The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant Winston McCallum went to trial charged in a two-count superseding indictment with unlawful possession with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and unlawful possession with intent to distribute 28 grams or more of cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860(a). McCallum successfully moved for a mistrial when he discovered that the government failed to disclose certain statements of government witnesses before the defense cross-examined those witnesses. McCallum now moves to dismiss the indictment on the ground that the Double Jeopardy Clause bars retrial or, in the alternative, moves for reconsideration of the pre-trial order denying his motion to suppress evidence. Because McCallum has not established that the government's series of disclosure violations was intended to provoke McCallum into seeking a mistrial, double jeopardy does not bar retrial. In addition, the belatedly disclosed evidence does not change the determination to deny the motion to suppress, thus McCallum's motion will be denied.
The government moves in limine to preclude McCallum from introducing at retrial evidence of complaints against the police officer witnesses and also moves in limine to preclude McCallum from introducing opinion and reputation evidence about those witnesses. Because the complaints lacked probative or impeachment value, and the circumstances surrounding the complaints do not support a reasonable belief that the allegations in the complaints are true, McCallum will not be permitted to elicit on cross-examination the fact that complaints were filed or what the complaints alleged. Finally, in the absence of a specific proffer by McCallum of a foundation for potential character witnesses, a ruling on the admissibility of opinion and reputation evidence will be deferred.*fn1
On July 28, 2010, Officers Alphonso Matos and Ismael Chapa of the Metropolitan Police Department ("MPD") were driving in a squad car shortly after midnight in an area known for having a high incidence of narcotics trafficking and intoxicated people. According to the officers' pre-trial testimony, which was credited during hearings on February 11, 2011 and June 6, 2011, the officers saw McCallum on a ledge at the front entrance of an apartment building, and he was leaning forward, as if he were asleep or intoxicated. The officers got out of their car to check on McCallum, and Chapa positioned himself between McCallum and the building, at the top of a series of steps of the landing in front of the apartment building. McCallum became aware of the officers' presence, and began to run toward the door of the building. McCallum took between one and three steps, and then Matos called out for him to stop. Once McCallum stopped, the officers attempted to corral him, and he began to move his arms and shift his shoulders from one side to another. The officers handcuffed McCallum using two sets of interlocking handcuffs. When McCallum was secured in the handcuffs, Matos asked him if he had anything illegal on him, and McCallum answered that he had cocaine. Because the two interlocking sets of handcuffs permitted McCallum some limited mobility, he was able to move his hand to his right front pants pocket, and a zip bag containing crack cocaine fell from his pocket. McCallum was arrested and charged with unlawful possession with intent to distribute crack cocaine.
McCallum moved to suppress statements and tangible evidence. At the evidentiary hearing on the motion in February 2011, Matos was the government's only witness. The government failed to provide the defense, before defense counsel's cross-examination of Matos, with a transcript of Matos's previous grand jury testimony regarding the events leading to McCallum's arrest.*fn2
During a recess at the hearing and while conferring with government counsel, defense counsel noticed the transcript on government counsel's desk and government counsel then provided it to the defense. Defense counsel was then permitted additional cross-examination of Matos based on potential inconsistencies between his testimony at the suppression hearing and his previous testimony before the grand jury. McCallum's motion to suppress was granted as conceded as to evidence recovered from a search of his apartment conducted following his arrest, but the motion to suppress as to evidence seized from the defendant's person and the motion to suppress the defendant's statements at the scene were denied.
Thereafter, defense counsel contacted government counsel to inquire whether the grand jury testimony of Chapa, who had not testified at the February 2011 suppression hearing, contained exculpatory material. Government counsel in turn disclosed to McCallum a transcript of Chapa's grand jury testimony. McCallum then filed a motion to reopen the suppression hearing, arguing that the government had violated its Brady obligations in not disclosing Chapa's grand jury testimony earlier and that the testimony presented an account of defendant's arrest that was inconsistent with Matos's account, undercutting the conclusion that the officers possessed reasonable suspicion for stopping McCallum.*fn3 The motion to reopen the suppression hearing was granted, and at a hearing in June 2011, McCallum's counsel cross-examined Officer Chapa regarding the newly disclosed information. The court reaffirmed its denial of the motion to suppress, as to evidence seized from defendant's person and as to defendant's statements on the scene.
Before trial, McCallum subpoenaed from the Metropolitan Police Department information regarding complaints against the officers who had arrested him. The government moved to quash the subpoena. At a hearing on the government's motion, and in response to the government's representation that no relevant or exculpatory information existed, the court directed the government to inquire further with the entities that maintain police complaints regarding the existence of potentially responsive material. The government then disclosed certain information to the court for in camera review,*fn4 including written summaries of statements concerning McCallum's arrest made to MPD Internal Affairs by Chapa on August 15, 2011 and by Matos on August 17, 2011. The court ordered the government to disclose those summaries to the defense. The government provided them to the defense on the morning of trial.*fn5 Also on the morning of trial, the government disclosed to the defense a "property book" completed by Matos detailing the evidence recovered from the scene of defendant's arrest.*fn6
Trial began in December 2011. While defense counsel cross-examined Matos about inconsistencies between Matos's trial testimony and his prior statements to Internal Affairs, the officer asserted that the written summaries inaccurately conveyed what he had told Internal Affairs and that recordings made of the statements would confirm his account. The government had not disclosed to the defense the recordings of the officers' statements to Internal Affairs nor disclosed that they existed.
Since the government had promised to provide all Jencks*fn7
material 10 days before trial, McCallum moved to strike the
testimony of both officers or, in the alternative, for a
mistrial.*fn8 Over the government's opposition, the
court declared a mistrial but found that the government's misconduct
was not willful or intentional.
In February 2012, shortly before retrial was set to begin, the
government submitted to the court for in camera inspection seventeen
complaints filed with the independent*fn9 Office of
Police Complaints ("OPC") against Matos and Chapa.*fn10
Seven against Matos were in open status and the rest had been
closed. The court reviewed all of the complaints and found that
fourteen complaints bore no allegations that the officers planted
narcotics evidence, had no probative value as other act evidence under
Federal Rule of Evidence 404(b) or as to truthfulness under Rule
608(b), and otherwise were not material to preparing the defense, see
Fed. R. Crim. P. 16(a)(1)(E)(i), or to McCallum's guilt. Nor were most
of the open allegations, even if proven, of
the type that would likely risk generating a criminal prosecution
or any internal MPD discipline that could cause Matos to want to curry
favor with prosecutors. The court did order three complaints against
the officers for allegedly falsely accusing individuals of possessing
drugs disclosed to the defense.*fn11
In closed Complaint 10-0146, H.B. alleged that he was falsely arrested after police, including Chapa, claimed to find in H.B.'s car drugs that were not there. H.B. alleged that he had gotten out of the car and was threatened by police with a citation for leaving the windows down when he returned, that the police asked for permission to search his car, and that they searched it anyway when he refused. H.B. alleged that he did not have drugs in the car. The government produced a D.C. Superior Court record reflecting that H.B. was charged with possessing a controlled substance based on the arrest and ultimately pled guilty to the offense. (Govt.'s Mot. in Limine to Preclude Evidence Concerning Police Complaints, Ex. 1.) In closed Complaint 10-0385, D.G. alleged that he was sitting on his porch when Chapa approached and said that D.G. fit the description of a suspect and that Chapa then arrested him, took drugs off another person, and put the drugs on D.G. The government produced a D.C. Superior Court record reflecting that D.G. was charged with possessing cocaine, marijuana, and drug paraphernalia as a result of the arrest and ultimately pled guilty to the offenses. (Id., Ex. 2.) In open Complaint 12-0034, E.S. alleged that he called emergency services when his brother tried to assault him, and that when police, including Matos, arrived on the scene, they arrested him instead of his brother for assault and possession of marijuana. He asserted that he did not have marijuana on his person. The government represented that "the case was 'No Papered' when reviewed for prosecution by the screening attorney because, among other things, the police could not determine who was the initial aggressor and the suspect had a good defense." (Id. at 4.)*fn12
McCallum now moves to dismiss the indictment, arguing that a retrial is barred by the Double Jeopardy Clause. Defendant argues that the government has violated its obligations to timely disclose exculpatory materials, prior witness statements and documents. McCallum contends that the violations constitute a pattern of intentional government misconduct and that the misconduct has prejudiced his ability to litigate the case. In the alternative, McCallum asks the court to reconsider and grant his motion to suppress the tangible evidence taken from his person. McCallum argues that reconsideration is warranted because subsequently produced evidence, particularly the recording of Matos's statements to Internal Affairs, casts doubt on Matos's testimony at the February 11, 2011 suppression hearing that McCallum reached into his pocket, despite the fact that his hands were handcuffed behind his back, and that a ziplock of crack cocaine fell out. McCallum also contends that additional evidence reflecting inconsistences in Chapa's testimony about how the officers handcuffed McCallum casts doubt on Chapa's testimony at the motions hearing in June 2011. Finally, McCallum argues that the MPD property book, disclosed to the defense after the suppression ruling, reveals that the crack cocaine allegedly ...