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United States v. Davis

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

November 8, 2019



          Michael F. Urbanski. Chief United States District Judge.

         This matter comes before the court on the motion of defendant Marcus Jay Davis to dismiss all or some counts of the First Superseding Indictment based on prosecutorial misconduct related to certain discovery violations. ECF No. 1064. The government has responded. ECF No. 1070. The court has reviewed the parties' pleadings and the newly disclosed state grand jury transcripts and concludes that Davis has suffered some prejudice because of the late evidentiary disclosure. As a result, the court will dismiss Count Ten of the First Superseding Indictment. Accordingly, Davis's motion to dismiss is GRANTED in part as it relates to dismissing Count Ten of the First Superseding Indictment and DENIED in part as it relates to dismissing Counts One, Eleven, Twelve, and Thirteen of the First Superseding Indictment. The court is compelled to issue this intermediate sanction for the repeated failings by the prosecution team, and particularly the Commonwealth's Attorney for the City of Danville and Special United States Attorney, Michael Newman, to comply with the court's discovery orders and to timely provide discovery bearing on gang violence in Danville to the defense. Because of the continued nature of the government's actions, the court is convinced that to allow the repeated discovery violations to go undeterred would send a message that discovery orders in complex criminal cases may be trifled with at severe costs to the rule of law and the fairness of our criminal justice system. To deter future violations of the court's discovery orders, and to remedy the prejudice sustained by the defense in this case by repeatedly having to divert their attention from the ongoing trial to review, evaluate, and address newly disclosed state grand jury transcripts concerning gang activity in the Danville area, the court will impose a Federal Rule of Criminal Procedure Rule 16(d) sanction. For these reasons and those that follow, the court dismisses Count Ten of the First Superseding Indictment against Marcus Davis. Davis will face the jury next week on Count One, Eleven, Twelve, and Thirteen, for which he continues to face a maximum penalty of life imprisonment.


         This is not the first time the court has had to address claims of prosecutorial misconduct in this case. First, two days before jury selection was scheduled to begin, the government notified defendants that it had discovered a working copy of the DaShawn Anthony interview tape that it had originally claimed to be lost or corrupted. The court addressed this late disclosure in its Memorandum Opinion, dated October 11, 2019. ECF No. 905. At the time, the trial was yet to begin, and so the court determined that the newly disclosed video was not prejudicial to the defendants because the defendants had sufficient time to review the interview and accommodate any new information in their defense. The court also determined that the late disclosure was not prejudicial because the government did not intend to call Anthony as a witness.

         Then, on October 15, 2019, immediately following the swearing in of the jury in this trial, the court was presented with the government's second discovery violation. Defense counsel alerted the court and the government that it had become aware of a multijurisdictional grand jury ("MJGJ") that had been impaneled by the City of Danville and Pittsylvania County to investigate violent crimes in the Danville, Virginia area. The government then disclosed transcripts of Ontwoinette Epperson and Lashanda Washington, two individuals who testified before the MJGJ on November 7, 2017. Both Epperson and Washington appeared on the government's witness list. The next day, on October 16, 2019, after opening statements were made by the government and defense counsel, the court addressed the question of additional MJGJ testimony. At first, the government, upon information provided by Mr. Newman, informed the court that there were no additional transcripts.[1] However, after further caucus, the government informed the court that more witnesses testified before the MJGJ. As was later revealed, those witnesses included Tanikqua Fuller and Laquante Adams, both named defendants in the First Superseding Indictment, and Tyson Bowens, a government witness.[2]The government eventually uncovered other Special Grand Juries also related to violent crime in the Danville, Virginia area. The court granted a continuance in the case to allow the government time to produce the transcripts to the defendants and to give the defendants time to incorporate the new evidence into their defense.

         Based on the late disclosure of this state grand jury information, counsel for the defendants filed a motion to dismiss the First Superseding Indictment, claiming prosecutorial misconduct, a violation of Brady v. Maryland, 373 U.S. 83 (1963), and a violation of the court's Third Amended Scheduling Order. The government responded, arguing that the late disclosure was unintentional, did not prejudice the defendants, and any evidence was cumulative or speculative.

         The court undertook a painstakingly thorough investigation of the transcripts provided by the government and determined that there was not a Brady violation and that the defendants did not suffer prejudice as a result of the late-disclosed testimony. The court entered a Memorandum Opinion denying the motions to dismiss on October 11, 2019. ECF No. 1031. The court relied on a number of factors. First, the court found that the introduction of the new evidence was not prejudicial because the evidence came to light before the first witness testified. Second, the trial was delayed for more than ten days, which allowed defendants sufficient time to incorporate any new evidence into their defense. Third, the court determined that any evidence provided in the new transcripts was cumulative, speculative, or irrelevant. Although the court determined there was no prejudice to the defendants, in order to mitigate any potential prejudice and to deter future misconduct, the court imposed certain sanctions on the government. The court limited the government's ability to use any new evidence provided in the grand jury transcripts or to question any of the witnesses about such testimony. The court also took the unusual steps of allowing defendants to conduct a second opening statement and instructing the jury as to the cause of the delay. The court intended this ruling to conclude the discovery debacle and ruled that the trial would begin on Monday, October 28, 2019, in Danville, Virginia.[3]

         Meanwhile, on October 18, 2019, Davis filed a motion to permit inspection of MJGJ documents from the Danville Circuit Court, ECF No. 945. On October 25, 2019, the court ordered the government to produce all state special and MJGJ notes, transcripts, and other evidence relating to or pertaining in any way to the allegations brought in the First Superseding Indictment, to the extent the materials had not already been produced. ECF No. 1036.

         On October 28, 2019, the trial resumed, and the government presented its first witness. At 9:33 p.m. that evening, the government alerted Davis and the court by email that it had identified additional state grand jury testimony of Detective Jerry Pace that had not yet been disclosed.[4] At a hearing the next morning on October 29, 2019, the court heard argument from the government and Davis as to how to remedy this new discovery violation. During that hearing, Mr. Newman appeared in court with two bankers' boxes filled with manila folders containing tapes and notes relating to the Danville MJGJ and Special Grand Juries called between 2015 and 2018 and various other loose papers consisting of correspondence with the state court, copies of subpoenas, and other miscellaneous papers.

         During the October 29, 2019 hearing, Mr. Newman outlined the steps he took to produce all remaining evidence relating to the grand juries, including personally going to the circuit court to obtain the files. The court and Davis conducted extensive questioning of Mr. Newman regarding the grand juries and Mr. Newman's record keeping process. Upon recommendation by the government, a member of both the government and Davis' trial team were excused from the court room to listen to tapes and examine documents contained in the two bankers' boxes. Following the close of evidence for the day, the government provided the court and Davis with a rough transcript of Det. Pace's grand jury testimony for review that evening.

         The next morning, on October 30, 2019, the court heard argument from the government and Davis as to what should be done concerning Det. Pace's testimony and the other newly disclosed evidence contained in the bankers' boxes. Davis renewed by oral motion his motion to dismiss the First Superseding Indictment, arguing that this late disclosure was another violation of the court's discovery orders and that Davis has suffered prejudice. Upon review, the testimony of Det. Pace was directly related to the gang shootings at issue in this case, including the shootings on Berryman Avenue and Sunset Avenue, about which there was substantial trial testimony. In addition, this testimony articulated alternative reasons for the shootings other than the furtherance of the RICO conspiracy alleged by the government. Det. Pace testified:

Umm... I can tell you this, a lot of the individuals involved in the investigation that we've uncovered are gang members um I don't know if this is gang activity. I don't know if it's actually one gang against another I just know a lot of individuals are involved in gangs. Truthfully what I've been told, this whole thing started over a breakup between a gentleman and a female and at the same time the female that broke up with the gentleman started dating a woman and her brother got robbed in a dice game by one of the ex-boyfriend if that makes sense. So it could be a domestic or it could be a gambling debt gone wrong. I'm not sure at this time. A robbery so to speak. That's what we think this whole thing started over and then it just retaliated one back and forth.[5]

         Davis argues this newest discovery violation prejudiced him because: (1) he has had to continually change trial strategy based on new evidentiary disclosures; (2) he lost a member of his trial team for a day of trial; and (3) he is not confident that all relevant evidence or testimony has now been disclosed, or that the defense will not be surprised by belated disclosures in the midst of trial again.[6] The government argued that the disclosure, while a violation of the court's Scheduling Order, was not prejudicial to the defendant.

         If that were not enough, questions again surfaced over the weekend of November 3-4 regarding the government's production. Defense counsel asserted that state court records suggested that a MJGJ was held on December 16, 2017, but no transcripts from that date had been produced. At the start of trial on November 5, 2019, the court again directed the government to contact Mr. Newman to address this discrepancy. After the evidence was concluded on November 5, the court heard testimony from Mr. Newman as to whether the MJGJ met on December 16, 2017. For various reasons, Mr. Newman concluded that the MJGJ did not meet on that date. Remarkably, however, during the course of Mr. Newman's November 5, 2019 testimony, the court was made aware that the MJGJ continued in 2018 and 2019, and that no one had not reviewed the testimony taken at those sessions to see whether any of it bore on the issues of this case. The next day, November 6, 2019, nearly a month since trial began, the government produced four additional transcripts to the court and defense based on the 2018-2019 MJGJ. While the content of the transcripts appears to relate to events post-indictment, the testimony of at least two witnesses during that session, one of whom testified in this case, references gang-related shootings and the subject of this case, the Rollin' 60s Crips.

         It is distressing to the court that, after all of the wailing and gnashing of teeth that accompanied the government's myriad discovery failings, no one from the government's team had taken the steps necessary to assure the defense and the court that all relevant discovery had been produced. The sanction imposed by the court reflected in this opinion is required by the serial nature of the discovery failings in this case.


         a. Sanctions for prosecutorial misconduct.

         The decision to impose sanctions pursuant to Rule 16(d)(2) lies within the sound discretion of the trial court. United States v. Young, 248 F.3d 260, 269 (4th Cir. 2001); see also United States v. Barile, 286 F.3d 749, 758 (4th Cir. 2002) ("Upon finding a violation of Rule 16, the district court has discretion under the Federal Rules of Criminal Procedure to determine the proper remedy.") In the exercise of its discretion relating to discovery violations, however, the court must consider "the reasons for the government's delay and whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered by the defendant; and whether any less severe sanction will remedy the prejudice and the wrongdoing of the government." United States v. Gonzales-Flores, 701 F.3d 112, 116 (4th Cir. 2012) (quoting United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997)); see also United States v. Muse, 83 F.3d 672, 675 (4th Cir. 1996) (finding that a trial court has discretion to fashion an appropriate remedy for a discovery violation).

         Further, the Fourth Circuit has held that "[w]hen a court sanctions the government in a criminal case for its failure to obey court orders, it must use the least severe sanction which will adequately punish the government and secure future compliance." Hastings, 126 F.3d at 317. The Fourth Circuit has also found that "a continuance is the preferred [discovery] sanction." United States v. Sterling, 724 F.3d 482, 512 (4th Cir. 2013).

         One potential, yet severe, sanction for prosecutorial misconduct is for the court to fully dismiss the indictment. 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.").

         In Nova Scotia, the Supreme Court held that "a federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a)." 487 U.S. at 254. In other words, a district court must ask if the error was harmless before imposing severe sanctions for prosecutorial misconduct. For example, in United States v. Hasting, 461 U.S. 499, 506 (1983), where the Supreme Court reversed and remanded the Seventh Circuit's reversal of a conviction based on prosecutorial misconduct, the Supreme Court found the "[supervisory power to reverse a conviction is not needed as a remedy ...

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