United States v. Joyner

1

UNITED STATES OF AMERICA v. EROY THOMAS JOYNER, JR.

No. 1:22-cr-242-ECM-JTA

United States District Court, M.D. Alabama, Southern Division

July 18, 2023

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND ORDER

JERUSHA T. ADAMS, UNITED STATES MAGISTRATE JUDGE.

This cause is before the court on the numerous pretrial motions filed by pro se Defendant Leroy Thomas Joyner, Jr. (“Joyner”). (Docs. No. 48, 49, 50, 51, 109.) After due consideration of the parties' briefs and applicable law, the undersigned recommends that the motions to dismiss the indictment (Docs. No. 48, 49, 50, 51) be denied. In addition, the undersigned orders that the defendant's motion for leave to file an out of time pretrial motion (Doc. No. 109) be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

On August 16, 2022, a grand jury sitting in the Middle District of Alabama returned a single-count indictment against Defendant. (Doc. No. 1.) The indictment alleges between September 2015 and September 2018, in Dale County, Alabama and elsewhere, Defendant knowingly transported a minor in interstate or foreign commerce with the intent that the minor engage in sexual activity for which any person can be charged with a criminal offense, in violation of 18 U.S.C. § 2423(a). (Id.) The indictment specifically charges Defendant with transporting the minor victim between the State of Alabama and the State of Georgia with the intent that the minor victim engage in sexual activity for which a person could be charged with a criminal offense under Georgia Code Ann. § 16-6-3. (Id.)

Defendant pled not guilty to the charge (Doc. No. 12) and is proceeding pro se (Doc. No. 64). This matter is set for trial on October 30, 2023. (Doc. No. 124.)

However, this case is not the first time the Government has prosecuted Defendant for the alleged conduct at issue. Defendant has faced prosecution for the same conduct in two prior cases: United States v. Joyner, Case No. 1:20-cr-33-ECM-SMD and United States v. Joyner, Case No. 1:21-cr-339-RAH-SRW.

On November 18, 2021, United States Magistrate Judge Susan Russ Walker provided a detailed account of the facts underlying the prosecution of Defendant and the procedural history of the Government's prior prosecutions of Defendant in a Report and Recommendation. See United States v. Joyner, Case No. 1:21-cr-339-RAH-SRW, 2021 WL 6751606 (M.D. Ala. 2021). For the sake of judicial efficiency, the undersigned recites Judge Walker's Recommendation below:

Defendant is a tennis coach, and he was in his late forties at the time of the alleged offense. (Doc. 51-1, at 6, 60).^[1] From 2013 to 2018, Defendant operated Grassroots Tennis Association out of Ozark, Alabama. Id. at 6-8, 11-12, 42. Defendant provided tennis lessons and home-schooling to a group of children. Id. at 11-12. Defendant also took the students to compete in tennis tournaments located in Alabama and several surrounding states. Id. at 64-65.

In January 2019, FBI Special Agent Heather Holt Whelan began investigating allegations that Defendant had sexually abused one of his female students, C.S., who, at that time, was 15 years old and living in Ozark, Alabama. Id. at 35-37, 58-60. During an interview with Whelan, C.S. alleged that, between 2017 and 2018, she and Defendant had approximately 20 sexual encounters, including vaginal and oral sex. Id. at 60, 62-64. Whelan testified that the encounters reportedly occurred in both Alabama and Georgia. Id. at 61-62.

The Government originally charged Defendant on February 12, 2020 with aggravated sexual abuse of a child between the age of 12 and 16, in violation of 18 U.S.C. § 2241(c). (Case No. 1:20-cr-00033, Doc. 1). On October 27, 2020, the Government charged Defendant by superseding indictment with knowingly transporting a minor in interstate commerce with the intent that the minor engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). (Case No. 1:20-cr-00033, Doc. 31). Specifically, the indictment charged that Defendant knowingly transported C.S. from Alabama to Georgia with the intent that C.S. engage in sexual activity for which someone could be charged under Ala. Code § 13A-6-62. Id. Defendant filed multiple pretrial motions, including a motion to dismiss the superseding indictment for failure to state an essential element of § 2423(a). (Case No. 1:20-cr-00033, Doc. 61, at 1). Defendant argued, among other things, that once the minor crossed into Georgia, she could not have engaged in sexual activity for which a person could be charged under Ala. Code. § 13A-6-62. Id. at 3-6.

On June 10, 2021, United States Magistrate Judge Stephen Doyle entered a Report and Recommendation (“R&R”) recommending that the superseding indictment be dismissed without prejudice because the Government failed to state an essential element of § 2423(a). United States v. Joyner, No. 1:20-CR-33, 2021 WL 3206797, at *1, 5, 7 (M.D. Ala. June 10, 2021). The Government did not file an objection to the R&R, but instead moved to dismiss the superseding indictment without prejudice. (Case No. 1:20-cr-00033, Doc. 94). On June 21, 2021, the district court granted the Government's motion and dismissed the superseding indictment without prejudice. (Case No. 1:20-cr-00033, Doc. 95).

On July 14, 2021, the Government secured the current indictment, which charges that Defendant transported a minor from Alabama to Georgia with the intent that she engage in sexual activity for which someone could be charged with a criminal offense under Ala. Code. § 13A-6- 62 and/or Ga. Code § 16-6-3. (Case No. 1:21-cr-00339, Doc. 1).

Id. at *1-*2. In her Recommendation, Judge Walker recommended that the indictment be dismissed without prejudice because it charged the criminal offense in the disjunctive which made the indictment legally defective. Id. at *7. The Government did not file an objection to Judge Walker's Recommendation, but instead moved to dismiss the indictment without prejudice. Case No. 1:21-cr-339-RAH-SRW, Doc. No. 71. On January 27, 2022, the court granted the Government's motion and dismissed the indictment without prejudice. Case No. 1:21-cr-339-RAH-SRW, Doc. No. 79.

As noted at the outset, the Government secured the present indictment against Defendant on August 16, 2022. (Doc. No. 1.) Defendant now moves to dismiss the present indictment in four separate motions: Renewed Motion to Dismiss Indictment (Doc. No. 48), Renewed Motion to Dismiss Indictment Pursuant to Rule 48(b) and the Speedy Trial Act (Doc. No. 49), Renewed Motion to Dismiss Indictment for Violation of Due Process (Doc. No. 50), and Renewed Motion to Dismiss Indictment for Failure to Preserve Evidence (Doc. No. 51). Defendant also has filed a Motion to Dismiss Based Upon Newly Discovered Evidence of Prosecutorial Misconduct (Doc. No. 109) which the court construed as a motion for leave to file an out of time pretrial motion (Doc. No. 110).

The Government opposes each motion. (Docs. No. 56, 57, 61, 62, 110.) Defendant has filed replies. (Docs. No. 60, 68, 69, 70, 114.) The undersigned conducted a three-part evidentiary hearing on the motions.^[2] (Doc. No. 125, Tr.; Doc. No. 126, Tr.; Doc. No. 127, Tr.) Hence, the motions are ripe for disposition.

II. STANDARD OF REVIEW

“[A] defendant may challenge an indictment on a variety of ... grounds, including for failure to state an offense, lack of jurisdiction, double jeopardy, improper composition of the grand jury, and certain types of prosecutorial misconduct.” United States v. Kaley, 677 F.3d 1316, 1325 (11th Cir. 2012). An indictment “may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.” United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987). The indictment's allegations are assumed to be true and are viewed in the light most favorable to the government. See id. Additionally, “[t]he sufficiency of a criminal indictment is determined from its face.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). See also United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006).

III. DISCUSSION

A. Destruction of Evidence

At the outset, the undersigned finds it necessary to address an issue which is central to many of the motions currently before the court. Defendant repeatedly asserts in numerous motions that the Government has destroyed evidence. (Docs. No. 49, 50, 51, 109.) Defendant asserts that, in July 2019 during the investigation of this case, the Government obtained phone records and content of text messages from the alleged victim's phone by issuance of a subpoena to Verizon Wireless. (Doc. No. 49 at 2.) Defendant asserts that the Government provided “subpoenaed text message records” to him in November 2020, but failed to provide the “alleged victim's missing SMS/MMS and outgoing/incoming call records.” (Id.; Doc. No. 50 at 4, 6.) Defendant argues these records existed because a law enforcement agent testified as to their existence in a detention hearing in June 2020 in a prior prosecution. (Doc. No. 50 at 4) (“Under oath, law enforcement testified to the existence of a historicals [sic] report (SMS/MMS and Outgoing/Incoming Call Records) subpoenaed for which numbers were in contact with which numbers.”) (internal quotations omitted).^[3] Defendant tried to obtain the records on his own through a subpoena to Verizon Wireless but was unsuccessful because, according to Verizon Wireless, it only maintains call and text records for its subscribers for 365 days and the records subpoenaed by the Government were “past retention and no longer available.” (Doc. No. 49-1 at 2, 3.)

In his motions to dismiss, Defendant argues the Government destroyed the alleged victim's SMS/MMS records,...