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United States v. Borges

United States District Court, D. Columbia.

December 31, 2015


          For Joseph Borges, Defendant: Nikki U. Lotze, LEAD ATTORNEY, LOTZE MOSLEY LLP, Washington, DC USA.

         For Charles Greer, Defendant: David Barry Benowitz, LEAD ATTORNEY, PRICE BENOWITZ LLP, Washington, DC USA.

         For Darnell Jackson, Defendant: Elita C. Amato, LEAD ATTORNEY, LAW OFFICES OF ELITA C. AMATO, ESQ., Arlington, VA USA.

         For Corey Rich, Defendant: Darlene C. Jackson, LEAD ATTORNEY, Washington, DC USA.

         MEMORANDUM OPINION [Dkt. # 32]

         RICHARD J. LEON, United States District Judge.

         Currently pending before this Court is the Government's Motion to Dismiss Indictment [Dkt. # 32], pursuant to Federal Rule of Criminal Procedure 48(a), as to all defendants--Joseph Borges, Charles Greer, Darnell Jackson, and Corey Rich (" defendants" ), who have been charged, inter alia, with a conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin. See Superseding Indictment [Dkt. # 15]. In its motion, the Government requests that the indictment be dismissed " without prejudice," see Mot. to Dismiss Indictment at 1; however, because of the unusual circumstances of this case I find that the threat of reprosecution would amount to harassment and, therefore, dismissal with prejudice is appropriate here. Accordingly, after careful consideration of the Government's motion, the defendants' oppositions thereto, the ex parte hearing on November 20, 2014, arguments of counsel at the motions hearing held on December 10, 2014, and the relevant law, the Court DENIES the Government's Motion to Dismiss Indictment and DISMISSES the indictment with prejudice.


         Defendants Borges, Greer, and Jackson were indicted on March 27, 2014, in a single-count indictment alleging conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(B)(i), and 846. See Indictment [Dkt. # 5]. An 18-count superseding indictment was filed on May 13, 2014, against all defendants alleging, in summary: (1) conspiracy to distribute one kilogram of heroin against all defendants; (2) multiple counts of unlawful distribution of heroin against Jackson and Greer; (3) the use, carry, and possession of a firearm during a drug trafficking offense against Borges; (4) unlawful possession with intent to distribute of 100 grams or more of heroin against Borges; and (5) unlawful possession with intent to distribute heroin against Jackson. See Superseding Indictment [Dkt. # 15].

         On September 29, 2014, FBI Special Agent Matthew Lowry was discovered in his FBI vehicle, apparently under the influence of narcotics. See Gov't's Ex Parte Under Seal Letter at 4, Nov. 17, 2014 (" Nov. 17, 2014 Letter" ) [Dkt. # 60-2] (unsealed by Order, Dec. 8, 2014 [Dkt. # 65]). A subsequent search of Agent Lowry's vehicle uncovered narcotics and firearms evidence seized in connection with other criminal cases. Id. There was no apparent law enforcement purpose for any of the items recovered, and the FBI list of the items recovered from the search of the vehicle remains under seal. Id.

         On October 22, 2014, the Government filed a then-sealed notice advising the Court that " one of the special agents who assisted in the investigation of the defendants' case may have engaged in misconduct in other cases by tampering with evidence, including narcotics evidence, seized during other investigations." See Notice at 1, Nov. 6, 2014 [Dkt. # 33].[1] The notice stated that the agent had been suspended and that a criminal investigation had been opened. Id. The notice further indicated that the Government would not oppose motions by defendants for release, with certain conditions, pending trial or other resolution of the case. Id. at 2. Thereafter, all four defendants moved for bond review or release pending trial. See Greer's Emergency Mot. for Release from Pretrial Detention [Dkt. # 23-2]; [2] Jackson's Unopposed Mot. for Bond Review [Dkt. # 25]; Rich's Unopposed Mot. for Bond Review [Dkt. # 26]; Borges's Mot. for Bond Review [Dkt. # 28].[3]

         On November 5, 2014, the Government moved to dismiss the indictment, as to all defendants, without prejudice. See Gov't's Mot. to Dismiss Indictment [Dkt. # 32]. Following several ex parte, sealed submissions from the Government,[4] the Court held an ex parte, sealed hearing on November 20, 2014 with the Government to discuss its pending motion to dismiss, and that hearing was later unsealed. See Order, Dec. 8, 2014 [Dkt. # 67] (granting Government's Motion to Unseal the Ex Parte Court Proceeding on November 20, 2014).

         At the ex parte hearing, counsel for the Government represented that Agent Lowry was not, at that point in time, being accused of tampering with any specific evidence related to the defendants in this case. Ex Parte Hr'g Tr. 13:9-12, Nov. 20, 2014 (" Nov. 20, 2014 Tr." ) [Dkts. ## 68-71] (" [A]s I stand here right now, we don't know whether or not the one kilogram of heroin that was seized in connection with that search warrant was in fact tampered with. Maybe it was. Maybe it wasn't." ). Despite no specific allegations at the time that Agent Lowry had tampered with evidence in this case, the Government represented that the agent was involved in executing search warrants that yielded the " most significant narcotics evidence" recovered in connection with this case. Nov. 20, 2014 Tr. 6:4-14; see also Nov. 17, 2014 Letter at 5 n.2 (" Although no evidence from [the Borges] investigation was found in his FBI vehicle, Agent Lowry played a significant role in the execution of search warrants central to the investigation." ).

         As a result of Agent Lowry's unmonitored presence both at the scene where evidence was seized, and at the facility where the evidence was logged, counsel for the Government stated that the agent's involvement had " undermined" the " integrity" of the prosecution. Nov. 20, 2014 Tr. 21:3-13, 26:14-27:12. I agreed with the Government that the agent's involvement in the seizure would likely give rise to a reasonable doubt if the case were to proceed to trial. Nov. 20, 2014 Tr. 35:23-36:7. ...

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