NORA BARRY FISCHER, District Judge.
Presently before the Court are the following pretrial motions filed by Defendant Victor Burnett, Jr. ("Defendant"): Motion to Suppress Evidence (Docket No. 265); Motion for Pretrial Release and Set Aside Order of Detention (Docket No. 370); and Motion for Transfer of Venue (Docket No. 376). The Government filed an Omnibus Response in opposition to said motions and Defendant filed a Reply. (Docket Nos. 396, 397). The Court held a motion hearing on November 15, 2018, the official transcript of which has been filed of record and considered by the Court. (Docket Nos. 418, 424). The parties also submitted supplemental information regarding Defendant's Motion for Pretrial Release and Motion for Transfer of Venue. (Docket Nos. 428, 429, 430). After careful consideration of all of the parties' submissions, and for the following reasons, Defendant's Motions are denied.
On August 30, 2016, Defendant and six co-defendants were charged in a one-count Indictment with conspiracy to distribute and possess with intent to distribute one kilogram or more of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 846. (Docket No. 1). On January 30, 2018, Defendant filed his motion to suppress evidence seized following the search of his residence in Oak Park, Michigan and his motorcycle pursuant to search and seizure warrants issued by United States Magistrate Judge Elizabeth A. Stafford of the United States District Court for the Eastern District of Michigan.
Subsequently, a Superseding Indictment was returned on June 19, 2018, charging Defendant with the same heroin conspiracy offense, as well as possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Docket No. 332). Defendant then filed his Motion for Pretrial Release and Motion for Transfer of Venue on July 23 and July 30, 2018, respectively.
Defendant argues that evidence seized following the search of his residence and his motorcycle should be suppressed because the affidavit in support of the search warrants did not establish probable cause. (Docket No. 265, ¶¶ 13-16; Docket No. 266 at 4-5). The affidavit in question, which was prepared by Karen L. Springmeyer, a Special Agent ("SA") of the Federal Bureau of Investigation ("FBI"), is attached as an exhibit to Defendant's suppression motion (Docket No. 265-3) (hereinafter, the "Affidavit"). After considering the Affidavit, Magistrate Judge Stafford found that it established probable cause to conduct a search of Defendant's residence and motorcycle for evidence of controlled substance offenses and issued search and seizure warrants for same. (
The Government responds that there is no need for an evidentiary hearing, as the Court can decide whether probable cause existed based on a review of the "four corners" of the Affidavit. (Docket No. 396 at 15; Docket No. 424 at 13-14). The Government maintains that the Affidavit contained information concerning numerous wiretapped conversations involving Defendant, as well as surveillance of him, which sufficiently linked his property to the crimes under investigation and therefore established probable cause for issuance of the search warrants. (Docket No. 396 at 14). The Government further contends that the law enforcement officers acted in "good faith" in executing the search warrants.
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As an initial matter, no evidentiary hearing is required in this case. The case law makes clear that this Court's review is confined to the "four corners" of the Affidavit that was before Magistrate Judge Stafford, and we are not to consider information from other portions of the record.
Turning to the Affidavit, SA Springmeyer first summarized her six years of employment with the FBI, as well as her experience in investigating drug trafficking and other types of violent crimes. (Aff. ¶¶ 1-3). Based on her training and experience, SA Springmeyer explained that it is common practice for drug traffickers to store their drug inventory, associated paraphernalia, proceeds of drug sales and firearms used to protect their drug supply and profits in their residences, businesses and/or vehicles. (
SA Springmeyer next summarized the background of the investigation. In early January 2015, the Pittsburgh Bureau of Police Narcotics Unit began receiving complaints of narcotics activity on Watson Boulevard located in the North Side of Pittsburgh. (Aff. ¶ 21). Surveillance of the area showed that known members or associates of a violent street gang known as the "Wilson Avenue Gangsters," including Clinton Robinson and others, were selling heroin from a residence on Watson Boulevard. (
Beginning on February 29, 2016 and continuing into August 2016, investigators conducted a Title III wiretap investigation in which numerous telephones utilized by members of Robinson's drug trafficking organization were intercepted, including that of Vanier Murraine, who law enforcement determined was a heroin and cocaine trafficker. (Aff. ¶¶ 35, 38). The wiretap investigation revealed that Defendant supplied heroin to Murraine, who in turn supplied it to Robinson for distribution in the Western District of Pennsylvania. (
Relative to Defendant, SA Springmeyer described intercepted telephone conversations with Murraine in which they discussed drug transactions and their plans to meet regarding same or which were otherwise indicative of drug trafficking. (Aff. ¶¶ 169, 171-174, 178, 184-185, 188-191, 196-199). Additionally, one call involved a discussion wherein Defendant agreed to purchase ammunition for Murraine because he is a convicted felon who is precluded from possessing a firearm or ammunition. (
SA Springmeyer also described surveillance of Defendant showing that he drove a motorcycle to Murraine's residence, he entered and exited Murraine's garage with a black backpack and then he put the backpack into a saddle bag on the motorcycle. (Aff. ¶ 149). In SA Springmeyer's experience, these short meetings, which would last approximately ten minutes and occur on average one or more times per week, were indicative of drug and/or money transactions between Defendant and Murraine. (
SA Springmeyer additionally described intercepted calls between Murraine and others in which reference was made to Defendant. (Aff. ¶¶ 94, 95, 97, 169, 179, 192-195). In a call with Robinson, Murraine referred to Defendant as "his man," meaning his source of supply. (
Based on SA Springmeyer's Affidavit, Magistrate Judge Stafford issued search warrants for Defendant's residence and motorcycle on August 29, 2016. (
The foregoing information contained in the "four corners" of the Affidavit constitutes a substantial basis for Magistrate Judge Stafford to have concluded that Defendant was engaged in drug trafficking and there was a fair probability that evidence of it would be found in his residence and motorcycle. It was reasonable for Magistrate Judge Stafford to infer that Defendant stored drugs at his residence because "evidence of involvement in the drug trade is likely to be found where the dealers reside."
Even if the Court would conclude that the warrants were not supported by probable cause, the Government alternatively argues that the law enforcement officers acted in "good faith" in executing them, therefore suppression of the challenged evidence is not warranted. (Docket No. 396 at 14; Docket No. 424 at 18). This Court has summarized the law applicable to the good faith exception to the warrant requirement as follows:
In this Court's estimation, even if the warrants were deemed insufficient, the good faith exception would apply to defeat the present suppression motion. The record in this case simply does not support a finding that one of the four limited circumstances which permit the avoidance of the good faith exception apply here.
Following the detention hearing held on September 2, 2016, Magistrate Judge Stafford entered a written order detaining Defendant. Magistrate Judge Stafford found that the rebuttable presumption under 18 U.S.C. § 3142(e)(3) was triggered in this case based on the nature of the charge against Defendant. (Docket No. 47-5 at 3). She further found that the testimony and information presented at the detention hearing established by clear and convincing evidence that there is no condition or combination of conditions which would reasonably assure the safety of the community. (
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Defendant now moves for revocation of the detention order and requests that he be released pending trial. (Docket No. 370). In support of his request for release, Defendant submitted certificates of achievement which he has obtained while incarcerated, as well as documents showing the types of programs and the coursework he has completed. (Docket No. 428, Exs. A and B). Defendant also submitted a letter from his mother, Rita Reece, indicating that she is now retired and available to serve as a third-party custodian for Defendant if he is released. (
The Government opposes Defendant's request for release pending trial. The Government recognizes that Defendant's achievements while incarcerated are commendable but maintains that they are insufficient to undermine Magistrate Judge Stafford's sound reasoning that detention pending trial is required because no condition or combination of conditions can reasonably assure the safety of the community. (Docket No. 396 at 20-21, 25-27; Docket No. 430 at 2-3). For reasons explained below, the Court agrees.
The Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq. (the "BRA"), governs release and detention pending judicial proceedings. Pursuant to the BRA, a defendant must be released on his personal recognizance or upon execution of an unsecured appearance bond unless the court determines that "such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. §3142(b). Following a hearing, if the judicial officer finds that no condition or combination of conditions of release will reasonably assure the defendant's appearance and the safety of the community, detention must be ordered. 18 U.S.C. §3142(e). Certain cases raise a rebuttable presumption that no conditions or combination of conditions will reasonably assure the appearance of defendant as required or the safety of the community. 18 U.S.C. § 3142(e)(3). This rebuttable presumption applies, among others, to cases in which there is probable cause to believe that the defendant committed an offense under 18 U.S.C. § 924(c) or an offense under the Controlled Substances Act, 21 U.S.C. § 801, et seq., for which the maximum term of imprisonment is ten years or more. 18 U.S.C. § 3142(e)(3). An indictment charging a defendant with committing an offense enumerated in § 3142(e)(3) is sufficient to establish probable cause triggering the rebuttable presumption.
At the time of his detention hearing, Defendant was charged with conspiracy to distribute and possess with intent to distribute one kilogram or more of a mixture and substance containing a detectable amount of heroin, which carries a penalty of not less than 10 years to life imprisonment.
A defendant may rebut the presumption in §3142(e) by producing "some credible evidence . . . that he will appear and will not pose a threat to the community."
The Court agrees with Magistrate Judge Stafford that the evidence presented by Defendant was insufficient to meet his burden to rebut the applicable presumption that no conditions will reasonably assure the safety of the community.
The Court finds that the evidence proffered at the detention hearing, as supplemented before this Court, favors the Government on each of these cited factors. First, Defendant has been indicted for two very serious offenses, the convictions for which may result in the imposition of mandatory minimum sentences totaling 15 years or 180 months' incarceration, (i.e., 120 months at Count 1 and a consecutive 60 months at Count 2).
Second, the evidence proffered by the Government at the detention hearing appears to be strong. The investigation revealed that Defendant was Murraine's source of heroin supply and also purchased ammunition for Murraine, who was precluded from doing so due to prior felony convictions. (Docket No. 371-2 at 5, 6). Intercepted telephone calls between Defendant and Murraine involved discussions concerning controlled substance transactions, the need to get money from people in Pittsburgh and the purchase of ammunition. (
Third, with respect to his history and characteristics, Defendant has submitted character letters from friends and family. Defendant's counsel proffered information at the detention hearing, and reiterated in his pending motion, that he has ties to the community because he is a lifelong resident of the Detroit area, he is the owner and operator of two small businesses, he attended college, he has support from friends and family, he has three young children and he has made positive use of his time while incarcerated by taking advantage of the available resources and attaining numerous certificates. (Docket No. 370, ¶¶ 36, 40-45; Docket No. 371-2 at 7-10; Docket No. 428, Exs. A, B). Given the foregoing, Defendant has presented "some evidence" of the potential for him to return to a law-abiding life, if released.
With that said, Defendant has suggested that his mother is willing to serve as a third-party custodian if he is released pending trial. "[T]he mere fact that a relative or other individual is willing to serve as a third party custodian for a defendant is not sufficient to justify release on such conditions but is among the factors to be considered when evaluating whether release or detention is appropriate in a given case."
This Court also shares Magistrate Judge Stafford's concern regarding a third-party custodian, regardless of who would assume that role. Though Defendant's mother is no doubt well-intentioned, the mere fact that she is retired and willing to serve as a third-party custodian does not mean that she, or anyone else, could adequately supervise a defendant who is charged with extremely serious drug trafficking and firearms offenses.
As to the final factor, the nature and seriousness of the danger to the community that would be posed by Defendant's release likewise favors pretrial detention in this case. Drug trafficking poses a substantial risk of harm to the community, particularly the trafficking of very dangerous and addictive drugs like heroin.
In consideration of the above factors, the Court concludes that no condition or combination of conditions would assure the safety of the community if Defendant was released pending trial. Accordingly, Defendant's motion for pretrial release is denied.
Defendant asserts that this case should be transferred to the Eastern District of Michigan because "although the conspiracy is alleged to have occurred in the Western District of Pennsylvania, [his] alleged actions did not." (Docket No. 376, ¶ 11). In that regard, Defendant contends that it is irrelevant whether or not the drug conspiracy "could `reasonably foreseeably' transcend to the Western District of Pennsylvania." (
As an initial matter, venue is proper in the Western District of Pennsylvania as to both the drug conspiracy charge and the firearm charge against Defendant, a point which Defendant does not dispute.
Pursuant to Federal Rule of Criminal Procedure 21(b), "[u]pon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim and the witnesses, and in the interest of justice." The decision whether to transfer a case is committed to the discretion of the district court.
The defendant should support a motion to transfer with "affidavits, depositions, stipulations, or other documents containing facts that would tend to establish the necessary elements for a transfer."
We begin by considering the location of Defendant, his counsel and expense to the parties. With respect to expense, Defendant does not claim to be indigent and has retained private counsel, Attorney Perkins, whose office is located in Detroit, Michigan. When Defendant chose to retain Attorney Perkins and counsel agreed to represent him, both were well aware that this case was pending in the Western District of Pennsylvania and proceedings would be scheduled in Pittsburgh. They were also aware of Defendant's incarceration at CCA in Youngstown, Ohio, where many federal prisoners who are pending trial in the District are detained. Therefore, both Defendant and his chosen counsel were cognizant that travel from Michigan to Youngstown and/or Pittsburgh, which is not particularly onerous, would be required for meetings, conferences and attendance at court proceeding. To the extent that scheduling in-person meetings at CCA between Defendant and his counsel may prove challenging, such logistical concerns exist for any lawyer who represents a federal prisoner detained there, regardless of where that lawyer's office is located. In sum, Defendant and Attorney Perkins knew at the outset that his representation would likely require additional attention to logistics, some travel and associated expense. Thus, consideration of Defendant's location, his counsel's location and expense do not weigh in favor of a transfer at this stage of the proceedings.
We next consider the location of possible witnesses, the location of the events in issue, the location of documents and records, disruption of the defendant's business unless the case is transferred and the relative accessibility of the place of trial. Defendant contends that witnesses who may testify on his behalf live in Michigan, but he has not identified any such witness who would have difficulty or be unable to travel to Pittsburgh for a trial. Moreover, as counsel for the Government noted at oral argument, the investigating case agents are located in Pittsburgh, as is the evidence which was seized. In addition, there is no basis to transfer due to the relative accessibility of the place of trial, as Pittsburgh is readily reached by automobile, airplane and train. Further, Defendant has not argued that disruption to his business requires transfer, nor can he do so, as he is currently incarcerated. All told, these factors do not weigh in favor of transfer.
Finally, we consider the docket condition of each district involved and any other special elements which might affect the transfer. Defendant submitted supplemental information concerning the respective dockets and the composition of the jury pools in the Western District of Pennsylvania and the Eastern District of Michigan, but he did not present any compelling argument to transfer this case on either of those bases.
Based on all the relevant factors, Defendant has not met his burden for transfer of this case to the Eastern District of Michigan. Accordingly, Defendant's motion to transfer venue is denied.
For the reasons discussed herein, Defendant's Motion to Suppress Evidence (Docket No. 265), Motion for Pretrial Release and Set Aside Order of Detention (Docket No. 370) and Motion for Transfer of Venue (Docket No. 376) are DENIED.
An appropriate Order follows.
As to venue for the drug conspiracy charge, contrary to Defendant's position, it need not be reasonably foreseeable to him that conduct in furtherance of the conspiracy would have occurred in the judicial district where he is charged.