United States District Court, D. Maryland, Northern Division
WILLIAM D. QUARLES, Jr., District Judge.
Damien Riley, pro se, is charged with possession with intent to distribute heroin (four counts),  possession with the intent to distribute cocaine,  possession of a firearm by a felon,  and maintaining a drug involved premises. ECF No. 41.
Trial began on February 2, 2015 and a motions hearing was held on February 3, 2015. Pending were Riley's motions: (1) to suppress search evidence (ECF No. 21), (2) to suppress oral communications (ECF No. 22), (3) to dismiss the original indictment for speedy trial violations (ECF No. 25), (4) to dismiss the superseding indictment (ECF No. 33), (5) for sanctions and immediate release (ECF No. 36), (6) for review of his pretrial detention order (ECF No. 40), (7) to dismiss the indictment (ECF No. 46), (8) to compel discovery and opposition to the Court's scheduling order (ECF No. 49), (9) amended motion to dismiss (ECF No. 50), (10) motions for hearing (ECF Nos. 54, 57), and (11) motion to dismiss (ECF No. 60). The day before trial, the Government filed a motion to exclude a witness's past conduct under Fed.R.Evid. 608(b). ECF No. 65. On February 2, 2015, before voir dire, Riley moved to postpone the trial and have stand-by counsel appointed as counsel.
For the following reasons, the Court granted in part and denied in part the Government's motion in limine; Riley's opposition to the scheduling order was granted in part to allow the Court to consider all filed motions; all other motions were denied.
1. Overview of the Alleged Crime and Arrest
In July 2013, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the Baltimore Police Department ("BPD) began investigating Riley's alleged involvement in drug trafficking in the area of Reisterstown Road and West Cold Spring Lane, Baltimore City. ECF No. 7-1 at 4. On August 13, 2013, an undercover ATF task force officer contacted Riley by text message. ECF No. 55 at 3. Allegedly at Riley's direction, the undercover officer went to a Citgo Gas Station. Id. The undercover officer was under surveillance at all times by ATF agents. Id. Riley allegedly approached the undercover officer's vehicle, entered it, and exchanged $400 for a plastic bag containing heroin. Id. Riley then left the area. Id.
On August 19, 2013, the undercover officer allegedly made another purchase from Riley. ECF No. 55 at 3. Riley gave the undercover officer 4.8 grams of heroin in exchange for $560 in premarked bills. Id. at 4. The undercover officer asked Riley if Riley also sold cocaine. Id. Riley "indicated he had approximately 27 grams of cocaine but did not want to break it up.' [Riley] promised that he would bring cocaine to the next transaction." Id.
On September 4, 2013, the undercover officer allegedly contacted Riley to arrange another transaction. ECF No. 55 at 4. Riley told the undercover officer that he had to return to his home to "get something" for the undercover officer before they met at the Citgo station. ECF No. 7-1 at 10-11; ECF No. 55 at 4. Agents observed Riley enter his apartment; he stayed for about seven minutes before he went to the Citgo station. ECF No. 7-1 at 11. After Riley entered the undercover officer's vehicle, he gave the officer 4.4 grams of heroin and 1.7 grams of cocaine in exchange for $600. ECF No. 55 at 5.
In October 2013, investigators interviewed another confidential informant. ECF No. 7-1 at 7. The informant told investigators that Riley is known to sell heroin and cocaine, and confirmed Riley's address. Id.
On October 23, 2013, the Government filed a criminal complaint against Riley and obtained an arrest warrant from Magistrate Judge Stephanie Gallagher. ECF No. 7-2; ECF No. 55 at 5. The agents also requested a search warrant for Riley's residence based on the agents' experience about what drug traffickers usually keep in their homes, and the surveillance of Riley visiting his home "immediately before or after engaging in [the] transactions." ECF No. 7-1 at 1-2, 12-13. Judge Gallagher found probable cause and issued the search warrant. See ECF No. 7-1 at 14; ECF No. 55 at 5.
On October 24, 2013, agents executed both warrants. ECF No. 55 at 5. Riley was stopped outside of his apartment complex by ATF agents. Hearing Testimony of TFO Paul Geare (hereinafter, "Geare testimony"). The agents were carrying semiautomatic rifles. Hearing Testimony of Damien Riley (hereinafter, "Riley testimony"). Riley was placed in handcuffs, and Agent Geare informed Riley of his Miranda rights. See Geare testimony. When Agent Geare asked Riley if he understood the Miranda warning, Riley responded by nodding his head and saying, "Yes." Id. Agent Geare asked Riley where he was coming from, if he had keys to the apartment on his person, and if anyone was currently in the apartment. Id. Riley answered these questions and did not request an attorney or ask for the questioning to stop. Id. In a pat-down, the agents discovered keys on Riley. See ECF No. 55 at 6.
The agents escorted Riley to the apartment. Id. At the apartment, TFO Daniel Kerwin asked Riley to identify which of the keys was for the apartment. Hearing Testimony of TFO Daniel K. Kerwin (hereinafter, "Kerwin testimony"). Riley never asserted his right to counsel to Agent Kerwin or asked for the questioning to stop. Id. Riley identified the apartment key, and the agents entered the apartment. See id.  "The agents uncovered evidence of significant other crimes by the defendant, as well as evidence that he had been planning additional criminal acts at the time of his arrest." ECF No. 51 at 2.
That same day, the Government brought Riley before Judge Gallagher. ECF No. 7-3. Judge Gallagher advised Riley of his rights, appointed Federal Public Defender Paul Hazlehurst as counsel, and ordered temporary detention. ECF Nos. 7-3, 7-6. On October 28, 2013, Riley appeared before Magistrate Judge Beth P. Gesner for a detention hearing. ECF No. 7-8. Judge Gesner found that there was probable cause that Riley had committed the charged offense, there was serious risk Riley would not appear for trial, and no combination of conditions could ensure community safety. ECF No. 7-9. Accordingly, Judge Gesner ordered Riley's detention pending trial. Id.
On October 31, 2013, a grand jury returned an indictment charging Riley with possession with intent to distribute heroin and possession with intent to distribute cocaine during the September 4, 2013 transaction. ECF No. 1; ECF No. 55 at 5.
2. Subsequent Procedural History
On December 5, 2013, the Government filed a motion to exclude the time between October 31, 2013 and December 5, 2013 from speedy trial computations. ECF No. 3. The motion stated that "[o]n November 5, 2013, defense counsel entered into a discovery agreement with the Government, " and exclusion was necessary to allow the defense to review the discovery before "begin[ing] meaningful plea discussions." ECF No. 3 at 2. Further, the Government asserted that "[c]ounsel for the defendant advises that the defense does not have any objection to this request." Id. at 2. The Court issued an order granting the motion and excluding time under 18 U.S.C. § 3161(h) (7). ECF No. 4. The Court found that the "exclusion of time w[ould] permit the parties to obtain an accurate recounting of the defendant's criminal history, allow the defense to review discovery provided by the Government, and allow the parties to begin plea discussions." Id. at 1. Defense counsel never objected to the motion or the order.
On January 16, 2014, defense counsel contacted Chambers and "request[ed] that the United States Probation Office be authorized to prepare a report in regard to  Riley's criminal history.... [A]n accounting of  Riley's criminal history will assist the parties in plea negotiations and may help to resolve this matter." ECF No. 52. Further, counsel stated that "Riley agrees that the time from December 5, 2013 to the receipt of the criminal history report by the parties is excludable from the time in which  Riley's trial must commence under the Speedy Trial Act." Id. Per counsel's request, on January 17, 2014, his "email [was] forwarded [by the Court] to the United States Probation Office and marked as approved."
On January 24, 2014, Riley was arraigned on the indictment by Magistrate Judge Susan K. Gauvey. ECF No. 6. On January 28, 2014, Riley had his initial appearance before Magistrate Judge Timothy J. Sullivan. ECF No. 8.
On February 11, 2014, the criminal history report was completed and delivered to the parties. ECF No. 51 at 3. The parties immediately began plea negotiations. See id. On March 18, 2014, the Court held a telephonic status conference. Id. The parties indicated to the Court that an agreement was forthcoming and requested another status conference on April 21, 2014. On April 16, 2014, counsel contacted Chambers and asked that the April 21, 2014 conference call be canceled because he was meeting with his client that day.
On May 14, 2014 defense counsel filed a motion to withdraw stating "that  Riley no longer wishes to have the Federal Public Defender act as his attorney and that a breakdown in communication exists that prevents undersigned counsel from further representing  Riley." ECF No. 11. That same day, the Court referred the case to Judge Gauvey for an attorney inquiry hearing. ECF No. 12. On May 22, 2014, the Court received correspondence from Riley about counsel's alleged deficiencies, including failure to provide Riley with discovery and not informing Riley how the criminal sentencing guidelines would be affected by "a plea agreement of any kind." ECF No. 13. On June 9, 2014, Judge Gauvey held the attorney inquiry hearing, granted the motion to withdraw, and ordered the appointment of CJA counsel. ECF No. 15. On June 10, 2014, Gerald C. Ruter, Esq. was appointed defense counsel. ECF No. 16.
On July 30, 2014, the Government submitted a status report:
The respective parties are working with the hope that the above captioned case will resolve short of trial with a guilty plea. The Pre-Plea Investigation has been completed and both parties have received the documents. The parties have engaged in and continue meaningful plea negotiations. Consequently, if this Honorable Court determines it to be appropriate, the respective parties recommend giving the Court a status report on or about August 30, 2014. If the parties cannot reach [an] agreement, the parties will contact chambers to schedule a motions and trial date.
ECF No. 17 (emphasis added). On July 31, 2014, the Court approved the status report. Id.
On September 9, 2014, the Court received correspondence from Riley indicating that he was having problems with defense counsel. ECF No. 18. Riley stated that he had "requested a motion to dismiss due to speedy trial status and/or deadlines." Id. On September 12, 2014, defense counsel submitted a status letter. ECF No. 19. Defense counsel "apologize[d] for submitting [the] status report late" and requested that the Court schedule trial because "[a]ttempts at settling this case short of trial have not yielded any results." Id. On September 18, 2014, the Court held a status conference, and trial was scheduled to begin February 2, 2015 with motions to be heard at that time. ECF No. 20.
On October 2, 2014, defense counsel filed motions to suppress seized evidence and oral communications. ECF Nos. 21, 22. On October 23 and 27, 2014, the Court received correspondence from Riley about dismissing the case because of speedy trial issues. ECF Nos. 23-24. On October 28, 2014, defense counsel filed a motion to dismiss because of speedy trial violations. ECF No. 25.
On October 28, 2014, a grand jury returned a superseding indictment. ECF No. 26. In addition to the two prior counts relating to the September 4, 2013 transaction, the superseding indictment added a charge of possession with intent to distribute relating to the August 19, 2013 transaction. Id. ; see also ECF No. 51 at 4.
On October 30, 2014, the Court received correspondence from Riley expressing his concerns about the case and requesting that the Court "immediately intervene by demanding my counsel to protect my interests...." ECF No. 30. The Court immediately referred the case to Judge Gallagher for an attorney inquiry hearing. ECF No. 32. On November 7, 2014, Riley filed a motion to dismiss the superseding indictment. ECF No. 33. On November 12, 2014, Judge Gallagher held the attorney inquiry hearing and granted Riley's request to continue pro se. ECF No. 34. On November 21, 2014, Riley moved for review of his pretrial detention order. ECF Nos. 39, 40.
On November 25, a grand jury returned a second superseding indictment. ECF No. 41. The new indictment added charges for the sale of heroin during the August 13, 2013 transaction, possession with intent to distribute on October 24, 2013, possession of a firearm in violation of 19 U.S.C. § 922(g), and maintaining a place for the purpose of manufacturing, storing, distributing, and using a controlled substance. Id.
On December 10, 2014, Riley moved to dismiss. ECF No. 46. On December 12, 2014, the Government requested a scheduling order for motions because Riley had asserted the Government's failure to respond meant his motions were conceded. ECF No. 47; see ECF No. 46. On December 15, 2014, the Court approved the Government's proposed scheduling order. ECF No. 48. On December 19, 2014, Riley filed a motion to compel and opposed the scheduling order. ECF No. 49. Riley also filed an amended motion to dismiss. ECF No. 50.
On December 23, 2014, the Government responded to Riley's numerous speedy trial motions. ECF No. 51. On December 31, 2014, Riley filed a motion for a hearing. ECF No. 54. On December 31, 2014, the Government filed its opposition to Riley's other motions. ECF No. 55. On January 8, 2015, Riley filed another motion for a hearing. ECF No. 57. On January 22, 2015, Riley filed another motion to dismiss. ECF No. 60.
On February 1, 2015, the Government filed a Rule 608(b) motion in limine to exclude cross examination of a witness's past acts. ECF No. 65. Trial began on February 2, 2015 with jury selection. Before voir dire, Riley asked that stand-by counsel be appointed defense counsel and requested a three-month postponement for defense counsel to prepare the case.
A. Motion to Review Pretrial ...