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United States v. Lawrence

United States District Court, N.D. Georgia, Atlanta Division

March 1, 2018

UNITED STATES OF AMERICA,
v.
SEDARIOUS LAWRENCE, Defendant.

          AMENDED NON-FINAL REPORT AND RECOMMENDATION

          CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE.

         The Government has charged Defendant Sedarious Lawrence with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). [Doc. 1]. Before the Court are two motions filed by Defendant: (1) a motion to suppress cell phone evidence obtained through a warrant [Doc. 25]; and (2) a motion to dismiss the indictment based on “substantial misconduct by government agents” [Doc. 18]. For the reasons that follow, I recommend that both motions be denied.[1]

         I. MOTION TO SUPPRESS CELL PHONE EVIDENCE [Doc. 25]

         Defendant moves to suppress certain cell phone evidence that was seized pursuant to a warrant. [Doc. 25]. In an email to defense counsel with a copy to the Court, the Government stated that it has decided that it does not intend to use the cell phone evidence in its case-in-chief at trial, although it reserves the right to use the evidence on cross-examination and/or on rebuttal. Given this representation, I recommend that Defendant's motion to suppress the cell phone evidence [Doc. 25] be denied as moot.

         II. MOTION TO DISMISS [Doc. 18]

         A. Background

         According to Defendant's motion to dismiss the indictment, on February 16, 2017, Defendant was arrested for being a felon in possession of a firearm and was charged in Fulton County Superior Court. [Doc. 18 at 1-2]. In connection with that proceeding, a woman named Brigette Alexander submitted an affidavit to the court claiming ownership of the gun that Defendant was accused of possessing. [Doc. 18-1 at 2]. Ms. Alexander swore in her affidavit that she accidentally left the gun in Defendant's car. [Id.].

         According to the motion to dismiss, the state charges were dropped on March 30, 2017, after which Defendant was indicted federally in this case on April 11, 2017 for the same conduct. [Doc. 18 at 2]. At his initial appearance in this Court on April 21, 2017, Vionette Johnson of the Federal Defender Program was appointed to represent Defendant. [Doc. 5]. According to the motion to dismiss, on April 26, 2017, Ms. Johnson's investigator, Diana DePina, called Brigette Alexander to conduct an interview. [Doc. 18 at 3]. The motion describes that interview as follows:

Ms. Alexander advised [Ms. DePina] that two law enforcement officers had gone to see her earlier in the day. She identified the law enforcement officers as Agent Allen Mcleod and Lt. Fisher. She further advised that the law enforcement officers told her not to speak with Mr. Lawrence's people. Investigator DePina advised Ms. Alexander that we had been appointed to represent Mr. Lawrence on the gun charge and that is when she said she was told not to talk to us, his people, about that. Following the government's agents instructions, Ms. Alexander refused to talk to the defense investigator.

[Id.]. In his motion, Defendant seeks dismissal of the indictment, arguing that the Government substantially interfered with Ms. Alexander's choice to testify and that as a result, his ability to mount a defense to the charges against him has been impaired. [Doc. 18 at 3-7]. The Government filed a response strenuously disputing the facts as recounted in the motion to dismiss and arguing, alternatively, that even if the facts in the motion were true, the proper remedy is simply to provide Defendant with access to the witness-not to dismiss the indictment. [Doc. 23].

         On July 11, 2017, I held a hearing on the motion to dismiss. Defense counsel stated that she wished to present the testimony of both Ms. DePina (the investigator) and Ms. Alexander (the witness), but that she had been unable to locate Ms. Alexander to serve her with a subpoena. [Doc. 53 at 2-3].

         Defendant called Ms. DePina as a witness, and she testified consistently with what was presented in the motion to dismiss, i.e., that she was a staff investigator with the Federal Defender Program, that on April 26, 2017, she called Brigette Alexander, and that Ms. Alexander told her that “ATF had come by to see [Ms. Alexander] that day, and they told [Ms. Alexander] not to talk to Lawrence's people.” [Doc. 53 at 5-7]. According to Ms. DePina, Ms. Alexander identified the officers as Agent Mcleod and Lieutenant Fisher. [Id. at 7]. Ms. DePina testified that, consistent with her practice of ending conversations when a witness indicates that he or she does not wish to be interviewed, she ended the call with Ms. Alexander. [Id.].

         The Government called Alan Mcleod, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), as its first witness. [Doc. 53 at 12-13]. Special Agent Mcleod testified that on April 26, 2017, he and his partner, Task Force Officer (“TFO”) Ken Fisher met with Ms. Alexander in person. [Id. at 13-14]. They spoke with her for approximately ten to fifteen minutes, after which Special Agent Mcleod recorded a “synopsis” or “summary” of the conversation to make sure that he had his facts correct. [Id. at 14-15]. He testified that he told Ms. Alexander that he was going to record a summary of their conversation and that she understood that was what he was doing. [Id. at 15]. During the hearing, the Government played the recording, which was approximately four minutes long; the recording did not contain any admonition against speaking with people associated with Defendant. [Id. at 16-17]. On the contrary, the recording includes one of the agents saying “you can talk to anyone you want to talk to.” [Id. at 30-31]. Special Agent Mcleod testified unequivocally that during the unrecorded part of the conversation, he did not make any statements to Ms. Alexander about whether she could or could not talk to persons associated with Defendant. [Id. at 15, 17]. Special Agent Mcleod testified that he told her “she could talk to anybody she wants to but just to tell the truth.” [Id. at 15].

         The third and final witness at the hearing was TFO Kenneth Fisher. [Doc. 53 at 23]. TFO Fisher provided testimony consistent with that of Special Agent Mcleod, i.e., that Fisher and Mcleod met with Ms. Alexander on April 26, 2017, and that ...


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