United States v. Johnson

UNITED STATES OF AMERICA v. PAUL RUSSELL JOHNSON and STEPHEN CHASE RANDOLPH, Defendants.

CRIMINAL No. 21-0332 (PLF)

United States District Court, District of Columbia

December 14, 2021

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge

The United States filed a Motion to Convert the December 14, 2021 Hearing for Defendant Paul Russell Johnson's Motion to Suppress to a Status Conference ("Mot. to Convert") [Dkt. No. 64]. In view of the "myriad issues raised in the parties' briefing thereto," the Court vacated the December 14 hearing and status conference for both defendants. See December 10, 2021 Minute Order. This Memorandum Opinion and Order provides the Court's reasoning in greater detail.

With the agreement of the parties, the Court had scheduled a motions hearing for oral argument on Mr. Johnson's Motion to Suppress Electronic Evidence or, in the Alternative, to Appoint a Special Master [Dkt. No. 66] for December 14, 2021. Order [Dkt. No. 53]. On December 9, 2021, the United States filed its motion to convert that motions hearing into a status conference. According to the government, Mr. Johnson served twelve subpoenas on the FBI on December 7, 2021 seeking the oral testimony of twelve FBI agents at the hearing. See Mot. to Convert at 1. In support of its motion to convert, the government argued that the subpoenas are unreasonable and oppressive because a suppression hearing featuring oral testimony of any kind - let alone that of a dozen FBI agents - is unnecessary to resolve the issues raised in Mr. Johnson's motion to suppress. See Id. at 2. In the government's view, there are no disputed material facts at issue. See id.

In his response to the motion to convert, Mr. Johnson argued that there are at least three disputed facts at issue in the motion to suppress: (1) whether the government executed the search warrant at the wrong address; (2) whether the government obtained the four walkie-talkies at issue by opening a locked safe without a warrant; and (3) whether Mr Johnson has a privacy interest in his wife's phone. See Response in Opposition to Government's Motion to Convert the December 14, 2021 Hearing for Defendant Paul Russell Johnson's Motion to Suppress to a Status Conference [Dkt No. 69] at 3; see also Reply in Support of Paul Russell Johnson's Motion to Suppress Electronic Evidence or, in the Alternative, to Appoint a Special Master [Dkt, No. 71] at 2-3, 6-8. As the United States notes, however, Mr. Johnson did not raise any of these bases for suppression of the seized evidence in his motion to suppress and instead raised them for the first time in his reply. See Reply in Support of Government's Motion to Convert the December 14, 2021 Hearing for Defendant Paul Russell Johnson's Motion to Suppress to a Status Conference [Dkt. No. 70] at 1-2.

"Generally new arguments raised for the first time in reply may be disregarded due to concern that the opposing party would lose an opportunity to respond." United States v. Brown, 249 F.Supp.3d 287, 295 n.1 (D.D.C. 2017) (internal quotation omitted). "Considering an argument advanced for the first time in a reply brief... is not only unfair to an [opposing party] but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered." McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (...