The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION*fn1
REGARDING [Doc. 41] AND MOTION FOR EVIDENTIARY HEARING [Doc. 44] DEFENDANT'S MOTION TO DISMISS
Defendant David Ashton Long (hereafter Long) filed a motion to dismiss (Doc. 41) and a related motion for an evidentiary hearing based on an allegation of prosecutorial misconduct (Doc. 44). He alleges that the Stephan A. Collins, the Assistant United States Attorney in this case, and Daniel R. Cooper, the Assistant United States Attorney prosecuting a defendant by the name of Sabil Mujahid in an unrelated case (Case No. 3:10-CR-00091-HRH), approached his cell mate in mid-February and asked the cell mate to wear a wire or otherwise obtain statements and information from Long. Long argues that such conduct is in violation of Massiah v. United States, 377 U.S. 201, 206 (1964) and that the Court should exercise its supervisory powers to dismiss the indictment against him.
The original motion was only supported by an affidavit from Long's attorney, Ms. Sue Ellen Tatter. In her affidavit, she attests that Long relayed this information to her and that she recounted the facts to the best of her ability.
Before filing a substantive response, the Government filed a motion to dismiss Long's motion at Docket 46. It asserted that Long's motion was unsupported and should be stricken pursuant to Local Rule 7.1(3).*fn2 In response, Long's counsel filed an affidavit handwritten by Long at Docket 47-1. In the affidavit, Long asserts that his cell mate, referred to here as John Doe 1, told him about the prosecutors' visit and alleged request that he wear a wire to obtain statements from Long.
The Government then filed a substantive opposition to Long's motion to dismiss and his motion for an evidentiary hearing at Docket 48. The Government denies the allegations and includes affidavits from three attorneys, all of whom deny any meeting with John Doe 1.
Counsel for John Doe 1, Samuel Fortier, filed an opposition to the motion and opposed any subpoena to John Doe 1. Mr. Fortier argued no meeting between Mr. Cooper, Mr. Collins and Mr. Fortier's associate, Ms. Lauesen, took place. (Doc. 56). In his affidavit, Mr. Fortier explained that his client is in custody for a state crime and is represented in that matter by Rex Butler. He stated John Doe 1 has never requested or been offered a deal by the U.S. Attorney's Office and that he is a victim/witness in the federal Mujahid case. (Doc. 58). Mr. Fortier theorized in his motion that Mr. Long's affidavit was an effort to label John Doe 1 as a snitch in the Cook Inlet Pretrial Facility in an effort to assist Mujahid. No evidentiary support for this theory was provided. Neither the affidavit of Mr. Fortier nor the affidavit of Ms. Lauesen include any report of statements or denials of the conversation with Long by John Doe 1. John Doe 1 did not provide an affidavit.
In the original motion, Ms. Tatter reported a conversation with Long in which he asserted that John Doe 1 told him Mr. Collins, Mr. Cooper, and an attorney named "Rachel" visited him. John Doe 1 is an alleged victim in the Government's assault case against Mujahid. The motion alleges that the attorneys asked John Doe 1 to wear a wire and obtain statements from Long about this case. In the motion, counsel stresses one fact in particular: that John Doe 1 told Long the attorneys showed him a picture of Long and his daughter and that Long had a goatee in the picture and his daughter was dressed in a military uniform. The defense argues that this detail demonstrates the truthfulness of Long's assertions because Long did not have a goatee while in jail and Long's daughter is in the military, thus assuming that there was no way John Doe 1 could have known this information about Long unless what John Doe said was true.
In Long's supporting affidavit, he asserts that on February 13, 2011, John Doe 1 told him that John Doe 1's attorney, Rachel, and prosecutors Collins and Cooper visited John Doe 1. He asserts that John Doe told him that the attorneys asked him about Long and showed him a picture of Long and a picture of his daughter. Unlike Ms. Tatter's recitation of the facts, Long's affidavit does not describe the photograph in detail and does not assert that Long had a goatee in the photograph or that his daughter was in a military uniform. The affidavit says that John Doe 1 told Long the prosecutors asked him to wear a wire to record Long's conversations in jail and instructed him to ask Long about his case, his supplier, and any contraband. The affidavit also says that John Doe 1 was going to write a letter, but no such letter has been provided to the Court.
To rebut these allegations, the Government submitted three affidavits from the three attorneys alleged to have contacted John Doe 1 in mid-February. Mr. Collins states in his affidavit that prior to this motion being filed, he was not aware of any particular facts about the case against Mujahid and thus did not know that there were victims identified as John Doe and did not know these victims by name. He asserts that prior to this motion being filed, he had never heard of John Doe 1-Mr. Cooper told him John Doe 1's real name when this motion was filed and that was the first time he ever heard of such a person. He states that John Doe 1 has never contacted him and that he has never met or talked to John Doe 1. He states that he has never gone to, or even thought about going to the Anchorage jail, either by himself or in the company of anyone, including Mr. Cooper or John Doe's attorney, Rachel Lauesen, to meet John Doe 1. (Doc. 48-1).
He asserts that he did not know where Long was being held and did not know that Long and John Doe 1 had ever been cell mates until the filing of this motion. He also asserts that prior to this motion being filed, he has never discussed the case against Long with Mr. Cooper, and that prior to this motion, he has never had any telephone contact with Ms. Lauesen or met her at the Anchorage jail. He concludes his affidavit by asserting that in his entire career, he has never asked a prisoner to record or otherwise engage another prisoner in conversation to obtain information about the other prisoner's case.
Mr. Cooper states in his affidavit that he has met John Doe 1 twice in preparation for his case against Mujahid. He asserts that both times he was accompanied by Assistant United States Attorney Audrey Renschen and Federal Bureau of Investigations Special Agent Jolene Goeden. He asserts that prior to this motion being filed, he had never heard of Long or of the case against him and did not know Mr. Collins was involved in such a case. He says that prior to this motion being filed, he did not know John Doe 1 had ever been cell mates with Long. Mr. Cooper asserts that he talked to Ms. Lauesen in connection with the Mujahid case on March 4, 2011 but did not meet her until March 10, 2011. He asserts that he has never met with John Doe 1 at the Anchorage Jail by himself or in the company of Mr. Collins or Rachel Lauesen to ask John Doe 1 to wear a wire or to otherwise engage Long in conversation. He asserts that he was never at the Anchorage ...