United States District Court, D. Maryland, Southern Division
For Ted Duckett, Defendant: Amy Steffan Fitzgibbons, LEAD ATTORNEY, Office of the Federal Public Defender, Greenbelt, MD.
For Donnell Williamson, also known as, Anthony Thomas, Defendant: Allen Howard Orenberg, LEAD ATTORNEY, Orenberg Law Firm PC, North Bethesda, MD.
For Maurice Foster, also known as, Mourice Anthony Foster, Defendant: Andrew R Szekely, LEAD ATTORNEY, Law Offices of Andrew R Szekely LLC, Greenbelt, MD.
For USA, Plaintiff: Leah Jo Bressack, Thomas M Sullivan, LEAD ATTORNEYS, Office of the United States Attorney, Greenbelt, MD; Rod J Rosenstein, Office of the United States Attorney, Baltimore, MD.
Paul W. Grimm, United States District Judge.
Defendants were apprehended following a government-initiated reverse sting operation and have been charged with, inter alia, conspiring to commit a home invasion robbery of a drug stash house. Defendants have moved to dismiss the indictment, arguing that by fabricating a robbery scheme and using a reverse sting operation to identify and apprehend Defendants, the government engaged in conduct that is so outrageous that it violated the Due Process Clause of the Fifth Amendment. The Government has opposed the motion, arguing that a reverse sting operation is not, in and of itself, a due process violation and that government agents merely presented Defendants with a criminal opportunity, which they eagerly accepted. In light of the extremely high bar that courts have set up for claims of outrageous government conduct and the fact that the reverse sting operation falls well within the bounds of activity that courts have approved, I agree with the Government and deny the motion.
Defendants Ted Duckett and Maurice Foster each have been charged with one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846; one count of conspiracy to possess firearms in furtherance of a drug trafficking crime and a crime of violence in violation of 18 U.S.C. § 924(o); and one count of possession of a firearm in furtherance of a drug trafficking crime and a crime of violence in violation of 18 U.S.C. § 924(c); and one count of possession of a firearm by a person previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1). 2d Superseding Indictment, ECF No. 106.
According to the parties' briefing (and confirmed by the testimony at the hearing held on January 28, 2015), in September 2013, law enforcement officers " interviewed a confidential informant (CI) regarding the CI's knowledge of crimes in Prince George's County." Def.'s Mot. to Dismiss Indictment for Outrageous Gov't Conduct (" Def.'s Mot. to Dismiss" ) 2, ECF No. 52. The CI indicated that two individuals--later determined to be Foster's co-defendants Ted Duckett and Donnell Williamson--previously had committed home invasion robberies of drug stash houses. Id.
On September 24, 2013, the CI met with Duckett and told him that he knew an individual who was looking for help robbing a drug stash house. Id. Duckett indicated that he was ready and, on October 10, 2013, was introduced to an ATF undercover agent (the " UC" ) to discuss details of the stash house robbery. Gov't's Consolidated Resp. to Defs.' Mots. (" Gov't's Opp'n" ) 2, ECF No. 73. Duckett indicated that he had a crew that could carry out the robbery and access to firearms. Id. On October 11, 2013, Duckett and Foster met with the UC at a TGI Friday's in a meeting that was recorded. Id. Duckett said that " he and his crew knew how to commit these types of robberies," and that if the UC " had no connection to the armed guards, the robbery could be done 'with force,'" and therefore would require less planning. Id. Duckett also asked several questions about whether the individuals inside the stash house would be armed or could be expected to fire their weapons when the stash house was entered. Id. at 3. The October 11 meeting was the first time that law enforcement encountered Foster. Def.'s Mot. to Dismiss 3-4.
At a recorded meeting with Duckett and Williamson on October 23, 2013, the UC further explained the details of the purported robbery and informed Defendants that he did not have any weapons, at which point Williamson said, " we got, we got." Gov't's Opp'n 3. Williamson also asked, " do you want it to be clean? Do you want them [the people inside the stash house] to stay alive?" Id. When told it did not matter, he responded, " enough said, enough said." Id. The UC asked whether Foster would be involved in the robbery and Duckett indicated that he would. Id. During a recorded telephone call between the UC and Duckett on October 29, 2013, Duckett confirmed that he, Foster, and Williamson still intended to rob the stash house. Id. at 3-4.
On October 29, 2013, Duckett, Foster, and Williamson met with the UC in a parking lot in Laurel, Maryland, from which they followed the UC to the rental car to be used for the robbery. Id. at 4. Defendants put their guns in the trunk of the UC's car. Id. Once the group arrived at the location of the rental car, Defendants were arrested and officers recovered three handguns from the trunk of the UC's car, as well as three black skull caps, a black balaclava, and a black ski mask. Id.
Foster has filed, inter alia, a Motion to Dismiss Indictment for Outrageous Government Conduct (" Def.'s Mot. to Dismiss" ), ECF No. 52, arguing that the government's involvement in the reverse sting operation through which he was apprehended violated his rights under the Due Process Clause of the Fifth Amendment. The Government has filed an opposition (" Gov't's Opp'n" ), ECF No. 73, and Foster has replied (" Def.'s Reply" ), ECF No. 74. Duckett has filed a motion to adopt the Motion to Dismiss, ECF No. 67, and a reply to the Government's Opposition (" Duckett Reply" ), ECF No. 76.
A motions hearing was held before me on Wednesday, January 28, 2015, at which
Defendants introduced testimony from ATF Special Agent Noah Slackman of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ) and Lieutenant Patrick Hampson of the Prince George's County Police Department. Special Agent Slackman testified that he was the government's co-case agent with respect to the Defendants. He said that he was present at a debriefing of the CI, whose primary contact was Lieutenant Hampson, and that he was told that " Ted" and " Fresh" --later determined to be Duckett and Williamson--were involved in numerous crimes including home invasion stash house robberies. After speaking with the CI, Special Agent Slackman investigated Duckett and Williamson's criminal history and recorded the results of that investigation in a Report of Investigation, Defs.' Ex. 18. According to the investigation, Duckett had been:
o charged in Maryland in 2004 with grand theft/car theft and theft of over $500 in value and convicted of unauthorized use of a motor vehicle, malicious destruction of property valued over $500, and violation of probation;
o charged in Maryland in 2005 with second-degree assault and fourth-degree burglary;
o charged in Maryland in 2008 with first-degree assault, second-degree assault, use of a handgun in furtherance of a crime of violence, reckless endangerment, and conspiracy, reduced from an original charge of attempted first-degree murder;
o charged in the District of Columbia in 2009 with fugitive from justice and convicted of possession of cocaine; and
o charged in Maryland in 2011 with obstruction and hindering and false statement to officer.
Id. at 1. Williamson had been:
o charged in Maryland in 2007 with robbery with a deadly weapon, first-degree assault, use of a handgun in furtherance of a crime of violence, theft over $500 in ...