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United States v. Campbell
Citations: 525 F. Supp. 2d 891; 2007 U.S. Dist. LEXIS 88013; 2007 WL 4239277Docket: Crim. 04-80810
Court: District Court, E.D. Michigan; November 30, 2007; Federal District Court
Defendant Terence Lamar Campbell, along with co-defendant Tony Bennett, faces a six-count indictment for involvement in a large-scale drug distribution and money laundering operation. The charges include Conspiracy to Distribute and Possession with Intent to Distribute various narcotics, including cocaine, crack, heroin, and MDMA, as well as a Money Laundering Conspiracy. The indictment, filed under seal on September 29, 2004, was unsealed on July 28, 2005. Campbell was arrested and arraigned on April 6, 2006. The Court is addressing two motions from Campbell: one to dismiss the indictment due to pre-and post-indictment delay, and another to suppress evidence and request an evidentiary hearing. Testimony was heard from law enforcement officials, including FBI agents and state police, over four days, with additional documentary evidence submitted after in-court proceedings. The factual background reveals that on August 7, 2001, the FBI received a tip regarding a privately chartered jet arriving at Pontiac-Oakland County Airport, allegedly carrying drugs. Surveillance was established, and on August 8, agents witnessed the arrival of the jet and a limousine. Tony Bennett was observed disembarking the jet and loading heavy boxes and luggage into the limousine. The vehicle transported Bennett to a residence in Southfield, Michigan, where he awaited Campbell's arrival. Subsequently, both men were followed by agents as they moved around the Detroit area before returning to the residence. Bennett and Campbell left their residence and were tracked to Brighton, Michigan, where law enforcement had to cease surveillance due to heavy traffic. During this time, federal agents obtained a search warrant for 18712 Addison, owned by Defendant Campbell. The agents executed the warrant around 8:30 p.m. when the residence was unoccupied and discovered evidence indicative of a large-scale drug distribution operation. In the basement, they found two large cardboard boxes containing individually wrapped kilogram packages of cocaine, along with additional cocaine in nearby suitcases. In total, agents recovered 116 kilograms of cocaine, over six ounces of cocaine base (crack), 375 grams of heroin, and thousands of MDMA/ecstasy pills (655 grams). They also found drug distribution tools, including packaging materials, scales, money counters, firearms, and over $10,000 in cash. Defendant Campbell filed a motion to dismiss the indictment based on pre- and post-indictment delays, claiming that the delays violated his Fifth Amendment rights. He argued that the delay prejudiced his ability to defend himself, particularly regarding his deceased mother, a co-conspirator in the indictment, who could have testified about her legitimate business dealings with him. Campbell also alleged that the government intentionally delayed the indictment to gain a tactical advantage by securing testimony from co-defendant Tony Bennett. However, evidence suggested that Bennett was not cooperating with the government prior to the indictment, as he had taken steps to avoid law enforcement following events in August 2001. Thus, while Campbell asserted prejudice from the delay, the facts did not support his claim regarding Bennett’s cooperation. Bennett, using multiple aliases, traveled from Michigan to California, Texas, and Georgia over ten months before being arrested in Alabama in June 2002 for drug possession and false identification. His true identity, Tony Bennett, was revealed following this arrest, which also uncovered an outstanding 2001 warrant from California for dangerous drugs. After extradition, he served a two-year prison sentence in California. Upon his release, Bennett moved to Atlanta, where he was arrested on an indictment warrant issued just two and a half months prior, on October 12, 2005. He appeared for the indictment on November 9, 2005. Defendant Campbell was arrested and arraigned on the same indictment in April 2006. The timeline from August 9, 2001, to November 9, 2005, undermines Campbell's claim that Bennett was cooperating with the Government, which purportedly delayed the indictment for tactical advantage. Campbell also argued that the delay from a drug seizure on August 8, 2001, to the indictment on September 29, 2004, could not be justified by investigative efforts, as the alleged criminal activities concluded in September 2001. However, the indictment indicates that drug trafficking occurred across several states from 1998 to September 7, 2001, and the Government may not have been aware of all activities before the indictment date. Bennett's varied aliases further complicated the investigation, with his true identity only revealed post-arrest in Alabama. The indictment also included details of ongoing investigations into property purchases made by Campbell and his mother using businesses intended to conceal ownership, indicating that investigative efforts continued into 2003 and 2004. Consequently, the Court dismissed Campbell's argument regarding pre-indictment delays. The document also cites the Sixth Amendment's guarantee of a speedy trial, emphasizing its role in preventing undue incarceration, alleviating anxiety from public accusations, and ensuring fair defense opportunities. Sixth Amendment speedy trial protections are initiated by a defendant's arrest, indictment, or other formal accusation. In this case, Defendant Campbell was officially indicted on September 29, 2004, but did not appear for arraignment until April 6, 2006, resulting in an 18-month delay. The Supreme Court's four-part balancing test from Barker v. Wingo evaluates: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice suffered due to the delay. The Doggett case reaffirms this test but highlights that none of the factors is determinative on its own; they must be considered collectively. The current delay spans approximately 37 months since the indictment. In Barker, a 5½-year delay was not deemed a constitutional violation, suggesting that the 3-year delay in Campbell’s case is likely negligible in terms of prejudice. Additionally, the absence of a Speedy Trial Act violation (which mandates trial commencement within 70 days of a defendant's first appearance) supports the conclusion that there is no constitutional violation. Campbell's first appearance occurred on April 6, 2006, and he later agreed to a continuance that excluded certain delays from the Speedy Trial Act's computation. The analysis of the delay’s reasons indicates that both the government and the state share responsibility for the 22-month delay. The focus is not on finding a blameless party but rather on determining who bears more responsibility, with the government required to justify any pre-trial delays. Overall, the length of delay does not heavily favor Campbell, and the government’s explanations will be essential in assessing the situation. Different weights are assigned to reasons for the Government's delay in a trial. A deliberate delay to hinder the defense is viewed unfavorably, while neutral reasons like negligence or court overcrowding are considered less severe, though the Government bears ultimate responsibility. Valid reasons, such as missing witnesses, justify delays. In this case, while the Government shares some blame for the delay, Defendant Campbell is deemed more culpable due to his deliberate actions to evade federal agents after his indictment. Campbell obtained a false driver's license and distanced himself from family, remaining a fugitive until his arrest in April 2006 during a search unrelated to his indictment. The indictment was sealed to protect another case, indicating no strategic delay by the Government. Consequently, the delay is primarily attributed to Campbell's efforts to avoid capture, heavily weighing against him in the Barker analysis. The second factor considers whether Campbell asserted his right to a speedy trial. He filed a motion to dismiss on August 4, 2006, four months post-arraignment, which is deemed timely and weighs in his favor. The third factor evaluates potential prejudice from the delay, including oppressive pretrial incarceration, undue anxiety, or defense impairment. Campbell claims his defense was impaired due to his mother's death occurring five months before the indictment, which cannot be used to justify post-indictment delay prejudice. Thus, this factor weighs against him. Overall, the only factor favoring Campbell is his timely assertion of the right to a speedy trial. Therefore, his motion to dismiss the indictment based on pre- and post-indictment delay is denied. Defendant Campbell's motion to suppress evidence obtained from a search of his residence at 18712 Addison in Southfield, Michigan, is based on the absence of a verbatim record of a telephonic search warrant application, as required by Fed. R. Crim. P. 41(d)(3). Campbell's attorney requested the search warrant affidavit but was informed that no recording or notes from the officers involved were available. The search warrant was applied for by FBI Special Agent Stanley Christ and Sergeant Brent Miles on August 8, 2001. Initially, a state warrant was considered, but after consulting with Assistant U.S. Attorney Ronald Waterstreet, they decided to pursue a federal warrant via a telephonic application to Magistrate Judge Steven Pepe. After outlining probable cause in notes, Christ presented the information to Judge Pepe, who authorized the warrant based on the oral presentation. The warrant was signed at 6:36 p.m. on the same day, and a request was made to seal the documents. However, by 2004, it was discovered that the tape or transcription of the telephonic affidavit was missing. Following Campbell's suppression motion, Magistrate Judge Pepe stated in a 2006 interview that he could not independently recall the details of the telephonic application. Approximately five to seven percent of warrant applications reviewed by the Magistrate Judge are conducted via telephone instead of using a prepared paper affidavit. The Judge typically requires agents to provide supporting notes or documents via fax or email; however, in this instance, he could not recall receiving any such materials. He indicated he would take a statement from the agent to establish probable cause for the search warrant, which would involve reading his finding into the record. Upon establishing probable cause, he would direct the agent to complete the warrant forms, sign his name with a slash and initials, and document the time of signing. The original warrant and the cassette tape of the telephone conversation would be left in a prominent location in his office for the following day or on a Deputy Clerk's desk. For telephonic applications made during late summer and fall of 2001, he would instruct a clerk to forward the tape to a duty clerk for transcription. The Judge noted several civil tapes from August-September 2001 are missing, but this is the only criminal tape he is aware of that cannot be located. He became aware of the missing tape around August 22, 2006, when contacted by Agent Christ. The Clerk's office indicated that typically, tapes of telephonic warrant affidavits are sealed with the warrant, but no tape was found in the sealed envelope for this case, which contained only an order to seal, a motion to seal, and the signed search warrant application. Defendant Campbell argues for the suppression of evidence based on a possible violation of Fed. R. Crim. P. 41(d)(3), which governs telephonic search warrants. His argument centers not on the warrant itself but rather on the absence of a recorded or transcribed telephonic affidavit. He contends that the lack of recording or transcription constitutes a violation of Rule 41, thereby warranting suppression of the search evidence. The Sixth Circuit's decision in United States v. Chaar, 137 F.3d 359 (1998) addresses legal issues surrounding the admissibility of evidence obtained via a telephonic search warrant. In this case, Chaar was charged with possession of contraband cigarettes, prompted by an anonymous tip to the FBI regarding a shipment he was expected to receive. Following this tip, the ATF conducted an investigation, which included confirming Chaar's rental of storage lockers and his stated intent to store excess cigarettes there. A telephonic conference involving an ATF agent, a U.S. Attorney, and Magistrate Judge Lynn Hooe was held, resulting in a search warrant due to probable cause that contraband cigarettes were stored in Chaar's lockers. However, Chaar later sought to suppress the evidence, claiming that the recording and transcript of the telephonic conference were lost, thus denying the court the ability to review the warrant's validity. While the government acknowledged a violation of Rule 41, the Court of Appeals ruled that this did not affect the evidence's admissibility. The Court emphasized that the exclusionary rule is intended to deter police misconduct, not penalize judicial errors, and concluded that the loss of the recording did not warrant suppression in this instance. This ruling marked a significant interpretation of Rule 41 violations, particularly concerning the recording and transcription requirements, distinguishing it from prior cases that primarily involved oath issues. The court affirmed that extrinsic evidence can be used by reviewing courts to assess the context of a warrant's issuance. The Ninth Circuit established that noncompliance with Rule 41 necessitates suppression only if there is a clear constitutional violation, evidence of prejudice indicating the search might not have occurred or would have been less invasive, or proof of intentional disregard for the rule. The court evaluated whether these conditions applied to Rule 41(c)(3) and concluded that none did in this case. The search was not deemed unconstitutional, and the defendant, Chaar, failed to demonstrate that the search would have been less invasive or would not have occurred without the violation. Furthermore, Chaar did not provide evidence of intentional misconduct related to the violation. The court noted the lack of clarity about the magistrate judge's knowledge at the time of the warrant issuance, as the original tip sheet was absent from the record, and the only supporting document was an affidavit prepared long after the relevant events. Chaar bore the burden to produce evidence for suppression but did not contest the affidavit's validity or present any witnesses to challenge it. Consequently, the court declined to suppress the evidence based on the Rule 41 violation. Additionally, similar circumstances involving a failure to record a warrant hearing were noted, yet there was no indication of intentionality in that failure, and the defendant, Campbell, also did not demonstrate that the search was unconstitutionally unreasonable or that it would not have occurred absent the violation. The Sixth Circuit in Chaar and the Fifth Circuit in Richardson affirm that courts may rely on extrinsic evidence to investigate the circumstances surrounding a warrant's issuance and the contents of its supporting telephonic affidavit. The absence of an affidavit in court records suggests it may not exist; however, other evidence can be presented to confirm its existence and details. When a warrant is unavailable during a suppression hearing, prosecutors may introduce alternative evidence to clarify the warrant's language regarding the search location and items or individuals involved. In this case, despite deficiencies related to the Magistrate Judge's record-keeping, these issues did not favor Defendant Campbell's suppression motion. The Court determined that sufficient probable cause existed for the warrant's issuance, based on four days of testimony and evidence review. FBI Special Agent Stanley Christ, who made the telephonic warrant application, testified about receiving information from a confidential informant regarding a substantial cocaine shipment arriving at Oakland County Airport on August 8, 2001, via a private jet. This information, relayed through Agent Rick Solomon from Agent Mitch Holmes in Los Angeles, was corroborated by Christ’s subsequent inquiries about the informant's credibility. Holmes confirmed that the informant had a history of reliable information, including a past tip that resulted in the seizure of 42 kilos of cocaine in Atlanta. Christ testified that Holmes informed him the charter for a flight to Atlanta was similar to one for a flight to Michigan, with both involving a group that prepaid a large sum of cash for plane leases within two days. However, Holmes did not specify that the same individuals leased both planes. An informant relayed that pilots believed boxes on the Michigan flight contained narcotics, despite being told they contained computer parts. The surveillance team observed the plane described by the informant land at Oakland County Airport, where a large black male unloaded two boxes and luggage into a limousine. This limousine was tracked to a residence at 18712 Addison in Southfield, Michigan, which was confirmed to be owned by Defendant Campbell. Christ, along with partners Lynch and Miles, conducted criminal history checks revealing that Campbell had a prior narcotics conviction, verified by Michigan State Police records. Additionally, a vehicle at the Addison residence was registered to Willie Hamby, who also had a prior narcotics conviction. Later, Campbell and Co-Defendant Tony Bennett were seen leaving the residence, prompting the decision to obtain a search warrant. Initially pursuing a state warrant, the Assistant U.S. Attorney opted for a federal warrant, leading to a telephonic application made to U.S. Magistrate Judge Steven Pepe at approximately 6:00 p.m. on August 8th. Agent Christ relied on a draft warrant application, his notes, and unrecorded information when making a telephonic warrant application to Magistrate Judge Pepe. The draft and notes were admitted into evidence. Christ conveyed to the Magistrate Judge that Agent Solomon informed him on August 7th that an informant linked the individual who leased a plane to Oakland County to another plane that went to Atlanta; however, he failed to disclose that he had not verified this information with Agent Holmes during a conversation on August 8th. Defendant Campbell seeks to suppress evidence from the search warrant, citing false statements in the warrant application that he claims invalidate the indictment. Campbell contends that Christ misled the Magistrate by implying an ongoing investigation into his house, which had only been active for ten hours. Under the Franks v. Delaware standard, the court must first determine if false statements were included knowingly or with reckless disregard for the truth. If such statements are found, the court then assesses if the remaining content of the affidavit supports probable cause. The court identified that the key potentially false statement by Christ was the identification of the same individual associated with both planes. Nonetheless, even excluding this statement, the court concluded that sufficient corroborated information remained in the affidavit to support a probable cause finding. Agent Christ's testimony regarding events on August 7-8, 2001, is fully credited by the Court, supported by corroborative testimony from Officers Lynch and Miles, and additional evidence including computerized criminal history checks and testimony from Thomas Evans. To issue a search warrant, an affidavit must show a "fair probability" of finding evidence of a crime, as established in United States v. Jenkins. The Court evaluated Agent Christ's warrant affidavit, excluding any tainted information, and found it presented sufficient facts indicating probable cause to search the Addison Street residence. Key factors included: 1. The suspicious nature of the aircraft leasing, involving short notice and significant cash payments for transporting items that could have been shipped more cheaply. 2. Similar circumstances involving a prior plane lease that resulted in drug seizures. 3. Delivery of boxes, allegedly containing "computer parts," to a residence owned by a person with a previous narcotics conviction. 4. The presence of a vehicle registered to another individual with narcotics offenses at the delivery site. 5. Ownership of the residence by another individual with a drug-related conviction. Based on these circumstances, the Court concluded that Agent Christ's affidavit provided adequate probable cause for the warrant. Consequently, Defendant Campbell's motions to suppress evidence and for a Franks hearing were denied, and the motion to dismiss was also denied. The Court consolidated Campbell's two motions seeking suppression of the same evidence for the ruling. The Court has taken an extended period to consider the case due to the need for all hearing transcripts pertaining to the search warrant, particularly after complications arose from the lack of a transcript or recording of a telephonic hearing. The Court determined that suspending the 30-day limit for matters to be held "under advisement" as prescribed by 18 U.S.C. 3161(h)(1)(J) is justified to serve the ends of justice, in line with congressional guidance on such continuances. Defendant Bennett is linked to the case through the use of an alias, Tony Jackson, for chartering a jet and limousine. The issuance of the search warrant is under scrutiny in a Motion to Suppress mentioned in a later section of the opinion. Defendant Campbell seeks dismissal based on delays during both pre- and post-indictment phases, particularly contesting the time between the return and filing of his indictment. Campbell mistakenly believes the Grand Jury returned the indictment on September 29, 2001, while the actual date of return and filing was September 29, 2004. His theory suggests deliberate delay by the Government due to a co-defendant’s cooperation, but the indictment itself contains a typographical error regarding the date. Several allegations within the indictment reference events occurring after 2001, demonstrating that the indictment could not have been returned in that year. Additionally, September 29, 2001, fell on a Saturday, a day when grand juries typically do not convene, further supporting that the indictment was correctly filed on a weekday, September 29, 2004. The "Request for Warrant Upon Indictment" for Campbell and Bennett's arrests, along with the indictment, were sealed and both dated September 29, 2004. The Court determined that a 2001 date noted on the indictment was a typographical error, affirming that the indictment was effectively returned on September 29, 2004. Consequently, the Court denied Campbell's motion to dismiss the indictment due to alleged delays, as there was no factual basis for his claim. Bennett, during this time, identified himself using multiple aliases. The Court rejected Campbell's attempt to extend Sixth Amendment protections to the period prior to indictment, referencing Supreme Court precedent that the Speedy Trial Clause does not apply before formal accusation. The warrant was provided to the defense, but the warrant affidavit was not. The Court expressed discontent over the handling of court records by Magistrate Judge Pepe and staff, emphasizing the importance of safeguarding materials that could affect a defendant's constitutional rights. The evidentiary hearings related to Campbell's Motion to Suppress spanned from September 2006 to May 2007, with interim hearings and requests for additional evidence to ensure comprehensive consideration of the case. Testimony indicated that an informant had linked an individual to both leased planes, and the Court found no material falsehood in the representation of an ongoing investigation into the Addison Street residence. After reviewing testimony and documents from four witnesses, the Court effectively conducted a Franks hearing, allowing both parties to present evidence, concluding that a formal hearing would not have significantly altered the outcome.