United States District Court, D. Maryland
For Royce Levi Brown, Defendant: Pat M Woodward, LEAD ATTORNEY, Pat M Woodward Esq Counselor At Law, Annapolis, MD.
For Charles Riley, Jr., also known as New York, Defendant: Stuart Oswald Simms, LEAD ATTORNEY, Trevor Halstead Coe, Brown Goldstein and Levy LLP, Baltimore, MD.
For Charles Rudolph White, Defendant: Craig M Kadish, LEAD ATTORNEY, Oleg Fastovsky, Craig M Kadish Chartered, Baltimore, MD; Stephanie Ann Shipley, Stephanie A Shipley Attorney at Law LLC, Easton, MD.
For David Wayne Nelson, also known as Dogfood, Defendant: Christopher Carlos Nieto, LEAD ATTORNEY, The Law Office of Christopher C Nieto LLC, Baltimore, MD.
For USA, Plaintiff: Peter J Martinez, LEAD ATTORNEY, Christopher J Romano, Rod J Rosenstein, Office of the United States Attorney, Baltimore, MD.
James K. Bredar, United States District Judge.
On March 27, 2014, a federal grand jury sitting in Baltimore returned a superseding indictment accusing the Defendant of various illegal drug offenses and of being a previously convicted felon in possession of a firearm. (ECF No. 85.) On the third day of the subsequent jury trial, the Government rested its case in chief. On motion of the Defendant, the Court found that the Government's proof in support of the gun offense was fatally insufficient, and judgment of acquittal was entered on that count. The Defendant then moved for a mistrial on the remaining drug counts, and the Court granted that motion after concluding that the Defendant was unfairly prejudiced by already-admitted proof that was relevant only to the now-defunct gun charge. The Court reserved the issue of retrial on the drug counts in order to afford the Defendant an opportunity to be heard on his bid to bar further proceedings. ( See ECF No. 184.) This memorandum amplifies the Court's oral rulings.
In the superseding indictment (ECF No. 85), Defendant Riley was charged in four counts. In Count One, he was charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine; in Count Two he was charged with possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine; in Count Three he was charged with possessing with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine; and in Court Five he was charged with possessing a firearm while having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1).(ECF No. 85.)
The Defendant filed a pretrial motion (ECF No. 125) seeking to sever Count Five, the firearms count, but the Court denied it. (ECF No. 151). As the Court explained at the May 1, 2014 motions hearing, the Government proffered sufficient evidence tying Count Five to the drug counts to justify joinder under Rule 8(a) of the Federal Rules of Criminal Procedure.
See, e.g., United States v. Mir, 525 F.3d 351, 356-57 (4th Cir. 2008) (holding that, as a general rule, " related offenses should be tried in a single proceeding" ). Further, the Court found that the Defendant had failed to make the " strong showing of prejudice" required for severance under Rule 14(a) of the Federal Rules of Criminal Procedure. United States v. Branch, 537 F.3d 328, 341 (4th Cir. 2008) (quoting United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)). The Court also noted that under United States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984), where a defendant is charged with several crimes, including possession of a firearm in violation of 18 U.S.C. § 922(g), " [a]ny prejudicial effect of the necessary introduction of the defendant's past conviction can . . . be avoided through the use of a limiting instruction." The Court also encouraged the parties to consider entering into a stipulation regarding the Defendant's prior convictions so as to sanitize them and conceal their detail from the jury, thus limiting any prejudicial effect. The Government then crafted and proposed a " bare bones" stipulation, which revealed only that the Defendant had sustained a prior conviction that disqualified him from possessing firearms. However, as was his absolute right, the Defendant refused the proposal. In the course of the presentation of its case in chief, the Government therefore proceeded to introduce evidence disclosing, they contended, that the Defendant had been previously convicted of a crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g).
In this regard, the Government first moved to admit Exhibit 33a into evidence. This document was a " Certificate of Disposition Indictment" signed by the Clerk of the Supreme Court of the State of New York for Queens County. The document tended to prove that Defendant Riley had been convicted on two counts of " criminal possession of a controlled substance 7th degree" and sentenced to a term of imprisonment of exactly one year on each. Defense counsel objected to the introduction of Exhibit 33a, arguing that it was not probative given that it did not tend to show that Defendant Riley had " been convicted . . . of a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1) (emphasis added). The Court sustained the Defendant's objection on relevancy grounds, and Exhibit 33a was not admitted.
The Government then offered Exhibit 33b. This document was a certified and true copy of the docket sheet in the case of State of Maryland v. Charles Riley, No. 34CR0086, before the Circuit Court for Wicomico County, Maryland. The defendant in that case was one " Charles Riley," whose address was listed as " 703 7th Street, Apartment #1, Portsmouth, VA 23704, c/o Wicomico County Detention Center." The May 5, 1994 entry on the docket sheet read, in relevant part: " Charles Riley sentenced by the Court to Commissioner of Correction for a period of 10 years under Count 1 [Bringing CDS into Maryland]; 5 years under Count 2 [Felonious possession of cocaine] concurrent to Count 1 and Counts 5 [Possession of cocaine] and 6 [Drug paraphernalia] merge." Further, the list of defense witnesses listed one name, " Charles Riley Jt [sic]."
In order to contextualize and amplify the content of Exhibit 33b, the Government called Special Agent Fitzpatrick who testified that, as part of his investigation, he gathered documentation relating to the Defendant's criminal history. Speaking specifically about Exhibit 33b, he testified, without further foundation, that it related ...