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United States v. Stewart

United States District Court, D. Vermont

November 20, 2019

UNITED STATES OF AMERICA,
v.
KOREY STEWART, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO DISMISS THE INDICTMENT (Docs. 265-1 & 265-2)

         Pending before the court are two motions filed by Defendant on September 18, 2019. Defendant moves to suppress all evidence obtained during his detention on August 27, 2015 under Federal Rule of Criminal Procedure 5 on the grounds that he was not presented to a magistrate judge following his arrest, and to suppress a pretrial identification procedure conducted using a single photograph. (Doc. 265-1.) Defendant also moves to dismiss the Third Superseding Indictment (the "Indictment") against him, arguing that the delay between his arrest and indictment violated Federal Rule of Criminal Procedure Rule 48(b) and the Speedy Trial Act, 18 U.S.C. §§ 3161(b) and 3162(a)(1). (Doc. 265-2.)

         On October 2, 2019, the government opposed Defendant's motion. Defendant filed a reply on October 22, 2019, at which time the court took the pending motions under advisement.

         Defendant is represented by Kevin M. Henry, Esq. and Avi J. Springer, Esq. The government is represented by Assistant United States Attorneys Jonathan Ophardt and Spencer Willig.

         I. Factual and Procedural Background.

         The facts are derived from the court's prior findings of fact set forth in its February 8, 2019 Opinion and Order Denying Defendant's Motion to Suppress as well as from the parties' briefing. On August 27, 2015, as part of an interdiction detail, Drug Enforcement Administration ("DEA") agents were conducting surveillance of a known heroin user who had arrived in a vehicle with a female passenger at the La Quinta hotel in South Burlington, Vermont. The known heroin user was later identified as Cody Sargent. DEA Special Agent Mark Persson ("SA Persson"), an experienced DEA Agent, was part of the interdiction detail. Based on his observations at the La Quinta hotel, he followed Mr. Sargent's vehicle to the Cumberland Farms gas station in Colchester, Vermont. At the gas station, SA Persson observed Mr. Sargent exit his vehicle and enter the vehicle of a female, later identified as Stephanie Banfield. A few moments later, Mr. Sargent exited Ms. Banfield's vehicle and returned to his vehicle.

         SA Persson and DEA Special Agent Tom Doud ("SA Doud") approached Ms. Banfield and questioned her. She initially denied selling heroin to Mr. Sargent and stated she had money in her vehicle which was from her father and from an unemployment check. She later admitted that she had just engaged in a heroin transaction with Mr. Sargent and provided substantial information regarding her drug dealing activities in three interviews. While Ms. Banfield was questioned by SAs Persson and Doud, other DEA agents questioned Mr. Sargent who stated that he had purchased heroin from Ms. Banfield. Agents searched Mr. Sargent's car, found what they suspected to be heroin, and Ms. Banfield was arrested. A search of her car yielded plastic baggies, suspected heroin, and $900 in cash. A search of Ms. Banfield's person yielded approximately $2, 623 in cash in her bra.

         In the course of interviews by law enforcement, Ms. Banfield admitted that she was a heroin user and drug dealer. She identified two men, known to her as "T" and "Skip," as her primary sources for heroin and crack cocaine. She stated that she would typically contact Skip or T to have narcotics delivered to her by a "runner." She described Skip as being "the boss" for whom T worked. She noted that Skip had approximately six to eight runners working for him as well as various females who transported drugs from New York City to Vermont. Although Skip would typically distance himself from the drugs he distributed and would leave drugs at a runner's residence rather than hold them himself, she saw Skip occasionally when he was in Vermont. She advised that Skip and T sometimes used the same phone to conduct drug transactions with their customers. She provided the agents with two telephone numbers for T and one for Skip.

         Ms. Banfield described T as a tall, skinny, African American male from New York with no tattoos, dreadlocks, or facial hair. She further advised that T drove a white Volvo with out-of-state license plates from which the front license plate was missing. She noted that she had seen T the day before and that he would "often" show up at her house and on occasion was accompanied by Skip. She identified Skip as an African American male from New York. Ms. Banfield told SA Persson that a woman named "Amber" was associated with T and Skip and that she had made two deposits of drug proceeds into Amber's bank account, one in the amount of $8, 000 and the other for approximately $8, 400. Ms. Banfield noted that she had received a text from Skip or T advising her how to make the deposits and providing Amber's account number. She reported that an individual named "Raj" had also made deposits into Amber's account. Ms. Banfield asserted that she had drugs and money belonging to T in her apartment at 79 Susie Wilson Road, Essex Junction, Vermont and that T had given her twenty bags of heroin the day before, for which she owed him $1, 600. Ms. Banfield stated that there was a large quantity of crack cocaine in her couch and a TD Bank receipt from a deposit of drug proceeds into Amber's account located in one of her closets. Ms. Banfield provided names, phone numbers, and certain other identifying details regarding approximately seven other drug associates of Skip and T.

         Ms. Banfield told law enforcement that she was selling drugs on a daily basis and explained that after she sold the drugs T provided her, T would either come to her residence to collect the proceeds from her or she would deposit the money into Amber's bank account. She explained that she and T had an agreement whereby he sold narcotics to her at a flat rate and she was entitled to keep any proceeds she made beyond that rate. She stated that T would be stopping by to collect money but she was unsure when he would arrive. Ms. Banfield provided written consent for law enforcement to search her apartment.

         SA Persson relayed the information from Ms. Banfield to members of the interdiction team. A search team proceeded to Ms. Banfield's apartment which was located in a two-building apartment complex with twelve units on a dead-end road accessed via Susie Wilson Road which terminates approximately a quarter of a mile past the complex. The parking area in front of the complex has spaces for approximately twenty vehicles. At the time of the search, there were approximately ten other vehicles in the parking lot.

         At approximately 7:30 p.m. on the evening of August 27, 2015, nine law enforcement officers searched Ms. Banfield's apartment. During their search, DEA Special Agent Brian Villella ("SA Villella"), the Resident Agent in Charge of the Burlington DEA office, conducted surveillance from an unmarked law enforcement vehicle on the dead-end portion of Susie Wilson Road with his vehicle parked facing the driveway of Ms. Banfield's apartment. He was watching for individuals who might approach Ms. Banfield's apartment during the search based on information relayed to him by S A Persson. During an approximately half-hour period of surveillance, SA Villella observed only one vehicle drive past him as it departed from another apartment complex.

         Inside Ms. Banfield's apartment, law enforcement agents located a quantity of crack cocaine in her couch and crack cocaine and cocaine elsewhere along with a tan powdery substance in her bedroom that Ms. Banfield had not previously mentioned. Although she had estimated she had approximately $1, 000 in her apartment, agents located $2, 323 in a pink wallet. In Ms. Banfield's bedroom closet, the agents located a TD Bank receipt indicating an $8, 460 deposit. They also found a Western Union receipt.

         While agents were searching Ms. Banfield's apartment, SA Villella observed somebody driving towards Ms. Banfield's apartment who matched the description the interdiction team had provided him. The person was operating a white Volvo with a Florida back license plate and a missing front plate. The white Volvo turned into the driveway leading to Ms. Banfield's apartment complex and parked facing Ms. Banfield's apartment with its headlights illuminated. In less than two minutes, SA Villella saw a brown Nissan Maxima with out-of-state license plates pull into the driveway to the apartment complex and park next to the white Volvo, approximately two car widths away. This vehicle also faced Ms. Banfield's apartment with its headlights illuminated. SA Villella could not see how many people were in the Nissan Maxima or what they looked like. He advised the search team that two vehicles were outside, and that the occupants remained in the vehicles. He directed them to make contact with the vehicles' occupants.

         After receiving SA Villella's report, the agents inside Ms. Banfield's apartment stopped their search and, due to a concern that the individuals outside the apartment might be armed, put on their tactical gear. A few minutes later, at approximately 8:00 p.m., they exited the apartment building in two groups and approached both vehicles. Upon exiting the apartment building, the agents could see the vehicles which were facing them, parked approximately 100 feet away, but because it was growing dark outside, they were unable to see into the vehicles or determine the number of occupants. The agents ran toward the vehicles due to a concern that the vehicles would leave or attempt to hit them. DEA Special Agent Timothy Hoffmann ("SA Hoffmann") credibly testified at the December 11, 2018 hearing on Defendant's first motion to suppress that the law enforcement agents drew their weapons to ensure officer safety as they were leaving a known drug house and one of the vehicles was associated with Ms. Banfield's source of supply. An agent with a drug detection canine was among the agents who approached the vehicles.

         As the agents ran toward the vehicles, they shouted "police," "hands up," and "get out of the car." After opening the driver's side door of the Nissan Maxima, agents ordered the female African American operator out of the vehicle; the female complied and was handcuffed. Seconds later, SA Hoffmann asked the woman her name and she replied that her name was Amber and produced a Connecticut driver's license indicating her name was Amber Williams-Eason. At the same time, agents approached the passenger side of the Nissan Maxima, opened the door, and pulled Defendant out of the vehicle, placed him on the ground, and handcuffed him there. Thereafter, Defendant provided agents with a New York driver's license with the name Corethious Bryant. At the time, law enforcement had no reason to believe Defendant's identification was false.

         In his testimony at the December 11, 2018 hearing, Defendant confirmed that he drove to 79 Susie Wilson Road on the date in question with Amber Williams-Eason. He contended, however, that the vehicle in which he was traveling was a full football field behind the white Volvo and parked next to a SUV and that there was space for two vehicles between the Volvo and the Nissan Maxima. Defendant testified that he was pulled out of the Nissan Maxima by law enforcement agents with "a little nudge" but was compliant with their requests to get on the ground. Somewhat inconsistently he testified that he was grabbed by the collar of the shirt, forced onto the ground, and handcuffed within seconds. He was on the ground for a short period of time before he was permitted to stand up. When he was asked for identification, he indicated it was in his pocket. The agents retrieved a New York identification card from Defendant.

         Defendant, Ms. Williams-Eason, and the driver of the white Volvo, who was identified as David Williams, were arrested and transported to a police station for processing. Defendant states that, prior to commencing "normal booking procedures," Defendant asked an agent why he would be fingerprinted and photographed. (Doc 265-1 at 2.) According to Defendant, the agent responded that Defendant was "being charged with conspiracy." Id. Defendant asserts he was photographed, fingerprinted, and "booked on conspiracy charges" by SA Persson. Id. Law enforcement began to interview Defendant, but the interview was terminated when Defendant requested an attorney. At some point while Defendant was at the police station, law enforcement conducted a search incident to arrest of Defendant's person and the brown Nissan Maxima. Id. at 1-2. According to SA Persson's testimony, neither search yielded narcotics. (Doc. 187 at 51:5-21.)

         Approximately two hours later, Defendant was released "pending further investigation." (Doc 265-1 at 2.) Law enforcement retained his cell phones and told Defendant "they were being held as evidence." Id. According to Defendant, no criminal complaint was filed, and he was not presented before a magistrate judge. At an unidentified time, law enforcement showed Ms. Banfield photographs of Defendant and Mr. Williams. Ms. Banfield identified Defendant from his photograph as "Skip" and Mr. Williams as "T."[1] Following Defendant's release from custody, law enforcement used fingerprints and a database to identify Defendant as Korey Stewart.

         On March 9, 2018, a criminal complaint was filed against Defendant for conspiracy to distribute heroin, fentanyl, cocaine, and cocaine base in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(B). Defendant was subsequently arrested on March 15, 2018 and on March 22, 2018 with a one-count indictment charging him with conspiring to distribute heroin, fentanyl, cocaine, and cocaine base. In a Third Superseding Indictment, Defendant is presently charged with an additional count of conspiring to deposit and withdraw cash proceeds of the alleged unlawful distribution conspiracy in Connecticut and Vermont.

         On February 8, 2019, the court denied Defendant's motion to suppress and held that Defendant's arrest was supported by probable cause because "the totality of the circumstances would lead a reasonable person to believe that Defendant was a participant in criminal activity with T and Amber as they approached the scene of a known drug house at which law enforcement had just located both drugs and drug proceeds." (Doc. 190 at 13.) The court denied Defendant's second motion to suppress, filed by his new counsel, on September 4, 2019 related to a September 22, 2016 traffic stop in New Hampshire that supplied the basis for a search of Defendant's person and a search warrant for the red Dodge Durango. Thereafter, the court allowed Defendant to file supplemental motions that he drafted himself in order to foreclose another request for a change in counsel and to recognize Defendant's belief that additional suppression motions were warranted by the facts and the law. Although Defendant's motions indicate they are submitted "through counsel," (Docs. 265-1 at 1; 265-2 at 1), they are only signed by Defendant.

         II. Conclusions of Law and Analysis.

         A. Whether Evidence Obtained During Defendant's Detention on August 27, 2015 Should Be Suppressed.

         Defendant moves to suppress "all evidence obtained during [his] unnecessary detention" on August 27, 2015, and all "fruits of the obtained evidence" because he was not taken before a magistrate judge after his arrest, which he alleges violates Fed. R. Crim. P. 5. (Doc. 265-1 at 1.) He argues that his detention was a "deliberate, preplanned attempt by the police to violate a suspect's constitutional rights by engaging in a subterfuge" and that "[t]he only reason for arresting [him] was to search for incriminating evidence, contraband, and/or a confession[, ]" rendering his arrest "pretextual." Id. at 3, 8. He further asserts that law enforcement lied to him by telling him that he was being ...


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