Opinion
No. 01-282 Section: "R" (1)
April 16, 2003
ORDER AND REASONS
Before the Court is the motion of defendant Richard Porter to sever or dismiss counts of the Second Superseding Indictment and to suppress evidence. For the following reasons, the Court DENIES defendant's motion.
I. BACKGROUND
Three defendants, Johnny Davis, Richard Porter, and Dawrail Givens, were charged in a fifteen-count second superseding indictment on September 6, 2002 for violations of the Federal Gun Control Act and the Federal Controlled Substances Act. The indictment charges Porter, Davis, and Givens with a conspiracy to distribute heroin and the use of juveniles to distribute the heroin (Counts One and Two).
Porter and Davis are further charged together with conspiracy to use, and carry firearms in furtherance of the heroin distribution conspiracy (Count Three).
Count Three charges:
Beginning on a date unknown, but prior to July 28, 1998, and continuing to on or about October 12, 2001, in the Eastern District of Louisiana, the defendants, Johnny Davis a/k/a "Fat" a/k/a "10th Ward Fat" a/k/a "Project Fat" a/k/a "Black" and Richard Porter a/k/a "Whop", did knowingly and intentionally combine, conspire, confederate and agree with each other and with other persons known and unknown to the Grand Jury, during and in relation to a drug trafficking crime, to use and carry firearms, and possess firearms in furtherance of the drug trafficking crime, to wit: a conspiracy to possess with intent to distribute heroin; all in violation of Title 18, United States Code, Section 924(o).
Porter and Davis are also charged together with using and carrying a firearm in furtherance of the heroin conspiracy, which caused the death of Leonard Morgan (Count Ten).
Count Ten charges:
On or about March 13, 2001, in the Eastern District of Louisiana, the defendants, Johnny Davis a/k/a "Fat" a/k/a "10th Ward Fat" a/k/a "Project Fat" a/k/a "Black" and Richard Porter a/k/a "Whop", did knowingly carry and use a firearm, to wit: a Glock, Model 27, .40 caliber semi-automatic pistol, bearing serial number AAD0979, during and in relation to the commission of a drug trafficking crime for which he may be prosecuted in a court of the United States, to wit: a conspiracy to possess with the intent to distribute heroin, as set forth in Count 1 of this second superseding indictment which is realleged and incorporated by reference herein, in violation of Title 18, United States Code, Section 924(c)(1), and in the course of this violation caused the death of a person through the use of a firearm, which killing is a murder as defined in Title 18, United States Code, Section 1111, in that the defendant, with malice aforethought, did unlawfully kill Leonard Morgan; by shooting him with the firearm willfully, deliberately, maliciously, and with premeditation; all in violation of Title 18, United States Code, Section 924(j) and Title 18, United States Code, Section (2).
Porter alone is charged with distribution of cocaine base ("crack") (Count Twelve), two counts of possession of firearms by a convicted felon (Counts Fourteen and Fifteen), and use of and discharge of a firearm during the commission of drug trafficking crimes — distribution of crack and conspiracy to possess with intent to distribute heroin — which caused the attempted murder of Shantell Blouin (Count Thirteen).
Count Twelve charges:
Between June 1, 2001 and July 27, 2001, in the Eastern District of Louisiana, the defendant, Richard Porter a/k/a "Whop", did knowingly and intentionally distribute quantities of cocaine base ("crack"), a Schedule II narcotic drug controlled substance; all in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).
Count Thirteen charges:
On or about July 27, 2001, in the Eastern District of Louisiana, the defendant, Richard Porter a/k/a "Whop", did knowingly use and carry, and did cause to be discharged, a firearm, to wit: a revolver; during and in relation to the commission of a drug trafficking crime, to wit: distribution of cocaine base ("crack") and conspiracy to possess with the intent to distribute heroin, which caused the attempted murder of Shantell Blouin, in violation of Title 18, United States Code, Section 924(c)(1)(A).
Count Fourteen charges:
On or about July 27, 2001, in the Eastern District of Louisiana, the defendant, Richard Porter a/k/a "Whop", having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, to wit: a conviction on December 10, 1990, in Orleans Parish Criminal District Court, Case No. 344-155, for armed robbery, in violation of LA. R.S. 14:64, and a conviction on April 16, 1996, in Orleans Parish Criminal District Court, Case No. 381-237, for possession of cocaine, in violation of LA. R.S. 40:967(C)(2), did knowingly possess in and affecting commerce, a firearm, to wit: a revolver; all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).
And Count Fifteen charges:
On or about August 11, 2001, in the Eastern District of Louisiana, the defendant, Richard Porter a/k/a "Whop", having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, to wit: a conviction on December 10, 1990, in Orleans Parish Criminal District Court, Case No. 344-155, for armed robbery, in violation of LA. R.S. 14:64, and a conviction on April 16, 1996, in Orleans Parish Criminal District Court, Case No. 381-237, for possession of cocaine, in violation of LA. R.S. 40:967(C)(2), did knowingly possess in and affecting interstate commerce, a firearm, to wit: a Colt, Model King Cobra,.357 Magnum caliber revolver, serial number EK3103; all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).
The joint trial of these defendants is set for April 23, 2003.
Porter raises several challenges to the Second Superseding Indictment. First, Porter moves to dismiss Count Ten because he claims it lacks an allegation of mens rea. Porter moves to dismiss or sever Counts Twelve, Thirteen, Fourteen, and Fifteen on the grounds of improper joinder under Federal Rule of Criminal Procedure 8(a) and, as to Count Thirteen, failure to properly charge an offense and lack of federal jurisdiction. Porter also seeks access to grand jury testimony relating to the facts underlying Counts Twelve and Thirteen, pursuant to Federal Rule of Criminal Procedure 6(e)(3)(C)(ii). Porter additionally moves to dismiss and sever Count Thirteen on the grounds of duplicity and surplusage, or alternatively, to strike improper language. Further, Porter moves to dismiss or sever Counts Twelve, Thirteen, Fourteen, and Fifteen on the grounds of prejudicial joinder under Federal Rule of Criminal Procedure 14. Lastly, defendant moves to sever his trial from co-defendant Davis pursuant to Federal Rules of Criminal Procedure 8(b) or 14.
Porter also moves to suppress certain evidence. First, he moves to suppress a gun and a key to 2818 Clara Street, Apartment D, that the police found pursuant to arresting Porter on February 9, 2000. Second, defendant moves to suppress guns, ammunition, and drug paraphernalia found in Apartment D after his arrest.
Second, defendant moves to suppress out-of-court photographic identifications by Witness DD, Witness EE, and Shantell Blouin in connection with the charge of attempted murder of Blouin, on the grounds that the arrays may have been unduly suggestive and prejudicial.
Finally, defendant moves to suppress a post-arrest "jailhouse" confession he allegedly made to Witness W about the March 13, 2001 killing of Leonard Morgan, specifically, that he gave Johnny Davis the "green light to take care of Morgan." Defendant moves to suppress on the grounds that the statement was obtained in violation of his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel.
For the following reasons, the Court DENIES Porter's motions.
I. DISCUSSION
A. Count Ten Alleges Mens Rea
Porter moves to dismiss Count Ten because he asserts the count lacks an allegation of mens rea, which he argues violates his rights to due process and a jury trial. In pertinent part, Count Ten provides:
and in the course of this violation [Davis and Porter] caused the death of a person through the use of a firearm, which killing is a murder as defined in Title 18, United States Code, Section 1111, in that the defendant, with malice aforethought, did unlawfully kill Leonard Morgan; by shooting him with the firearm willfully, deliberately, maliciously, and with premeditation. . . .
The defendant actually moves to dismiss Count Eight on these grounds, not Count Ten, but Richard Porter is not named in Count Eight. Count Eight relates only to Johnny Davis's use of a firearm in the course of a drug trafficking conspiracy which caused the death of Walter Naylor. The only murder charge in which the indictment names Richard Porter is Count Ten, involving Johnny Davis's and Richard Porter's use of a firearm in the course of a drug trafficking conspiracy which caused the death of Leonard Morgan. Count Eight, incidentally, contains identical mens rea language as Count Ten. The Court assumes that Porter's arguments are directed at the count in which he is charged.
The Court finds that Count Ten properly alleges mens rea. First, Count Ten refers to "murder as defined in Title 18, United States Code, Section 1111." Section 1111 provides:
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; . . . or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.
(b) . . . Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life. . . .18 U.S.C. § 1111. Second, Count Ten explicitly charges the mens rea specified in section 1111: "defendant, with malice aforethought, did unlawfully kill Leonard Morgan; by shooting him with the firearm willfully, deliberately, maliciously, and with premeditation. . . ." There is simply no doubt that the government alleged the mens rea for murder in Count Ten of the indictment.
B. Counts Twelve, Thirteen, Fourteen, Fifteen Are Properly Joined Under Rule 8(a) and Count Thirteen Is Properly Charged
Porter moves to dismiss Counts Twelve (distribution of crack between June 1, 2001 and July 27, 2001), Thirteen (use and discharge of a firearm on July 27, 2001, in relation to distribution of crack and conspiracy to possess with intent to distribute heroin, causing attempted murder of Blouin), Fourteen (felon in possession of a firearm on July 27, 2001), and Fifteen (felon in possession of a firearm on August 11, 2001) on the grounds of improper jonder under Federal Rule of Criminal Procedure 8(a). Rule 8(a) permits joinder of offenses only when "the offenses charged, . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions together or constituting parts of a common scheme or plan." FED. R. CRIM. P. 8(a). "Joinder of charges is the rule rather than the exception and Rule 8 is construed liberally in favor of initial joinder." United States v. Bullock, 71 F.3d 171, 174 (5th Cir. 1995) (citing United States v. Park, 531 F.2d 754, 761 (5th Cir. 1976)). The Court should not look beyond the allegations in the indictment in determining whether joinder was proper. See United States v. Leemans, 1995 U.S. Dist. LEXIS 14356, *3 (E.D. La. 1995) (citing United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990)).
The Fifth Circuit has specifically held that joinder of different firearms counts in an indictment is proper based upon the "same or similar character" test of Rule 8(a). See United States v. Fortenberry, 919 F.2d 923, 926 (5th Cir. 1990) (finding "same or similar character" of counts when one count of indictment charged transportation of an undeclared firearm on an airliner and another count charged possession of a different, unregistered firearm). Further, separate drug possession and firearms counts alleged to have been committed in the course of a conspiracy satisfy Rule 8. See, e.g., United States v. Ramirez, 1990 U.S. Dist. LEXIS 13343, *20-21 (S.D.N.Y. 1990) ("The present indictment charges, in addition the conspiracy count, separate possession and firearms counts as to each defendant. It alleges that the offense conduct charged during the conspiracy was committed in order to achieve the goals of the conspiracy. Such allegations satisfy the rules of proper joinder under 8(a) and (b).").
The indictment in this case alleges that Porter conspired to distribute heroin and conspired to use and carry firearms to further the heroin conspiracy, beginning before July 28, 1998 and continuing until about October 12, 2001. Counts Twelve, Thirteen, Fourteen, and Fifteen allege separate drug possession and firearm counts which fall within the time frame of the alleged heroin conspiracy. Thus, without looking beyond the allegations in the indictment, these charges are of the same or similar character, because they allege or relate to facts about Porter's use or possession of firearms and involvement in drug trafficking. Further, they are alleged as part of a common scheme or plan. Specifically, Count Twelve charges that Porter distributed crack cocaine. Count Thirteen is inextricably linked to Count Twelve and to the heroin conspiracy charge in Count One because it charges that Porter used and discharged a firearm, causing the attempted murder of Blouin, "during and in relation to the commission of a drug trafficking crime, to wit: distribution of cocaine base ("crack") and conspiracy to possess with the intent to distribute heroin. . . ." (Emphasis added.) Counts Fourteen and Fifteen, charging Porter with being a convicted felon in possession of a firearm on July 17, 2001, the day he allegedly shot Blouin, and on August 11, 2001, are of a similar character as Counts Twelve and Thirteen because of their proximity in time and because of the presence of firearms. Under Rule 8(a), therefore, the counts were properly joined.
Defendant relies on information outside of the indictment to argue that these counts were improperly joined. Defendant provides a written statement of Shantell Blouin stating her belief that Porter shot her because he thought Blouin would reveal to his girlfriend that Blouin and Porter were smoking crack together. The defendant argues that the government's theory underlying Count Thirteen — that Porter shot Blouin because he believed she was cooperating with federal law enforcement agents who were investigating him for heroin and/or crack distribution — is therefore wrong. In other words, defendant argues that if Porter shot Blouin on July 27, 2001, it was for personal reasons unrelated to the heroin conspiracy charge. On this basis, the defendant challenges the joinder of Counts Twelve, Fourteen, and Fifteen as well. Because Porter cannot rely on information outside the allegations in the indictment to challenge joinder under Rule 8, the Court finds these arguments withou merit.
Defendant claims that Count Thirteen fails to properly charge a crime and lacks a federal jurisdictional basis because Blouin' s statement that Porter allegedly shot her for personal reasons eliminates the nexus between the use of the firearm and a federal drug offense. The defendant further challenges Count Twelve on the grounds that the government does not have sufficient evidence to prove Porter distributed crack. The defendant's argument fails under the well-established test for examining the sufficiency of an indictment. To be constitutionally sufficient under the Sixth Amendment, an indictment must "(1) enumerate each prima facie element of the charged offense; (2) fairly inform the defendant of the charges filed against him; and (3) provide the defendant with a double jeopardy defense after future prosecutions." United States v. Gaytan, 74 F.3d 545, 551 (5th Cir. 1996) (citing United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991)). The dictates of Federal Rule of Criminal Procedure 7(c) are essentially the same. See Gaytan, 74 F.3d at 551. Rule 7(c) requires an indictment to contain "a plain, concise and definite written statement of the essential facts constituting the offense charged," and to "state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated." FED. R. CRIM. P. 7(c). These requirements ensure that the defendant has notice of the charges against him and that the grand jury found probable cause that the defendant committed each element of the offenses. See United States v. Guzman-Ocampo, 236 F.3d 233, 235 (5th Cir. 2000). Generally, an indictment that tracks the statutory language of the charged offense is constitutionally sufficient as long as the statutory language unambiguously sets out all of the necessary elements of the offense. See, e.g., United States v. Hagmann, 950 F.2d 175, 183 (5th Cir. 1991); United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986). An indictment that meets minimal constitutional standards is sufficient to warrant a trial of the charges on the merits. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956).
Moreover, an indictment that meets these requirements cannot be challenged on the grounds that the allegations are not supported by adequate evidence. See, e.g., United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975) ("A defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not supported by adequate evidence, for an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for a trial of the charge on the merits."). Thus, courts lack the authority under Federal Rule of Criminal Procedure 12 to dismiss an indictment on the basis of a "sufficiency-of-the-evidence defense, which raises factual questions embraced in the general issue." Id. (quoting United States v. Brown, 481 F.2d 1035, 1041 (8th Cir. 1973)). "There is no summary judgment procedure in criminal cases. Nor do the rules provide for a pre-trial determination of sufficiency of the evidence. . . . The sufficiency of a criminal indictment is determined from its face." United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). A defendant's first opportunity to make motions testing the strength of the government's proof is at the end of the government's presentation. See FED. R. CRIM. P. 29.
In this case, the defendant does not argue that the indictment is constitutionally insufficient. He merely challenges the government's grounds for alleging particular counts. Counts Twelve and Thirteen track the language of the statutes at issue, 18 U.S.C. § 841(a)(1), 841(b)(1)(C), and 924(c)(1)(A), and clearly allege the elements of the charged offenses. The indictment must provide defendant adequate notice, and the law calls for nothing more.
Defendant also argues that, because he has raised a dispute about his motive to shoot Blouin, he is entitled under the Federal Rules of Criminal Procedure to disclosure of the grand jury minutes relating to the facts underlying Count thirteen. These assertions do not entitle defendant to access grant jury materials.
Rule 6(e) provides that disclosure of grand jury matters may be made "when permitted by a court at the request of defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." FED. R. CRIM. P. 6(e)(3)(C)(i)(II). The Supreme Court has recognized the "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts." Dennis v. United States, 384 U.S. 855, 869 (1966). Disclosure is allowed only in "cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly." Id. (quoting United States v. Procter Gamble Co., 356 U.S. 677, 683 (1958)); see also Izen v. Catalina, 256 F.3d 324, 329-330 (5th Cir. 2001) ("[C]ase law has established that a district court may properly order release of grand jury materials where a party demonstrates with particularity a 'compelling necessity' for the materials."); United States v. Miramontez, 995 F.2d 56, 59-60 (5th Cir. 1993) (holding that the defendant must show that "(1) the material he seeks is needed to avoid a possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) his request is structured to cover only material so needed.") (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667 (1979)). Examples of particularized need are to impeach a witness at trial, refresh his recollection, or test his credibility. See Dennis, 384 U.S. at 869.
Defendant's reason for requesting grand jury materials does not constitute particularized need. See United States v. Walczak, 783 F.2d 862, 857 (9th Cir. 1986) (finding no particularized need when defendant requested grand jury testimony to prove that the grand jury had no evidence that the district court had jurisdiction over the charges). Further, defendant has not demonstrated that the release of the grand jury testimony now is needed to avoid a possible injustice at trial. Lastly, the Court fails to see how the need for disclosure outweighs the need for secrecy. Therefore, defendant's motion is denied.
C. Joinder of Counts Twelve, Thirteen, Fourteen, Fifteen Is Not Prejudicial Under Rule 14
Porter relies on Rule 14 to argue that the Court should either sever Counts Twelve, Thirteen, Fourteen, and Fifteen as prejudicial, or sever his trial from Davis, the co-defendant against whom the government seeks the death penalty. First, defendant argues that the government joined Counts Twelve, Thirteen, Fourteen, and Fifteen, the latter two of which are felon-in-possession charges, because the government has scant evidence to support its murder charge against Porter in Count Ten and hopes to prejudice the jury against him.
Rule 14 provides in pertinent part:
If it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment . . . or by such joinder for trial together, the court may order . . . separate trials of counts, grant a severance Of defendants or provide whatever other relief justice requires.
FED. R. CRIM. P. 14. When an indictment includes felon-in-possession counts revealing prior felony convictions, the Fifth Circuit recognizes "the obvious dangers inherent in trying a felon-in-possession count together with other charges, as it acts as a conduit through which the government may introduce otherwise inadmissible evidence . . . thereby potentially tainting the reliability of the verdict rendered by the jury on the other counts." United States v. McCarter, 316 F.3d 536, 538 (5th Cir. 2002). The Fifth Circuit has found, however, that a limiting jury instruction is sufficient to cure potential prejudice from felon-in-possession counts, barring circumstances that would make limiting instructions insufficient. See id. (citing United States v. Bullock, 71 F.3d 171, 175 (5th Cir. 1995)). In McCarter, the court found that limiting jury instructions were insufficient to cure potential prejudice for several reasons not present in this case. First, the government's evidence of McCarter's guilt on the drug possession charge was remarkably weak. See id. at 539-40. The Court cannot assess this factor at this stage, although it notes that there is a witness who says that Porter admitted to him that he ordered the murder charged in Count Ten. Further, Porter is charged in seven other counts of the indictment, including conspiracy to use and carry firearms. Porter does not argue that the government is using felon-in-possession charges to bolster a weak case on these counts. In addition, the government in McCarter puts its motives in question when it filed a superseding indictment to join the felon-in-possession counts shortly after the defendant moved to exclude the prior conviction and firearms evidence. See id. at 540. Here, the felon-in-possession counts were in the indictment from the beginning. Lastly, the government's true motivation for bringing the felon-in-possession counts in McCarter was questioned because the government dismissed a firearm count after the court severed it. See id. Nothing like that has happened here. Unlike the McCarter court, this Court cannot conclude that "the only reasonable explanation" for the felon-in-possession counts is the government's desire to strengthen its case on weak counts by informing the jury of Porter's prior felony convictions. Id. at 541.
The Court notes that, in a separate order, it permitted the introduction of evidence of these prior convictions under Rule 404(b) of the Federal Rules of Evidence.
Further, Counts Twelve and Thirteen, alleging distribution of crack and attempted murder in furtherance of the conspiracy to distribute heroin and the distribution of crack, are integral to the government's overall allegations that Porter participated in a drug trafficking conspiracy and committed firearms violations during the conspiracy. The Court finds that limiting jury instructions will cure's any potential prejudice against Porter arising from the joinder of these counts.
Next, defendant argues that the prejudicial spillover effect from being tried with his co-defendant, Johnny Davis, requires severance of his trial. The Fifth Circuit has stated, "[D]efendants who are indicted together, should generally be tried together, particularly in conspiracy cases." United States v. Cihak, 137 F.3d 252, 259 (5th Cir. 1998) (quoting United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995)). The Supreme Court and the Fifth Circuit have held that "if defendants have been properly joined, the district court should grant a severance only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable determination of guilt or innocence." United States v. Zafiro, 506 U.S. 534, 539, 113 S.Ct. 933, 938 (1993); Cihak, 137 F.3d at 259 (citing United States v. Bermea, 30 F.3d 1539, 1572 (5th Cir. 1994)). Upon a sufficient showing of prejudice, the trials of properly joined defendants may be severed under Rule 14. See United States v. Lane, 474 U.S. 438, 449 n. 12, 88 L.Ed.2d 814, 106 S.Ct. 725 (1986). A court must find specific and compelling prejudice that outweighs judicial economy. See United States v. Krenning, 93 F.3d 1257, 1267 (5th Cir. 1996); United States v. Cuesta, 597 F.2d 903, 919 (5th Cir. 1979). Whether to grant a motion for separate trials is ultimately within the sound discretion of the district court. See United States v. Neal, 27 F.3d 1035, 1046 (5th Cir. 1995). Rather than grant a severance, a district court may cure potential prejudice by providing instructions to the jury to limit evidence to the appropriate defendant or count of the indictment, and the jury is presumed to be able to follow such instructions. Zafiro, 506 U.S. at 540; Cihak, 137 F.3d at 259; Krenning, 93 F.3d at 1267.
"[T]he mere presence of a spillover effect does not ordinarily warrant a severance." United States v. Sparks, 2 F.3d 574, 583 (5th Cir. 1993). Courts have found that a defendant is not necessarily entitled to a severance if the defendant and his co-defendant have antagonistic defenses; if the defendant was a minor participant in the conspiracy; if most of the evidence does not pertain to the defendant; or if the volume or quality of evidence against co-defendants will negatively impact the defendant. See Krenning, 93 F.3d at 1267; United States v. Pettigrew, 77 F.3d 1500, 1517 (5th Cir. 1996); United States v. Walters, 87 F.3d 663, 670 (5th Cir. 1996); United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994). Lastly, the Sixth Amendment is not violated when a defendant charged with a capital crime is tried jointly with a co-defendant charged with a non-capital crime. See Buchanan v. Kentucky, 483 U.S. 402, 97 L.Ed.2d 336, 107 S.Ct. 2906 (1987).
In this case, Pofter has not demonstrated a serious risk that a joint trial would compromise a specific trial right or prevent the jury from making a reliable determination of guilt or innocence. In light of the foregoing case law, therefore, the Court denies Porter's motion to sever his trial from his co-defendant's.
D. Duplicity
Defendant argues that Count Thirteen is duplicitous because it charges that Porter's discharge of a firearm occurred in relation to a conspiracy to possess with intent to distribute heroin, and in relation to distribution of crack. "Duplicity" in an indictment means the "joining in a single count of two or more distinct and separate offenses." 1A WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 3D § 142 at 7 (West 1999); see also United States v. Nguyen, 1999 WL 1220761 (E.D. La. 1999). The government concedes that it has joined two distinct and separate offenses in one count, but it argues that the evidence at trial will show that the heroin and crack charges are inextricably linked and together supplied the motive for Porter's shooting of Blouin. Defendant moves the Court to dismiss Count Thirteen, or in the alternative, to compel the government to elect one drug offense under which Porter is prosecuted in Count Thirteen. The Court agrees that the count is duplicitous, but does not agree with defendant as to the appropriate remedy.
Duplicity is not fatal to an indictment, but it may be problematic:
The vice of duplicity is that there is no way in which the jury can convict on one offense and acquit on another offense contained in the same count. A general verdict of guilty will not reveal whether the jury found the defendant guilty of one crime and not guilty of the others, or guilty of all. It is conceivable that this could prejudice defendant in sentencing, in obtaining appellate review, and in protecting against double jeopardy.
1A WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 3D § 142 at 16. The Fifth Circuit has indicated that duplicity may be cured by instructing the jury to indicate which offense (or offenses) it unanimously finds defendant guilty of. See United States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir. 1993); United States v. Holley, 942 F.2d 916, 928 n. 14 (5th Cir. 1991) (quoting United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir. 1988)) ("Courts rejecting duplicity challenges to multiple-predicate counts often premise their rulings on the condition that later augmented jury instructions will adequately protect the defendant against the risk of an ununanimous verdict."). Other federal circuits have adopted this approach. See, e.g., United States v. Karam, 37 F.3d 1280, 1285-86 (8th Cir. 1994) (citing cases) (holding that trial court's limiting jury instructions requiring jury unanimity in finding defendant guilty of at least one distinct act cured duplicity problems). In light of this case law, the Court denies defendant's motion to dismiss Count Thirteen or to compel the government to elect one drug statute under which to prosecute Porter. Instead, the Court will deal with the duplicity problem by giving appropriate jury instructions as to the findings to be made with respect to Count Thirteen.
E. Surplusage
Defendant argues that the language in Count Thirteen regarding Porter's discharge of a gun causing the attempted murder of Shantell Blouin is surplusage and should result in the dismissal of Count Thirteen or striking of the language. Rule 7(c) provides: "The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." FED. R. CRIM. P. 7(c). Federal Rule of Criminal Procedure 7(d) permits the court, on motion of a defendant, to strike surplusage from an indictment. FED. R. CRIM. P. 7(d). The rule is intended to "protect the defendant against prejudicial allegations of immaterial or irrelevant facts," which unnecessary allegations prosecutors have been known to insert "for 'color' or 'background' hoping that these will stimulate the interest of the jurors." 1 CHARLES A. WRIGHT, FEDERAL PRACTICE PROCEDURE § 127 at 634 (3d ed. 1999); see also Note to Rule 7(d). Motions to strike surplusage are subject to an "exacting" standard and are granted only when it is clear that the allegations are irrelevant, inflammatory, and prejudicial. See United States v. Johnson, 1999 U.S. Dist. LEXIS 22299, *3 (E.D. La. 1999) (citing United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)). Only rarely is a motion to strike surplusage granted. See, e.g., United States v. Herring, 2000 U.S. Dist. LEXIS 14125, *3-4 (E.D. La. 2000).
The government charges Porter with violating 18 U.S.C. § 924(c)(1)(A), which provides,
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime or drug trafficking crime —
. . . (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
FED. R. CRIM. P. 924(c)(1)(A). The conduct the government intends to prove in support of Count Thirteen is that Porter used a firearm by shooting Blouin and that the shooting was in relation to his drug trafficking activities. Therefore, the allegation that Porter shot Blouin is simply a statement of how the offense was committed. The allegation asserts one of the elements constituting the offense charged. Defendant does not address any Rule 7(c) or (d) jurisprudence, but rather argues that under Harris v. United States, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), the finding of whether Porter discharged a firearm is a sentencing factor to be determined by the judge at sentencing, not by the jury at trial. Defendant therefore argues that the government's inclusion of these facts in the indictment was improper. The Court agrees that Harris stands for the proposition that a defendant's rights to indictment, jury trial, and conviction upon proof of each element beyond a reasonable doubt are not violated if the government does not allege in the indictment and try a fact that would increase defendant's mandatory minimum sentence, such as brandishing or discharging a firearm under 18 U.S.C. § 924(c)(1)(A). See Harris, 122 S.Ct. at 2414. The Court does not agree that Harris precludes the government from alleging such facts in the indictment. The defendant has not cited any cases to support this argument, and case law shows that it is common to include discharging or brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A) in the indictment. See, e.g., United States v. Burton, 2003 U.S. App. LEXIS 4475, *1 (5th Cir. 2003) (including a count for "brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)"); United States v. Hodge, 2003 U.S. App. LEXIS 4328, *6 n. 2 (3d Cir. 2003) (including a count for "knowingly using, carrying, and discharging a firearm in the course of crimes relating to drug trafficking and a crime of violence . . . in violation of 18 U.S.C. § 924(c)(1)(A)(iii)"); United States v. Cope, 312 F.3d 757, 768 (6th Cir. 2002) (including a count that defendant "aided and abetted [co-defendant] in knowingly (using and carrying a .38 caliber handgun during and in relation to a crime of violence and, in so doing, discharging a firearm, all in violation of 18 U.S.C. § 924(c)(1)(A)").
The defendant has not met the exacting standard under Rule 7(d) of demonstrating that the allegations in Count Thirteen are irrelevant, inflammatory, and prejudicial. Thus, his motion to dismiss Count Thirteen on the grounds of surplusage is denied.
F. Suppression
1. Physical Evidence
Defendant moves the Court to suppress a gun and a key to 2818 Clara Street, Apartment D, that the police seized pursuant to arresting Porter on February 9, 2000. Defendant also moves to suppress guns, ammunition, and drug paraphernalia found in Apartment D after his arrest, which defendant argues were seized in violation of his reasonable expectation of privacy. On April 1, 2003, the Court heard testimony of Officer Raymond Veit and Sergeant Steven Gaudet, the New Orleans Police Department officers who were directly involved in the events of February 9, 2000. The Court also heard testimony of Richard Porter and Rhonda Peterson, the leaseholder of Apartment D. Considering the testimony and relevant law, the Court denies Porter's motion to suppress.
According to Officer Veit and Sergeant Gaudet, on the morning of February 9, 2000, Sergeant Gaudet received information from a documented confidential informant ("CI") whom the officers had relied upon in the past. (Test. of Veit, Gaudet.) Gaudet immediately relayed the information to Veit and other officers. (Test. of Veit.) The CI indicated that a man named "Whop" was in the back stairwell of 2827 Clara Street with a black male, and that Whop was selling heroin and in possession of an AK-47. (Test. of Veit, Gaudet.) The officers already knew that "Whop" was an alias for Richard Porter and knew what Porter looked like. ( Id.) Officer Veit testified that they were aware that Porter was involved in heroin trafficking in the Magnolia Housing Development and that he possessed firearms. (Test. of Veit.) The officers knew the Clara Street area to be a heavy drug trafficking area and knew that the stash houses for drugs and guns changed regularly. ( Id.) On the day in question, however, the officers sought out Porter on the basis of the information provided by the CI. (Test. of Veit, Gaudet.)
When Veit and Gaudet arrived at 2827 Clara Street, Veit quietly entered the back stairwell and saw Porter and another black male on the second-floor landing. (Test. of Veit.) The second male was counting white objects in a plastic bag he held, which Veit recognized as crack cocaine. ( Id.) According to Veit's police report, Porter was holding his left side, as if to retrieve a weapon. (N.O.P.D. Rep. at 8.) The two men did not see Veit at first, and Veit ordered them to put their hands up. (Test. of Veit.) The two men fled into Apartment C and slammed the door behind them. ( Id.) Veit kicked in the door and found the two men in the back bedroom. ( Id.) Porter was lying on the bed with his hands under the mattress. ( Id.) Veit saw the second man discard a plastic baggie near an air conditioning unit. ( Id.) Veit ordered Porter to show his hands and get up, which Porter did. ( Id.) Veit detained the two men and recovered the discarded baggie, which contained drugs. ( Id.)
The leaseholder of Apartment C, Katrina Green, was present at this time. ( Id.) She indicated that she knew Porter but had not given him permission to enter her apartment. ( Id.) She signed a consent form allowing Veit to search her apartment, during which Veit found a .38 caliber revolver under the mattress where Porter's hands had been. ( Id.; Gov't's Ex. 3.) Green told Veit that the weapon was not hers and that she would not keep weapons in her apartment because she has children. (Test. of Veit.)
Veit arrested Porter and recovered a large sum of cash and two keys from his pockets. ( Id.) Veit did not recover or see the AK-47 or heroin that the CI had predicted would be present. ( Id.) Shortly after Porter's arrest, Veit received a second phone call from a second documented CI, whom the police knew to be reliable from past experience. (Test. of Veit, Gaudet.) The second CI indicated that Whop had a key to an abandoned Apartment D across the courtyard, in which weapons and bagged heroin could be found. ( Id.) Pursuant to this information, Veit, Gaudet, and other officers left 2827 Clara Street, Apartment C and entered 2818 Clara Street, Apartment D through the front door with Porter's key. ( Id.) The apartment did not appear to be occupied. (Test. of Veit.) The officers noticed that the apartment had no furnishings and looked abandoned. ( Id.) There were some items scattered in one room, such as an ironing board, a mop, a waste basket, a dresser, some electronic equipment, a lawn chair, and some mattresses leaned upright against a wall. (Gov't's Ex. 1 in globo.) Veit testified that these items were not situated as they would be in a furnished apartment. (Test. of Veit.) In this same room, the officers saw numerous firearms, including AK-47s, pistols, and shotguns, ammunition, and tin foil packages all over the floor and stashed in corners. (Test. of Veit, Gaudet.) All of the other rooms were completely vacant. (Test. of Veit.)
Porter testified that, on the morning of February 9, 2000, he was never in the stairwell of 2827 Clara Street. (Test. of Porter.) Rather, Porter stated that he had been playing video games in Katrina Green's apartment with several friends for about forty-five minutes, when the police suddenly kicked in the door and told everyone to get down on the ground. ( Id.) Porter stated that Officer Veit asked Porter what he was doing there. ( Id.) Veit then recovered a .38 caliber revolver from inside a dresser in Green's apartment. ( Id.) Porter stated that the gun was Green's. ( Id.) Porter stated that he did not see the officers recover any drugs. ( Id.)
Porter identified several places where he had been living as of February 9, 2000, but he did not identify 2818 Clara Street, Apartment D as one of them. ( Id.) He stated that he had keys to those residences, but did not have the keys with him on the day of his arrest. ( Id.) He stated that he sometimes slept at Apartment D. ( Id.) He stated that he had a sublease arrangement, or a "contract," with the leaseholder of 2818 Clara Street, Apartment D. ( Id.) He could not remember the leaseholder's name, and he did not produce any evidence of a sublease arrangement with the leaseholder. ( Id.) He indicated that he kept some articles of clothing at Apartment D. ( Id.) The government's photographs of Apartment D reveal a few items of clothing in the main room where the contraband and random pieces of furniture were found. (Gov't's Ex. 1 in globo.) Porter stated that he did not know anything about the guns and drug paraphernalia stashed in the room where he left his clothing. ( Id.) He stated that he did not know to whom the contraband belonged. ( Id.)
Finally, Rhonda Peterson, the leaseholder of Apartment D, testified that she had moved out of Apartment D in either December of 1999 or January of 2000. (Test. of Peterson.) When she moved out, she left the belongings that she did not want to keep, such as a bedroom set. ( Id.) She testified that she did not contact the Housing Authority of New Orleans when she moved out, and the apartment was still in her name in February of 2000. ( Id.) She was familiar with the various individuals who lived and spent time in the Magnolia Housing Development. ( Id.) She was aware that some men from the Magnolia Housing Development were using Apartment D, but she did not tell the Housing Authority because she still lived in that neighborhood and feared for her safety. ( Id.) She did not know that "Whop" was one of the individuals who used her apartment, but she did know who Whop was and was able to identify him in the courtroom. ( Id.) She testified that she never gave permission, keys, or a contract to Whop or anyone else to use Apartment D. ( Id.) She also had no knowledge of anyone else who paid rent for Apartment D in February of 2000. ( Id.) When the police contacted her to inform her that they had found guns in Apartment D, she told the police that the guns were not hers and signed a statement to that effect. ( Id.; Gov't's Ex. 4.)
The Court finds the testimony of Officer Veit, Sergeant Gaudet, and Rhonda Peterson to be credible. The police officers' testimony was consistent with each other's and with Veit's contemporaneous, detailed police report, and no inconsistencies were elicited by the defendant on cross-examination. On the other hand, the Court does not find the testimony of Richard Porter to be credible, and defendant called no other witnesses to corroborate his story that he was never in the 2827 Clara Street stairwell and that he had a sublease agreement with Peterson. The Court also takes notice of the fact that defendant did not raise and brief this version of the facts until he filed a reply brief, months after he filed an original brief in support of his motion to suppress. In his original brief, Porter did not dispute that he was in the stairwell with a man holding a baggie of crack cocaine, but focused instead on whether the CI's tip was sufficiently corroborated and whether an unlawful Terry stop had occurred.
Although in general, on a motion to suppress, the defendant has the burden of proving by a preponderance of the evidence that the material in question was seized in violation of his constitutional rights, there are several situations where the burden shifts to the government. United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 479, 53 L.Ed.2d 249 (1977). The government bears the ultimate burden of proof if a defendant produces evidence that he was arrested or subject to search without a warrant. See id. In this case, because it is undisputed that the arrest and seizures were made without warrants, the government bears the burden of proving it had reasonable suspicion to arrest Porter.
An investigatory stop is proper only if based on reasonable suspicion that "criminal activity is afoot." Terry v. Ohio, 392 U.S. 1, 30, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). If an officer observes suspicious activity, the Fourth Amendment requirement is satisfied if there is a "minimal level of objective justification for the officer's actions, measured in the light of the totality of the circumstances." United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (citing United States v. Sokolow, 490 U.S. 1, 6-8, 104 L.Ed.2d 1, 109 S.Ct. 1581 (1989)). When Officer Veit arrived at the stairwell of 2827 Clara Street, he observed suspicious activity, specifically, a man counting pieces of crack cocaine in a baggie he was holding in front of Porter, and Porter holding his left side as if to retrieve a gun. Thus, Officer Veit saw Porter and his companion conducting what appeared to be a drug deal, giving rise to the officer's reasonable suspicion. See, e.g., United States v. Watson, 953 F.2d 895, 896 (5th Cir. 1992) (holding reasonable suspicion existed when an officer, at 3:30 a.m., saw an individual in a car appear to conceal or retrieve something on the car floor); United States v. Lopez-Gonzalez, 916 F.2d 1011, 1014 (5th Cir. 1990) (holding reasonable suspicion existed to justify a Terry stop near the Mexican border after United States Border Patro1 officers observed illegal activity, even though the tip was semi-anonymous and even though the tipster's details were not all correct).
Reasonable suspicion, moreover, does not have to be based on a personal observation, but can be based on information provided by a confidential informant, if the information possesses Ivan indicia of reliability." Adams v. Williams, 407 U.S. 143, 147, 32 L.Ed.2d 612, 92 S.Ct. 1921 (1972) In examining the totality of the circumstances, the "informant's veracity, reliability, and basis of knowledge . . . [are] important factors; however, 'a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or some other indicia of reliability.'" United States v. Jackson, 818 F.2d 345, 348 (5th Cir. 1987) (quoting Illinois v. Gates, 462 U.S. 213, 233, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983)). In this case, the information the police possessed about Porter's presence and activities in the stairwell had sufficient indicia of reliability because Sergeant Gaudet had worked with the informant in the past, and the informant had previously given him reliable information leading to arrests and convictions. In addition, the Court conducted an in camera examination of the CI's documented assistance provided to law enforcement and finds that the CI's record of providing reliable information to law enforcement leading to arrests, convictions, and drug and gun seizfres is extensive.
Further, independent police work can corroborate details in an informant's tip. See Illinois v. Gates, 462 U.S. 213, 241, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983). In this case, the CI identified the suspect by the name "Whop," an alias which the police knew Porter used. The police were aware that Porter was involved in drug trafficking activity in the Magnolia Housing Development, and knew that the Clara Street area was notorious for drug trafficking. The CI identified the exact location where Whop could be found, in the back stairwell of 2827 Clara Street. The CI also predicted that Whop would be there with another black man, dealing heroin and in possession of an AK-47. Although the CI was mistaken as to the identity of the black man who was with Porter and as to the drug involved, the police were able to corroborate that Porter was in the stairwell the CI had identified, with a black male, apparently conducting a drug deal. Further, although the CI was mistaken that Porter possessed an AK-47 on the scene, the police were able to corroborate that Porter appeared to be clutching a firearm at his side before he fled. The Court finds, therefore, that the CI's information contained sufficiently accurate detail to give rise to the officers' reasonable suspicion that criminal activity was afoot. Once the police arrived at the stairwell and were able to identify Porter and observe what appeared to be a drug deal and Porter's possession of a concealed firearm, the officers' reasonable suspicion was corroborated by independent police investigation. See, e.g., United States v. Wangler, 987 F.2d 228, 229 (5th Cir. 1993) (holding that officer had reasonable suspicion to stop defendant after he observed defendant arrive in the truck described by the informant and corroborated the tip through independent police work and direct observation).
Lastly, the Fifth Circuit has held that, when police officers clearly identify themselves, a defendant's attempt to flee "ordinarily supplies another element to the reasonable suspicion calculus" and "may occasionally serve as the catalyst to convert mere reasonable suspicion to probable cause." United States v. Holloway, 962 F.2d 451, 461 (5th Cir. 1992) (quoting United States v. Amuny, 767 F.2d 1113, 1124 (5th Cir. 1985)). In this case, Officer Veit clearly identified himself as police and ordered Porter and his companion to put their hands up. When they did not comply and instead fled into Apartment C and slammed the door, the police's reasonable suspicion that criminal activity was afoot, having already been corroborated by Veit's observation of an apparent drug deal, was elevated to probable cause.
Once a person is arrested, law enforcement officers may conduct a search incident to arrest of the area within the arrestee's immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969) When Veit apprehended Porter in Apartment C, therefore, it was proper for him to search Porter's person and immediate surroundings. Further, Veit obtained the leaseholder's consent to search the apartment for guns and drugs. The police committed no error in conducting these searches without a warrant.
In sum, the government has satisfied its burden of proving that the arrest and search incident to arrest that the New Orleans police conducted did not violate Porter's constitutional rights.
Finally, the Court finds that Porter has no standing to challenge the police's search of 2818 Clara Street, Apartment D and the seizure of various guns, ammunition, and drug paraphernalia found there. Porter claims a reasonable expectation of privacy in Apartment D under the Fourth Amendment, yet he has provided no evidence of a lease or any legitimate reason for him to have access to Apartment D. Mere possession of a key to Apartment D and the presence of a few items of clothing there does not show that Porter is its owner or lessee, or even that he is a legitimate overnight guest. Further, the leaseholder's uncontested testimony proves that Porter had no basis to claim a reasonable expectation of privacy in Apartment D, as she was the lawful tenant and she had never authorized him to use her apartment.
For the foregoingreasons, Porter's motion to suppress all physical evidence obtained pursuant to his arrest on February 9, 2000 is denied.
2. Photographic Identification
On July 27, 2001, the day of Shantell Blouin's shooting, Witnesses DD and EE chose Porter out of two six-person photographic arrays, each array portraying the suspects in a different order, administered to them by New Orleans Police Department Detective Carl Thibodeaux. On August 2, 2001, Shantell Blouin also picked Porter out of one of these six-person arrays. Defendant has had the opportunity to review the arrays used by Thibodeaux and has indicated to the Court that he does not find them unduly suggestive. The Court undertook an in camera examination of the arrays and likewise concludes that they were not suggestive. They contain photographs of six African American males of similar age, hairstyle, build, and attire. ( See Gov't's Ex. 1 in globo.)
The government states that it does not intend to use Witnesses DD and EE at trial for the purpose of identifying Porter as Blouin's shooter. Nonetheless, in the event that the government changes it mind, the Court addresses the issue of their photographic identifications.
Instead, defendant challenges the procedure used by Thibodeaux as unduly suggestive and prejudicial. Therefore, at the hearing on April 1, 2003, the Court heard testimony from Thibodeaux. Thibodeaux stated that Witness DD said he/she had seen Porter in the neighborhood the day before the shooting, carrying a gun and looking for Blouin. (Test. of Thibodeaux.) Thibodeaux also stated that Witness EE said that, shortly after the shooting, Blouin told him/her that Porter was the shooter. ( Id.) Thibodeaux testified that he did not threaten, coerce, or make promises to the witnesses or Blouin during their photographic identifications. ( Id.) Further, Thibodeaux testified that all three individuals knew Porter before they saw the photographic arrays. ( Id.) On cross-examination, the defendant did not elicit any testimony to cast doubt on the propriety of Thibodeaux's administration of the photographic arrays. The Court finds no reason to suppress the photographic identifications made by Witnesses DD and EB and Shantell Blouin, and the Court therefore denies defendant's motion.
3. Jailhouse Confession
Sometime after August 10, 2001 and before October 12, 2001, while in custody on a charge of being a felon in possession of a firearm, Porter allegedly confessed to Witness W, another prison inmate, that he ordered the March 13, 2001 killing of Leonard Morgan. Specifically, the government alleges that Porter told Witness W that he gave Johnny Davis the "green light to take care of Morgan." Defendant moves to suppress this statement on the grounds that it was obtained in violation of his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel.
In order to prove a violation of these rights, defendant requests an evidentiary hearing to determine whether Witness W was working as a cooperating government witness at the time Porter allegedly confessed. The government states that Witness W was not a cooperating witness between August 10 and October 12, 2001. Before addressing that issue, the Court must resolve the threshold issue of whether Porter's Sixth Amendment right to counsel had attached when he made the statement. If it did not, whether Witness W was a cooperating witness is irrelevant.
A defendant's Sixth Amendment right to counsel does not attach until formal judicial proceedings, such as a formal charge, preliminary hearing, indictment, information, or arraignment, have been initiated against him. See United States v. Gouveia, 467 U.S. 180, 187-88, 81 L.Ed.2d 146, 104 S.Ct. 2292 (1984) The Sixth Amendment right to counsel is offense-specific and does not prevent law enforcement from questioning a defendant about unrelated or uncharged criminal activity. See McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L.Ed.2d 158, 111 S.Ct. 2204 (1991) The issue, therefore, is whether formal judicial proceedings against Porter for the murder of Morgan had already been initiated when Porter made the alleged statement to Witness W about his role in the murder.
In its Rule 12 and Rule 16 disclosures, the government states that Porter made the alleged confession after August 11, 2001 and before October 12, 2001. During that time period, on August 17, 2001, Porter was indicted on the felon-in-possession count. ( See Cr. 01-229, Rec. Doc. No. 1.) No formal charge, preliminary hearing, indictment, information, or arraignment was initiated against Porter on the Leonard Morgan murder charge until October 12, 2001, after he made the alleged confession. In fact, Witness W testified about Porter's confession at the grand jury hearing which preceded the October 12, 2001 indictment. Therefore, Porter's Sixth Amendment right to counsel had not attached on the Morgan murder charge (or any charge other than the felon-in-possession count, for that matter) while he was in custody before October 12, 2001. Any confession he allegedly made to Witness W, even if Witness W was a cooperating government agent at the time, was not received in violation of Porter's right to counsel.
On October 25, 2001, the government dismissed without prejudice its August 17, 2001 indictment against Porter, having joined that felon-in-possession count in the October 12, 2001 indictment. The October 12, 2001 indictment was the original indictment in the present case against Porter.
The Supreme Court recently created a narrow exception to the rule that the Sixth Amendment is offense specific by holding that the Sixth Amendment right to counsel also attaches to uncharged offenses that would be considered the "same offense" under Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306, 52 S.Ct. 180 (1932). See Texas v. Cobb, 532 U.S. 162, 173, 149 L.Ed.2d 321, 121 S.Ct. 1335 (2001) To resolve whether the charged offense and the uncharged offense are the same under the Blockburger test, the Court must determine whether "each provision requires proof of a fact which the other does not." Cobb, 532 U.S. at 173 (quoting Blockburger, 284 U.S. at 304). In this case, the uncharged offense — murder of Leonard Morgan during and in relation to a drug trafficking crime — requires proof of facts which the charged offense — felon in possession — does not. Thus, the charges are not the same, and the Sixth Amendment right to counsel does not attach under the Blockburger test.
Defendant also asserts conclusorily that his alleged confession was obtained in violation of his Fifth Amendment right to remain silent. He does not cite to law or facts to support this assertion. In any event, Supreme Court case law makes clear that no Fifth Amendment violation occurred here:
Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. . . . [P]lacing an undercover agent near a suspect in order to gather incriminating information was permissible under the Fifth Amendment. . . . [D]etention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent to speak with an incarcerated suspect makes any confession thus obtained involuntary.Illinois v. Perkins, 496 U.S. 292, 298-99 (1990) Courts have routinely rejected Fifth Amendment challenges to jailhouse confessions given to undercover law enforcement agents when there was no evidence of coercion. See, e.g., Alexander v. State of Connecticut, 917 F.2d 747, 750-51 (2d Cir. 1990) (self- incrimination rights and right to counsel not violated by murder confession given to acquaintance visiting in jail who was secretly working for government), cert. denied, 501 U.S. 1219, 111 S.Ct. 2831, 115 L.Ed.2d 1000 (1991); United States v. Willoughby, 860 F.2d 15, 23, 24 (2d Cir. 1988) (prisoner not entitled to Miranda warnings before recorded conversations with his girlfriend, who had turned informant, since no compulsion), cert. denied, 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989); Flittie v. Solem, 751 F.2d 967, 973-74 n. 11 (8th Cir. 1985) (court refused to suppress videotaped statement of defendant, in prison on an unrelated crime, while talking with one-time friend turned police informant), cert. denied, 475 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d 333 (1986) In light of this clear authority, and in the absence of any argument by defendant as to how the Perkins rule does not apply in this case, the Court denies defendant's motion to suppress based on the Fifth Amendment.