for the possession of any firearms; (3) the Government repeatedly stated at Defendant's Richmond sentencing hearing that the Newport News conduct was a separate matter, Case No. 3:16cr53, ECF No. 27; (4) defense counsel reminded the Richmond sentencing judge that the Newport News conduct remained merely "allegations" and that Defendant was "presumed to be innocent of those offenses," id. at 7; and (5) the Richmond Court expressly-indicated that the "prosecution in Newport News will stand on its own merits," id. at 9.

         Defendant's motion to dismiss the instant indictment asserts that "[t]he conduct for which Mr. Maddicks stands accused in the instant matter is nothing more than a continuation of the conduct and was part of the same continuing conspiracy to which he pleaded guilty in the Richmond case." ECF No. 14, at 4. Defendant further argues that the use of the phrase "through and including February 10, 2016" in the Richmond Statement of Facts does not establish an end date of the Richmond conspiracy, but instead describes an "open-ended timeframe." Id. Defendant contends that, pursuant to contract-law principles, the timeframe of the conspiracy and the immunity provision in his Richmond plea agreement should be deemed "ambiguous" and construed against the Government as drafter.

         Having heard oral argument from the parties, received exhibits and live testimony across two different hearings, and considered supplemental evidentiary submissions, the Court finds that Defendant fails to demonstrate that the Newport News conduct charged in this case is merely a continuation of the Richmond conspiracy. While the Court acknowledges the theoretical possibility that the marijuana found in Newport News could have been left over from the Richmond marijuana conspiracy, Defendant fails to advance evidence or proffer on which a reasonable juror could conclude, without resorting to speculation, that the marijuana seized in Newport News was obtained by Defendant as part of the Richmond conspiracy.[4]Moreover, even if "left over" from such conspiracy, Defendant did not alert the Richmond DEA agents to his possession of such a large quantity of marijuana at the time of his Richmond arrest, during any subsequent DEA debrief, or during any phone calls/text messages with DEA agents during Defendant's period of cooperation.[5] Even more glaring is Defendant's failure to point to any direct, indirect, or inferential evidence suggesting that the other types of controlled substances seized in Newport News (cocaine, cocaine base, and ecstasy), or the four seized firearms, were in any way associated with the Richmond conspiracy. Importantly, Defendant did not testify at either of the hearings conducted by the Court nor did he proffer his anticipated trial testimony. He also failed to call a third-party witness to provide context for the origin of the drugs or firearms seized from Defendant's residence. Defendant's conspiracy continuation theory therefore fails because the record lacks: (1) any evidence even providing an inference that the Richmond conspiracy involved firearms, cocaine, cocaine base, or ecstasy; (2) any information indicating that any Richmond co-conspirator was involved in the Newport News conduct; (3) any information suggesting that the various drugs found in Newport News, including marijuana, came from the same source of supply, or through the same contacts, as the Richmond marijuana; or (4) any evidence or proffer of testimony that effectively links the two offenses beyond the fact that Defendant received marijuana shipments at his Newport News home during the earlier-in-time marijuana conspiracy. Cf. United States v. Ragins, 840 F.2d 1184, 1188-89 (4th Cir. 1988) (explaining, in the context of a double jeopardy challenge turning on whether alleged successive conspiracies charged the "same offense," that the court should evaluate Ml) the time periods covered by the alleged conspiracies; (2) the places where the conspiracies are alleged to have occurred; (3) the persons charged as co-conspirators; (4) the overt acts alleged to have been committed in furtherance of the conspiracies, or any other descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted; and (5) the substantive statutes alleged to have been violated") (citation omitted). In short, Defendant's motion to dismiss fails as a matter of law because Defendant advances so little evidence to link the crimes at issue, not because the Court finds Defendant's evidence to lack credibility.

         In addition to Defendant's failure to effectively highlight evidence suggesting that the Newport News conduct was a continuation of the Richmond conspiracy, the Court rejects Defendant's contention that the Richmond Plea Agreement or Statement of Facts are "ambiguous." The Court similarly rejects Defendant's proposed strained reading of Richmond case documents as establishing that the Richmond conspiracy was an "open-ended conspiracy" rather than a conspiracy that ended either: (1) when Defendant was arrested in Richmond (January 29, 2016-the end-date of the conspiracy as stated in the Richmond indictment and repeated by the presiding judge at Defendant's Richmond guilty plea hearing, ECF No. 44-1, at 7); or (2) when Defendant's Maryland co-coconspirator was arrested (February 10, 2016-the end-date of the conspiracy as stated in Defendant's Richmond Statement of Facts). The immunity provision in the Richmond Plea Agreement clearly states that "The United States will not further criminally prosecute the defendant in the Eastern District of Virginia for the specific conduct described in the Criminal Indictment or statement of facts." Case No. 3:16cr53, ECF No. 15 (emphasis added). Although the Richmond Statement of Facts indicates that the facts recounted therein Mo[] not describe all of the defendant's conduct relating to the offenses charged in this case nor [do they] identify all of the persons with whom the defendant may have engaged in illegal activities, * Case No. 3:16cr53, ECF No. 16, the pragmatic acknowledgement that each and every detail of Defendant's Richmond marijuana conspiracy is not specifically recounted in the Statement of Facts cannot reasonably be interpreted as automatically immunizing Defendant from prosecution for any and all drug trafficking activity, including conduct involving ecstasy, cocaine, and firearms, that was allegedly committed in a different city more than a month after the marijuana conspiracy ended. Rather, as discussed above, in the absence of evidence linking the two crimes prosecuted in different divisions of this court, Defendant fails to demonstrate that his Newport ...

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