United States v. Searcy

UNITED STATES OF AMERICA v. DONDI SEARCY, QUANTEL SEARCY, and CHRISTOPHER SHANER

Criminal No. 19-135

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 3, 2020

Opinion and Order on Pretrial Motions

Presently before the Court are fourteen pretrial motions filed by Defendants Dondi Searcy, Quantel Searcy, and Christopher Shaner. All three of the filing Defendants, along with six other codefendants, are charged in a twenty-four count Indictment alleging violations of the Controlled Substances Act. ECF No. 3. All nine Defendants are charged in Count 1 with conspiracy to distribute and possess with intent to distribute cocaine and crack cocaine, from in and around 2017 to in and around May 2019.¹ Mr. Shaner is only charged in Count 1. In addition to the conspiracy charge, Dondi Searcy is charged with two counts of distribution and possession with intent to distribute cocaine, and one count of attempt to distribute and possession with intent to distribute cocaine. Counts 19, 20, & 21.² Quantel Searcy is charged with three counts of distribution and possession with intent to distribute cocaine, in addition to the conspiracy charge. Counts 22, 23, & 24.³

The Motions filed by the three Defendants are as follows. Christopher Shaner filed a Motion for Brady, Giglio and other Additional Discovery Materials, [and] Motion for Disclosure of Additional Rule 16 Materials, and Early Disclosure of Jencks Materials, ECF No. 533; and Motion for Notice Pursuant to Federal Rule of Evidence 404(b), ECF No. 535. Dondi Searcy filed a Motion for Early Disclosure of Jencks Materials, Materials Pursuant to Brady, Giglio and Other Discoverable Materials, ECF No. 575; Motion for Notice Pursuant to F.R.E. 404(b), ECF No. 576; Motion to Preserve Rough Notes, ECF No. 577; and Motion to Sever Offenses, ECF No. 587. Quantel Searcy filed a Motion for Relief from Prejudicial Joinder of Offenses Pursuant to Federal Rule of Criminal Procedure 14(A), ECF No. 579; Motion for Bill of Particulars, ECF No. 580; Motion to Suppress Evidence Obtained from Mobile Tracking Device, ECF No. 581; Motion to Suppress Evidence (obtained from call detail records), ECF No. 582; Motion for Grand Jury Transcripts, ECF No. 583; Motion for Early Disclosure of Jencks Material, ECF No. 584; Motion to Suppress Evidence (obtained from the search of his residence), ECF No. 597; and Motion for James Hearing, ECF No. 598. An evidentiary hearing will be held to address Quantel Searcy's three suppression motions filed at ECF Nos. 581, 582, and 597.⁴ The court addresses the remaining eleven motions herein.

I. Dondi Searcy's Motion to Preserve Rough Notes

Dondi Searcy requests that the Court order the government to instruct its investigators to retain their rough notes. ECF No. 577. Mr. Searcy "requests the preservation and production of all materials relating to interviews, surveillance, controlled buys postal inspections, and similar investigative activities involved in this matter." ECF No. 577, at ¶ 6. The specific materials herequests are handwritten rough notes; draft or rough memoranda; handwritten draft or rough reports of investigative summaries; text messages, emails, or other investigative notes exchanged between agents; and any additional rough notes made during the investigation. Id. With respect to the materials requested, Mr. Searcy also requests that he be provided with the identity of the maker of the notes, dates of preparation of notes, and the occurrences to which such notes refer. Id. at ¶ 8.

In its present Omnibus Response, the government incorporates its argument, set forth in its August 17, 2020 Response (ECF No. 589) to Christopher Shaner's previously decided Motion to Produce and Retain Rough Notes (ECF No. 531). See Omnibus Resp. at 11, ECF No. 609; and Op. and Order, Aug 21, 2020, ECF No. 599. Referring to the government's previously filed opposition brief, the government states that it "has advised its agents to preserve traditional rough notes commonly taken during surveillance, during an interview, during a similar event, and handwritten draft reports." Gov't Resp. to Shaner Mot. 2, ECF No. 589. The government also states that emails and text messages "are automatically preserved pursuant to agency policies." Id.

Independent of the government's direction to its officers to retain such material, the United States Court of Appeals for the Third Circuit requires the government to retain rough notes and writings In United States v. Vella, 562 F.2d 275 (1977) the Court of Appeals held that "rough interview notes of [law enforcement officers] should be kept and produced so that the trial court can determine whether the notes should be made available to the defendant under the rule in Brady v. Maryland, 373 U.S. 83 (1963), or the Jencks Act." Id. at 276. In United States v. Ammar, 714 F.2d 238 (3d Cir. 1983), the Court of Appeals expanded the category of what must be retained to include rough reports; holding that "the government must retain and, uponmotion, make available to the district court both the rough notes and the drafts of reports of its agents to facilitate the district court's determination whether they should be produced." Id. at 259. In Ammar, the Court acknowledged that a rough draft is not necessarily a Jencks Act statement until it is refined to the point where a finding can be made that the witness has "adopted or approved" the rough draft as a statement, such as where a law enforcement official presents a handwritten draft to a supervisor. Id.

Defendant's request for an Order directing the government to retain and produce all rough notes relating to law enforcement activities undertaken in this case will be granted in part and denied in part. The Motion will be granted as to the preservation of rough notes that fall within the purview of Vella and Ammar. As noted, the government has already instructed law enforcement officers to retain such material and has also instructed the officers to retain rough notes taken during surveillance and "during similar events." Id. The motion will be denied as to any request for retention of material not falling within the above categories. Accordingly, we grant Defendants' motion and require the government to preserve any such materials.

The Motion will be denied, as premature, with respect to Defendant's request that the government produce rough notes. Defendant is entitled to the production of such material only to the extent that it falls within the purview of Brady, Giglio v. United States, 405 U.S. 150 (1972), or the Jencks Act. The government has indicated that it is aware of its obligations to produce such material to the extent it falls within the purview of Brady exculpatory material and Giglio impeachment material, however the government states that none of the rough notes constitute Brady material. As to Giglio Material, the government asserts that it is premature to produce such material as it has not determined its trial witnesses and such early disclosure mayendanger the witnesses. To the extent any rough notes and investigative reports fall within Giglio or the Jencks Act, the government states that it intends to follow its usual practice of producing such material shortly before trial.

Accordingly, Dondi Searcy's Motion to Preserve Rough Notes (ECF No. 577) is GRANTED as to the preservation of rough notes. The government is ordered to preserve rough notes consistent with this Opinion and its obligations under Vella and Ammar. The Motion is DENIED as to the preservation of any other material. IT IS FURTHER ORDERED that the Motion is DENIED, as premature, as to the production of any rough notes.⁵

II. Quantel Searcy's Motion for Bill of Particulars

Quantel Searcy has filed a motion requesting that the Court issue an Order directing the government to file a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). ECF No. 580. Federal Rule of Criminal Procedure 7(f) provides:

The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment, or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.

Fed. R. Crim. P. 7(f). A bill of particulars is a "'formal, detailed statement of the claims or charges brought by a plaintiff or a prosecutor.'" United States v. Urban, 404 F.3d 754, 771-772 (3d Cir. 2005) (quoting Black's Law Dictionary 177 (8th ed. 2004)). "The purpose of a bill of particulars is "to inform the defendant of the nature of the charges brought against him, to adequately prepare his defense, to avoid surprise during the trial and to protect him against asecond prosecution for an inadequately described offense." United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.1972). "Only where an indictment fails to perform these functions, and thereby 'significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial,' will we find that a bill of particulars should have been issued." Urban, 404 F.3d at 771-772 (quoting United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir.1989) (citing Addonizio, 451 F.2d at 62-63)).

For a conspiracy charge, the United States Court of Appeals for the Third Circuit "has held that a defendant is not entitled to a list of uncharged overt acts and uncharged criminal conduct, nor is he entitled to a list of the identities of Government witnesses." United States v. Cardillo, No. CRIM.A. 13-121-2 JBS, 2015 WL 3409324, at *5 (D.N.J. May 27, 2015) (citing United States v. Di Pasquale, 740 F.2d 1282, 1294 (3d Cir.1984) (other citations omitted). A "request for the 'when, where and how' of any overt acts not alleged in the indictment is "tantamount to a request for 'wholesale discovery of the Government's evidence,' which is not the purpose of a bill of particulars under Fed. R. Crim. P. 7(f)." United...