                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,                       :
                                                :       Criminal Action No.:    13- 0150 (RC)
       v.                                       :
                                                :       Re Document Nos.:       28, 30, 32
KEVIN MACK,                                     :
                                                :
       Defendant.                               :

                                 MEMORANDUM OPINION

            DENYING DEFENDANT MACK’S MOTIONS TO DISMISS THE INDICTMENT

                                     I. INTRODUCTION

       Defendant Kevin Mack was indicted on May 23, 2013, on one count of unlawful

distribution of a mixture or substance of phencyclidine, also known as PCP, a Schedule II

controlled substance, and one count of unlawful distribution of one hundred grams or more of a

mixture or substance of PCP. On June 12, 2014, this Court denied the Defendant’s motion for

bond. Since then, the Defendant has filed three motions, two of which were pro se, seeking

dismissal of the indictment on various grounds. Following the Government’s omnibus response

in opposition to all of the Defendant’s arguments, and argument on those motions held on July

10, 2014, the Defendant’s motions are now ripe for resolution. For the reasons set out below, the

Court will deny each of the motions for dismissal.


                               II. FACTUAL BACKGROUND

       In 2012, law enforcement contacted a man named “Rico” with the hopes that Rico would

introduce undercover officers to his PCP supplier. Following a purchase of PCP made directly

from Rico on June 22, 2012, Rico provided the officer with information about his “uncle,” a man
named “Jimmy,” whom Rico claimed was his PCP supplier. 1 After obtaining Jimmy’s name and

phone number, the Government attempted, unsuccessfully, to contact Jimmy multiple times to

arrange purchases of PCP. Instead, it was the Defendant, rather than Jimmy, who responded to

the Government’s overtures. 2 After initial contact was made on July 19, 2012, the Defendant and

the undercover officers arranged for the sale and purchase of four ounces of PCP on July 23,

2012. Unbeknownst to the Defendant, however, the transaction was recorded on video, clearly

displaying the exchange of PCP and $1,200 cash between the Defendant and the undercover

officers. The drugs subsequently were tested and confirmed to contain PCP.

       At the end of July, the undercover officers and the Defendant exchanged a series of text

messages attempting to set up another purchase of PCP. After a second buy was scheduled and

then aborted due to the Defendant not having the PCP available, another buy was set for

September 5, 2012. As with the first purchase, the second meeting occurred in the vehicle of the

undercover officers and was video-recorded. At the second transaction, the Defendant agreed to

sell six ounces of PCP for $1,800. Following the purchase, the drugs were tested and confirmed

to contain more than 100 grams of a mixture or substance containing PCP.

       Due to the lead investigator’s involvement in another investigation, for the next few

months law enforcement debated whether to continue the investigation against the Defendant and

the other persons involved. A decision was eventually made to cease the investigation. On May

23, 2013, the grand jury returned an indictment charging the Defendant with one count of

       1
               The Government disputes the Defendant’s contention that Jimmy and Rico were
government cooperators. While the Government recognizes that Jimmy has cooperated on
previous occasions, the Government submits that Jimmy’s cooperation was terminated in 2011,
and that neither Jimmy nor Rico were acting as cooperators at any time during the year 2012.
        2
               The Government does not know why it was the Defendant, not Jimmy, who
reached out to the undercover officers. Nor has the Defendant provided any reason for having
done so. At the motions hearing, the Defendant suggested that it was Jimmy, rather than the
Defendant, who may have sent the text messages. No evidence has been presented to support that
theory.


                                                2
unlawful distribution of a mixture or substance containing PCP and one count of unlawful

distribution of one hundred grams or more of a mixture or substance containing PCP. On June

12, 2013, the Defendant was arrested.


                                         III. ANALYSIS

A. Motion to Amend Additional Laws and Argument to Support Trial Counsel’s Pending

                                             Bond Motion

       The Court previously denied the Defendant’s motion for bond. See Op. & Order, ECF

No. 33. Nevertheless, the Court will clarify one issue raised by the Defendant in a motion he

filed pro se in support of the motion for bond. In his motion, the Defendant alleged that the Bail

Reform Act, 18 U.S.C. § 3142, was unconstitutional and violated the Fifth and Eighth

Amendments because it provides judges with the “power and legal authority to impose[ ] a

‘punishment’ on a pretrial detainee ‘before conviction,’ . . . without fair due process of law.” See

Def.’s Mot. to Am., ECF No. 27. The United States Supreme Court, however, has affirmatively

rejected Fifth and Eighth Amendment challenges to the Bail Reform Act. In United States v.

Salerno, 481 U.S. 738 (1987), the Supreme Court held that the extensive procedural safeguards

provided by the Bail Reform Act and its compelling regulatory purpose — to protect the safety

of individuals and the community from crimes committed by persons charged with serious

felonies while on release — were sufficient to withstand facial challenges to its constitutionality.

Id. at 755. The Supreme Court’s holding is dispositive, and fatal, to the Defendant’s argument.

Moreover, in the opinion denying the Defendant’s motion for bond, this Court provided the

Defendant with the necessary procedural safeguards and found that the Defendant indeed posed a




                                                 3
threat of danger to the community if released. See Op. & Order, ECF No. 33. 3 The Court next

turns to the Defendant’s substantive arguments for dismissal of the indictment.

           B. Motion to Dismiss Indictment for Lack of Subject Mater Jurisdiction

       In his first pro se motion to dismiss, the Defendant makes three principal arguments: (1)

the evidence gathered to arrest and indict him was a result of an unconstitutional use of cell

phone recordings, wiretaps, and confidential informants; (2) the statements seized from the

Defendant during the recordings of the cell phone calls, wiretaps, and conversations with

undercover police officers were a violation of his Fifth Amendment right against self-

incrimination; and (3) the system of indictment by a grand jury is unconstitutional. 4

       Regarding the Defendant’s first argument, the Government asserts that no cell phones

were searched, and neither wiretaps nor informants were utilized to obtain incriminating

evidence about the Defendant. See Govt.’s Opp. Mot. at 4, ECF No. 34. The Defendant has not

provided any support for his allegations that such methods were used, and there is no indication

in the record that the Government in fact employed these means. Instead, the facts show that the

Defendant initiated the sales of narcotics to undercover officers via text messages, and the

subsequent sales were recorded using hidden cameras in the vehicle of the officers.

       The voluntary exchange of text messages and the use of hidden cameras in the

undercover officers’ vehicle, however, are not searches or seizures subject to Fourth Amendment


       3
                The Defendant made various other arguments for dismissal of the indictment in
his pro se motion filed in support of his counsel’s bond motion. Those arguments have been
reiterated in subsequent motions. The Court therefore will address these arguments when ruling
on the Defendant’s other motions.
         4
                The Defendant also alleges that “[t]he collection of the Government’s evidence to
be induce [sic] at a future trial, will ‘trespass’ on the defendant’s 5th and 6th Amendment rights
to a ‘fair and impartial trial,’ the criminal complaint ‘shall’ be dismiss [sic], for having ‘tainted’
informations [sic] in it, as well as police officers ‘sworn affidavit’ reports.” ECF No. 28. The
Court cannot discern a cognizable defense from these statements; consequently, this claim will
not be addressed further.


                                                  4
protection. The Fourth Amendment provides that the “right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated . . . .” U.S. Const. amend. IV. A “search” occurs when an expectation of privacy that

society is prepared to consider reasonable is infringed. United States v. Maple, 348 F.3d 260, 261

(D.C. Cir. 2003) (citing Soldal v. Cook County, 506 U.S. 56, 63 (1992)). The Defendant did not

have a legitimate expectation of privacy in the messages he willingly, and without undue

Government prompting, sent to the undercover officers. In regards to the use of the cameras, the

Supreme Court has firmly rejected constitutional challenges to instances “when [electronic]

devices have been used to enable government agents to overhear conversations…. It has been

insisted only that the electronic device not be planted by an unlawful physical invasion of a

constitutionally protected area.” Lopez v. United States, 373 U.S. 427, 438-39 (1963). Here, the

hidden cameras were planted in the undercover officers’ vehicle, not on the Defendant’s person

or property. See United States v. Savoy, 889 F. Supp. 2d 78, 87 (D.D.C. 2012) (citing Rakas et al.

v Illinois, 439 U.S. 128 (1978) (holding that petitioners were not entitled to challenge the search

of an automobile in which they were passengers because they “asserted neither a property nor a

possessory interest in the automobile”)). The Government, therefore, used no means that violated

the Defendant’s Fourth Amendment rights. 5

       In his second argument, the Defendant alleges that the statements he made to undercover

officers were subject to the Fifth Amendment’s protection against self-incrimination as

recognized in Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment privilege against


       5
                The Defendant also argues that evidence was acquired as part of a “fishing
expedition” by the Government, citing Washington v. United States, 585 A.2d 167 (D.C. 1991),
to support his claim. That case, however, stands for the proposition that a warrantless search
unsupported by probable cause cannot be justified by the subsequent discovery of incriminating
evidence found as a result of the initial search. Id. at 170. The scenario present in Washington
simply does not arise in this case.


                                                 5
self-incrimination applies to custodial interrogation by law enforcement; that is, Miranda applies

when a defendant is in “custody” and makes a statement in response to government

“interrogation.” Id. at 467-68. For purposes of Miranda, however, “custody” is not limited to

formal arrests but also includes restraints on freedom of movement that are the functional

equivalent of a formal arrest. See California v. Beheler, 463 U.S. 1121, 1125 (1983). The

Supreme Court has phrased the Miranda inquiry as whether a “reasonable person [would] have

felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane,

516 U.S. 99, 112 (1995).

       In this case, the Defendant freely made statements to the undercover officers in

furtherance of the commission of the crimes, not as a result of interrogation. The Defendant was

not in custody at the time he communicated with the undercover officers and was completely

free to cease communicating with them or to leave during the alleged drug transactions. “Any

statement given freely and voluntarily without any compelling influences is, of course,

admissible in evidence.” Illinois v. Perkins, 496 U.S. 292, 297 (1990). Accordingly, Miranda

does not apply, and the Defendant’s statements were not acquired in violation of the Fifth

Amendment.

       The Defendant’s third argument alleges that the system of indictment by grand jury is

unconstitutional. The grand jury and its role in our system are constitutional guarantees

enshrined in the Fifth Amendment, which states, “No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or indictment of a grand jury[.]” U.S.

Const. amend. V. Federal Rule of Criminal Procedure 6 delineates the rules surrounding the

summoning of a grand jury and the ways to challenge its selection. See Fed. R. Crim. P. 6. None

of the potential challenges provided by Rule 6 are present in this case, and the Defendant has not




                                                 6
alleged any in his motion. Instead, the Defendant raises a number of novel contentions to support

his argument: that the grand jury system violates the separation of powers; that grand jurors must

be active members of the D.C. bar; that grand jurors usurp the authority of judges; and that Rule

6 infringes on the president’s appointment power. See Def.’s Mot. Dism. at 5-6, ECF No. 28.

The Defendant provides no support for any of these propositions. The Court has considered each

of the arguments and rejects them all as meritless.

 C. Motion to Amend and Supplement Additional Facts and Exhibits to Support Pending

                                   Motion to Dismiss Indictment


       In this second pro se motion, the Defendant raises entrapment and selective prosecution

as bases for dismissal. 6 See Def.’s Mot. Dism., ECF No. 30. The entrapment defense protects an

“otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul

of the law.” United States v. Law, 528 F.3d 888, 905 (D.C. Cir. 2008). This defense “has two

related elements: government inducement of the crime, and a lack of predisposition on the part of

the defendant to engage in the criminal conduct.” United States v. Glover, 153 F.3d 749, 754

(D.C. Cir. 1998). If the defendant meets the initial burden of proving government inducement,

the government can rebut by demonstrating he was predisposed to commit the crime. Law, 528

F.3d at 905. “However, a defendant only is entitled to an entrapment instruction when[ ] there is

sufficient evidence from which a reasonable jury could find entrapment.” United States v.

McKinley, 70 F.3d 1307, 1309 (D.C. Cir. 1995) (internal quotations and citations omitted).

       As an initial matter, the Defendant and the Government dispute whether informants were

used. The Defendant has submitted no evidence whatsoever to rebut the Government’s assertion
       6
                The Defendant also brings a claim challenging the “standing” of the United States
to pursue this case. The concept of standing, however, is inapposite in this context, while the
jurisdiction of the United States to enforce violations of its criminal laws in this Court is
unquestionable.


                                                 7
that neither Jimmy nor Rico acted as government cooperators at the time of the drug transactions

at issue here. But even if the Court were to take the Defendant’s allegation as true — that Jimmy

and/or Rico were government informants — the Defendant’s entrapment defense, absent any

additional evidence presented at trial, still fails. Government inducement involves “persuasion,

fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas

based on need, sympathy or friendship.” United States v. Sanchez, 88 F.3d 1243, 1249 (D.C. Cir.

1996) (citation and internal quotation omitted). Even “repeated government solicitations do not

establish inducement unless the requests are coupled with persuasive overtures, or unless there is

evidence of reluctance on the defendant’s part demonstrating that the repetition of the requests

may have moved an otherwise unwilling person to commit a criminal act.” United States v.

Hanson, 339 F.3d 983, 989 (D.C. Cir. 2003). Finally, “[a]n informant’s selling or giving drugs to

the subject of an investigation, without more, falls well short of the type of behavior that would

amount to an inducement[.]” United States v. Trejo, 136 F.3d 826, 828 (D.C. Cir. 1998).

       In this case, there is no indication that either Rico or Jimmy — even if they were

government informants — engaged in persuasive overtures beyond those ordinarily present in

drug transactions. See Glover, 153 F.3d at 754-55. Similarly, the Government did not solicit the

Defendant directly; the objects of the Government’s original solicitations were Rico and Jimmy.

Based on the evidence in the record thus far, the first sale of PCP was initiated by the Defendant,

who contacted the undercover officers out of his own volition and for reasons unbeknownst to

the Government. Even the second drug sale, which resulted from a series of text messages

between the undercover officers and the Defendant, does not amount to inducement as there is no

evidence that the Government’s requests were accompanied by persuasive overtures or that the

Defendant displayed any reluctance in consummating the transaction. See McKinley, 70 F.3d at




                                                 8
1313. The Defendant has not provided the factual predicate or evidentiary foundation necessary

to meet his initial burden of showing government inducement. Accordingly, his argument for

dismissal based on entrapment fails.

       The Defendant next alleges that the Government engaged in selective prosecution when it

chose to prosecute him while declining to prosecute Rico or Jimmy. To prevail on a defense of

selective prosecution, a defendant must prove both that he was singled out for prosecution

among others similarly situated and that the decision to prosecute was motivated by a

discriminatory purpose. United States v. Armstrong, 517 U.S. 456, 465 (1996). To show

discriminatory motivation, a defendant must establish that the selection to prosecute was “based

on an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. at 464.

The Supreme Court has noted that “the standard is a demanding one.” Id. at 463. In the ordinary

case, “so long as the prosecutor has probable cause to believe that the accused committed an

offense defined by statute, the decision whether or not to prosecute . . . generally rests entirely in

his discretion.” Id. at 464. As a result, “[t]he presumption of regularity supports” their

prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that

they have properly discharged their official duties.” Id.

       The Defendant has not come close to meeting this rigorous test. First, the Government

had probable cause to believe the Defendant sold drugs. Second, the Defendant has not put forth

a shred of evidence even hinting at the existence of a discriminatory purpose behind the decision

to prosecute him but not Rico or Jimmy. And, during the motions hearing, the Defendant’s

counsel complained that the decision to prosecute the Defendant was arbitrary and unfair, yet he

admitted that he had no basis to believe that the Government acted with any improper purpose as

recognized by the law. In fact, the Defendant’s counsel conceded that all of the purportedly




                                                   9
similarly-situated comparators are of the same gender and race as the Defendant. Because the

Defendant has not presented the requisite evidence needed to dispel the presumption that the

prosecutor acted within her broad discretion, the Court must reject the Defendant’s argument for

dismissal based on selective prosecution.

  D. Omnibus Motion to Dismiss Indictment; To Compel Discovery; For a Severance of

                                Counts; and For a Bill of Particulars


       In his third motion to dismiss, the Defendant, through his counsel, asserts that his right to

a speedy trial was violated due to pre-indictment delay, moves to compel discovery and sever the

counts, and requests a bill of particulars. See generally Def.’s Omn. Mot. Dism., ECF No. 32.

Regarding the first claim, the Defendant argues that the pre-indictment delay of more than eighth

months after the date of the first alleged offense violated his right to a speedy trial. Any

argument regarding pre-indictment delay must be based on the due process clause of the Fifth

Amendment, “and to establish such a due process violation, a defendant must establish that the

delay resulted in ‘actual prejudice to the conduct of the defense’ and that the government

‘intentionally delayed to gain some tactical advantage’ over the defendant.” United States v.

Brodie, 326 F. Supp. 2d 83, 87 (D.D.C. 2004) (citing United States v. Marion, 404 U.S. 307, 325

(1971)). 7 The Defendant has not satisfied his burden under this standard.

       The Defendant states that the pre-indictment delay “resulted from government negligence

or gross indifference to Mr. Mack’s rights.” Def.’s Mot. Dism. at 3, ECF No. 32. The Defendant,

however, has offered no facts to support this claim. Similarly, the Defendant has neither made a

claim of actual prejudice suffered, nor presented evidence that the Government intentionally
       7
                A defendant has no Sixth Amendment claim based on alleged pre-indictment
delay. See United States v. Marion, 404 U.S. 307, 320 (1971) (“[E]ither a formal indictment or
else the actual restraints imposed by arrest and holding to answer a criminal charge [ ] engage the
particular protections of the speedy trial provisions of the Sixth Amendment.”).


                                                 10
delayed its investigation or the seeking of a grand jury indictment in order to gain a tactical

advantage or to harass the Defendant. See Brodie, 326 F. Supp. 2d at 87-88. In any case, the

delay, which the Government avers was the result of its attempt to decide whether to further

investigate the Defendant and his associates, see Govt.’s Opp. Mot. at 8, was not significant. The

Defendant therefore has not shown that his rights were violated by any pre-indictment delay.

       The Defendant also seeks an order from this Court compelling discovery,

“notwithstanding the timely disclosure of ample materials by the government.” Def.’s Mot. to

Dism. at 3, ECF No. 32. The Government submits that it has complied with the Defendant’s

discovery requests. See Govt.’s Opp. Mot. at 9. The Defendant’s inadequate briefing of this point

does not allow the Court to determine whether the Government has failed to provide any

discovery to which the Defendant is entitled. 8

       Next, although the motion includes a claim “for a severance of counts” in its title, the

Defendant fails to raise any arguments in furtherance of this claim in his motion. Arguments

presented at the motions hearing added little to the briefing. Nevertheless, Federal Rule of

Criminal Procedure 8 allows for the joinder of offenses if the offenses charged “are of the same

or similar character, or are based on the same act or transaction, or are connected with or

constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8 generally is

construed liberally in favor of joinder. United States v. Richardson, 161 F.3d 728, 733 (D.C. Cir.

1998). “As long as only one defendant is concerned, Rule 8(a) permits joinder of such offenses,

even if they are entirely unrelated to each other.” United States v. Gooch, 665 F.3d 1318, 1325

(D.C. Cir. 2012). The Defendant is charged with two counts, both of which concern the unlawful


       8
               At the motions hearing, the Defendant raised an objection concerning redactions
made in some of the investigation materials produced. The Court will deal with this issue
through a separate order.


                                                  11
distribution of the same drug, PCP. Given that the two transactions involved the same

undercover officers and were of similar character, the offenses charged constitute instances of a

common scheme of drug distribution by the Defendant. As such, joinder is permissible.

        After counts are joined, Federal Rule of Criminal Procedure 14 controls the subsequent

severance of counts. United States v. Carson, 455 F.3d 336, 372 (D.C. Cir. 2006). Rule 14 states

that if “joinder . . . appears to prejudice a defendant . . . the court may order separate trials of

counts . . . or provide any further relief that justice requires.” Fed. R. Crim. P. 14(a). The

Defendant carries the burden of demonstrating prejudice resulting from a failure to sever. See

Carson, 455 F.3d at 374. If such a showing is made, it remains in the district court’s discretion

whether to sever the counts. See Gooch, 665 F.3d at 1326. As the Court previously mentioned,

the Defendant has not made any showing that the failure to sever the counts would cause

prejudice. In the absence of any demonstration of prejudice, the Court does not find that there

exists a serious risk that failure to sever the counts would prevent the jury from making a reliable

judgment about guilt or innocence. See id. at 1336. Severance therefore is inappropriate.

        Lastly, the Defendant seeks an order requiring the Government to provide a bill of

particulars setting forth the “specific event(s) [time(s), place(s) etc.] for which the government

anticipates to proffer evidence to suggest that the defendant engaged in illegal activity, and the

nature of such activity, related to the ‘pending investigation’ . . . .” Def.’s Mot. Dism. at 6, ECF

No. 32. Under Federal Rule of Criminal Procedure 7, a court “may direct the filing of a bill of

particulars.” Fed. R. Crim. P. 7(f). “A bill of particulars can be used to ensure that the charges

brought against a defendant are stated with enough precision to allow the defendant to

understand the charges, to prepare a defense, and perhaps also to be protected against retrial on

the same charges.” United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987). “It is not the




                                                   12
function of a bill of particulars [however,] to provide detailed disclosure of the government’s

evidence in advance of trial.” United States v. Edelin, 128 F. Supp. 2d 23, 37 (D.D.C. 2001).

When the indictment is sufficiently detailed, or the requested information is available in some

other form, a bill of particulars is not required. Id.

        As is clear from a review of the indictment, the information afforded in the Government’s

reply motion, and the discovery provided thus far, the charges against the Defendant are detailed

and have been alleged with sufficient particularity. 9 “There is thus no reason for any further

particularization of the overt acts, the circumstances surrounding the alleged acts or any other

evidentiary details.” Brodie, 326 F. Supp. 2d at 92. As such, the Defendant’s request for a bill of

particulars is denied.


                                         IV. CONCLUSION

        For the foregoing reasons, the Court denies the Defendant’s motions to dismiss the

indictment. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: July 11, 2014                                                   RUDOLPH CONTRERAS
                                                                       United States District Judge




        9
                 At the motions hearing, the Defendant, for the first time, requested more detail
about the Government’s forfeiture claim. The Government agreed to provide a separate pleading
regarding the exact amount it intends to seek. As such, the Court need not address the issue
further at this time.


                                                   13
