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U.S. v. HOWARD

July 9, 2003

UNITED STATES OF AMERICA, VS. JAMES E. HOWARD, DEFENDANT.


The opinion of the court was delivered by: David Hurd, District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Defendant, James T. Howard ("defendant"), was arrested on September 28, 1999, for falsely assuming and pretending to be an officer and employee acting under the authority of the United States in violation of 18 U.S.C. § 912. He was subsequently indicted on the charges on February 2, 2000. The government dismissed the indictment on May 17, 2000.

On March 4, 2003, defendant filed a pro se motion seeking that all records related to this arrest be expunged. The government filed opposition papers, to which counsel for defendant replied. Oral argument was heard on April 25, 2003, in Albany, New York. Decision was reserved.

II. FACTUAL BACKGROUND

On February 6, 1999, defendant, a bounty hunter, accompanied a bail Bondswoman named Allison Robinson ("Robinson") from the state of Maryland to the town of Saranac Lake, in the Northern District of New York. The two sought to apprehend Allison Laprade ("Laprade"), who had failed to appear in Maryland State Court. They had received information which led them to believe that Laprade was residing at an address in Saranac Lake.

After conducting surveillance on the residence, with Robinson in tail, defendant proceeded to approach the door. Wesley Phelps and Matthew French, two college students who were renting the apartment, answered the door. According to their depositions, defendant entered the residence and identified himself as a United States Marshal.

Furthermore, Phelps and French stated that defendant threatened them with jail time if they failed to cooperate and admonished them against leaving the apartment. Although Robinson did not hear the defendant identify himself as a Marshal, she did testify that she heard him say the word "Marshal" in conversation with the students. (Docket No. 24, Exhibit A, p. 25).

She also testified that defendant was wearing a bulletproof vest and a hat with an emblem similar to that of the U.S. Marshals, inside of which were the words "U.S. Fugitive Recovery." Id. at 24. In addition, defendant was wearing a silver badge with a star in the middle of a circle emblazoned with the words "U.S. Bail Enforcement Agent." Id. at 25

After some time in the students' apartment, defendant and Robinson determined that Laprade was in a neighboring residence. Laprade was apprehended and prepared for transport back to Maryland. Soon thereafter, the pair was stopped by a New York State trooper. According to Robinson, the officer asked the defendant for identification, which he provided. Robinson testified that the officer responded to the defendant's identification by concluding that he was "federal" and subsequently allowed their car to proceed. Id. at 49-50

On February 8, 1999, the two students, Phelps and French, filed complaints against defendant with the Saranac Lake Police Department. As a result of these complaints, an arrest warrant was issued on September 17, 1999. Defendant was indicted for falsely assuming and pretending to be an officer and employee acting under the authority of the United States in violation of 18 U.S.C. § 912.

Following his arrest, defendant filed a motion seeking to suppress evidence provided by the two college students who positively identified Howard from a collection of photographs. While preparing for the suppression hearing, the government found that Phelps and French had used marijuana hours before the defendant arrived at their apartment. Despite Robinson's testimony that the students did not appear "high," (Docket No. 24, Exhibit A, p. 24), the prosecutor felt that the marijuana use compromised the witnesses' credibility. Thus, the government moved to dismiss the indictment, but vehemently maintains that the defendant's arrest was proper and that he is guilty. The government contends that the defendant's indictment was dismissed out of fear that Phelps and French's use of marijuana earlier in the day would undermine their credibility to a jury.

Defendant argues that the dismissal is a reflection of his innocence and seeks to seal or expunge all records related to his arrest. This request is based solely on his fear that efforts to attain a career in law enforcement will be sidelined as a result of this arrest. In a letter to the court seeking expungement, defendant indicated that the applications he has submitted to numerous law enforcement agencies have been met with resistance. In addition to the letter from defendant himself, his attorney has submitted a memorandum supporting the motion to expunge. In this memo, counsel contends that defendant's arrest was based upon the testimony of two witnesses that the government concedes lacked credibility. Counsel for the defense argues that the testimony of French and Phelps was the lynchpin of the arrest, and because those witnesses lack credibility, defendant's arrest is rendered improper due to lack of probable ...


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