UNITED STATES DIS'I`RICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA g
v. g Criminal No. 98-329-03 (RCL)

SAMUEL CARSON, §
Defcndant. §

)

MEMORANDUM OPINION

Before the Court is defendant Samuel Carson’s Motion for Discovery [1088]. Upon
consideration of the l\/lotion [1088], the government’s Response thereto [1092], and the
defendant’s Reply [1094], defendant’s motion will be DENIED N PAR'I` and GRANTED lN

PART.

I. BACKGROUND

Sarnuel Carson was convicted in january 2002 for his participation in a vast narcotics
conspiracy and related crimes The United States Coui't of Appeals for the District of Coiumbia
Circuit affirmed Carson’s conviction and sentence and provided a lengthy account of the facts in
its opinion Uniled Slcrl'e.s' v. Car.s‘on, 455 F.3d 336 (2006). For purposes of the present motion,
the Couit will briefly highlight certain facts relevant to its opinion.

Carson was a lead participant in an "organized and massive business of selling drugs" in and
around the 200 block of K Street, Southwest, in the District of Coiuinbia. Id. at 339. l\/lernbers
of the K street drug network exhibited a "compiete repudiation of civil society and respect for
human life," as demonstrated by the network’s murder of eleven people. Id. Samuel Carson was

personally involved in nine of those murders Ia.'. at 341~42, 344~»46. Naturali_y, this pattern of

murder and mayhem attracted the attention of law enforcement, and in late 1995, the Federal
Bureau of investigation ("FBI") began an investigation of illegal drug sales in the K Street area.
Id. at 339.

in Noveinber 2006, Carson and his cohortsmlaines Montgomery and Williain Kyle
Sweeney-»~murdered l\/ielody Anderson, Alonzo Gaskins, and Darnell Mack in Prince George’s
County, Maryland. Ia.’. at 344~45. The PG County State’s Attorney’s Office initiated a grand
jury investigation of the triple murder and presented the testimony of Cheree Owens and her
fiance john Pinkney to the grand jury. Id. at 376. On December lO, 1996, Owens testified that
two weeks following the rnurder, she overheard Dennis Green state that he, along with others,
"just took three people out of the street." Ia’. Pinkney testified that after Owens told him about
the conversation, he confronted Green, who became upset and threatened Pinkney and Owens.
Ia’. at 377. As potential witnesses to a triple homicide, Owens and Pinkney were given a
"considerable amount" of money to relocate, which they spent within a few days. Ia'. at 377@78.
investigators were ultimately unable to corroborate the information provided by Owens and
Pinkney and came to "believe that [investigators were] being used by Pinkney and Owens." Id.

Meanwhile, the FBI’S investigation of the K Street network continued. Id. at 377. On
December 5, 1996, five days prior to the grand jury testimony of Owens and Pinkney in
Maryland, the FBI arrested Robert Smith, "one of the main suppliers of rnarijuana" in the
District. Id. at 346. During his initial detention, Smith agreed to act as an informant and told the
FBI that the K street drug network was responsible for the triple rnurder. Ia’. at 360. Unlike the
unsubstantiated grand jury testimony of Owens and Pinkney, Smith’s information was
corroborated by the recovery of Sweeney’s fingerprint at the scene of the crime, Carson’s own

statements to a fellow inmate, and the testimony of J ames Montgomery»-a cooperating member

of the K Street gang. Id. at 345 & n.7. Carson murdered Smith before he could testify at trial,
but Smith’s statements regarding the murder were admitted through law enforcement officers
Id. at 361-62.

As part of his defense, Carson sought to present Owens’ and Pinkney’s implication of Dennis
Green in the triple murder, but neither the U.S. Marshall’s Service nor defense investigators were
able to locate the couple. Id. at 377. Consequently, Carson sought to introduce the transcript of
Owens’ and Pinkney’s grand jury testimony pursuant to Federal Rule of Evidence 804(b)(l). Id.
As an exception to the rule against hearsay, Rule 804(b)(l) permits the admission of prior sworn
testimony of unavailable witnesses so long as it is “offered against a party who had . . . an
opportunity and similar motive to develop it by direct, cross», or redirect examination." Fed. R.
Evid. 804(b)(l).

The district court, Judge Thomas P. Jackson presiding, found that the United States and
Maryland did not have an "identity of motive" in the state grand jury proceedings, and the
testiinony was therefore inadmissible Id. at 378. The D.C. Circuit affirmed In’. at 38l. On the
question whether the state and federal authorities had a "similar rnotive" as required by the Rule,
the Circuit held that "the purpose of the Maryland prosecutors was to investigate a crime and
identify possible criniinals," not to prove Carson guilty of triple murder. Thus, no similar motive
existed Id. at 379.

The Circuit also found that, motives aside, the federal government had no opportunity to
examine Owens and Pinkney given that Maryland and the United States are separate sovereigns
Id. at 380-81. federal and state authorities could, the Circuit held, be considered as one
sovereign for the purposes of Rule 804(b)(l) if the federal authorities controlled the actions of

state investigators such that the state was "inerely a tool" of federal authorities. Ia'. at 381.

Critically, "[ejxteiisive law enforcement and prosecutorial cooperation between two sovereigns"
is insufficient Id.

In support of his argument to the D.C. Circuit on this issue, Carson offered only the trial
testimony of FBI Special Agent Vincent Lisi that "we [the FBI] tried to keep them [the Prince
George’s County Police] involved. [Prince George’s County’s] primary focus was the triple
murder. We tried to let them know everything we [had] on the triple murder." Ia'. The Circuit
held that this fell ‘°fai' short" of establishing federal control of the investigation and affirmed
Carson’s conviction and life sentence Id.

On February 18, 2008, Carson filed a motion to vacate his sentence under 28 U.S'.C. § 2255.

Mot. to Vacate Sentence, ECF No. 1023. 'fhe defendant subsequently moved to consolidate his

l § 2255 motion with those of his co-defendants. l\/lot. to Join. Pets. Filed by Co-Defs., ECF No.

1024. In furtherance of his motion, Carson has now moved for discovery pursuant to Rule G(a)
of the Rules Governing Section 2255 Proceedings.

II. LEGAL STANDARD

Habeas petitioners are not entitled to discovery as a matter of course. Bracy v. Gr'arn!ey, 520
U.S. 899, 904 (l997). But under Rule 6(a) of the Rules Governiiig Section 2255 Proceedings,
this Court "inay, for good cause, authorize a party to conduct discovery under the Federal Rules
of Criininal Procedure or Civil Procedure, or in accordance with the practices and principles of
law." Good cause exists "where specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, he able to demonstrate that he is . . . entitled
to relief." Bracy, 520 U.S. at 908~09. The regulation of discovery in habeas cases is "a matter

confided to the discretion of the District Court." l'd. at 909.

III. ANALYSIS

Carson’s motion requests discovery of "any and ali documents relating to the triple murder
investigation by the FBI, DEA, and PG County Police Departnient." Def.’s Mot. for Discovery
3, ECF No. lOSS. Specifically, Carson requests eight categories of discovery, including (l) any
cooperation agreements and payment records between the government-and Owens and Pinkney;
(2) any documents relating to the dismissal of the triple murder investigation in l\/laryland or
documents stating the official reason for federal, as opposed to state, prosecution; (3) all
transcripts of Agent Lisi’s grand jury testimony; (4) transcripts of testimony of all federal agents
in the l\/laryland grand jury; (5) all federal or state investigation reports regarding the triple
murder or the existence of Owens and Pinkney; (6) any investigation reports regarding the
whereabouts of Owens and Pinkney or stating official reasons for declining to prosecute Owens
and Pinkney for perjury and obstruction of justice; (7) any formal or informal agreements
between the state and federal governments regarding dismissal of charges in Maryland in favor
of federal indictment; and (8) copies of the original trial exhibits and the government’s official
exhibit list. Id. at 3%4.

The basis for this expansive discovery request is a Washington Post article dated November
22, 1996, reporting that "agents from the FBl and the Drug Enforcement Administration [had]
joined the probe" into the triple murder. Notably, this article adds nothing to what was already
known from Agent Lisi’s testimony at trial~»»»that federal and state authorities worked together to
solve the triple homicide. Yet, from this "new" information, the defendant surmises that there
was a "deep connection" between the federal and state investigators that was heretofore
unknown to defense counsel. lt is not entirely clear whether Carson seeks discovery on this
"deep connection" to mount an attack on the Circuit’s holding on the inadmissibility of Owens’

and Pinkney’s grand jury testimony, to establish discovery violations by the prosecution, or both.

5

To the extent that Carson seeks to re-litigate the Circuit’s decision, his motion is denied. See
United Sfcires v. Greene, 834 F.2d 1067, 1073 (D.C. Cir. 1987) ("We hold, therefore, that the
issue now raised by [defendant] was decided by this court on direct review, and that collateral
attack is inappropriate.").l

lt is also unclear precisely what discovery violations Carson alleges. The Court will
therefore examine the government’s discovery obligations generally

A. Alleged Discovery Violations

A federal prosecutor’s discovery obligations arise primarily from four sources. First, the
Supreme Court’s holding in Braa'y i). Mar'yland, 373 U.S. 83, 87 (l963), requires disclosure of
evidence favorable to the accused that is material to guilt or punishment "[Sjtrictly speaking,
there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a
reasonable probability that the suppressed evidence would have produced a different verdict."
Strickler v. Greene, 527 U.S. 263, 281 (1999). Second., in Giglio v. Urzited Slates, the Supreme
Court held that "[w]hen the ‘reliability of a given witness may well be determinative of guilt or
innocence’ . . . evidence affecting credibility" must be disclosed. 405 U.S. l50, 154 (1972).
Third, the jencks Act requires the government, after a witness has testified on direct
examination, "to produce any statement of the witness in the possession of the United States
which relates to the subject matter as to which the witness has testified." l8 U.S.C. § 3500.
Finally, Rule l6 of Federal Rules of Criminal Procedure requires production of the defendant’s
statements and criminal history, documents or objects material to the defense or used by the

government in its case-in-chief, and certain reports of examinations and tests. The question

l Aside from the impropriety of revisiting an issue already decided on direct appeal, this Court finds that even if
Carson could establish this "deep connection," Owens’ and Pinkney’s testimony would still be iiiadinissible. The
Circuit made clear that extensive cooperation between two sovereigns is insufficient Carson, 455 F.3d at 381.
Rather, there must be control so extensive that one sovereign is merely a tool for the other, and there is absolutely no
indication of such control here.

before this Court is whether Carson has established good cause to believe that the discovery he
seeks will establish a violation of these rules that entitles him to relief.

l\/lany of Carson’s requests concern Owens and Pinkney. lt is clear from the Circuit opinion
that the government met its Br'ady obligations by disclosing to trial counsel (l) Owens’ and
Pinkney’s testimony that someone other than Carson killed the three victims; (2) the relocation
payments to Owens and Pinkney; and (3) the fact that Pinkney and Owens absconded with the
government’s money. Had the pair actually testified at trial, further disclosure of G:'glz'o and
.lencks material would have been required, including any prior statements and any cooperation
agreements between the government and the two witnesses. But despite the best efforts of the
government and defense counsel, the pair could not be located and did not testify. "l`hus, Carson
has failed to establish that»weven if there are undisclosed agreements or documents involving
Owens and Pinl<ney»»~»lie is entitled to relief. Discovery of the first, flfth, and sixth categories of
Carson’s request is therefore denied.

Carson next requests complete disclosure of all federal and state investigative reports
regarding the triple murder. This request is easily disposed of as there is "no constitutional
requirement that the prosecution make a complete and detailed accounting to the defense of all
police investigatory work on a case." United Srcites v. Agurs, 427 U.S. 97, 109 (l976).
l\/loreover, the Supreine Court has rejected "complete discovery of [a prosecutor’s] files as a
matter of routine practice" and held that the government has "no duty to report . . . to the
defendant all that they learn about the case and about their witnesses." Id. at 109 (quoting fn re
Imbler', 387 P.2d 6, 14 (Cal. l963)). Similarly, Carson’s request for transcripts of the grand jury
testimony of all law enforcement agents is overbroad and lacks any statutory or constitutional

basis-the government is required only to turn over previous grand jury testimony for witnesses

illicit les‘lijfi/ ar lr'z'al. Accordingly, discovery of the fourth and fifth categories of Carson’s request
is denied.

Carson also seeks to discover the state and federal government rationale for seeking federal,
as opposed to state, prosecution of Carson and for declining to prosecute Owens and Pinkney for
perjury or obstruction of justice Such material is outside the proper scope of discovery. in our
legal system, "the decision whether or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in lthe prosecutor’s] discretion." Bordenkircher v. Hayes,
434 U.S. 357, 364 (1978). "'l`his broad discretion . . . is particularly ill~suited to judicial review,"
Wayle v. United Srares, 470 U.S. 598, 607-08 (1985), and is certainly not subject to carte
blanche review by criminal defendants. As such, discovery of the second, sixth, and seventh
categories of Carson’s request is denied.

in sum, Carson has failed to establish good cause for his discovery requests because he has
no constitutional or statutory right to the discovery he seeks Although Carson has speculated»»-
based solely upon the trial testimony of Special Agent Lisi and a Washington Post article-that
the government is hiding volumes of discoverable material, provided "pay off money to make
{Owens and Pinkney] disappear," and failed to pursue the real perpetrators of the triple homicide,
.s'ee Def.’s Reply l, ECF No. l094, this Court cannot order expansive discovery based on such
unfounded allegations. See Srrickler, 527 U.S. at 286 ("Mere speculation that some exculpatory
material may have been withheld is unlikely to establish good cause for a discovery request on

collateral review.").z

2 An additional reason to deny Carson’s discovery request is that he has procedurally defaulted on his discovery
claims See, e.g., United Stc:res v. leiughes, 5l4 F.3d l5, l7 (D.C. Cir. 2008) ("Because [habeas petitioner] did not
raise his . . . claim on direct appeal, the procedural default rule bars its consideration unless . . . [petitioner}
demonstrates cause and prejudice."). Carson does not identify .s'peci'fic material that was withheld by the
governmeut, which would provide sufficient cause to excuse his default, see, e.g., Srriclcl'ei', 527 U.S. at 282~84, but
identifies only an article that fuels speculation that the government )nay have improperly withheld discoverable

8

B. Agent Lisi’s Grand .]ury 'I`estimony & 'I`rial Exhibits

Special Agent Vincent Lisi testified on different occasions throughout Carson’s trial. Carson
requests copies of Agent Lisi’s grand jury testimony regarding the activities of the K Street
iietwork, presumably as Gr'glr'o or Jencks material As trial counsel impeached Agent Lisi with
his grand _jury testimony repeatedly during cross examination at trial, it is clear that these
transcripts were produced in discovery See, e.g., Tr. of Trial, january 22, 2001, ECF No. 939.
Habeas counsel avers that despite her best efforts to locate the transcripts, she has been unable to
obtain copies of Agent Lisi’s grand jury testiinony. Accordingly, the Court will order, to the
extent possible, that the government produce to defendant’s habeas counsel any copies of Agent
Lisi’s grand jury transcripts that were previously produced in discovery

The final category of discovery requested by Carson consists ot` the trial exhibits and the
government’s trial exhibit list. The government indicates that it does not object to this request
and has indeed been working to make these items available to the defendant The Court will
therefore grant defendant’s discovery request as to the trial exhibits and exhibit list.

A separate Order consistent with this l\/lernorandurn Opinion shall issue this date.

ff j 

 {",1_.{.:' ‘\.. 
L_/, moves c. LAMBERTH
j/il §§ // j/; United States District judge

material This aiticie was published in the washington Post 24 years ago, yet the defendant failed to raise his
concerns either at trial or on direct appeal

