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United States v. Davis

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

March 6, 2018

UNITED STATES OF AMERICA
v.
BRUCE SCOTT DAVIS

          FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS, III UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Defendant Bruce Scott Davis's Motion to Suppress [Doc. 102] and Motion to Dismiss the First Superseding Criminal Indictment [Doc. 103]. For the reasons that follow, I RECOMMEND that both motions be DENIED.

         I. Background

         On April 19, 2016, a grand jury in Northern District of Georgia returned a three-count indictment against Davis. [Doc. 1.] Count One charged him with conspiracy to distribute controlled substances, namely the synthetic cannabinoids AB-FUBINACA, AKB48, and PB-22, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846. [Id. at 1-2.] Count Two charged him with possession of AB-FUBINACA and AKB48 with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). [Id. at 2.] Count Three charged him with money laundering, in violation of 18 U.S.C. § 1957. [Id. at 2-3.]

         On May 1, 2017, the case went to a jury trial. The jury found Davis not guilty on Counts One and Three but guilty on Count Two, the substantive possession charge. [Doc. 62 (verdict form).] With respect to Count Two, the jury verdict form directed the jury that if they found Davis guilty of possession with intent to distribute a controlled substance, the jury must select the controlled substance(s) involved. [Id. at 2.] On the form, the jury marked the line next to AKB48, indicating that Davis possessed with intent to distribute AKB48. The jury left the line next to AB-FUBINACA blank. [Id.]

         Following the verdict, the parties discovered that documents that were not admitted into evidence went to the jury room and were considered by the jury during their deliberations. (Tr. 509-10.[1]) The parties jointly moved for a new trial, which the Court granted, setting aside Davis's conviction on Count Two. [Docs. 66, 67.]

         On June 21, 2017, the grand jury returned a four-count superseding indictment against Davis. [Doc. 71-1.] Count One charged Davis with distribution of AKB48 on January 25, 2014; Count Two charged him with distribution of AB-FUBINACA, AKB48, and PB-22 on February 12, 2014; Count Three charged him with distribution of PB-22 on March 27, 2014; and in Count Four charged him with possession of AB-FUBINACA, AKB48, and PB-22 with intent to distribute on May 1, 2014, all in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). [Id.]

         On December 4, 2017, Davis filed a motion to suppress evidence and a motion to dismiss the superseding indictment. In the motion to suppress, Davis moves to suppress nearly two gigabytes of data that the government extracted following the May 2017 trial from a cache of data it had seized from five iPhones and one iPad in 2014 pursuant to search warrants. [Doc. 102.] Davis argues that even though the data was already in the government's possession, the government was required to obtain a new warrant to extract additional information after the May 2017 partial acquittal. [Id. at 2-3.]

         In his motion to dismiss, Davis moves to dismiss Counts One through Three of the superseding indictment and to dismiss the portion of Count Four that is based on AB-FUBINACA. [Doc. 103.] Specifically, he argues that Count Four, as it relates to the alleged possession of AB-FUBINACA with intent to distribute, is barred by the Double Jeopardy Clause of the Fifth Amendment. [Id. at 5-6.] Likewise, he contends that the government is collaterally estopped from prosecuting him in Count Two for the alleged distribution of AB-FUBINACA. [Id. at 6-8.] Finally, Davis argues that the distribution charges (Counts One through Three) should be dismissed because the government has no good faith basis for the delay in bringing the charges. [Id. at 8-10.]

         The government has responded to the motions [Docs. 110, 111], and Davis has filed a reply in support of his motion to dismiss [Doc. 112].

         II. Motion To Suppress [102]

         On May 1, 2014, law enforcement officers executed search warrants at Davis's townhouse and his mother's house, and seized numerous electronic devices. (See Tr. 85-86, 133, 138-39, 183.) On May 7, 2014, United States Magistrate Judge Justin S. Anand issued forty-five separate search warrants, one for each device to be searched. [Doc. 110 at 3.[2] Pursuant to the warrants, law enforcement searched the devices and made electronic copies of the information found as a result of the searches. The government then returned the devices to Davis. [Id.] On August 11, 2015, the government provided Davis's counsel with two external hard devices containing data seized from the devices. [Id. at 4, Doc. 110-4 (August 11, 2015 transmittal letter).]

         After the May 2017 trial, the government extracted additional information from the cache of data seized from the devices. [Doc. 110 at 4-5.] According to the government's brief, the additional information came from password-protected backup files that had been in its possession since the search warrants were executed in 2014. [Id.]

         Davis argues that the government's post-trial search of the data was “per se unreasonable and required an additional warrant to conduct.” [Doc. 102 at 3.] The government responds that the devices were searched pursuant to warrants issued by a federal magistrate judge, and that neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes a specific time limit on the government's ability to review or analyze data that has been extracted from a device. [Doc. 110 at 5-8.] The government further argues that the subsequent review of its digital copy of the data extracted from the devices does not interfere with Davis's possessory interests, as the government returned the devices to him several years ago. [Id. at 8-9.]

         The Court agrees with the government. Federal Rule of Civil Procedure 41(e)(2)(B) states, in pertinent part, that a warrant for the seizure of electronic storage media or for the seizure or copying of electronically stored information authorizes a later review of the media or information consistent with the warrant, unless otherwise specified. As the advisory committee notes explain, “[Rule 41(e)(2)(B)] acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.” Fed. R. Crim. P. 41(e)(2) advisory committee's note to 2009 amendment; see also United States v. Ilonzo, No. 1:12-CR-276-SCJ-GGB, 2015 WL 5827598, at *22 (N.D.Ga. Oct. 6, 2015) (recognizing the fourteen-day limitation in executing a search warrant “does not apply to later off-site copying or review of electronically stored information”), adopted, at *3-4.

         The warrants here authorized the seizure of data from the devices. [See Doc. 110-3 at 2.] The warrants imposed a fourteen-day time period during which agents could execute the warrants; however, there was no restriction as to when the government must complete its review of the seized data. [Id.] Nor is there any indication that the search of the seized data-either before or after Davis's trial- exceeded the scope of the warrants. “Federal courts have generally not required a second warrant to search a properly seized computer where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Ilonzo, 2015 WL 5827598, at *19 (quotations and citations omitted). Davis points to no authority that stands for a contrary proposition. Accordingly, the Court concludes that the government's further review of the data it had lawfully extracted pursuant to search warrants was lawful and that the data should not be suppressed. Accordingly, I RECOMMEND that the Motion to Suppress [Doc. 102] be DENIED.

         III. Motion To Dismiss [103]

         Davis moves to dismiss the superseding indictment in whole or in part on three grounds. First, he moves to dismiss Count Four of the superseding indictment (the possession with intent to distribute charge) as it relates to AB-FUBINACA on the grounds that the jury acquitted him on the charge of possession with intent to distribute AB-FUBINACA, and, therefore, the Double Jeopardy Clause of the Fifth Amendment bars re-prosecution on that charge. Second, he moves to dismiss Count Two of the superseding indictment (the distribution charge) as it relates to AB-FUBINACA on the grounds that the government is collaterally estopped from prosecuting that charge due to his purported acquittal on the possession with intent to distribute relating to AB-FUBINACA. Third, he argues that all newly-alleged distribution charges in the superseding indictment should be dismissed because the government unreasonably delayed in bringing the charges.

         I first address the first and second arguments relating to double jeopardy and then address the third argument.

         A. Double Jeopardy

         The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall . . . be subject for the same offen[s]e to be twice put in jeopardy of life or limb.” U.S. Const. amend V. “Specifically, the Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” United States v. Votrobek, 847 F.3d 1335, 1339 (11th Cir. 2017) (internal quotation marks omitted) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)). Claim preclusion, the doctrine that “instructs that a final judgment on the merits foreclose[es] successive litigation of the very same claim, ” is “essential to the Constitution's prohibition against successive criminal prosecutions.” Bravo-Fernandez v. United States, 580 U.S. ___, ___, 137 S.Ct. 352, 357 (2016) (alteration in original) (quotation omitted). A verdict of acquittal is “the last word on a criminal charge” and bars subsequent prosecution for the same offense. Id. at 357-58 (quotation omitted).

         The Double Jeopardy Clause also incorporates the principles of issue preclusion, also known as collateral estoppel. See Ashe v. Swenson, 397 U.S. 436, 445-46 (1970); see also Bravo-Fernandez, 137 S.Ct. at 356 n.1. The doctrine of issue preclusion means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Bravo-Fernandez, 137 S.Ct. at 358 (citing Ashe, 397 U.S. at 443). “To decipher what a jury has necessarily decided, . . . courts should ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'” Yeager v. United States, 557 U.S. 110, 119-20 (2009) (quoting Ashe, 397 U.S. at 444). Such an inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Id. at 120 (quoting Ashe, 397 U.S. at 444); see also Bravo-Fernandez, 137 S.Ct. at 362 (instructing that courts should make “a practical appraisal based on the complete record of the prior proceeding” in determining the potential preclusive effect of a prior finding). The burden is on the defendant to demonstrate that a jury necessarily resolved a fact in his or her favor “by a valid and final judgment of acquittal.” Id. at 363, 365.

         1. Count Four of the Superseding Indictment Is Not Subject to Dismissal on Double Jeopardy Grounds.

         a. The Trial Evidence and Jury Instructions as to Count Two

         At trial, the government presented evidence that Davis sold synthetic cannabinoids, known as “spice, ” through his website, beginning in 2009 or 2010. (Tr. 168, 311.) Davis later told investigators that, in the beginning, he did not know what substances were in his products and supposed that some of them were illegal. (Tr. 311.) He distributed the products anyway. (Id.)

         Later, as synthetic cannabinoids were banned in various jurisdictions, Davis made an effort to sell only products that had not been made unlawful. (E.g., Tr. 200-10.) In 2011, for example, he sent a text message stating, “After everything is banned, I'll just keep selling [products] with no chem squirted on them, all natural, lol.” (Tr. 202.) He continued to sell products marketed as spice, however. In August 2012, Davis told his mother, who helped him run the business, that the business was not “taking orders anymore for anything but the kratom-based products.[3] No chemicals anymore. They are all illegal.” (Tr. 211.)

         At some point in 2011, Davis began obtaining his products from and individual named Marlon Beam. (See Tr. 200, 205.) In June 2013, Davis received a product from Beam that made him feel “drunk.” (Tr. 212.) Regarding a June 2013 batch, he stated, “I can't believe this [product has] no chems.” (Id.) In August 2013, Beam encouraged Davis to purchase a supply of AB-FUBINACA, and Davis refused, stating, “I don't want chems in my [products.]” (Tr. 215.)

         In 2013, investigators were alerted to the fact that Davis was distributing Schedule I synthetic cannabinoids after a parcel of spice intended for one of Davis's customers was misdelivered, and the recipient called the police. (Tr. 46-60.) Over a period of several months in late 2013 and early 2014, undercover investigators bought products through Davis's website. (Tr. 88-31.) The product obtained during the first undercover purchase did not contain any controlled substance. (Tr. 108-09.) Products received after subsequent undercover purchases, however, contained Schedule I substances. (Tr. 120-31.)

         The three synthetic cannabinoids at issue in this case were added to Schedule I in May 2013 (AKB48) and February 2014 (PB-22 and AB-FUBINACA). (Tr. 109, 119.) On May 1, 2014, investigators raided Davis's townhouse and his mother's house, where they seized a large quantity of plant ...


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