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United States v. Webb

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

April 4, 2017

UNITED STATES OF AMERICA
v.
LEMONT JERRONE WEBB, ANTOINE DEWAYNE MYLES, CLEVELAND MYLES

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Lemont Webb's motion for release of BradylGiglio materials (adopted by Antoine Myles) [DE 689], motion for disclosure of government trial exhibits (adopted by Antoine Myles and Cleveland Myles) [DE 690], motion in limine to exclude non-testifying co-defendant statements (adopted by Antoine Myles and Cleveland Myles) [DE 691], motion in limine to exclude lay opinion testimony (adopted by Antoine Myles and Cleveland Myles) [DE 692], motion to adopt co-defendant Antoine Myles' motion to suppress [DE 693], motion to sequester (adopted by Antoine Myles) [DE 694], motion for disclosure of 404(b) evidence [DE 695], motion to identify informants (adopted by Antoine Myles) [DE 698], amended motion to suppress custodial statements [DE 699], motion to suppress [DE 700], and motion to suppress intercepted communications [DE 701].

         BACKGROUND

         This case arises from a joint investigation by the Sheriffs Office in Cumberland County, North Carolina ("CCSO"), the CCSO Special Response Team, the Cumberland County Bureau of Narcotics ("CCBN:) and the Drug Enforcement Administration ("DEA") (collectively, "law enforcement") into cocaine and crack trafficking activities between 2000 and 2014 of a drug trafficking organization ("DTO") based primarily in the North Carolina cities of Godwin and Dunn.

         On May 27, 2015, a federal grand jury sitting in the Eastern District of North Carolina returned a true bill of indictment against Lemont Webb, Antoine Myles, Cleveland Myles and others, charging these defendants with conspiracy to manufacture, distribute, dispense and possess with the intent to distribute five (5) kilograms or more of cocaine and two hundred eighty (280) grams or more of cocaine base (crack), in violation of Title 21, United States Code, Section 841(a)(1) and 846. Defendants Antoine Myles and Lemont Webb were also charged with conspiracy to conduct and attempt to conduct financial transactions affecting interstate and foreign commerce, in violation of Title 18, United States Code, Section 1956(h) as well as multiple substantive money laundering offenses. Defendant Antoine Myles was also charged with one count of possession with the intent to distribute a quantity of cocaine, in violation of Title 21, United States Code, Section 841(a)(1).

         On February 22, 2017, a federal grand jury returned a superseding indictment against the eight defendants who have not yet been arraigned on the original indictment.

         DISCUSSION

         I. Motion for release of Brady/Giglio materials (adopted by Antoine Myles) [DE 689]

         On January 25, 2017, defendant Lemont Webb filed a motion for early disclosure of Brady/Giglio material. [DE 689]. On February 8, 2017, the Court granted defendant Antoine Myles' motion to adopt the disclosure motion. [DE 708]. The government does not oppose the motion. [DE 741]. It has been previously ruled upon in this case as to co-defendants Harry Myles, Sr., Antoine Myles, and Cleveland Myles, that all Brady and Giglio material be produced no later than seven days (one week) prior to trial. [DE 340 at 3-5; DE 430 at 3-4; DE 528 at 3-4]. For good cause shown, the Court incorporates these previous orders to the extent they are applicable to defendants Webb and Antoine Myles on this issue and will grant this motion.

         II. Motion for disclosure of government trial exhibits (adopted by Antoine Myles and Cleveland Myles) [DE 690]

         On January 25, 2017, defendant Lemont Webb filed a motion for disclosure of government summary exhibits, requesting that the Court order the Government to produce any summary or chart that it intends to use at trial at least ten (10) days prior to trial. [DE 690]. On February 8, 2017, the Court granted defendant Antoine Myles' motion to adopt the disclosure motion. [DE 708]. On February 15, 2017, the Court granted defendant Cleveland Myles' motion to join the motion for disclosure. [DE 713]. The government does not oppose the motion. [DE 741]. A request for disclosure of government summary exhibits was previously granted for co-defendant Harry Myles, Sr. [DE 340 at 5-6]. For good cause shown, the Court incorporates this previous order to the extent it is applicable to defendants Webb, Antoine Myles, and Cleveland Myles on this issue and will grant this motion.

         III. Motion in limine to exclude non-testifying co-defendant statements (adopted by Antoine Myles and Cleveland Myles) [DE 691]

         Defendant Webb seeks to prohibit the government from introducing statements made by unspecified non-testifying co-defendants. [DE 691]. Defendants Antoine Myles and Cleveland Myles were allowed by order of this Court to adopt and join this motion. [DE 708, 713]. Pursuant to U.S. Const., amend. VI, Bruton v. United States, 391 U.S. 123 (1968), and Crawford v. Washington, 541 U.S. 36 (2004), defendant contends that such statements are testimonial and therefore inadmissible unless subject to cross-examination by defendant. [DE 691].

         The government opposes the motion, arguing that the issue is not yet ripe. [DE 733]. The Court agrees. Defendant and the remaining co-defendants in this case have yet to be arraigned. The government avers that it is continuing to negotiate with each of the remaining defendants in this matter and cannot make any representation to the Court about whether or not any of the remaining defendants will proceed to trial and be unavailable to testify as a result of that choice. As a result, the Court holds that this motion would be more properly revisited by defendant and the government closer to the date of the trial and once an actual determination of the evidence and witnesses to be used at trial has been made. For these reasons, the motion is denied as not yet ripe.

         IV. Motion in limine to exclude lay opinion testimony (adopted by Antoine Myles and Cleveland Myles) [DE 692]

         Defendant Webb moved for an order excluding lay opinion testimony as to (1) the "true meaning" of terminology used in telephone conversations and text messages between co-defendants, and (2) regarding the role of various defendants in the alleged drug conspiracy. [DE 692]. Defendant Webb argues such statements will not assist the jury and that lay opinion testimony regarding the role of a defendant in a drug conspiracy is improper. Id. Defendants Antoine Myles and Cleveland Myles were allowed by the Court to join and adopt this motion. [DE 708, 713]. The government responded but no reply was filed. [DE 734]. For the following reasons, the motion is denied.

         Under Rule 701 of the Federal Rules of Evidence, witnesses are allowed to offer nonexpert opinion testimony, provided those opinions are based on personal knowledge, helpful to the jury, and based on everyday reasoning and deductions rather than specialized skill or training. Fed.R.Evid. 701. Defendant has not provided any specific examples of improper witness testimony, and the Court is unable to make a determination at this time as to whether or which witness testimony would be in violation of the Rules of Evidence. Should a witnesses' testimony exceed those guidelines, the appropriate remedy is for defendants to raise an objection at that time at trial. For these reasons, the motion is denied.

         V. Motion to adopt co-defendant Antoine Myles' motion to suppress [DE 693]

         On January 25, 2017, defendant Lemont Webb filed a motion to adopt and join co-defendant Antoine Myles' motion to suppress intercepted communications which was filed on February 22, 2016. [DE 394]. The underlying motion to suppress which defendant Webb moves to adopt and join was denied by Senior United States District Judge James C. Fox in an order dated April 26, 2016. [DE 449]. Defendant Webb has not put forth any argument as to why the underlying motion should be re-litigated. Because the motion which defendant Webb wishes to adopt and join has already been denied, the government does not oppose. [DE 741]. For these reasons, the Court will grant the motion and allow defendant Webb to join the motion.

         VI. Motion to sequester (adopted by Antoine Myles) [DE 694]

         On January 25, 2017, defendant Webb filed a motion to sequester government witnesses. On February 8, 2017, the Court granted defendant Antoine Myles' motion to adopt the motion to sequester. [DE 708]. The government does not object to this motion. [DE 741]. It has previously been ordered in this case that witnesses will be sequestered with the exception of one case agent for the government. [DE 340 at 2-3; DE 430 at 4-6; DE 528 at 2-3]. For good cause shown, the Court incorporates these previous orders to the extent they are applicable to defendants Webb and Antoine Myles on this issue and will grant this motion.

         VII. Motion for disclosure of 404(b) evidence [DE 695]

         On January 25, 2017, defendant Webb filed a motion requesting disclosure of evidence the government intends to introduce against Webb pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) requires that the government provide "reasonable notice of the general nature of any such evidence" that the Government intends to use at trial the request of the defendant. Fed.R.Evid. 404(b). It has previously been ruled in this case that the government shall provide such notice at least one week (seven days) prior to trial. [DE 340 at 6-7; DE 430 at 2-3; and DE 528 at 4-5]. For good cause shown, the Court incorporates these previous orders to the extent they are applicable to defendant Webb on this issue and will grant the motion.

         VIII. Motion to identify informants (adopted by Antoine Myles) [DE 698]

         On January 28, 2017, defendant Webb filed a motion to compel the government to reveal the "name and whereabouts of each confidential informant who directly participated in undercover drug purchases during this investigation." [DE 698]. Defendant argues that, under Roviaro v. United States,353 U.S. 53 (1957) and the Sixth Amendment, such information is essential to a fair determination of the case and is material to his defense because each informant is a direct participant in the respective transactions and is the sole witness as to the actual identity of the person who sold the drugs. [DE 698 at 2]. Defendant Webb also believes that the informants may offer testimony implicating individuals other than defendant Webb as the seller of the drugs in question. Id. On February 1, 2017, defendant Antoine Myles filed a motion to ...


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