MICHAEL D. NELSON, Magistrate Judge.
COMES NOW, Kordaye Carter, by and through his attorney Timothy L. Ashford, and moves this Court for an order to Dismiss this case based upon Outrageous Government Conduct and Newly Discovered Evidence of the confidential informant. Counsel has newly discovered information regarding the confidential informant and requests a hearing on the newly discovered evidence if this case is not dismissed. Defendant also requests the court grant a Rule 16 motion for Discovery and if the case is not dismissed A Jury Instruction for Entrapment. A waiver of speedy trial has been filed until April 26, 2018.
The court granted Counsel the motion to refile pretrial motions. This amended motion and brief is filed based upon Outrageous Government Conduct, a Rule 16 Request for Discovery and a Jury Instruction on the issue of Entrapment.
In the Kordaye Carter case, Counts I, II and III states on or about November 9, 2016, November 30, 2016 and February 2, 2017 in the District of Nebraska, Defendant Kordaye Carter did knowingly and intentionally distribute a mixture or substance containing a detectable amount of cocaine base (i.e., "crack cocaine"), its salts, optical and geometric isomers and salts of isomers, a Schedule II controlled substance. In violation of Title 21, United States Code, Section (a)(1) and Title 21, United States Code, Section 841(b)(1).
In count II on or about November 9, 2016, in the District of Nebraska, the defendant, Kordaye Carter, knowingly used and carried a firearm during and in relation to a drug trafficking crime and knowingly possessed a firearm in furtherance of such crime, for which the Defendant may be prosecuted in a Court of the United States, to wit: the activity set forth in Count I herein, specifically, a Rom Arm SKS rifle. In violation of Title 18, United States Code, Section 924(c)(1)(A)(i).
The confidential informant is personally known to Defendants Kordaye Carter 8:17 CR 221 and Defendant Cardell Bonner 8:17 CR 222. The two mothers of the above named defendants- Mary Carter 8:17 CR 221 Ex. 1 and Glendora Bonner 8:17 CR 222 Ex. 22- filed lawsuits against the confidential informant for his involvement in fraudulent real estate transactions which bilked the two mothers out of thousands of dollars months before the two defendants were engaged in the alleged illegal activity.
A lawsuit, which is attached as Ex.1, was filed by Mary Ann Carter, who is the mother of Kordaye Carter, against the confidential informant in the Douglas County District Court docket CI 17 10579. The lawsuit (CI 17 10579) (Ex. 1) alleges the mother of Kordaye Carter gave the confidential informant $8,000 for the purchase of two real estate properties on April 6, 2016 and April 15, 2016.
The confidential informant signed and cashed check number 441050 from Centris Federal Credit Union (Ex. 2) in the amount $6,000 on January 19, 2016 which the mother of Cardell Bonner-Ms. Glendora Bonner paid to the confidential informant and the confidential informant cashed 441050. (Ex. 3 is the check stub.)
The confidential informant signed and cashed check number 201466 from Centris Federal Credit Union (Ex. 4) in the amount $7,500 on January 25, 2016 which the mother of Cardell Bonner-Ms. Glendora Bonner paid to the confidential informant and the confidential informant cashed check number 201466.
The confidential informant signed and cashed check number 201641 from Centris Federal Credit Union (Ex. 5) in the amount $30,700 on February 26, 2016 which the mother of Cardell Bonner-Ms. Glendora Bonner paid to the confidential informant and the confidential informant cashed 201461. (Ex. 6 is the check stub. Ex. 7 is another copy of check 201641.)
The confidential informant gave the mother of one of the defendants a copy of his Nebraska drivers license. (Exhibit 8). Both defendants Carter and Bonner have identified the confidential informant as the person in the Nebraska drivers license in exhibit 8 and their affidavits will be provided at the hearing.
On July 15, 2016, the confidential informant signed a quit claim deed to Glendora Bonner the mother of one of the defendants. (Ex. 9) The Ambassador Title Services 9/13/16 current owner search report has a vested titleholder: fee simple: Stanley Plebanek, a married person and Land Contract Interest: the confidential informant, Assigned to Glendora Bonner- which shows the confidential informant did not own the house.(Ex. 10)
The Ambassador Title Services 1/12/18 current owner search report has a vested titleholder: fee simple: Stanley Plebanek, a married person and Land Contract Interest: the confidential informant, Assigned to Glendora Bonnerwhich shows the confidential informant did not own the house.(Ex. 11) This exhibit is the Ambassador Title Services Card. (Ex. 12)
Also enclosed is that which follows. A Contract for Deed (Assignment) was signed between the confidential informant and Ms. Glendora Bonner. (Ex.13) Tax statement for Ms. Glendora Bonner 2439 North 45
The confidential informant used the fraudulent real estate transaction perpetrated upon the defendant's mother to entrap the defendant's into committing the crime the defendant is charged with by the United States Government.
In summary, the confidential informant fraudulently obtained money from Ms. Glendora Bonner, who is the mother of Defendant Cardell Bonner 8:17CR 222, on January 19, 2016, January 25, 2016 and on February 26, 2016. (Ex. 2-7)
Cardell Bonner 8:17CR 222 is charged with distribution of crack cocaine which occurred on December 6, 2016 and December 15, 2016 in violation of 21 U.S.C. §841 (a) & (b)(1).
In summary, the confidential informant fraudulently obtained money from Mary Ann Carter, who is the mother of Defendant Kordaye Carter 8:17CR 221, on
Kordaye Carter 8:17CR 221 is charged with distribution of crack cocaine which occurred on
At what point did the Office of the United States Attorney and the government investigators know about the fraudulent activity of the confidential informant? If the government knew about these illegal activities and failed to divulge this information to the defense counsel that is fraud which would require the court to dismiss this case. On the other hand, if the government did not know about the illegal fraudulent real estate activities of the confidential informant that is pure incompetence because the confidential informant is the government witness. The government knew the confidential informant had a meeting or meetings with one or both of the mothers.
Regardless of whether they knew about the fraudulent activities of the confidential informant or if they did not know of his illegal scheme, the Defendant requests the Court dismiss this case for fraud and entrapment pursuant to the Fed. R. Crim. Proc. 48.
Jacobsen v. U.S., 112 S.Ct. 1535 (1992) is the controlling authority for the entrapment and the case dismissal issues raised in this Motion.
Roviaro v. United States, 353 U.S. 53 (1957) is the controlling authority for the motion to reveal the confidential informant issue raised in this motion.
Whether the court should dismiss this case based upon the fraudulent, illegal and coercive tactics of the confidential informant in using a fraudulent real estate scheme on the mother of the defendant to entrap the defendant, who had no prior predisposition, into committing a crime by using the fact the defendant's mother would lose money in the real estate transaction unless the defendant earned money by committing the crime to assist the mother in the real estate transaction?
Whether the court should enter an order requiring the government to produce the confidential informant who was involved in confidential real estate transactions with the mothers of the defendants and where he witnessed, audio- and videotaped, and participated in alleged crimes that led to the defendant's arrest and is potentially an exculpatory witness?
Pursuant to Rule 48 of the Fed. R. Crim. Proc. Dismissal. Which states (a) BY THE GOVERNMENT. The government may, with leave of court, dismiss an indictment, information or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.
The United States Attorney objected to this defense motion in a telephone conversation on January 19, 2018 at 11:40 a.m. Since that time Counsel has not received any additional discovery from the prosecutor or any explanation from the government for the allegations contained in this brief.
Defendant, Kordaye Carter, by and through his attorney, Timothy L. Ashford, requests that this Court require the government to disclose and produce the confidential informant(s) for a hearing, an in camera inspection and/or a deposition pursuant to Federal Rules of Criminal Procedure 15 prior to trial and states that which follows:
Some of the cases which support our argument for dismissal follow: Greene v. United States, 454 F.2d 783, 786-87 (9th Cir.1971) (government activity helped reestablish and sustain bootlegging operations in which the government was a partial supplier and the only customer). United States v. Santana, 808 F.Supp. 77 (D.Mass.1992) (court performs seven part analysis to determine applicability of outrageous government conduct to the government's distribution of narcotics. Court dismissed indictment charging defendants with possession of a sizable drug sample provided by the government); United States v. Marshank, 777 F.Supp. 1507, 1523-24 (N.D.Cal.1991) (government collaborated with defendant's attorney during prosecution and investigation of defendant); United States v. Gardner, 658 F.Supp. 1573 (W.D.Pa.1987) (government agent persuaded defendant to obtain drugs for him using a perceived friendship and false promises, where defendant had no predisposition toward drug involvement); United States v. Batres-Santolino, 521 F.Supp. 744, 751-52 (N.D.Cal.1981) (government manufactured criminal enterprise in which the government supplied cocaine to defendants who were uninvolved in a drug-related enterprise until the government agent came on the scene). Just as in Batres-Santolino, the defendant was not involved in criminal activity until the confidential informant coerced him into criminal activity.
If the case is not dismissed, the Defendant requests a motion for entrapment jury instruction.
In their zeal to enforce the law, government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Jacobsen v. U.S., 112 S.Ct. 1535 (1992) In the event the case is not dismissed, the defendant requests a jury instruction on entrapment.
The confidential informant committed fraud in real estate transactions in two different cases to entrap the defendants into committing crimes and the timeline is the circumstantial evidence of his fraudulent activities.
In the Bonner case, the confidential informant fraudulently obtained money from Ms. Glendora Bonner on January 19, 2016, January 25, 2016 and February 26, 2016. (Ex. 2-17) As a result of the coercive tactics in the real estate transaction with the mother, the confidential informant coerced the son Cardell Bonner 8:17CR 222, to engage in criminal activity and the Defendant has subsequently been charged with distribution of crack cocaine on December 6, 2016 and December 15, 2016.
In the Carter case, the confidential informant fraudulently obtained money from Mary Ann Carter on
As a result of the coercive tactics in the real estate transaction with the mother, the confidential informant coerced the son Kordaye Carter 8:17CR 221 to engage in criminal activity and he has subsequently been charged with distribution of crack cocaine on
Case law supports our argument. In Russell, the agent's contribution of a legally hard to obtain ingredient which was given to the Defendants for their illicit drug manufacturing enterprise did not violate the fundamental fairness shocking to their universal sense of justice. U.S. v. Russell, 93 S.Ct. 1637 (1973).
In our case, using the mothers of the Defendants to coerce the Defendants to commit crimes violate the fundamental fairness shocking to their universal sense of justice. The confidential informant has to explain the reason he received money from the mothers of the defendants that he is going to testify against in court.
On the defense of "entrapment", the defendant's predisposition and criminal design are relevant, but issues and evidence must be pertinent to the controlling question whether government seeks to punish defendant otherwise innocent for offense induced by government officials. Sorrells v. U.S., 53 S.Ct. 210 (1932). Though stealth and strategy are necessary weapons of police officer, they are objectionable when criminal design originates with government officials, and they implant in the mind of innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. Sherman v. U.S., 78 S.Ct. 819 (1958).
Even if the defendant in a federal criminal case denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment — a defense that has the two related elements of Government inducement of the crime, and a lack of predisposition on the defendant's part to engage in the criminal conduct. Mathews v. U.S., 488 U.S. 58 (1988).
The government can not show that based upon the Defendant's record that he was predisposed to commit the crimes for which he has been charged. Jacobsen v. U.S., 112 S.Ct. 1535 (1992); Sorrells v. U.S., 53 S.Ct. 210 (1932).
Based upon these egregious facts, this court should dismiss this case. At the minimum, the defense should be allowed full disclosure of all exculpatory information for all the jurisdictions in which the confridential informant lived.
The Neb. Ct. R. of Prof. Cond. § 3-508.8. Special Responsibilities of a Prosecutor.
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
In dealing with Nebraska Office of the United States Attorney, Counsel now makes every request under rule 16 in writing because of their past dishonesty and withholding of evidence with me in past cases. In the case of United States of America, Plaintiff, v. Victor Jose Barraza Cazares, Defendant, 465 F.3d 327 (8th Cir. 2006) (8:04CR447) Counsel requested all statements from the United States Attorney and
The United States Attorney was dishonest in the Barraza Cazares case and the government is hiding evidence in this case. Based upon the Barraza Cazares case, every time Counsel has a case with this USA office Counsel expects that evidence will be hidden and the Office of the USA will not be forthright with providing evidence under rule 16. Recently, in this case the prior white defense attorney representing Defendant Carter did not return Counsel's telephone call regarding the request for discovery and Counsel had to make the USA duplicate the discovery given to the previous defense counsel.
WHEN WAS THE PROSECUTOR GOING TO DISCLOSE THE FRAUDULENT REAL ESTATES TRANSACTIONS?
In this case, it is obvious that the United States Attorney and government investigators are hiding information on the confidential informant. Either they did not know about the real estate schemes which is incompetence or they did not give the information regarding the real estate schemes to defense Counsel. The defendant's constitutional rights are being violated by this hide the ball evidence tactic. Just as in Barraza Cazares, Counsel states the government knew about the confidential informant's real estate transaction with the mothers but failed to reveal this information to defense Counsel. The correct sanction is a dismissal with prejudice.
If the Court does not dismiss this case, the defense requests a hearing at which time the United States Attorney and the government investigators must state they knew nothing about the fraudulent real estate transactions of the confidential informant and they must reveal all the information about the background of the confidential informant.
Furthermore, the Neb. Ct. R. of Prof. Cond. § 3-508.4. Misconduct. It is professional misconduct for a lawyer to:
(a)
(b)
(c)
(2) Offenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
The confidential informant has engaged in dishonesty, fraud, deceit and misrepresentation in his real estate transactions with the mothers of the defendants.
The confidential informant engaged in a dishonest real estate transactions with the mothers of the Defendants from the time period of January, 2016 until April, 2016. The confidential informant had six months to coerce the defendants Carter and Bonner into the illegal activity by advising them that their mothers would lose a substantial amount of money if they did not assist him by drug deals and a gun deal. During the period of November, 2016 until December 2016 both defendants were coerced and entrapped into committing a violation of the law by the confidential informant.
Although the prosecutor may want to continue on with this case, he has to show the court the activity by the confidential informant did not involve dishonesty, fraud, deceit or misrepresentation. The United States Attorney must show to this court that the entire transaction the confidential informant had with both the mothers and the defendants from the time period of January, 2016 until December 2016 did not involve dishonesty, fraud, deceit or misrepresentation. The United States Attorney cannot circumvent the ethical rules of dishonesty, fraud, deceit or misrepresentation by allowing the confidential informant to commit these acts in violation of the ethical rules imposed upon the United States Attorney.
Pursuant to the Federal Rule of Criminal Procedure the Defendant requests the deposition of the confidential informant and the government witnesses. In federal criminal cases, Federal Rules of Criminal Procedure Rule 15 governs the taking of depositions.
At what point will the confidential informant plead the Fifth Amendment which states that he can not be ". . . compelled in any criminal case to be a witness against himself . . ." Will the confidential informant plead the fifth regarding the real estate transaction scheme and the confidential informant's use of the real estate transaction scheme to entrap the two defendants?
The problem is the possibility of the confidential informant pleading the fifth. If the case is dismissed or Counsel is allowed to take the deposition of the confidential informant time will be saved by all parties in this lawsuit.
Counsel WON the first federal criminal jury trial involving a drug case he tried in this court before Judge Smith Camp (U.S. v. Rainier 8:04CR274) The record will show in the Rainier case the "snitch" who is the government witness pled the fifth in the middle of the trial. The jury acquitted Rainer in 45 minutes. A hearing or a deposition would have saved time to all parties in that case because the government witness could have pled the fifth in the deposition.
The Defendant should not have to go through the preparation, anxiety and uncertainty of preparing for trial if the deposition can circumvent the answer to the question of whether or not the confidential informant is going to plead the fifth. The defendant has a due process right to all evidence to prepare for trial. The defense renews their request for a dismissal and/or to allow the deposition of the confidential informant and a hearing in this case. Both defendant Bonner and Carter have identified the person in exhibit 8 as the confidential informant and their affidavits will be supplied at the hearing.
The Informant Must Be Produced Because He Witnessed, Participated In, and Recorded Allegedly Criminal Acts and May Possess Exculpatory Information Regarding entrapment.
The government knew the confidential informant was meeting with Ms. Glendora Bonner- who is the mother of Cardell Bonner and Ms. Mary Ann Carter. The reason for the meeting was not disclosed to the defense by the government.
As previously stated, the Defendant's right to prepare a defense, and to both due process and compulsory process, necessitates the timely production of the confidential informant, along with the information detailed below as the informant may have potentially exculpatory evidence to the charges currently levied against the defendant. Roviaro v. United States, 353 U.S. 53, 59, 62 (1957).
It is well established that where an informant's testimony may be "relevant and helpful to the defense of an accused," his identity must be disclosed. The government's qualified privilege to withhold the identity of informants must give way when an informant possesses information that is "relevant and helpful . . . or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S.53, 60-61 (1957). In this case the confidential informant is involved in fraudulent real estate transactions and we know the confidential informant.
Under Roviaro, there is no fixed rule with respect to disclosure of a confidential informant, although four considerations are relevant: (1) the crime charged; (2) the possible defenses; (3) the possible significance of the informant's testimony; and (4) other relevant factors. Id. at 62-64. In a case such as this, the testimony of the informant would be vital to the defense. Furthermore, the confidential informant must reveal the reason for the real estate transactions.
In this context, the privilege of non-disclosure is limited by both the Sixth Amendment right to prepare a defense and the right to compulsory process. Id., 353 U.S. at 62; Benton v. Maryland, 395 U.S. 784 (1969).
When the informant is a participant in an incident which results in the arrest of a defendant, a witness to material or relevant events which in this case is the confidential informant's fraudulent real estate transactions by which he set up the arrest, the accused has a right to have the informant's identity disclosed and all of the information on the fraudulent real estate transactions. Id
The informant made both audio and video recordings of controlled buys. The informant also witnessed and participated in the very acts the government claims were criminal and which led to Defendant's arrest and the indictment in the instant case. However, before the arrest of Defendant the confidential informant engaged in fraudulent real estate transactions with his Defendant's mother.
The undersigned believes the government will present the informant (and perhaps other informants) in its case in chief. These witnesses may have impeaching information which should be disclosed to the defense and they also may have received inducements which also should be disclosed. In the alternative, the court should conduct a hearing.
In this case, Defendant specifically requests that the informants be produced for a hearing to discuss the fraudulent real estate transactions. The government has the duty to produce the informants or to show that, despite reasonable efforts, it was not able to do so.
This Court has considerable discretion in deciding to allow depositions and hold a hearing to determine if the government must release the informant's name, information about the real estate scam and the confidential informants whereabouts to the defense.
Defendant requests disclosure of impeaching information as to each informant, including the confidential informant's:
A) Criminal history.
B) Records revealing prior misconduct or bad acts attributed to the informant.
C) Any and all consideration, expectation of consideration, or promises of consideration given to the informant.
D) Any and all threats, express or implied, direct or indirect, or other coercion made or directed against the informant.
E) The existence and identification of each occasion on which the informant has testified before the court, grand jury, or other tribunal or body in connection with this or other similar cases and if the confidential informant has been disqualified as a witness.
F) Any and all records and information which arguably could be helpful or useful to the defense in impeaching or otherwise detracting from the probative force of the government's evidence or which arguably could lead to such records or information.
G) The names and criminal numbers of any and all other criminal cases, state or federal, in which the informant has been involved either as an informant or as defendant.
H) The informant's written authorization agreement.
I) Each and every conversation the informant had with Mary Carter, Glendora Bonner, Cardell Bonner and Kordaye Carter between the time periods of January 2016 until December 2016.
J) The date the confidential informant made the agreement with the government to work as a confidential informant.
In order to properly prepare a defense in this matter, it is important that the defense be aware of all information related to the informants' credibility and background. Giglio v. United States, 405 U.S. 150 (1972).
Most importantly, in the present case, the confidential informant has participated in controlled buys with the defendant. All of the controlled buys were months after the confidential informant bilked two elderly ladies who are the mothers of Bonner and Carter in a fraudulent real estate transaction.
At the minimum, the case law in the Eighth Circuit supports a deposition and at the minimum an in camera hearing.
In U.S. v. Lapsley, the Court held that: (1) the trial court should have heard the testimony of the government's confidential reliable informant before concluding, on defendant's motion to disclose the identity of the informant, that the testimony was irrelevant to the defense, and (2) in camera hearing on remand would be the most appropriate means of determining the relevance of the informant's testimony. U.S. v. Lapsley, 263 F.3d 839 (2001).
In U.S. v. Grisham, the court held that: (1) District Court may undertake an inquiry into facts without violating informant's privilege by holding an in camera proceeding to determine materiality of informant's knowledge; (2) disclosure was not required notwithstanding there apparently was no evidence of actual possession of the stolen hams by defendant and that Government sought to prove constructive possession; and (3) it was no answer that informant was to be made available only to defense counsel and that counsel was under order not to reveal informant's identity absent court order. U.S. v. Grisham, 748 F.2d 460 (1984)
In U.S. v. Apker the Judge, ordered in camera hearing with regard to one informant, and appeals were taken. The District Court, Cambridge, J., held that: (1) defendants were not entitled to disclosure of identities of confidential informants who possessed primarily "tipster" information, and (2) one informant's possible knowledge as to who was or was not member of "hierarchy" of drug distributors constituted material information. U.S. v. Apker, 139 F.R.D. 129 (1991).
The informant has material information relevant to these proceedings.
For all these reasons, if the court were to disallow the timely discovery of background information concerning the confidential informants and a timely pretrial interview with these persons, it would severely hamper the defendant's ability to call them as witnesses at trial and would deprive defendant of a fair trial, the right to present a defense, and the right to the compulsory process of witnesses because the real estate transactions are relevant to the coercion used on this defendant and another defendant not related to this case. U.S. Const. Amends. V, VI. VIII.
The defense requests an unredacted police report so that the defense can adequately prepare for trial. Based upon the nature of the police reports and the fact information will be disseminated over the internet, the Defendant will present the redacted police report as evidence in the hearing. The same reasons for the request for a hearing apply to this request for an unredacted police report.
Defendant requests the court dismiss this case in the interest of justice. Defendant requests to take the deposition of the confidential informant and the government witnesses to determine when and if the government had any information on the real estate scams of confidential informant.
An evidentiary hearing is requested, the estimated length of time needed for the hearing is approximately 2 hours, an interpreter is not needed, and there is no codefendant to participate in the hearing.
A detention hearing was held pursuant to 18 U.S.C. § 3141 and the fraudulent real estate information was not presented and the defendant requests this court dismiss this case.
This is the most bizarre facts counsel has ever encountered in his law career. The outrageous conduct of the government by the confidential informant violates the constitutional rights of the defendant. For the foregoing reasons, the Defendant requests this court dismiss this case based upon outrageous government conduct or in the alternative require a hearing to determine if the case should be dismissed. The Defendant requests the court grant a motion for a discovery. If the case is not dismissed, the Defendant requests a jury instruction for entrapment.
