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United States v. Pitts

United States District Court, District of Columbia

May 14, 2019



          Emmet G. Sullivan, United States District Judge.

         On January 19, 2019, the government filed a complaint against Michael Pitts in the District of Columbia Superior Court (“Superior Court”), charging him with several drug and firearm offenses. The complaint was based on Mr. Pitts' arrest after a firearm and suspected drugs were found in a common area of his mother's apartment where he was allegedly living at the time. Mr. Pitts was arraigned, detained for several days, and then released into high intensity pretrial supervision, which included electronic location monitoring, curfew restrictions, and weekly in-person reporting. On February 22, 2019, while reporting for pretrial supervision, Mr. Pitts was arrested again, but this time on federal charges based on the identical alleged criminal conduct that formed the basis for the Superior Court complaint. After the second arrest, and a second period of pretrial detention, Mr. Pitts was again released into high intensity pretrial supervision. The Superior Court complaint and the federal indictment were both filed by the United States Attorney's Office for the District of Columbia; Mr. Pitts was subject to jeopardy attaching simultaneously in two courts until the government dismissed the Superior Court complaint in mid-March.

         Following a number of unforced errors by the government, including a failure to timely produce drug testing results and the unintentional destruction of Mr. Pitts' cellphone, the government now moves to dismiss the federal indictment without prejudice under Federal Rule of Criminal Procedure 48(a). The reason for the government's motion is clear: it failed to conduct forensic testing on the firearm recovered during the search, and now cannot obtain those results without violating Mr. Pitts' rights under the Speedy Trial Act, (“Act”), 18 U.S.C. § 3161. Because dismissal without prejudice constitutes a strategic use of Rule 48 prohibited under District of Columbia Circuit precedent, as well as persuasive authority in this district, and objectively amounts to prosecutorial harassment, the Court will dismiss the indictment with prejudice.

         I. Background

         Mr. Pitts was arrested on January 18, 2019, after District of Columbia Metropolitan Police Department officers executed a search warrant at his mother's apartment. Def.'s Opp'n, ECF No. 23, at 1.[1] The officers obtained the search warrant as a result of two tips received a day earlier. Gov't Mot. for Detention (“Detention Mot.”), ECF No. 7 at 1. The tipsters both stated that, within the last two weeks, they saw an individual with a gun outside of the apartment building. Id. During the search of the apartment, the officers noticed a number of jackets hanging on the inside of the front door. Hr'g Tr., ECF No. 37 at 60:13- 61:5, Apr. 30, 2019. In one of the jackets, the officers found a firearm. Id. In another, the officers found a credit card in Mr. Pitts' name. Id.

         The government argues that the jackets belong to Mr. Pitts because Mr. Pitts' mother stated that they did. Gov't Mot., ECF No. 22 at 1; Hr'g Tr., ECF No. 37 at 59:2-11, Apr. 30, 2019. Mr. Pitts was arrested and searched, and the officers found approximately 6.06 grams of what was suspected to be cocaine base on his person. Def.'s Opp'n, ECF No. 23 at 1-2. The government also recovered a cell phone belonging to Mr. Pitts. Detention Mot., ECF No. 7 at 2.

         Mr. Pitts was presented in Superior Court the following day, January 19, 2019, and charged by a complaint with felon in possession of a weapon and drug-related charges based on the contraband recovered from the search. Def.'s Opp'n, ECF No. 23 at 2. He was initially detained by the court on the government's motion. Id. On January 23, 2019, five days after his arrest, the court ordered Mr. Pitts released into high intensity pretrial supervision which included a curfew from 10 p.m. to 6 a.m., electronic location monitoring, and weekly in-person reporting to the Pretrial Services Agency. See id.

         On February 22, 2019, while reporting to pretrial services, Mr. Pitts was re-arrested. Hr'g Tr., at ECF No. 37 at 7:2-15, Apr. 30, 2019. This new arrest stemmed from a federal indictment charging Mr. Pitts with possession of a firearm and ammunition after felony conviction, and several drug-related charges based on the identical facts used to obtain the complaint in Superior Court. See generally Indictment, ECF No. 1. The federal indictment was filed pursuant to a new practice of transferring “felon in possession” cases from Superior Court to this court.[2]

         Mr. Pitts was again detained after his arraignment in federal court. Minute Entry (Feb. 22, 2019). The government again moved for pretrial detention; however, on February 27, 2019, five days after Mr. Pitts' detention, a magistrate judge ordered him released again into high intensity pretrial supervision. See Minute Entry (Feb. 27, 2019). At that time, Mr. Pitts was facing charges in both federal court and Superior Court for identical alleged criminal conduct. The Superior Court charges were not dismissed until March 11, 2019. Def.'s Opp'n, ECF No. 23 at 3.

         Mr. Pitts' first hearing before this Court occurred on March 7, 2019, when he asserted his Speedy Trial rights. See Minute Entry (Mar. 7, 2019). He requested a trial date, and jury selection was scheduled to commence on April 23, 2019. Id. The government did not file any motions that could have tolled the Act. The parties agree that, absent any tolling, the Act would require Mr. Pitts' federal trial to commence by no later than May 3, 2019. See Def.'s Opp'n, ECF No. 23 at 3 (citing May 3, 2019 as the speedy trial deadline); see also Gov't's Reply, ECF No. 27 at 4 (same).

         At a status hearing on March 28, 2019, Mr. Pitts, through counsel, informed the Court that the government had neither produced lab reports for the substances recovered in the apartment where Mr. Pitts was arrested, nor produced any records recovered from Mr. Pitts' cell phone. See Minute Entry (Mar. 28, 2019). The Court ordered the government to produce the records by April 8, 2019, and scheduled a status hearing for April 9, 2019. Id. Mr. Pitts declined to waive his rights under the Act and the April 23, 2019 trial date remained calendared. Id.

         At the April 9th hearing, the government informed the Court that it had failed to produce the telephone records or the drug testing results by the April 8th deadline. See Minute Order (April 9, 2019). The government stated that the cell phone records were unintentionally destroyed and therefore the government would not seek to introduce any cell phone records during trial. Id. During the hearing on the government's motion to dismiss the indictment, the government's attorney further elaborated that Mr. Pitts' cell phone fell off of a motorcycle and “got run over” when a government agent was transporting the phone for testing. Hr'g Tr., ECF No. 37 at 41:5-13, Apr. 30, 2019.

         As for the drug testing results, the government stated that it was unable to turn over the results due to “confusion and backlog” at the testing agency. Gov't. Mot., ECF No. 22 at 2. The Court informed the parties that it would exclude drug testing results and phone records from the evidentiary record at trial because the government violated the Court's order and because the defendant would be prejudiced if the reports were produced at a later date. See Minute Order (April 9, 2019).

         On April 15, 2019, the government moved to dismiss the indictment without prejudice and stated that it was seeking dismissal based on its failure to test the DNA swabs from the gun recovered in the apartment. Gov't's Mot., ECF No. 22. at 1. The government explained that this was an “oversight” and that it was seeking dismissal of the indictment without prejudice “in order to get the tests done.” Id. at 2. The government, moreover, contends that due to this oversight, ...

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