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United States v. Whitmore

August 29, 2009

UNITED STATES OF AMERICA,
v.
CASH WHITMORE, KING S. BURDEN, AND MYAISHA G. WHITMORE, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Defendant Cash Whitmore's motion to suppress, see Dkt. No. 74;*fn1 Defendant Burden's motion to suppress and to sever his trial from the trial of his co-Defendants, see Dkt. No. 69; and Defendant Myaisha Whitmore's motion to suppress and to sever her trial from the trial of her co-Defendants, see Dkt. No. 73.

The Court heard oral argument in support of and in opposition to these motions on July 1, 2009, and reserved decision. The following is the Court's resolution of the pending motions.

II. BACKGROUND

Count 1 of the two-count Indictment charges that Defendants "did knowingly and intentionally combine, conspire, confederate and agree with each other and others known and unknown to possess with intent to distribute and to distribute cocaine base (crack), a Schedule II controlled substance" in violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. See Indictment, Count 1. Count 1 also charges that "[t]he quantity of the mixture and substance containing cocaine base (crack) involved in the conspiracy exceeded fifty grams; thus the defendants are subject to the penalty provisions of Title 21, United States Code, Section 841(b)(1)(A)." See id.

Count 2 of the Indictment charges "[t]hat on or about June 27, 2008, in the City of Hudson, in the State and Northern District of New York," Defendant Cash Whitmore "did knowingly, willfully and intentionally possess with the intent to distribute in excess of fifty grams of cocaine base (crack), a Schedule II controlled substance" in violation of 21 U.S.C. §§ 841(a)(1), (B)(1)(A). See Indictment, Count 2.

Finally, the Indictment charges that Defendant Cash Whitmore committed both of the offenses set forth in Counts 1 and 2 "after a prior conviction for a felony drug offense became final" and that Defendant Myaisha Whitmore committed the offense charged in Count 1 "after a prior conviction for a felony drug offense became final...." See Indictment. The Indictment further asserts that "[e]ach of the foregoing prior final drug felony convictions affects the penalty provisions of Title 21, United States Code, Section 841(b)(1)(A), which apply to each of Counts 1 and 2, and subjects each defendant to enhanced penalties." See id.

III. DISCUSSION

A. Defendant Cash Whitmore's Discovery Requests

Defendant Cash Whitmore requests the following relief: (1) an Order precluding the Government from calling state agents as expert witnesses to interpret the meaning of certain intercepted telephone conversations or, in the alternative, for a Daubert hearing; (2) an Order directing the Government to comply fully with its Rule 16 discovery obligations, pursuant to Rule 12 and 41(f) of the Federal Rules of Criminal Procedure and directing the Government to provide all material which could exculpate him or mitigate his culpability pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963); (3) an Order excluding the admission of out-of-court statements that are testimonial in nature that have not been subjected to cross-examination pursuant to Crawford v. Washington, 124 S.Ct. 1354 (2004); and (4) an Order pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure and Rules 404(b) and 609 of the Federal Rules of Evidence requiring the Government to set forth those prior and subsequent acts of misconduct as well as prior convictions, that it intends to introduce into evidence and for a hearing prior to trial to determine the admissibility of such evidence. See Defendant Cash Whitmore's Notice of Motion at ¶¶ 2-5.

With respect to Defendant Cash Whitmore's first request, the Government responds that, "at this time, it does not intend to elicit evidence from law enforcement members as to their interpretation or opinion of the meaning of certain coded phrases contained within intercepted conversations of [Defendant Cash Whitmore]." See Government's Memorandum of Law at 27.

Based on the Government's representation, the Court denies Defendant Cash Whitmore's motion with regard to this issue without prejudice and with leave to renew if the Government, at some point, decides to elicit such testimony.

With respect to Defendant Cash Whitmore's second request, the Government responds that "no known Brady material exists at the present time, except as to that material provided and material which will be provided pursuant to the Government's continuing legal and ethical obligation." See id. at 27-28. The Government further states that it will provide Brady exculpatory material to Defendant Cash Whitmore as it becomes known to the Government and will provide him with Brady impeachment material at the same time that it turns over Jencks Act material to him. See id. at 28

Based on the Government's representations, the Court denies Defendant Cash Whitmore's motion with regard to this issue without prejudice and with leave to renew if necessary.

With respect to Defendant Cash Whitmore's third request, the Government states that it is aware of, and has no intention of violating, the rule announced in Crawford v. Washington, 124 S.Ct. 1354 (2004). See id. Furthermore, the Government notes that Defendant Cash Whitmore has not "identif[ied] the specific potential evidence he objects to." See id. Finally, the Government states that it will address any specific objections that Defendant Cash Whitmore has about the admissibility of certain evidence when he raises those objections. See id.

Based on the Government's representations, the Court denies Defendant Cash Whitmore's motion with respect to this issue without prejudice ...


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