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United States v. Davis

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

October 24, 2019

MARCUS JAY DAVIS, et al., Defendants.


          Michael F. Urbanski, Chief United States District Judge.

         This matter is before the court on the motion of the defendants to dismiss this case for Brady violations and prosecutorial misconduct due to late production of certain discovery materials, namely state grand jury testimony concerning gang activities in Danville, Virginia. Oral argument on the motions was held on October 17, 2019, which has been followed by many email communications[1] and ECF filings. The court has reviewed the late breaking state grand jury testimony and considered the arguments and filings related thereto and concludes that defendants have suffered no prejudice as a result of the late production of these materials. As a result, the defendants' motion to dismiss, ECF No. 957, is DENIED.


         The indictment in this case was originally handed down on June 11, 2018 and was superseded on November 6, 2018. The court issued a Scheduling Order on December 4, 2018, setting the case for trial on October 7, 2019 and requiring the government to substantially complete all pretrial discover)' by April 1, 2019. The Scheduling Order also established several pretrial status hearings at which the status of discovery was addressed in open court. Many pretrial issues were raised by the parties and addressed by the court. By all accounts, massive amounts of discovery material were provided by the government in this case.

         Trial commenced on October 7, 2019, and jury selection was completed on October 15, 2019.[2] That evening, counsel for Deshaun Trent filed a Motion to Produce Special Grand Jury Transcripts, ECF No. 924, seeking discovery of certain state grand jury testimony not produced in discovery. This motion was joined by the other defendants. See ECF Nos. 925, 926, 928, 930, 931.

         The issue of the nonproduction of state grand jury transcripts was addressed in court on October 16, 2019, and the prosecution affirmatively responded to the court's question asking whether testimony of Ontwoinette Epperson and Lashanda Washington taken on November 9, 2017 "are the only transcripts from the state multi-jurisdictional grand jury that have not been produced in discover)7 that relate to the allegations in this case." Tr., October 16, 2019, ECF No. 954, at 10. Defense counsel then apprised the court of a police report dated December 17, 2015 produced in discovery which stated "[a] special grand jury was called and held in the Commonwealth Attorney's office regarding the spree of shooting incidents in the City of Danville. Multiple individuals that were persons of interest in these matters were brought before the grand jury and questioned under oath. Investigation continues." Id. at 12-13. After further questioning, the prosecution agreed that it needed to answer the question whether additional state grand jury testimony related to the charges in this case existed that had not been produced and sought a recess to investigate. After a short recess, the prosecution advised that the defense was "entitled to this information 100 percent," Id. at 21, but noted that it would take longer to get an accurate and thorough answer. The prosecution suggested, and defense counsel agreed, to excuse the jury and reconvene the next day without the jury to report on the status of its investigation into state grand jury testimony.

         At the hearing held the next day, October 17, 2019, the prosecution reported that certain additional state grand jury transcripts had been transcribed and produced or were in the process of being transcribed. The prosecution indicated that its review was ongoing and that it may need an additional few days to prepare transcripts. As a result, the government requested a brief delay in the trial. Defendants orally moved to dismiss the First Superseding Indictment based on claimed Brady violations and prosecutorial misconduct.

         On October 18, 2019, the government filed an affidavit by Michael J. Newman, the Commonwealth's Attorney for the City of Danville, Virginia, and Special United States Attorney, ECF No. 946, wherein he describes the state grand juries that were empaneled by him between 2015 and 2018 to investigate violent crime in and around Danville, Virginia. In his affidavit, Mr. Newman acknowledges that he failed to inform the prosecution team about the various grand juries and the relevant witnesses that were called. Additionally, Mr. Newman withdrew as counsel of record for the United States.[3]

         Because the prosecution's production of state grand jury transcripts would not be completed in time to allow meaningful review before the jury was to report on October 21, 2019, the court instructed the clerk to notify the jury that they should report on Wednesday, October 23, 2019. Over the weekend of October 19-20, 2019, several defendants filed written motions and memoranda in support of motions to dismiss, ECF Nos. 957-961, 963, to which the prosecution responded on October 21, 2019. ECF No. 962. Additionally, the prosecution continued to email copies of state court grand jury testimony and other information requested by the court. Ultimately, the resumption of the trial was scheduled for October 28, 2019.

         After review and analysis of the state grand jury testimony provided by the prosecution over the past week, the court concludes that the late production of this testimony does not prejudice any of the defendants requiring dismissal of the First Superseding Indictment. While the state grand jury testimony generally concerns violence in Danville, Virginia, much of it concerns acts of violence separate from the attempted murder of Armonti Womack and Dwight Harris on June 15, 2016, the murder of Christopher Motley and attempted murder of Justin Wilson on August 20, 2016, and the attempted murder of Tyliek Conway on August 24, 2016, which are central to this trial. The state grand jury testimony that does concern the issues central to this case, such as the Epperson and Washington testimony regarding their role in the events of August 20, 2016, is largely cumulative of other discovery previously produced. Moreover, the state grand jury transcripts were produced to defendants before the first witness testified in this case, and the court delayed the trial by more than ten days to allow the defense time to review and process the transcripts.

         Nevertheless, the delay in the production of these state grand jury transcripts is an inexcusable oversight by the prosecution. Given the fact that the state grand jury transcripts were required to be produced months ago, but were not produced until after trial commenced, certain sanctions and evidentiary limitations, as listed herein, are appropriate under Fed. R. Crim. P. 16(d)(2)(C) and (D).


         A. Brady Violation.

         The Due Process Clause requires the government to disclose "evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, a defendant must show that the undisclosed evidence was (1) favorable to the defendant, either because it was exculpatory or because it was impeaching; (2) material to the defense, i.e., prejudice must have ensued; and (3) that the prosecution had materials and failed to disclose them. See Banks v Dretke, 540 U.S. 668, 691 (2004); United States v. Young, 916 F.3d 368, 383 (4th Cir. 2019).

         "Prejudice ensues if there is a reasonable probability that the jury would have reached a different result had the evidence been properly disclosed." Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 397 (4th Cir. 2014) (internal citations omitted). For the evidence to be prejudicial to the defendants, it must also be more than speculative. United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010); United States v. Agurs, 427 U.S. 97, 109-10 (1976) ("The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense."). Likewise, undisclosed evidence does not rise to the level of a Brady violation where the evidence is cumulative and has been provided to the defendants in another manner. See United States v. Parker, 790 F.3d 550, 558 (4th Cir. 2015) ("impeachment evidence is not material if it is cumulative of evidence . . . already presented and thus would have provided only marginal additional support for the defense.") (internal citations omitted); see also Johnson v. Folino, 705 F.3d 117, 129 (3d Cir. 2013) ("Suppressed evidence that would be cumulative of other evidence ... is generally not considered material for Brady purposes.").

         B. Prosecutorial Misconduct.

         In order to dismiss an indictment for prosecutorial misconduct, a court must find that the defendants were prejudiced by the misconduct. Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988) (A district court has "no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct."); see also United States v. Derrick, 163 F.3d 799, 807 (4th Cir. 1998) ("[T]he Court's analysis and the text of its opinion confirm that Nova Scotia's holding applies equally to prosecutorial misconduct that occurs at the pretrial and trial stages of a prosecution."). The Fourth Circuit has held that "the dismissal of an indictment altogether clearly thwarts the public's interest in the enforcement of its criminal laws." Derrick, 163 F.3d at 807. Accordingly, such a remedy may be applied not to "chastise what the court view[s] as prosecutorial overreaching," or even in the interest of deterring future similar conduct, but only after finding prejudice to the defendant and concluding that no less drastic remedy will serve. See United States v. Hasting, 461 U.S. 499, 507-08 (1983) (concluding that the appellate court erred in failing to analyze constitutional violations committed by the prosecution under the "harmless error doctrine" when reversing defendants' convictions); see also Derrick, 163 F.3d at 807 (analyzing Hasting and concluding that the harmless error doctrine applies equally to the dismissal of an indictment as to the reversal of a conviction) ("It would seem to follow, a fortiori, from the Court's holding in Hasting that a court may not, without finding prejudice to the defendant, exercise its supervisory power to reverse a defendant's conviction and require a retrial based upon prosecutorial misconduct, that a court may not dismiss an indictment altogether on this ground without also finding prejudice.").


         After jury selection was completed and the jury sworn, and between October 15, 2019 and October 21, 2019, the prosecution produced to the defense and the court the following state grand jury transcripts:

1. Ontwionette Epperson. City of Danville/Pittsylvania County Multijurisdictional Grand Jury ("MJGJ"), ...

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