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United States v. Ross-Varner

United States District Court, E.D. North Carolina, Western Division

April 9, 2015



JAMES C. FOX, Senior District Judge.

This matter is before the court on the following pretrial motions filed by defendant Samantha Leigh Ross-Varner ("Ross-Varner"): (1) Motion to Dismiss Count One for Absence of Supporting Evidence [DE-142]; (2) Motion to Suppress First December 12, 2013 Statement [DE-144]; (3) Motion to Suppress Second December 12, 2013 Statement [DE-146]; (4) Motion to Suppress January 8, 2014 Statement [DE-148]; (5) Motion to Dismiss Count One for Failure to Plead an Offense [DE-150]; (6) Motion to Exclude Statements by Troy Dye [DE-151]; (7) Motion for Copy of Recording [DE-152]; (8) Motion for Impeachment Records [DE-153]; (9) Motion to Stipulate to Felony Conviction [DE-154]; (10) Motion for Pretrial Notice of 404(b) Evidence [DE-155]; (11) Motion for Copy of Michael Custer's PSR [DE-156]; (12) Motion for Coconspirator Statements and Jencks Material [DE-157]; (13) Motion to Sever Trial from Codefendants [DE-158]; (14) Motion to Dismiss Gun Charges on 2nd Amendment Grounds [DE-159]; and (15) Motion for Discovery [DE-160]. The issues have been fully briefed and are now ripe for ruling.

I. Factual and Procedural Background[1]

On December 8, 2013, Troy Keith Dye contacted the Wayne County Sheriff's Office and reported that his Glock 26, 9mm semiautomatic pistol had been removed from his room. Dye reported that Ross-Vamer was renting a room from him, and he recently showed her the gun. Dye strongly believed that Ross-Vamer had taken the gun. Dye called back later and gave the serial number for the missing gun. The information was entered into the National Crime Information Center (NCIC).

On December 12, 2013, Deputy Walston and Corporal Sasser with the Wayne County Sheriffs Office were called to 102 Remington Court in Goldsboro, North Carolina, in response to a disturbance call. Dispatch reported that there was a female at the residence with a firearm. When deputies arrived at 102 Remington Court, they made contact with resident Troy Dye. Dye stated that he had confronted Ross-Vamer about moving out, and they began to argue. Dye reported that Ross-Vamer had walked away from the residence onto Weatherby Drive and was last seen carrying two bags. The deputies walked around Dye's house to the next street over in an area where Dye had last seen Ross-Vamer walking. The deputies discovered a pink tote bag and a grey backpack near the edge of the wood line around a small wooded stream that ran on both sides of Weatherby Drive.

The deputies seized the bags and placed them on the back of Sergeant Peedin's vehicle. The deputies searched the bags. They recovered a black Glock semi-automatic pistol in the grey backpack, the same gun that had been reported stolen by Dye. The deputies also recovered women's exotic dancing clothes. It was known that Ross-Varner was an exotic dancer at the time. In the pink bag, the deputies found four blister packs of pseudoephedrine, more traditional women's clothes, and photographs. With the exception of the firearm, all of the items were secured in the back seat of Deputy Walston's vehicle.

Shortly thereafter, the deputies received a suspicious person call to 103 Carlyle Court, which is located close to Dye's address. The deputies were advised that there was a female on the porch at the Carlyle Court residence. The description of clothing worn by the female matched the description Dye gave of Ross-Vamer's clothing earlier that evening. The deputies proceeded to 103 Carlyle Court and made contact with the woman on the porch. The woman identified herself as Samantha Ross-Vamer. Ross-Vamer informed the deputies that her boyfriend had put her out of the car on Buck Swamp Road earlier that evening after an argument. Ross-Varner stated she was trying to get back to the Rosewood community in Wayne County.

The deputies walked with Ross-Varner back to Deputy Walston's vehicle and showed her the bags they had found. Corporal Sasser asked Ross-Varner if the bags belonged to her. Ross-Vamer responded affirmatively and stated that the grey bag belonged to her boyfriend.

It was determined that there was enough evidence to charge Ross-Vamer with possession of a stolen firearm. Ross-Vamer was transported to the Wayne County Sheriffs Office Annex, where she was Mirandized and interviewed.

While Ross-Vamer was in the Wayne County Detention Center on the gun charge, she requested an interview with law enforcement via Deputy Walston. On January 6, 2014, Ross-Vamer was interviewed by Special Agent Lauren Powell and Wayne County Sheriffs Office Detective Charles Shaeffer. Ross-Varner made admissions about her involvement in buying methamphetamine and with methamphetamine cooks in the Wayne and Johnston County areas of the Eastern District of North Carolina. Special Agent Powell asked Ross-Varner if she would be willing to be interviewed by Special Agent Page, who had more knowledge about defendants in that area of the state. Ross-Vamer agreed.

On January 8, 2014, after waiving her Miranda rights, Ross-Varner was interviewed by Special Agent Page, Special Agent Powell and Johnson County Sheriffs Office narcotics detective Jay Creech. During the interview, Ross-Varner implicated herself in the methamphetamine conspiracy she is charged with by discussing her involvement with co-conspirators with the sale and production of approximately four hundred (400) grams of methamphetamine during the time frame of the conspiracy.

Ross-Vamer and six other individuals were named in a thirteen-count indictment on September 16, 2014. See Indictment [DE-l]. Ross-Varner is charged in five counts of the indictment. In Count One, Ross-Vamer is charged with conspiracy to manufacture, distribute, dispense and possess with intent to distribute fifty (50) grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. Count Ten charges Ross-Varner with possession of pseudoephedrine with the intent to manufacture a controlled substance being methamphetamine and aiding and abetting, in violation of 21 U.S.C. § 841(c)(l) and 18 U.S.C. § 2. In Count Eleven, Ross-Varner is charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(l) and 924. Count Twelve charges Ross-Varner with possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j) and 924. In Count Thirteen, Ross-Vamer is charged with possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 942(c).

Ross-Varner filed the instant fifteen pretrial motions on February 27, 2015. On March 20, 2015, the Government filed its Response [DE-172] to all of the motions.

Ross-Varner and three of her codefendants are scheduled for arraignment and trial at the court's May 11, 2015 term of court. Codefendants Michael Eugene Custer, William Joseph Hill, and Terry Matthew Hall have pled guilty and are awaiting sentencing.

II. Discussion

A. Motion to Dismiss Count One for Absence of Supporting Evidence

In her Motion to Dismiss Count One for Absence of Supporting Evidence, Ross-Varner argues that Count One should be dismissed because it was "wholly unsupported by the evidence presented to the grand jury in September 2014." [DE-142] at 1. Specifically, Ross-Varner argues that in September 2014, the grand jury had no rational basis for finding probable cause that she conspired to distribute more than 50 grams of a substance containing methamphetamine. [DE-143] at 3. In the alternative, Ross-Varner requests that this court order production of the grand jury transcripts showing the basis of her being indicted in Count One. [DE-142] at 1. Ross-Varner asserts that the grand jury transcripts are needed to avoid the possible injustice of her being tried and convicted of a criminal charge for which the grand jury had no evidence to indict. [DE-143] at 3.

In Costello v. United States, the Supreme Court held that "[a]n indictment returned by a legally constituted and unbiased grand jury... if valid on its face, is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more." 350 U.S. 359, 363 (1956). Moreover, the Supreme Court has held that "[i]t would run counter to the whole history of the grand jury institution' to permit an indictment to be challenged on the ground that there was inadequate or incompetent evidence before the grand jury.'" United States v. Williams, 504 U.S. 36, 54 (1992) (quoting Costello, 350 U.S. at 363-64). Motions to dismiss an indictment based on a claim that the jury had insufficient evidence have been routinely rejected by the Fourth Circuit Court of Appeals. See United States v. Mills, 995 F.2d 480, 487 (4th Cir. 1993) (the court noted that "the Supreme Court's holdings under the Fifth Amendment's Indictment Clause teach that courts lack authority to review either the competency or sufficiency of evidence which forms the basis of an indictment"); United States v. Alexander, 789 F.2d 1046, 1048 (4th Cir. 1986) (holding based on the majority in Costello that "a facially valid indictment suffices to permit the trial of the party indicted").

The Government has agreed to turn over the transcript of the grand jury proceeding on the Thursday prior to trial. [DE-172] at 10. Moreover, Ross-Varner's argument that the evidence before the grand jury provided no rational basis for finding probable cause that she conspired to distribute 50 grams or more of a substance containing methamphetamine is based on sheer speculation regarding what evidence was before the grand jury. The court finds that the indictment in this case was returned by a legally constituted and unbiased grand jury and is valid on its face. For these reasons, Ross-Varner's Motion to Dismiss Count One for Absence of Supporting Evidence [DE-142] is DENIED.

B. Motion to Suppress First December 12, 2013 Statement

Ross-Varner argues in her Motion to Suppress First December 12, 2013 Statement that her statement to law enforcement must be suppressed because it was obtained as a result of a Miranda violation. [DE-144] at 1. Specifically, Ross-Varner contends that she was in law enforcement custody and was subject to interrogation without being advised of her Miranda rights when she allegedly made the statement claiming ownership of the bags in the law enforcement patrol vehicle that contained contraband. Id.

The Fifth Amendment, in pertinent part, provides that "[n]o person... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This Fifth Amendment protection applies to custodial interrogations, as well as to courtroom proceedings. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). Under Miranda, statements made during a custodial interrogation are admissible only if a defendant receives the following warnings: he has the right to remain silent; anything he says can and will be used against him; he has the right to an attorney; and, if he cannot afford an attorney, one will be provided for him. Id. at 444.

The test for determining whether an individual is "in custody" for Miranda purposes is whether, under the totality of the circumstances, the "suspect's freedom of action is curtailed to a degree associated with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (internal quotation marks omitted). The issue is whether, when viewed objectively, "a reasonable man in the suspect's position would have understood his position" as being "in custody." Id. at 442. Some of the facts that are relevant to this determination include "the time, place and purpose of the encounter, the words used by the officer, the officer's tone of voice and general demeanor, the presence of multiple officers, the potential display of a weapon by an officer, and whether there was any physical contact between the officer and the defendant.'" United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010) (quoting United States v. Weaver, 282 F.3d 302, 3012 (4th Cir. 2002)).

In this case, the deputies responded to the call regarding a suspicious woman who matched the description and name of the suspect in a crime. Corporal Sasser and Deputy Walston walked Ross-Varner back to Deputy Walston's vehicle. Corporal Sasser showed Ross-Varner the bags in the back seat of the patrol vehicle and asked her if they belonged to her. There was nothing that prevented Ross-Varner from walking away or refusing to answer Corporal Sasser's one question. Ross-Varner was never placed in handcuffs. There is no claim that Ross-Varner was physically restrained or told that she was not free to move around outside. Under the circumstances, the court finds that Ross-Varner was not in custody when she made the statement claiming ownership of the bags in Deputy Walston's vehicle. Because she was not in custody, Miranda warnings were not necessary. Accordingly, Ross-Varner's Motion to Suppress First December 12, 2013 Statement [DE-144] is DENIED.

C. Motion to Suppress Second December 12, 2013 Statement

In Ross-Varner's Motion to Suppress Second December 12, 2013 Statement, she argues that her statement must be suppressed because it was the product of an unconstitutional seizure under the Fourth Amendment.[2][DE-146] at 1. Ross-Varner contends that her case "fits precisely" with Brown v. Illinois, 422 U.S. 590 (1975) and Dunaway v. New York, 442 U.S. 200 (1979). [DE-147] at 6. Specifically, Ross-Varner argues that she was "seized" within the meaning of the Fourth Amendment when she was taken to the patrol car, transported to a law enforcement facility, and placed in an interrogation room. Id. Ross-Varner contends that the seizure was not supported by probable cause, and the connection between the unconstitutional seizure and the incriminating statement is "tight and unbroken." Id.

Here, Ross-Varner voluntarily acknowledged that the bags in the possession of the deputies belonged to her and her boyfriend. One of the bags contained a stolen firearm. That same bag had been identified by the victim of the theft as one Ross-Varner was carrying when she was last seen earlier that day. The bag was discovered by the deputies near the area Ross-Varner had gone after leaving the victim's residence.

After Ross-Varner acknowledged that the bag containing the stolen firearm had been in her possession, Corporal Sasser called his supervisor, Sergeant Peedin. Sasser and Peedin discussed the evidence in the case and Peedin advised Sasser that he believed there was sufficient evidence to charge Ross-Varner with possession of a stolen firearm.

Ross-Varner, who was under arrest, was then transported to the Wayne County Sheriffs Office Annex for interview. Ross-Varner waived her Miranda rights, and the interview was conducted. Ross-Varner was then processed at the Wayne County Detention Center.

The facts of this case are clearly distinguishable from those presented by Brown and Dunaway. In Brown, two detectives broke into Brown's apartment, searched it, and then arrested Brown, all without probable cause and without any warrant. 422 U.S. at 592. The two detectives took Brown down to the police station. Id. at 593. At the police station, the detectives warned Brown of his rights under Miranda. Id at 594. Brown answered questions posed to him about the murder the detectives were investigating and signed a two-page statement. Id. at 594-95. Brown then met with the State's Attorney, who again provided him with Miranda warnings. Id. at 595. Brown gave a second statement, in which he provided a factual account of the murder that was substantially in accord with his first statement. Id. The Court held that Miranda warnings, alone, cannot always make the act sufficiently a product of free will for Fourth Amendment purposes. 422 U.S. at 603.

In Dunaway, a detective received information from an informant about Dunaway's involvement in a murder, but the information was insufficient to get a warrant for Dunaway's arrest. 442 U.S. at 203. Nevertheless, the detective had Dunaway picked up and brought in. Id. Dunaway was questioned by officers after being given Miranda warnings. Id. Dunaway waived his right to counsel and eventually made statements and drew sketches that implicated him in the crime. Id. The Court held that detention for custodial interrogation, regardless of the label given, intrudes so severely on Fourth Amendment interests that it necessarily triggers the traditional safeguards against illegal arrest. Id. at 216. The Court ultimately concluded that the police violated the Fourth and Fourteenth Amendments when they seized Dunaway and transported him to the police station for interrogation without probable cause. Id.

In this case, Ross-Varner's arrest was supported by probable cause and was not merely investigatory in nature. Specifically, the deputies had probable cause based on the information they received from the victim of the theft, in addition to their recovery of the bags matching the description of the bags Ross-Varner was last seen carrying when she left the victim's residence. Also, after their search of the bags, the deputies had the knowledge that one of the bags contained the firearm that had been reported as stolen. The deputies also had Ross-Varner's admission that the bags had been in her possession. It was only after the determination by deputies that there was sufficient evidence to arrest Ross-Varner that she transported to the Wayne County ...

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