United States v. Morales

668 F.Supp.3d 774

UNITED STATES of America v. [1]Humberto MORALES, [2]Jose Alvarado, [3]Oscar Avelar Angutano, [4]Kim Lamont Birdsong, [5]Terrance Marquette Bobo, [6]Avigael Cruz, [7]Billy Cruz, [8]Ricardo Davalos Martinez, [9]Austin Dodd, [10]Mario Garcia Flores, [11]David Ku, [12]Jacob Lee, [13]Justin Blake Lee, [14]Armando Lopez, [15]Tiffany Messick, [16]Kevin Oliva-Hernandez, [17]Stacy Owens, [18]Korrine Parker, [19]Magdiel Pina Ramirez, [20]Luis Ramirez Escudero, [21]Jairo Rostran, [22]Jesse Sanchez, [23]Phillip Christopher Smith, [24]Jasmine Taylor, [25]Kevin Tidwell, [26]Melinda Tidwell, [27]Erika Vasquez.

No. 3:21-CR-00022

United States District Court, M.D. Tennessee, Nashville Division

Filed April 6, 2023

Juliet Aldridge, Philip H. Wehby, Assistant U.S. Attorneys, Office of the United States Attorney, Nashville, TN, for United States of America.

Paul J. Bruno, Barrett Johnston Martin & Garrison, LLC, Nashville, TN, Heather G. Parker, Evans Bulloch Parker PLLC, Murfreesboro, TN, for Defendant Humberto Morales.

Thomas J. Drake, Jr., Law Office of Thomas J. Drake, Nashville, TN, Joshua L. Brand, Brand Law Office, Nashville, TN, for Defendant Jose Alvarado.

John M. Bailey, IV, Brentwood, TN, Meggan B. Sullivan, Nashville, TN, for Defendant Oscar Avelar Anguiano.

Kathleen G. Morris, Public Defender, Nashville, TN, for Defendant Kim Lamont Birdsong.

Jennifer L. Thompson, Manuel B. Russ, Nashville, TN, for Defendant Terrance Marquette Bobo.

Erik R. Herbert, Erik R. Herbert, Attorney at Law, Nashville, TN, Byron L. Pugh, Byron Pugh Legal, Nashville, TN, for Defendant Avigael Cruz.

Peter J. Strianse, Tune, Entrekin & White, P.C., Nashville, TN, for Defendant Billy Cruz.

Barry J. McWhirter, McWhirter Law Firm, PLLC, Memphis, TN, David L. Cooper, Law Office of David L. Cooper, P.C., Nashville, TN, Leonard E. Lucas, III, The Law Firm of Leonard Earl Lucas, Nashville, TN, for Defendant Ricardo Davalos Martinez.

Robert Lynn Parris, Robert L. Parris, Attorney at Law, Memphis, TN, for Defendant Austin Dodd.

Lawrence James Arnkoff, Law Office of Lawrence Arnkoff, Brentwood, TN, Jay C. Clifton, III, Clifton Law Office, Nashville, TN, for Defendant Mario Garcia Flores.

Charles S. Mitchell, Black, McLaren, Jones, Ryland & Griffee, P.C., Memphis, TN, James William Price, Jr., Nashville, TN, for Defendant David Ku.

Stephen R. Leffler, Law Office of Steven R. Leffler, P.C., Memphis, TN, Michael J. Stengel, Memphis, TN, for Defendant Jacob Lee.

James A. Simmons, Hazel Path Mansion, Hendersonville, TN, C. Anne Tipton, Memphis, TN, for Defendant Justin Blake Lee.

Michael R. Mazzoli, Scott C. Cox, Scott Coleman Cox, II, Cox & Mazzoli PLLC, Louisville, KY, for Defendant Armando Lopez.

David M. Hopkins, David M. Hopkins, Attorney at Law, Murfreesboro, TN, for Defendant Tiffany Messick.

Luke A. Evans, Evans Bulloch Parker PLLC, Murfreesboro, TN, Courtney Alandra Teasley, The Courtney Teasley Law Firm, Nashville, TN, for Defendant Kevin Oliva-Hernandez.

Michael James Passino, Nashville, TN, William Harris Farmer, Farmer Purcell White & Lassiter, PLLC, Nashville, TN, for Defendant Stacy Owens.

Matthew M. Maddox, Public Defender, Maddox, Maddox & Maddox, Huntingdon, TN, Lee Gerald, Lee Howard Gerald, Law Office of Lee Gerald, Memphis, TN, for Defendant Korrine Parker.

Norman D. McKellar, The McKellar Law Firm, PLLC, Memphis, TN, for Defendant Luis Ramirez Escudero.

George Travis Hawkins, Hawkins Law Firm, PLLC, Chattagnooga, TN, Thomas F. Bloom, Nashville, TN, for Defendant Jairo Rostran.

Vakessha Hood-Schneider, Franklin, TN, Christopher B. Sullivan, Lewis Thomason, Memphis, TN, for Defendant Jesse Sanchez.

David R. Heroux, Haymaker & Heroux, P.C., Nashville, TN, for Defendant Phillip Christopher Smith.

Benjamin H. Perry, Nashville, TN, for Defendant Jasmine Taylor.

Juni S. Ganguli, Ganguli Law Firm, Memphis, TN, Matthew C. Gulotta, The Gulotta Firm, PLLC, Memphis, TN, Bob Lynch, Jr., Nashville, TN, for Defendant Kevin Tidwell.

David I. Komisar, Law Office of David I. Komisar, Nashville, TN, for Defendant Melinda Tidwell.

MEMORANDUM OPINION AND OMNIBUS ORDER

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

On March 24, 2021, a federal grand jury returned an 18-count Indictment against the above named Defendants. Count One alleges that beginning in January 2018, and until the date of the Indictment, all 27 Defendants were members of a conspiracy to distribute assorted controlled substances, including heroin, methamphetamine, fentanyl and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. Count Two alleges that most of the Defendants during that same period conspired to commit money laundering in an effort to hide the source of income derived from illegal drug trafficking in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i). Count Three is another count against all Defendants alleging that, during the same January 2018 to March 2021 period, they used encrypted communication services, telephones, mobile devices, the United States Mail, and commercial parcel delivery services to facilitate their drug trafficking operations. Count 4 is another charge leveled against the majority of the Defendants wherein it is alleged that they possessed a firearm during and in relation to the overall drug trafficking conspiracy in violation of 18 U.S.C. §§ 924(c)(1)(A), 2.

The remaining 14 counts are date- and Defendant-specific and allege a myriad of crimes. Those crimes include, but are not limited to: transmitting threats of injury and/or death to a co-defendant and members of his family in violation of 18 U.S.C. § 875(c) (Count Five); attempted possession of illegal drugs on a specific date in violation of 21 U.S.C. § 841(a)(1) (Counts Seven, Nine, Fourteen); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Eight, Ten, Fifteen); possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924; kidnapping and maiming an individual to punish her for losing drug proceeds in violation in violation of 18 U.S.C. §§ 1201(a)(1), (c) (Counts Twelve, Thirteen); possessing a firearm while an unlawful user of a controlled substance or addict in violation of 18 U.S.C. § 922(g)(3) (Count Sixteen); and unlawfully possessing a machine gun in violation of 18 U.S.C. §§ 922(o), 924 (Count Seventeen). The Indictment also includes a forfeiture Count in which all but a handful of Defendants are named.

Since the return of the Indictment, and with a three month trial scheduled to begin on September 6, 2023, a number of Defendants have indicated that they have reached (or are in the process of reaching) a plea agreement with the Government or intend to enter a plea without an agreement. Many of those that remain have filed pretrial motions in accordance with the August 22, 2022 Amended Scheduling Order. (Doc. No. 894 at 3). It is those motions that are the subject of this Memorandum Opinion.¹

By this Court's count, there are 16 substantive motions pending brought by 9 Defendants. Those motions can be considered collectively as falling into one of six categories: (1) to sever; (2) for a bill of particulars; (3) for early disclosure; (4) to dismiss; (5) to suppress; and (6) for a hearing.

I. Motions to Sever

Motions to Sever have been filed by Kevin Tidwell (Doc. No. 1129), Austin Dodd (Doc. No. 1131), Jose Alvarado (Doc. No. 1144), Melinda Tidwell (Doc. No. 1147), and Avigael Cruz (Doc. No. 1152). All of those Defendants are named in the overall conspiracies alleged in Counts One and Two, and most are named in Counts Three and Four. None, however, are alleged to have participated in the crimes alleged in the remaining Counts, including threatening to injure or murder a co-defendant and his family (Count Five), or kidnapping a victim who allegedly lost drug money and whose hand was chopped-off as punishment (Counts Twelve, Thirteen). Defendants insists that those crimes (and perhaps others) set forth in the substantive counts (Counts Five through Eighteen) are so outside the pale of the crimes that they are alleged to have committed that joinder of the counts was improper requiring severance. At a minimum, they insist the Court should exercise its discretion by severing the violent crimes from the specific crimes with which they have been charged.

Rule 8(a) of the Federal Rules of Criminal Procedure governs whether multiple offenses may be joined in a single indictment by providing:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

Fed. R. Crim. P. 8(a). "[T]he spirit of Rule 8(a) ... is to 'promote the goals of trial convenience and judicial efficiency,'" United States v. Tran, 433 F.3d 472, 478 (6th Cir. 2006) (citation omitted), and the Sixth Circuit "construes Rule 8(a) in favor of joinder and evaluates whether joinder was appropriate based upon the four corners of the indictment." United States v. James, 496 F. App'x 541, 546 (6th Cir. 2012).

Rule 8(b), in turn, governs the joinder of defendants:

The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Fed. R. Crim. P. 8(b). Much like Rule 8(a), the "general rule" is that persons jointly indicted should be tried together because "'there is almost always common evidence against the joined defendants that allows for the economy of a single trial.'" United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002) (quoting United States v. Phibbs, 999 F.2d 1053, 1067 (...