SUE L. ROBINSON, District Judge.
On April 16, 2009, a grand jury returned a nine-count second superseding indictment with a notice of forfeiture against defendants Pawel Dynkowski ("Dynkowski"),
Prior to retaining current counsel in September 2009, Mangiapane filed, pro se, eleven pretrial motions, nine of which concerned discovery production by the government: (1) motion for disclosure of informants (D.I. 35); (2) motion for a list of trial witnesses (D.I. 36); (3) motion for Jencks Act materials in advance of trial (D.I. 37); (4) motion for production of grand jury testimony (D.I. 38); (5) motion to inspect the minutes of the grand jury (D.I. 39); (6) motion for leave to file motions to compel discovery (D.I. 40); (7) motion for a pretrial conference (D.I. 41); (8) motion for a bill of particulars (D.I. 42); (9) motion for production of evidence favorable to the accused (D.I. 43); (10) motion to dismiss the indictment due to misconduct occurring before the grand jury (D.I. 54); (11) motion to dismiss the indictment due to outrageous government conduct (D.I. 72); and (12) traverse petition and motion for evidentiary hearing (D.I. 57, 73). The government filed an omnibus response to Mangiapane's discovery motions. (D.I. 47) The government filed separate responses (including motions to strike) Mangiapane's motion to dismiss and for a traverse petition and evidentiary hearing. (D.I. 56, 58)
During an April 13, 2010 teleconference,
With respect to the remaining discovery motions: (1) Mangiapane's motion for disclosure of confidential informant (D.I. 35) is denied without prejudice. Plaintiff shall disclose said information no later than one week prior to the start of trial. United States v. Grant, 256 F.Supp.2d 236, 243-44 (D.Del.2003); United States v. Beckett, 889 F.Supp. 152 (D.Del.1995); (2) Mangiapane's motion to compel production of grand jury testimony incorporating any trial witnesses' statements through an intermediary (D.I. 38) is denied without prejudice. Plaintiff is not required to produce the testimony of a grand jury witness who does not testify at trial. United States v. Spurell, 245 Fed.Appx. 127 (3d Cir.2007). Plaintiff shall produce, consistent with Jencks Act requirements, the grand jury statements of any witness who testifies at trial.; (3) Mangiapane's motion for discovery of grand jury minutes (D.I. 39) is granted insofar as plaintiff shall produce said minutes consistent with Fed.
In light of these rulings, the court turns to address Mangiapane's motions to dismiss (D.I. 54, 72) and traverse petition for an evidentiary hearing (D.I. 57). The court has jurisdiction pursuant to 18 U.S.C. § 3231.
On February 8, 2007, a Texas State trooper ("trooper") stopped an Avis rental vehicle with South Carolina license plates for speeding. (D.I. 57 at 19) The driver, Justin Woods ("Woods"), appeared nervous and gave conflicting information to the trooper. Woods consented to a search of the vehicle, resulting in the discovery of $146,700 concealed in a D.H.L. bag and $8,600 hidden in a shoe located inside luggage
After receiving and waiving his Miranda rights, Woods agreed to be interviewed by the trooper. Woods stated that in April 2006, his high school friend Matthew Brown ("Brown")
After his flight landed in California on February 6, 2007, Woods drove to Brown's residence. Brown gave Woods a D.H.L., bag containing $140,000 ("the currency") and another $10,000, representing payment for the driving job. While Woods stated that the currency was illegal, he did not know the source of the money. The following day, Woods started the drive from California to Delaware; on his way, he was stopped in Texas. Sometime thereafter, Woods began cooperating with law enforcement officers.
In his pro se motion to dismiss, Mangiapane raised two arguments: (1) he was denied the opportunity to testify before the grand jury; and (2) the government failed to provide the grand jury with allegedly exculpatory evidence and, instead, misled the grand jury. (D.I. 54) Had the grand jury had the benefit of his testimony as well as the exculpatory evidence he would have proffered, Mangiapane asserts an indictment would not have been returned.
In order to dismiss an indictment on the grounds of prosecutorial misconduct, a defendant must demonstrate that the misconduct substantially influenced the grand jury's decision to indict, or that there is a grave doubt as to whether the decision to indict was free from substantial influence of prosecutorial misconduct. Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 259, 263, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988); see also United States v. Soberon, 929 F.2d 935, 939-40 (3d Cir. 1991) (applying the Bank of Nova Scotia standard); United States v. Fisher, 871 F.2d 444, 450 (3d Cir.1989). A defendant must also show that he was prejudiced by the misconduct. Bank of Nova Scotia, 487 U.S. at 263, 108 S.Ct. 2369.
The grand jury serves as a referee or buffer between the government and the people. United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). It is an accusatory body that sits "not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge." Id. at 51, 112 S.Ct. 1735; Bracy v. United States, 435 U.S. 1301, 1302, 98 S.Ct. 1171, 55 L.Ed.2d 489 (1978).
An individual under investigation does not have the right to testify before the grand jury nor the right to have exculpatory evidence presented on his or her behalf. Williams, 504 U.S. at 52, 112 S.Ct. 1735. Therefore, a district court may not dismiss an otherwise valid indictment on the ground that the government failed to disclose to the grand jury exculpatory evidence that was in its possession; "courts have no authority to prescribe such a duty [to disclose exculpatory evidence to the grand jury]." Id. at 55, 112 S.Ct. 1735; United States v. Minerd, 299 Fed.Appx. 110, 112 (3d Cir.2008).
Considering this authority, the court finds no basis to dismiss the indictment based on Mangiapane's arguments that he was denied the opportunity to testify before the grand jury or that the government failed to provide the grand jury with allegedly exculpatory evidence. While Mangiapane has presented (and the government has contested) various emails and letters that purportedly demonstrate, respectively, that his requests to testify before the grand jury were denied and exculpatory
Mangiapane next asserts that the indictment was the result of outrageous government conduct in violation of the Due Process Clause of the Fifth Amendment and should be dismissed. (D.I. 72) The United States Court of Appeals for the Third Circuit
United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir.1998). In order for the challenged conduct to implicate "outrageousness," the "conduct must be shocking, outrageous, and clearly intolerable. . . ." Id. at 231. However, "courts have experienced considerable difficulty in translating `outrageous misconduct' into a defined sets of behavioral norms." Id. at 230. Nonetheless, "[t]his does not relieve [courts] from the obligation to enforce bounds of constitutional acceptability." United States v. Lakhani, 480 F.3d 171, 180-81 (3d Cir.2007).
The "judiciary is extremely hesitant to find law enforcement conduct so offensive that it violates the Due Process Clause." United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir.1996). To that end, the Third Circuit has admonished that the doctrine is to be implicated only "in the face of the most intolerable government conduct" and "not each time the government acts deceptively or participates in a crime that it is investigating." Lakhani, 480 F.3d at 180 (citations and quotations omitted); United States v. Pitt, 193 F.3d 751, 761 n. 11 (3d Cir.1999) (collecting cases); United States v. DeRewal, 10 F.3d 100, 105 n. 3 (3d Cir.1993) ("in the 15 years since [the outrageous conduct doctrine] was decided, [the Third Circuit] has not found any case warranting dismissal of criminal charges on a similar ground").
The court finds the challenged misconduct, even if true, does not establish the extent of outrageous government conduct that would be necessary to prevail. Significantly, the alleged false and inflammatory information that was the alleged catalyst to the investigation and was included in the search warrants and presented to the grand jury occurred after the crimes had occurred. The Third Circuit has not recognized such conduct as sufficiently outrageous to implicate the doctrine and the court finds that none of the conduct was demonstrably outrageous or intolerable or even close to meeting the rigorous standards enunciated in United States v. Nolan-Cooper, 155 F.3d at 230-231; United States v. Montgomery, 336 Fed.Appx. 221 (3d Cir.2009); United States v. Georgiou, 2009 WL 4641719 (E.D.Pa. December 7, 2009).
In his pro se traverse petition and motion for evidentiary hearing, Mangiapane
The Fourth Amendment to the United States Constitution protects "the right of the people to be secure against unreasonable searches and seizures ....." U.S. Const. Amend. IV. A defendant arguing for suppression of evidence obtained in violation of the Fourth Amendment must establish that his Fourth Amendment rights were violated by the challenged search or seizure. United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993); United States v. Hebron, 243 F.Supp.2d 90, 92 (D.Del.2003).
To establish standing, the party challenging the legality of the search bears the threshold burden of establishing that he or she had a reasonable expectation of privacy in the property searched and the item seized. Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); United States v. Baker, 221 F.3d 438, 441 (3d Cir.2000). For a defendant to establish a reasonable expectation of privacy in a searched dwelling, he must show both a subjective expectation of privacy and that the expectation is objectively reasonable. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Baker, 221 F.3d 438, 441 (3d Cir.2000).
A defendant who lacks a reasonable expectation of privacy in the place searched is foreclosed from invoking the protections of the Fourth Amendment. United States v. Perez, 280 F.3d 318, 337 (3d Cir.2002). The defendant "who is aggrieved by an illegal search and seizure through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Forth Amendment rights infringed." Rakas v. Illinois, 439 U.S. at 133-34, 99 S.Ct. 421; see e.g., United States v. Gray, 491 F.3d 138, 154 (4th cir.2007) (no reasonable expectation of privacy in a codefendant's apartment).
Considering this authority against the record, it is evident that Mangiapane lacks standing to challenge the search of Brown's residence. Mangiapane has failed to demonstrate any privacy interest in the residence. He does not contend that he lived at the house, that he stayed at the house for any period of time, that he was ever invited into the house, had a key to the house or had the authority to exclude others from the residence. Perez, 280 F.3d at 336-37; United States v. Huggins, Crim. No. 03-91-SLR, 2004 WL 2434301, at *1 (D.Del. Oct. 21, 2004); Warner v. McCunney, 259 Fed.Appx. 476, 477-78 (3d Cir.2008). Mangiapane has also not demonstrated any possessory interest in any of the items seized. Absent a showing of an expectation of privacy, there cannot be a Fourth Amendment violation of Mangiapane's rights as a result of the search. Mangiapane has no standing to challenge the admissibility of evidence obtained by the government during that search.
A defendant may challenge the veracity of factual statements appearing in an affidavit of probable cause by what is commonly referred to as a Franks hearing. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To obtain a Franks hearing, a defendant must make a "substantial preliminary showing" that the
In light of the court's finding that Mangiapane lacks standing to challenge the search, he likewise is foreclosed from challenging the statements contained in the affidavits.
For the reasons discussed above, defendant's motions to dismiss and traverse petition for an evidentiary hearing are denied. An order consistent with this memorandum opinion shall issue.
At Wilmington this 29th day of June, 2010, consistent with the memorandum opinion issued this same date;
IT IS ORDERED that:
1. Defendant Mangiapane's: (1) motion for disclosure of confidential informant (D.I. 35) is denied without prejudice; (2) motion to compel production of grand jury testimony incorporating any trial witnesses' statements through an intermediary (D.I. 38) is denied without prejudice; (3) motion for discovery of grand jury minutes (D.I. 39) is granted; (4) motion for a bill of particulars (D.I. 42) is denied; (5) motion for production of evidence (D.I. 43) is moot; (6) motion for Jencks Act materials (D.I. 37) is moot due to defendant's withdraw of the motion; (7) motion for a pretrial conference (D.I. 41) is moot due to defendant's withdraw of the motion; (8) motion for leave to file discovery motions (D.I. 40) is moot due to defendant's withdraw of the motion; (9) motion for a list of trial witnesses (D.I. 36) is denied without prejudice to renew; (10) motions to dismiss are denied (D.I. 54, 72); (11) traverse petition for an evidentiary hearing (D.I. 57) is denied; and (12) plaintiffs motions to strike (D.I. 56, 60) are denied.
2. A telephone status conference is scheduled to commence on
3. The time between this order and the date of the telephone conference shall be excludable under the Speedy Trial Act in the interests of justice, 18 U.S.C. § 3161 et seq.
