UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
: Criminal Action No.: 13- 0150 (RC)
v. :
: Re Document Nos.: 28, 30, 32
KEVIN MACK, :
:
Defendant. :
MEMORANDUM OPINION
DENYING DEFENDANT MACK’S MOTIONS TO DISMISS THE INDICTMENT
I. INTRODUCTION
Defendant Kevin Mack was indicted on May 23, 2013, on one count of unlawful
distribution of a mixture or substance of phencyclidine, also known as PCP, a Schedule II
controlled substance, and one count of unlawful distribution of one hundred grams or more of a
mixture or substance of PCP. On June 12, 2014, this Court denied the Defendant’s motion for
bond. Since then, the Defendant has filed three motions, two of which were pro se, seeking
dismissal of the indictment on various grounds. Following the Government’s omnibus response
in opposition to all of the Defendant’s arguments, and argument on those motions held on July
10, 2014, the Defendant’s motions are now ripe for resolution. For the reasons set out below, the
Court will deny each of the motions for dismissal.
II. FACTUAL BACKGROUND
In 2012, law enforcement contacted a man named “Rico” with the hopes that Rico would
introduce undercover officers to his PCP supplier. Following a purchase of PCP made directly
from Rico on June 22, 2012, Rico provided the officer with information about his “uncle,” a man
named “Jimmy,” whom Rico claimed was his PCP supplier. 1 After obtaining Jimmy’s name and
phone number, the Government attempted, unsuccessfully, to contact Jimmy multiple times to
arrange purchases of PCP. Instead, it was the Defendant, rather than Jimmy, who responded to
the Government’s overtures. 2 After initial contact was made on July 19, 2012, the Defendant and
the undercover officers arranged for the sale and purchase of four ounces of PCP on July 23,
2012. Unbeknownst to the Defendant, however, the transaction was recorded on video, clearly
displaying the exchange of PCP and $1,200 cash between the Defendant and the undercover
officers. The drugs subsequently were tested and confirmed to contain PCP.
At the end of July, the undercover officers and the Defendant exchanged a series of text
messages attempting to set up another purchase of PCP. After a second buy was scheduled and
then aborted due to the Defendant not having the PCP available, another buy was set for
September 5, 2012. As with the first purchase, the second meeting occurred in the vehicle of the
undercover officers and was video-recorded. At the second transaction, the Defendant agreed to
sell six ounces of PCP for $1,800. Following the purchase, the drugs were tested and confirmed
to contain more than 100 grams of a mixture or substance containing PCP.
Due to the lead investigator’s involvement in another investigation, for the next few
months law enforcement debated whether to continue the investigation against the Defendant and
the other persons involved. A decision was eventually made to cease the investigation. On May
23, 2013, the grand jury returned an indictment charging the Defendant with one count of
1
The Government disputes the Defendant’s contention that Jimmy and Rico were
government cooperators. While the Government recognizes that Jimmy has cooperated on
previous occasions, the Government submits that Jimmy’s cooperation was terminated in 2011,
and that neither Jimmy nor Rico were acting as cooperators at any time during the year 2012.
2
The Government does not know why it was the Defendant, not Jimmy, who
reached out to the undercover officers. Nor has the Defendant provided any reason for having
done so. At the motions hearing, the Defendant suggested that it was Jimmy, rather than the
Defendant, who may have sent the text messages. No evidence has been presented to support that
theory.
2
unlawful distribution of a mixture or substance containing PCP and one count of unlawful
distribution of one hundred grams or more of a mixture or substance containing PCP. On June
12, 2013, the Defendant was arrested.
III. ANALYSIS
A. Motion to Amend Additional Laws and Argument to Support Trial Counsel’s Pending
Bond Motion
The Court previously denied the Defendant’s motion for bond. See Op. & Order, ECF
No. 33. Nevertheless, the Court will clarify one issue raised by the Defendant in a motion he
filed pro se in support of the motion for bond. In his motion, the Defendant alleged that the Bail
Reform Act, 18 U.S.C. § 3142, was unconstitutional and violated the Fifth and Eighth
Amendments because it provides judges with the “power and legal authority to impose[ ] a
‘punishment’ on a pretrial detainee ‘before conviction,’ . . . without fair due process of law.” See
Def.’s Mot. to Am., ECF No. 27. The United States Supreme Court, however, has affirmatively
rejected Fifth and Eighth Amendment challenges to the Bail Reform Act. In United States v.
Salerno, 481 U.S. 738 (1987), the Supreme Court held that the extensive procedural safeguards
provided by the Bail Reform Act and its compelling regulatory purpose — to protect the safety
of individuals and the community from crimes committed by persons charged with serious
felonies while on release — were sufficient to withstand facial challenges to its constitutionality.
Id. at 755. The Supreme Court’s holding is dispositive, and fatal, to the Defendant’s argument.
Moreover, in the opinion denying the Defendant’s motion for bond, this Court provided the
Defendant with the necessary procedural safeguards and found that the Defendant indeed posed a
3
threat of danger to the community if released. See Op. & Order, ECF No. 33. 3 The Court next
turns to the Defendant’s substantive arguments for dismissal of the indictment.
B. Motion to Dismiss Indictment for Lack of Subject Mater Jurisdiction
In his first pro se motion to dismiss, the Defendant makes three principal arguments: (1)
the evidence gathered to arrest and indict him was a result of an unconstitutional use of cell
phone recordings, wiretaps, and confidential informants; (2) the statements seized from the
Defendant during the recordings of the cell phone calls, wiretaps, and conversations with
undercover police officers were a violation of his Fifth Amendment right against self-
incrimination; and (3) the system of indictment by a grand jury is unconstitutional. 4
Regarding the Defendant’s first argument, the Government asserts that no cell phones
were searched, and neither wiretaps nor informants were utilized to obtain incriminating
evidence about the Defendant. See Govt.’s Opp. Mot. at 4, ECF No. 34. The Defendant has not
provided any support for his allegations that such methods were used, and there is no indication
in the record that the Government in fact employed these means. Instead, the facts show that the
Defendant initiated the sales of narcotics to undercover officers via text messages, and the
subsequent sales were recorded using hidden cameras in the vehicle of the officers.
The voluntary exchange of text messages and the use of hidden cameras in the
undercover officers’ vehicle, however, are not searches or seizures subject to Fourth Amendment
3
The Defendant made various other arguments for dismissal of the indictment in
his pro se motion filed in support of his counsel’s bond motion. Those arguments have been
reiterated in subsequent motions. The Court therefore will address these arguments when ruling
on the Defendant’s other motions.
4
The Defendant also alleges that “[t]he collection of the Government’s evidence to
be induce [sic] at a future trial, will ‘trespass’ on the defendant’s 5th and 6th Amendment rights
to a ‘fair and impartial trial,’ the criminal complaint ‘shall’ be dismiss [sic], for having ‘tainted’
informations [sic] in it, as well as police officers ‘sworn affidavit’ reports.” ECF No. 28. The
Court cannot discern a cognizable defense from these statements; consequently, this claim will
not be addressed further.
4
protection. The Fourth Amendment provides that the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .” U.S. Const. amend. IV. A “search” occurs when an expectation of privacy that
society is prepared to consider reasonable is infringed. United States v. Maple, 348 F.3d 260, 261
(D.C. Cir. 2003) (citing Soldal v. Cook County, 506 U.S. 56, 63 (1992)). The Defendant did not
have a legitimate expectation of privacy in the messages he willingly, and without undue
Government prompting, sent to the undercover officers. In regards to the use of the cameras, the
Supreme Court has firmly rejected constitutional challenges to instances “when [electronic]
devices have been used to enable government agents to overhear conversations…. It has been
insisted only that the electronic device not be planted by an unlawful physical invasion of a
constitutionally protected area.” Lopez v. United States, 373 U.S. 427, 438-39 (1963). Here, the
hidden cameras were planted in the undercover officers’ vehicle, not on the Defendant’s person
or property. See United States v. Savoy, 889 F. Supp. 2d 78, 87 (D.D.C. 2012) (citing Rakas et al.
v Illinois, 439 U.S. 128 (1978) (holding that petitioners were not entitled to challenge the search
of an automobile in which they were passengers because they “asserted neither a property nor a
possessory interest in the automobile”)). The Government, therefore, used no means that violated
the Defendant’s Fourth Amendment rights. 5
In his second argument, the Defendant alleges that the statements he made to undercover
officers were subject to the Fifth Amendment’s protection against self-incrimination as
recognized in Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment privilege against
5
The Defendant also argues that evidence was acquired as part of a “fishing
expedition” by the Government, citing Washington v. United States, 585 A.2d 167 (D.C. 1991),
to support his claim. That case, however, stands for the proposition that a warrantless search
unsupported by probable cause cannot be justified by the subsequent discovery of incriminating
evidence found as a result of the initial search. Id. at 170. The scenario present in Washington
simply does not arise in this case.
5
self-incrimination applies to custodial interrogation by law enforcement; that is, Miranda applies
when a defendant is in “custody” and makes a statement in response to government
“interrogation.” Id. at 467-68. For purposes of Miranda, however, “custody” is not limited to
formal arrests but also includes restraints on freedom of movement that are the functional
equivalent of a formal arrest. See California v. Beheler, 463 U.S. 1121, 1125 (1983). The
Supreme Court has phrased the Miranda inquiry as whether a “reasonable person [would] have
felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane,
516 U.S. 99, 112 (1995).
In this case, the Defendant freely made statements to the undercover officers in
furtherance of the commission of the crimes, not as a result of interrogation. The Defendant was
not in custody at the time he communicated with the undercover officers and was completely
free to cease communicating with them or to leave during the alleged drug transactions. “Any
statement given freely and voluntarily without any compelling influences is, of course,
admissible in evidence.” Illinois v. Perkins, 496 U.S. 292, 297 (1990). Accordingly, Miranda
does not apply, and the Defendant’s statements were not acquired in violation of the Fifth
Amendment.
The Defendant’s third argument alleges that the system of indictment by grand jury is
unconstitutional. The grand jury and its role in our system are constitutional guarantees
enshrined in the Fifth Amendment, which states, “No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a grand jury[.]” U.S.
Const. amend. V. Federal Rule of Criminal Procedure 6 delineates the rules surrounding the
summoning of a grand jury and the ways to challenge its selection. See Fed. R. Crim. P. 6. None
of the potential challenges provided by Rule 6 are present in this case, and the Defendant has not
6
alleged any in his motion. Instead, the Defendant raises a number of novel contentions to support
his argument: that the grand jury system violates the separation of powers; that grand jurors must
be active members of the D.C. bar; that grand jurors usurp the authority of judges; and that Rule
6 infringes on the president’s appointment power. See Def.’s Mot. Dism. at 5-6, ECF No. 28.
The Defendant provides no support for any of these propositions. The Court has considered each
of the arguments and rejects them all as meritless.
C. Motion to Amend and Supplement Additional Facts and Exhibits to Support Pending
Motion to Dismiss Indictment
In this second pro se motion, the Defendant raises entrapment and selective prosecution
as bases for dismissal. 6 See Def.’s Mot. Dism., ECF No. 30. The entrapment defense protects an
“otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul
of the law.” United States v. Law, 528 F.3d 888, 905 (D.C. Cir. 2008). This defense “has two
related elements: government inducement of the crime, and a lack of predisposition on the part of
the defendant to engage in the criminal conduct.” United States v. Glover, 153 F.3d 749, 754
(D.C. Cir. 1998). If the defendant meets the initial burden of proving government inducement,
the government can rebut by demonstrating he was predisposed to commit the crime. Law, 528
F.3d at 905. “However, a defendant only is entitled to an entrapment instruction when[ ] there is
sufficient evidence from which a reasonable jury could find entrapment.” United States v.
McKinley, 70 F.3d 1307, 1309 (D.C. Cir. 1995) (internal quotations and citations omitted).
As an initial matter, the Defendant and the Government dispute whether informants were
used. The Defendant has submitted no evidence whatsoever to rebut the Government’s assertion
6
The Defendant also brings a claim challenging the “standing” of the United States
to pursue this case. The concept of standing, however, is inapposite in this context, while the
jurisdiction of the United States to enforce violations of its criminal laws in this Court is
unquestionable.
7
that neither Jimmy nor Rico acted as government cooperators at the time of the drug transactions
at issue here. But even if the Court were to take the Defendant’s allegation as true — that Jimmy
and/or Rico were government informants — the Defendant’s entrapment defense, absent any
additional evidence presented at trial, still fails. Government inducement involves “persuasion,
fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas
based on need, sympathy or friendship.” United States v. Sanchez, 88 F.3d 1243, 1249 (D.C. Cir.
1996) (citation and internal quotation omitted). Even “repeated government solicitations do not
establish inducement unless the requests are coupled with persuasive overtures, or unless there is
evidence of reluctance on the defendant’s part demonstrating that the repetition of the requests
may have moved an otherwise unwilling person to commit a criminal act.” United States v.
Hanson, 339 F.3d 983, 989 (D.C. Cir. 2003). Finally, “[a]n informant’s selling or giving drugs to
the subject of an investigation, without more, falls well short of the type of behavior that would
amount to an inducement[.]” United States v. Trejo, 136 F.3d 826, 828 (D.C. Cir. 1998).
In this case, there is no indication that either Rico or Jimmy — even if they were
government informants — engaged in persuasive overtures beyond those ordinarily present in
drug transactions. See Glover, 153 F.3d at 754-55. Similarly, the Government did not solicit the
Defendant directly; the objects of the Government’s original solicitations were Rico and Jimmy.
Based on the evidence in the record thus far, the first sale of PCP was initiated by the Defendant,
who contacted the undercover officers out of his own volition and for reasons unbeknownst to
the Government. Even the second drug sale, which resulted from a series of text messages
between the undercover officers and the Defendant, does not amount to inducement as there is no
evidence that the Government’s requests were accompanied by persuasive overtures or that the
Defendant displayed any reluctance in consummating the transaction. See McKinley, 70 F.3d at
8
1313. The Defendant has not provided the factual predicate or evidentiary foundation necessary
to meet his initial burden of showing government inducement. Accordingly, his argument for
dismissal based on entrapment fails.
The Defendant next alleges that the Government engaged in selective prosecution when it
chose to prosecute him while declining to prosecute Rico or Jimmy. To prevail on a defense of
selective prosecution, a defendant must prove both that he was singled out for prosecution
among others similarly situated and that the decision to prosecute was motivated by a
discriminatory purpose. United States v. Armstrong, 517 U.S. 456, 465 (1996). To show
discriminatory motivation, a defendant must establish that the selection to prosecute was “based
on an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. at 464.
The Supreme Court has noted that “the standard is a demanding one.” Id. at 463. In the ordinary
case, “so long as the prosecutor has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to prosecute . . . generally rests entirely in
his discretion.” Id. at 464. As a result, “[t]he presumption of regularity supports” their
prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that
they have properly discharged their official duties.” Id.
The Defendant has not come close to meeting this rigorous test. First, the Government
had probable cause to believe the Defendant sold drugs. Second, the Defendant has not put forth
a shred of evidence even hinting at the existence of a discriminatory purpose behind the decision
to prosecute him but not Rico or Jimmy. And, during the motions hearing, the Defendant’s
counsel complained that the decision to prosecute the Defendant was arbitrary and unfair, yet he
admitted that he had no basis to believe that the Government acted with any improper purpose as
recognized by the law. In fact, the Defendant’s counsel conceded that all of the purportedly
9
similarly-situated comparators are of the same gender and race as the Defendant. Because the
Defendant has not presented the requisite evidence needed to dispel the presumption that the
prosecutor acted within her broad discretion, the Court must reject the Defendant’s argument for
dismissal based on selective prosecution.
D. Omnibus Motion to Dismiss Indictment; To Compel Discovery; For a Severance of
Counts; and For a Bill of Particulars
In his third motion to dismiss, the Defendant, through his counsel, asserts that his right to
a speedy trial was violated due to pre-indictment delay, moves to compel discovery and sever the
counts, and requests a bill of particulars. See generally Def.’s Omn. Mot. Dism., ECF No. 32.
Regarding the first claim, the Defendant argues that the pre-indictment delay of more than eighth
months after the date of the first alleged offense violated his right to a speedy trial. Any
argument regarding pre-indictment delay must be based on the due process clause of the Fifth
Amendment, “and to establish such a due process violation, a defendant must establish that the
delay resulted in ‘actual prejudice to the conduct of the defense’ and that the government
‘intentionally delayed to gain some tactical advantage’ over the defendant.” United States v.
Brodie, 326 F. Supp. 2d 83, 87 (D.D.C. 2004) (citing United States v. Marion, 404 U.S. 307, 325
(1971)). 7 The Defendant has not satisfied his burden under this standard.
The Defendant states that the pre-indictment delay “resulted from government negligence
or gross indifference to Mr. Mack’s rights.” Def.’s Mot. Dism. at 3, ECF No. 32. The Defendant,
however, has offered no facts to support this claim. Similarly, the Defendant has neither made a
claim of actual prejudice suffered, nor presented evidence that the Government intentionally
7
A defendant has no Sixth Amendment claim based on alleged pre-indictment
delay. See United States v. Marion, 404 U.S. 307, 320 (1971) (“[E]ither a formal indictment or
else the actual restraints imposed by arrest and holding to answer a criminal charge [ ] engage the
particular protections of the speedy trial provisions of the Sixth Amendment.”).
10
delayed its investigation or the seeking of a grand jury indictment in order to gain a tactical
advantage or to harass the Defendant. See Brodie, 326 F. Supp. 2d at 87-88. In any case, the
delay, which the Government avers was the result of its attempt to decide whether to further
investigate the Defendant and his associates, see Govt.’s Opp. Mot. at 8, was not significant. The
Defendant therefore has not shown that his rights were violated by any pre-indictment delay.
The Defendant also seeks an order from this Court compelling discovery,
“notwithstanding the timely disclosure of ample materials by the government.” Def.’s Mot. to
Dism. at 3, ECF No. 32. The Government submits that it has complied with the Defendant’s
discovery requests. See Govt.’s Opp. Mot. at 9. The Defendant’s inadequate briefing of this point
does not allow the Court to determine whether the Government has failed to provide any
discovery to which the Defendant is entitled. 8
Next, although the motion includes a claim “for a severance of counts” in its title, the
Defendant fails to raise any arguments in furtherance of this claim in his motion. Arguments
presented at the motions hearing added little to the briefing. Nevertheless, Federal Rule of
Criminal Procedure 8 allows for the joinder of offenses if the offenses charged “are of the same
or similar character, or are based on the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8 generally is
construed liberally in favor of joinder. United States v. Richardson, 161 F.3d 728, 733 (D.C. Cir.
1998). “As long as only one defendant is concerned, Rule 8(a) permits joinder of such offenses,
even if they are entirely unrelated to each other.” United States v. Gooch, 665 F.3d 1318, 1325
(D.C. Cir. 2012). The Defendant is charged with two counts, both of which concern the unlawful
8
At the motions hearing, the Defendant raised an objection concerning redactions
made in some of the investigation materials produced. The Court will deal with this issue
through a separate order.
11
distribution of the same drug, PCP. Given that the two transactions involved the same
undercover officers and were of similar character, the offenses charged constitute instances of a
common scheme of drug distribution by the Defendant. As such, joinder is permissible.
After counts are joined, Federal Rule of Criminal Procedure 14 controls the subsequent
severance of counts. United States v. Carson, 455 F.3d 336, 372 (D.C. Cir. 2006). Rule 14 states
that if “joinder . . . appears to prejudice a defendant . . . the court may order separate trials of
counts . . . or provide any further relief that justice requires.” Fed. R. Crim. P. 14(a). The
Defendant carries the burden of demonstrating prejudice resulting from a failure to sever. See
Carson, 455 F.3d at 374. If such a showing is made, it remains in the district court’s discretion
whether to sever the counts. See Gooch, 665 F.3d at 1326. As the Court previously mentioned,
the Defendant has not made any showing that the failure to sever the counts would cause
prejudice. In the absence of any demonstration of prejudice, the Court does not find that there
exists a serious risk that failure to sever the counts would prevent the jury from making a reliable
judgment about guilt or innocence. See id. at 1336. Severance therefore is inappropriate.
Lastly, the Defendant seeks an order requiring the Government to provide a bill of
particulars setting forth the “specific event(s) [time(s), place(s) etc.] for which the government
anticipates to proffer evidence to suggest that the defendant engaged in illegal activity, and the
nature of such activity, related to the ‘pending investigation’ . . . .” Def.’s Mot. Dism. at 6, ECF
No. 32. Under Federal Rule of Criminal Procedure 7, a court “may direct the filing of a bill of
particulars.” Fed. R. Crim. P. 7(f). “A bill of particulars can be used to ensure that the charges
brought against a defendant are stated with enough precision to allow the defendant to
understand the charges, to prepare a defense, and perhaps also to be protected against retrial on
the same charges.” United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987). “It is not the
12
function of a bill of particulars [however,] to provide detailed disclosure of the government’s
evidence in advance of trial.” United States v. Edelin, 128 F. Supp. 2d 23, 37 (D.D.C. 2001).
When the indictment is sufficiently detailed, or the requested information is available in some
other form, a bill of particulars is not required. Id.
As is clear from a review of the indictment, the information afforded in the Government’s
reply motion, and the discovery provided thus far, the charges against the Defendant are detailed
and have been alleged with sufficient particularity. 9 “There is thus no reason for any further
particularization of the overt acts, the circumstances surrounding the alleged acts or any other
evidentiary details.” Brodie, 326 F. Supp. 2d at 92. As such, the Defendant’s request for a bill of
particulars is denied.
IV. CONCLUSION
For the foregoing reasons, the Court denies the Defendant’s motions to dismiss the
indictment. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 11, 2014 RUDOLPH CONTRERAS
United States District Judge
9
At the motions hearing, the Defendant, for the first time, requested more detail
about the Government’s forfeiture claim. The Government agreed to provide a separate pleading
regarding the exact amount it intends to seek. As such, the Court need not address the issue
further at this time.
13