United States District Court, D. Columbia.
Joseph Borges, Defendant: Nikki U. Lotze, LEAD ATTORNEY,
LOTZE MOSLEY LLP, Washington, DC USA.
Charles Greer, Defendant: David Barry Benowitz, LEAD
ATTORNEY, PRICE BENOWITZ LLP, Washington, DC USA.
Darnell Jackson, Defendant: Elita C. Amato, LEAD ATTORNEY,
LAW OFFICES OF ELITA C. AMATO, ESQ., Arlington, VA USA.
Corey Rich, Defendant: Darlene C. Jackson, LEAD ATTORNEY,
Washington, DC USA.
OPINION [Dkt. # 32]
J. LEON, United States District Judge.
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.
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. #
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.
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]. 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];  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].
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, 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).
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." ).
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. ...