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United States v. Walker

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

September 13, 2019

UNITED STATES OF AMERICA
v.
CHARLES ANTHONY WALKER, JR., Defendant.

          ORDER

          Robert B. Jones, Jr. United States Magistrate Judge

         This matter comes before the court to address Defendant's motions to vacate Special Administrative Measures ("SAMs") [DE-129] and rescind a protective order [DE-136]. An evidentiary hearing for both motions was held on June 18, 2019. [DE-141, -146]. The Government then submitted a Notice of Defendant's Violation of Restrictions, [DE-153], and a second evidentiary hearing was held on August 19, 2019 to address the Notice, [DE-190]. For the reasons stated below, Defendant's motion to vacate SAMs is denied, and his motion to amend a protective order is allowed.

         I. PROCEDURAL BACKGROUND

         On November 19, 2018, the Government filed a criminal complaint charging Defendant and four co-defendants with Hobbs Act robbery of a jewelry store and aiding and abetting in violation of 18 U.S.C. §§ 1951, 2. [DE-1], On December 4, 2018, a Grand Jury sitting in the Eastern District of North Carolina returned an indictment charging Defendant with four counts: (1) conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951; (2) Hobbs Act robbery of the Kay Jewelers in Elizabeth City, North Carolina and aiding and abetting in violation of 18 U.S.C. §§ 1951, 2; (3) use of firearms in furtherance of a crime of violence and aiding and abetting in violation of 18 U.S.C. §§ 924(c), 2; and (4) Hobbs Act robbery of the Kay Jewelers in Garner, North Carolina and aiding and abetting in violation of 18 U.S.C. §§ 1951, 2. Indictment [DE-14]. The Government moved that Defendant be detained pending his trial, and on December 18, 2018, Defendant executed a written waiver of his detention hearing. [DE-74]. Based upon Defendant's waiver, the court found by clear and convincing evidence that no condition or combination of conditions would reasonably assure Defendant's appearance as required and the safety of any other person and the community pending Defendant's trial. Id. Defendant was therefore detained pending trial. Id.

         On March 18, 2019, Defendant filed a pro se motion to remove unlawful mail, phone, and visit restrictions placed upon him while detained. [DE-102]. The court ordered defense counsel to clarify the purpose and intent of the motion. On May 14, 2019, defense counsel filed a motion to vacate the SAMs imposed on Defendant. [DE-129]. The court entered a protective order on May 21, 2019, [DE-132], and on June 12, 2019, defense counsel filed a motion to rescind the protective order, [DE-136]. The Government responded to the motion to vacate the SAMs and the motion to rescind the protective order. [DE-134, -139]. Because of the significant factual overlap allegedly necessitating the SAMs and the protective order, the undersigned held an evidentiary hearing regarding both motions on June 18, 2019. [DE-141, -146]. On July 11, 2019, the Government submitted a Notice of Defendant's Violation of Restrictions alleging that Defendant continued to use the telephone while incarcerated. [DE-153]. Defendant submitted a pro se response to the Notice in which he admitted to using the phone and to passing messages through other inmates. [DE-167] at 3. The undersigned held a second evidentiary hearing on August 19, 2019 to address the allegations contained in the Government's Notice. [DE-191]. Following the second hearing, the court requested supplemental briefing from the parties touching upon the Supreme Court's decision in Turner v. Sajley, 482 U.S. 78 (1987). Id. Both parties submitted supplemental briefing. [DE-192, -193 ].

         II. STATEMENT OF THE FACTS

         At the first evidentiary hearing, the Government offered the testimony of FBI Special Agent Daniel Robertson. Hr'g Tr. [DE-146] at 4:12. Special Agent Robertson investigated an armed robbery that occurred in July 2018 in Elizabeth City, North Carolina, and he investigated another armed robbery that occurred in October 2018 in Garner, North Carolina. Id. at 5:7-10. Special Agent Robertson noticed similarities between the two robberies, and after some investigation, he concluded that Defendant was involved in both. Id. at 5:22-6:3.

         Defendant was arrested in November 2018, and on December 18, 2018, following his waiver of a detention hearing, he was ordered to be detained pending trial. [DE-74]. Presently, Defendant is detained in pre-trial custody at the Wake County Jail in Raleigh, North Carolina. [DE-167].

         In mid-December 2018, Special Agent Robertson was approached by Leza Driscoll, defense counsel for Christopher Brown, one of Defendant's co-defendants. Hr'g Tr. [DE-146] at 6:24-7:3. Ms. Driscoll told Special Agent Robertson that Defendant had spoken with Mr. Brown about harming a potential witness in the case. Id. at 11:8-12. Special Agent Robertson interviewed Mr. Brown. Id. at 7:16. Mr. Brown reported that Defendant thought some of the information that led to their arrest came from a woman named Jasmine Partridge who lived in Carrboro, North Carolina. Id. at 11:17-21. Mr. Brown stated that Defendant told him that he had "the hitters sent to the house," which Mr. Brown understood to be a threat to Ms. Partridge because Defendant believed she was cooperating with authorities. Id. at 11:22-12:1. Law enforcement officers became concerned because the threat had a level of specificity, so an Orange County Sheriffs deputy spoke with Ms. Partridge and explained the threat to her. Id. at 13:4-9. When asked if there was any evidence that "the hitters" were actually sent to Ms. Partridge's house, Special Agent Robertson replied, "not that I can recall." Id. at 14:7.

         Special Agent Robertson was also concerned about a Facebook post written by Tamika Rene Kelly Lloyd, a friend of Defendant's. Id. at 13:10-19. In her post, Ms. Lloyd referred to Mr. Brown and Ms. Partridge as "rats," which Special Agent Robertson understood to be an assertion that Mr. Brown and Ms. Partridge were cooperating with law enforcement. Id. at 13:13.

         Special Agent Robertson then began investigating Ms. Lloyd. Id. at 14:13. He listened to numerous recorded jail phone conversations between Ms. Lloyd and Defendant during which they appeared to speak in code. Id. at 15:8-10. In particular, in December 2018, Ms. Lloyd asked Defendant if he wanted her to "do a Peter Roll" in the context of speaking about Ms. Partridge. Id. at 16:16-21. Special Agent Robertson learned that "Peter Roll" is a slang term for murder. Id. at 16:24-25. Defendant responded, "no, I'm watching my diet in here." Id. at 12-16. In another phone conversation shortly after Defendant's arrest, Defendant and Ms. Lloyd discussed "shoelaces." Id. at 18:11-15. Special Agent Robertson learned that "shoelaces" is a slang term for guns. Id. at 18:16-20. Later, in 2019, Defendant and Ms. Lloyd again discussed "shoelaces," and Ms. Lloyd was trying to find out who might have "shoelaces." Id. at 18:21-25.

         On December 13, 2018, the Government submitted an Inmate Action Request ("IAR") form. [DE-134-3]. The form requested that the Nash County jail, where Defendant was being housed at the time, "restrict phone/visiting to attorney only and placed [sic] in restrictive housing." Id. The justification for the request was:

WALKER was the leader of these defendants in at least 2 armed robberies; WALKER has threatened his co-defendants and their families' lives; there is also credible information that he has placed hits on potential witnesses and law enforcement. WALKER must be placed in restricted housing where his communication can be restricted, monitored, and recorded.

Id. At some point, those restrictions were lifted, and Defendant had no restrictions on his communications. Hr'gTr. [DE-146] at 19:5-9.

         At the end of February 2019, Special Agent Robertson was contacted by Elisa Salmon, defense counsel for another co-defendant, Joey Wayne Chambers. Id. at 19:18-24. Ms. Salmon informed law enforcement that Angela McAdoo, her client's mother, told her that Defendant and others, possibly including Ms. Lloyd, wanted to contact Ms. McAdoo regarding information that would exonerate Mr. Chambers. Id. at 20:1-5. Ms. McAdoo knew Defendant, and she told Special Agent Robertson, "I don't know who they're trying to kill, but I want nothing to do with it." Id. at 20:8-9. Ms. McAdoo was concerned that Defendant and Ms. Lloyd were trying to contact her. Mat 20:10-13.

         On February 28, 2019, a second Inmate Action Request was submitted regarding Defendant. [DE-134-4]. The form requested the Wake County jail, where Defendant had been transferred since the first IAR, to "restrict phone, visitation, and mail to attorney only and placed [sic] in restrictive housing." Id. The restriction prevented Defendant from communicating with anyone other than his attorney. Id. The justification for the request was, again:

WALKER was the leader of these defendants in at least 2 armed robberies; WALKER has threatened his co-defendants and their families' lives; there is also credible information that he has placed hits on potential witnesses and law enforcement. WALKER must be placed in restricted housing where his communication can be restricted, monitored, and recorded.

Id.

         After restrictions were again placed on Defendant's communications, Special Agent Robertson believed Defendant used a third-party inmate to communicate with others, including Ms. Lloyd. Id. at 21:16-21. The inmate would call Ms. Lloyd and pass messages between her and Defendant. Id. at 21:22-24. In one such recorded conversation, Defendant inquired whether Ms. Lloyd had spoken with someone, and Ms. Lloyd had not, so Defendant was frustrated. Id. at 22:4-7. Defendant said, "go in the kitchen on her, don't get in trouble, and when you see her, blow her out the frame." Id. at 22:8-10.

         Additionally, Special Agent Robertson learned that Mr. Brown reported that Defendant was concerned because another co-defendant, Maleek Shawn Maynard, had been arrested subsequently to the other co-defendants. Id. at 23:1-5. Mr. Brown believed Defendant thought that Mr. Maynard was cooperating with authorities. Id. at 23:6-8. Mr. Brown said it was a race between the authorities to arrest Mr. Maynard and "Mr. Walker's people to get to Mr. Maynard." Id. at 23:9-13.

         Special Agent Robertson testified that Defendant had a history of interfering with victims and witnesses. Special Agent Robertson testified further that in 2010, Defendant had been arrested for shooting at a woman named Pamela Haizlip and that Defendant sent a letter to someone outside the jail with instructions to get Ms. Haizlip's phone and send exculpatory information to make it appear as if Defendant were set up. Id. at24:8-25:3. According to Special Agent Robertson, while Defendant was incarcerated at the Guilford County Jail in 2010, he had an in-person visit, and he and his visitor mouthed words or used hand signals so that their conversation was not recorded. Id. at 25:6-13.

         Special Agent Robertson also testified that during his current period of detention Defendant may have used a different inmate's name to either send or receive mail during his present incarceration. Id. at 26:1-6. Additionally, in another phone call in 2019, Defendant said, "there are too many red flags there. We're going to rock them to sleep." Id. at 37:15-17. Special Agent Robertson testified that he has not heard Defendant make an explicit threat, and he does not know what Defendant's intentions are behind some of his statements; Special Agent Robertson used the context and background of the conversations to try to decipher Defendant's code. Id. at 42:21-43:1.

         At the second evidentiary hearing, Special Agent Robertson testified that between March and June 2019, Defendant made more than one hundred phone calls despite having been prohibited from using the jail telephone. Defendant sometimes used his own phone PIN, and other times, other inmates called on his behalf. The conversations were mostly about Defendant's case, his family, and his son. The phone calls were made to Ms. Lloyd and Lavina Suarez, the mother of Defendant's son. The word "shoelace" was used, and in one conversation, Ms. Lloyd said, "that's what the green light is, right there." The calls also indicate that Defendant believed Ladamingo Baldwin betrayed him. However, Special Agent Robertson testified that in the majority of the calls, Defendant was asserting his innocence and asking about his family, and he made no explicit threats.

         Special Agent Robertson also testified at the second hearing that Defendant sent mail using another inmate's return address. Defendant mailed out his discovery and FBI reports. He called Ms. Baldwin a "snake" in the letters, and there was one letter that did not mention Ms. Baldwin's name but contained artwork relating to snakes and discussed potential violence against snakes. Defendant also referred to Ms. Baldwin as a "fallen star."

         III. DISCUSSION

         Six issues were presented in Defendant's motions and at the evidentiary hearings: (1) whether the Federal Rules of Evidence apply to the hearings, and, if so, whether hearsay testimony offered by the Government's witness should be stricken; (2) whether the restrictions placed on Defendant's communications are equivalent to the SAMs described in 28 C.F.R. § 501.3; (3) whether the restrictions violate Defendant's Sixth Amendment right to effective assistance of counsel; (4) what legal standard governs Defendant's First Amendment claim, if the restrictions are not SAMs; (5) whether the restrictions violate Defendant's First Amendment right to freedom of speech; and (6) whether the protective order should be rescinded.

         A. The Federal Rules of Evidence do not apply to the ...


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