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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. AARON DEMARCO FOSTER KEON MOSES MICHAEL LAFAYETTE TAYLOR : : : CRIMINAL NO. CCB-02-0410 : : : : ...o0o... MEMORANDUM Keon Moses has moved to dismiss Counts Three and Four, and overt act four, from the indictment. These relate to the murders of Gregory Spain and Ronald Harris on September 23, 2001, for which Moses was tried and acquitted in state court in April 2002. Michael Taylor and Aaron Foster have moved to suppress statements they made in the course of conversations with a government informant, Aaron Butler, after Butler signed a cooperation agreement in late May 2002. Several recorded conversations with Mr. Butler occurred in July and August 2002.1 The focus of their argument is on two specific topics of conversation. The first is Mr. Taylor's arrest on January 10, 2002, at 877 W. Fayette Street and his subsequent state charge related to possession of crack cocaine. That possession is charged as overt act number seven in the federal indictment. The second, applicable to both Mr. Taylor and Mr. Foster, is a home invasion for which both were arrested on June 21, 2002 and subsequently indicted on state charges. That home invasion is charged as overt act number fourteen in the federal indictment. Regarding all three defendants' motions, the court heard extensive testimony from federal, city,

One conversation was recorded in January 2003, after the federal indictment was returned, but the government does not seek to admit that recorded statement at this trial.

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and county law enforcement officials concerning the course of events that led to the federal indictment on September 17, 2002. I will summarize that testimony as it relates to the Fifth and Sixth Amendment violations asserted by the defendants. An FBI agent began looking at information concerning drug trafficking in the Lexington Terrace area of Baltimore City in approximately July 2001. A second agent, Steve Gordon, joined the project on September 11, 2001; work on the Lexington Terrace investigation was then interrupted by the events of September 11 until November 2001. The evidence established that from November 2001 through at least late June 2002 there were a number of independent, indeed sometimes conflicting, investigative efforts and arrests carried out by Baltimore City, Baltimore County, and the FBI. There also were some cooperative efforts. Eventually, in late June 2002, a meeting was called in the U.S. Attorney's Office among representatives of the various jurisdictions to share information and discuss coordination of the several investigations. Even at that point independent efforts were still underway. The fact of Aaron Butler's cooperation, for example, which began in May 2002, and the existence of his recorded statements with Mr. Taylor and Mr. Foster were not revealed by the FBI to local authorities until August 2002, and then only on a limited basis. Regarding Mr. Moses's contention that his federal prosecution for the murders of Spain and Harris violates the Fifth Amendment, it is undisputed that the federal law enforcement officials involved in the present case did not even know about Mr. Moses's April 2002 trial and acquittal on state murder charges until later that spring. Accordingly, it is impossible to conclude that "one sovereign [was] fueling the investigation and prosecution of a defendant by another sovereign," United States v. Claiborne, 92 F. Supp. 2d 503, 508 (E.D. Va. 2000), aff'd, 3 Fed. Appx. 166 (4th Cir. 2001) 2

(unpublished disposition), as would be required for a prior state prosecution to bar federal charges under the "sham prosecution" exception to dual sovereignty doctrine. See, e.g., United States v. Montgomery, 262 F.3d 233, 238 (4th Cir. 2001) (denying a double jeopardy challenge where the state prosecutor "did not purport to represent the federal sovereign, was not funded by the federal sovereign and vindicated the separate interests of the state sovereign" (internal quotations omitted)). Because there is no evidence that federal authorities "dominated, controlled, or manipulated" the state's actions or vice versa, Montgomery, 262 F.3d at 238 (internal quotations omitted), the successive prosecutions at issue here do not violate the Double Jeopardy Clause, even assuming the charges in the two cases are redundant. See, e.g., Heath v. Alabama, 474 U.S. 82, 88-89 (1985) (holding that successive prosecutions by separate sovereigns do not implicate double jeopardy and indicating that "the States are separate sovereigns with respect to the Federal Government"); United States v. 152 Char-Nor Manor Blvd. Chestertown, Maryland, 922 F. Supp. 1064, 1069-70 (D. Md. 1996) (noting that "[u]nder the dual sovereignty doctrine, federal and state governments may independently prosecute a person for the same conduct," but indicating that "[a] narrow exception to this doctrine exists" where "one sovereign is simply a tool of the other" (internal quotations omitted)), aff'd, 114 F.3d 1178 (4th Cir. 1997) (unpublished table opinion). Regarding the events of January 10, 2002, the evidence established that the FBI case agent provided the informant and the drug buy money that allowed the City Housing police to develop probable cause for an arrest and search at 877 West Fayette Street on that date. Special Agent Gordon was present at the arrest and believed the results of the search might eventually assist the federal investigation, but he did not seek to bring any federal charges. Mr. Taylor was held briefly and 3

charged with distribution of cocaine base, possession of cocaine base with intent to distribute, and possession of cocaine base; those charges were dropped by the city for lack of evidence in the fall of 2002. While the dismissal occurred after the federal indictment was returned, there is no evidence it was done at the request of any federal officer. Regarding the home invasion, the evidence showed that the decision to arrest Mr. Taylor and Mr. Foster was made by city authorities who believed those defendants should be off the street for safety reasons. Federal officials were aware as of the June 21, 2002 meeting that the arrests would be made, but were not present when they were carried out. Both defendants had initial appearances soon thereafter in state court. According to a stipulation, however, Assistant State's Attorney James Wallner, who was at some point also cross-designated as a Special Assistant U.S. Attorney, consulted with the lead Assistant U.S. Attorney on this case about whether state indictments should be sought. AUSA Smith requested, or at least agreed, that state indictments would be the best way to "hold" Mr. Taylor and Mr. Foster, because the federal indictment was not ready. State indictments were then returned in early July 2002. The federal indictment in September charged the home invasion as an overt act, and the state charges were later dropped. On July 6 and 8, 2002, Aaron Butler had his first recorded conversations with Mr. Taylor and Mr. Foster. Several more conversations either over the phone or in person were recorded in July and August 2002. None, however, related to the home invasion. In an earlier unrecorded conversation, according to Mr. Butler, Mr. Taylor asked him to contact the witnesses to the home invasion to see what they had to say. Mr. Taylor did have a recorded conversation with Mr. Butler relating to the murder of Travis Burley. In the course of the conversation Mr. Taylor allegedly admitted that a portion 4

of the drugs seized on January 10, 2002 at 877 West Fayette Street were his, and the rest were Mr. Burley's. The Sixth Amendment right to counsel is "offense specific"; it bars police questioning in the absence of counsel only if the questioning relates to the "same offense" as a prosecution that has already commenced due to the filing of a "formal charge, preliminary hearing, indictment, information or arraignment." Texas v. Cobb, 532 U.S. 162, 167-68, 172-73 (2001) (internal quotations omitted); see also United States v. Hylton, 349 F.3d 781, 787-88 (4th Cir. 2003) (holding that the Sixth Amendment right to counsel did not attach when a statement of charges was filed in Maryland district court because the government could pursue felony charges only by filing an indictment or information in circuit court). "[T]he test to be applied to determine whether there are two offenses or only one is whether each [statutory] provision requires proof of a fact which the other does not." Id. at 172-73 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Here, the June 2002 home invasion and January 10, 2002 narcotics violations are charged only as overt acts of the conspiracy in the present indictment. "A conspiracy is a distinct crime from the overt acts that support it." United States v. Ambers, 85 F.3d 173, 177-78 (4th Cir. 1996). Thus, even assuming the Sixth Amendment right to counsel had attached at the time due to the state charges, the conversations with Mr. Butler did not relate to the "same offense" as the state charges. In any event, considering that none of the recorded statements related to the charged home invasion, that charge may not bar admission of the recorded statements, and the statements pertaining to the murder of Mr. Burley--including those that bear on the January 10, 2002 narcotics offenses--are clearly admissible because no prosecution

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related to the Burley murder commenced until after the conversations took place.2 Recognizing that the offense-specific rule may foreclose their argument, Mr. Taylor and Mr. Foster also urge the court to find that the state and federal charges are duplicative due to the ongoing cooperation between state and federal agents. As was noted above, state and federal charges may merge for double jeopardy purposes when one government acts at the behest of another. The Fourth Circuit, however, has questioned the viability of this "collusion exception" in the Sixth Amendment context. See Montgomery, 262 F.3d at 247 ("We note that the Supreme Court's recent refusal to find any exception to the Sixth Amendment offense-specific rule for crimes `factually related' to the charged offense, Cobb, [532 U.S. at 167], at the very least calls into question the viability of any `collusion exception' to the offense-specific rule."). In any event, as I noted in discussing Mr. Moses's double jeopardy claim, there is no evidence in this case that federal officials controlled the state investigation or that the state charges were a sham. Mere cooperation between government agents does not, by itself, establish that state and federal investigations related to the same offense. See 152 Char-Nor Manor, 922 F. Supp. at 1070 ("Federal officials may cooperate with state officials without risking violation of the Double Jeopardy Clause."). Accordingly, the defendants' motions will be denied. A separate order follows.

January 30, 2004

/s/

The government has not yet decided whether and for what purpose it will offer the unrecorded statement about the witnesses to the home invasion. 6

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Date

Catherine C. Blake United States District Judge

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : : : : : : : : : :

v.

Criminal No. CCB-02-0410

AARON DEMARCO FOSTER KEON MOSES MICHAEL LAFAYETTE TAYLOR

ORDER For the reasons stated in the accompanying Memorandum, defendant Michael Taylor's Motion to Suppress Statements Obtained in Violation of His Right to Counsel and Other Rights (docket no. 125) and defendant Keon Moses's Amended Motion to Dismiss the Superceding Indictment on Double Jeopardy Grounds (docket no. 129) are hereby DENIED . So Ordered this 30th day of January 2004.

/s/ Catherine C. Blake United States District Judge



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