UNITED STATES OF AMERICA v. DRESHAWN MCBROOM
Criminal No. 21-97
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
July 12, 2023
Marilyn J. Horan, United States District Court Judge
Case 2:21-cr-00097-MJH Document 145
Defendant Dreshawn McBroom is charged in a three-count Superseding Indictment with Possession with Intent to Distribute a variety of illegal substances, in violation of
On Friday morning, February 19, 2021, Dreshawn McBroom was operating a rented blue Chrysler Pacifica with a Florida license plate in the Homewood section of the City of Pittsburgh.2 While traveling near the intersection of Kelly Street and Sterrett Street, Mr. McBroom moved his vehicle from the travel lane to park alongside the curb of the roadway in the 7200 block of Kelly Street. At the same time, City of Pittsburgh Bureau of Police personnel on patrol in Homewood in two unmarked police vehicles observed Mr. McBroom park the Pacifica. Detective Nathan Dettling, Sergeant Harrison Maddox, and Officer Rayna Zola were together in the “lead” car, while Detective Lucas Burdette and Officer Anthony followed in a separate vehicle. The Homewood area is recognized by law enforcement as a high crime area.
At approximately 10:27 am, while traveling westbound in the 7200 block of Kelly Street, Detective Dettling and Sergeant Maddox observed the Chrysler Pacifica fail to use its turn signal while exiting the roadway to park alongside the curb of Kelly Street, in violation of
II. Motion Requesting Notice Pursuant to Rule 404(b)
In his Motion Requesting Notice Pursuant to Rule 404(b), Mr. McBroom requests that the Court Order the government to provide prompt notice of its intention to offer evidence pursuant to Federal Rule of Evidence 404(b) and, further, he requests that the government provide a detailed statement of the specific nature of any such evidence. As to timing, Mr. McBroom requests that the government provide notice of its intention “promptly” and to provide the requested Rule 404(b) statements as soon as is practicable.
Federal Rule of Evidence 404(b) is titled “Other Crimes, Wrongs, or Acts,” and specifies when such evidence is prohibited, when it is permitted, and the prosecution‘s obligations to notify the defense that it intends to introduce such evidence. As to “Prohibited Uses,” Rule 404(b)(1) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person‘s character in order to show that on a particular occasion the
(3) Notice in a Criminal Case. In a criminal case the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial – or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
II. Motion for Pretrial Discovery
In his Motion for Pretrial Discovery, Mr. McBroom requests that the government produce:
(i) all video and audio recordings and all oral, electronic, and dispatch communications of law enforcement related to all activity connected with the traffic stop of Mr. McBroom and subsequent searches and seizures3;
(ii) written or recorded statements of Mr. McBroom4;
(iii) the ability to inspect and copy a variety of media, scientific tests and reports, information related to potential favorable witnesses, government witnesses, and informant witnesses; such as, statements, names, addresses, and/or contradictory statements5;
(iv) information of the potential bias or prejudice of law enforcement witnesses, impeachment material related to law enforcement6, and disclosure of law enforcement‘s rough notes.7
In addition, the government remains under a continuing duty to disclose any additional evidence it discovers.
Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.
The government asserts that it has met its Federal Rule of Criminal Procedure 16 obligations during pretrial discovery exchanges with Mr. McBroom‘s prior counsel. However, the government acknowledges that Mr. McBroom‘s change in counsel may have resulted in current counsel missing some discovery material. Therefore, the government intends to provide current counsel with all available discovery to ensure that he has all previously disclosed discovery materials. The government further states that it intends to adhere to its obligations to supplement its Rule 16 disclosures as new information is learned.
With respect to any specific requested additional discovery items identified in Mr. McBroom‘s Motion, such discovery requests may be rendered moot following a conference with the government. As to any remaining requested discovery materials that the defense believes have not been properly turned over, Mr. McBroom may seek to compel the government to provide such material if one of Rule 16‘s bases for production of the material is established. At this time, given the government‘s assurances about pretrial production of discovery materials and its intention to confer with counsel, the Motion will be DENIED as premature
With respect to requests for information exchanged between law enforcement, including dispatch communications, it appears that such disclosure is beyond the scope of Rule 16. The Court concludes that without more specific information from Mr. McBroom to
Mr. McBroom also requests a variety of material that is properly categorized as exculpatory and/or as favorable to Mr. McBroom under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972). The government is required to disclose such material as it becomes known to the government. There is no indication that the government is not complying with its obligations under Brady and Giglio.
Mr. McBroom also requests “rough notes of law enforcement officers regarding their investigation of this case.” ECF No. 131, at ¶ 2.s. The United States Court of Appeals for the Third Circuit requires the government to retain rough notes and writings. In United States v. Vella, 562 F.2d 275 (1977), the Court of Appeals held that “rough interview notes of [law enforcement officers] should be kept and produced so that the trial court can determine whether the notes should be made available to the defendant under the rule in Brady v. Maryland, 373 U.S. 83 [] (1963), or the Jencks Act.” Id. at 276. In United States v. Ammar, 714 F.2d 238 (3d Cir. 1983), the Court of Appeals expanded the category of what must be retained to include rough reports; holding that “the government must retain and, upon motion, make available to the district court both the rough notes and the drafts of reports of its agents to facilitate the district court‘s determination whether they should be produced.” Id. at 259. In Ammar, the Court acknowledged that a rough draft is not necessarily a Jencks Act statement until it is refined to the point where a finding can be made that the witness has “adopted or approved” the rough draft as a statement, such as where a law enforcement official presents a
As for requested materials that are likely requests for Jencks materials (ECF No. 131, 2.k., 1.), by statute,
If, after counsel for Mr. McBroom receives discovery material from the government, he believes there continues to exist a Rule 16 basis for additional production of evidence, Mr. McBroom may seek to compel the government to provide such material.
III. Motion for Early Disclosure of All Jencks Act Material
Mr. McBroom seeks early disclosure of Jencks Act material, specifically, he seeks Grand Jury transcripts, forty-five days prior to trial. Mot. Jencks Act Mat., ECF No. 132, at ¶¶ 9, 10. Pursuant to the Jencks Act, no statement or report made by a government witness or potential government witness “shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”
In the Court‘s standard Pretrial Scheduling Order, the government will be encouraged to provide all Jencks Act materials prior to the final pretrial conference (which is typically held seven to fourteen days before trial), or in the alternative, to provide such materials in sufficient time to permit counsel to review the materials so as to eliminate the need for a delay in the trial. The government, aware of the potential delays by holding Jencks material until after a witness is called, states that it intends to provide Jencks Act material fourteen days before commencement of trial. Govt. Omnibus Resp. 2. Accordingly, the Motion for Early Disclosure of Jencks Material is DENIED.
With respect to the request for grand jury transcripts, “[a]s a matter of public policy, grand jury proceedings generally must remain secret except where there is a compelling necessity.” United States v. McDowell, 888 F.2d 285, 289 (3d Cir. 1989). A defendant may be entitled to review grand jury testimony after a witness “testified on direct examination at trial if their grand jury testimony was related to the subject matter of their trial testimony.” United States v. Jackson, 363 F. App‘x 159, 161 (3d Cir. 2010) (citing
Mr. McBroom requests the transcripts of the grand jury proceedings to determine whether law enforcement procured his indictment with false testimony. Specifically, he questions whether law enforcement testified falsely about the officers’ observation of whether Mr. McBroom activated his turn signal prior to conducting the traffic stop. Mr. McBroom reasons that video evidence showing that he did activate his turn signal prior to being stopped is in direct contradiction to the officers’ testimony that none of them saw a turn signal at the suppression hearing. As to this narrow issue the Court cannot conclude that Mr. McBroom has made the necessary showing. Regardless of the officers’ grand jury testimony, the issue of the truthfulness of the officers’ testimony as to their observation of a turn signal is a credibility matter entrusted to the jury. The government states that it has already provided the grand jury testimony of Pittsburgh Bureau of Police Sergeant Harrison Maddox, dated March 10, 2021. Gov. Omnibus Resp. 2. The government intends to produce any other grand jury transcripts, as Jencks material, fourteen days prior to trial. The request for grand jury transcripts is DENIED.
On July 28, 2021, the Court held a hearing on Mr. McBroom‘s Motion to Suppress Physical Evidence and Defendant‘s Statements. ECF No. 50. Mr. McBroom submitted video evidence supported by testimony showing that he did use his turn signal just prior to being pulled over by the police. The government presented the testimony of three on-scene officers, all of whom testified that they did not see a turn signal on Mr. McBroom‘s car before he pulled over to park. On August 31, 2021, the Court issued an Opinion and Order granting Mr. McBroom‘s Suppression Motion on the basis that Pennsylvania law did not require a driver to use a turn signal when moving from a travel lane to a parking lane. ECF No. 55.
The government sought reconsideration of the suppression decision arguing that the Court committed a clear error of law by applying a Pennsylvania case that post-dated the traffic stop in this case. See Commonwealth v. Tillery, 2021 PA Super 53, 249 A.3d 278 (2021). Reconsideration was granted, and after a review of the existing case law addressing the relevant statute, the Court concluded that, “on February 19, 2021, when the officers conducted the traffic stop of Mr. McBroom, it was objectively reasonable for them to believe that Mr. McBroom was required to activate his turn signal before pulling alongside the road to park.” Op. on Recon. 9 (ECF No. 61). The Court further concluded, in the alternative, that the good faith exception would apply to the acts of this case and suppression of the evidence would not be warranted.
With that background, the Court now addresses Mr. McBroom‘s Renewed Motion to Suppress and/or Exclude Evidence Obtained Due to an Unlawful Stop, Seizure and Searches. A motion for reconsideration “must rely on one of three grounds: (1) an intervening change in
The issues presented by Mr. McBroom on reconsideration are whether the Court erred in its Opinion on Reconsideration in the following three ways:
- The Court erred in concluding that the Pennsylvania Superior Court case of Tillery8 created new law that could not be applied retroactively in this case;
- The Court erred in relying upon the non-precedential decisions of Puit9 and Kuprij10; and
- The Court erred in failing to conduct a “a hearing to explore what instruction the law enforcement officers had received regarding Pennsylvania traffic laws, their experience with enforcement of those laws, whether their enforcement practices are more aggressive in predominantly Black neighborhoods and their knowledge of Mr. McBroom‘s use of a turn signal when he turned onto Kelly Street and immediately pulled to the curb to park his vehicle.”
Renewed Mot. at ¶¶ 18, 20, 23, & 26.
The alleged race-based nature of the stop is not a proper subject of the instant Renewed Motion. The Renewed Motion is aimed at the Court‘s decision denying a Motion to Suppress that alleged the officers unlawfully stopped Mr. McBroom‘s vehicle because he had not committed a traffic violation. The alleged race-based nature of the stop was not fairly
The Court finds that Mr. McBroom has not identified an error of law to warrant reconsideration. The defense argument that the Court wrongly applied Pennsylvania law constitutes a disagreement with the Court‘s opinion and the ultimate outcome. “A motion for reconsideration is not properly grounded in a request for a district court to rethink a decision it has already rightly or wrongly made.” Massey v. Wetzel, No. CV 20-722, 2020 WL 7769831, at *1 (W.D. Pa. Dec. 30, 2020) (citing Williams v. Pittsburgh, 32 F.Supp.2d 236, 238 (W.D. Pa. 1998)). The defense has not demonstrated a clear error of law with respect to the Court‘s analysis of Pennsylvania law. On a motion for reconsideration, a party is not free to relitigate issues the court has already decided. Rottmund v. Continental Assurance Co., 813 F.Supp. 1104, 1107 (E.D. Pa. 1992).
The defense also relies on its conclusory statement that “law enforcement was not truthful in claiming that an offense had been committed.” Renewed Mot. ¶ 6. Again, this assertion is an attempt to relitigate a matter that the Court has already ruled upon. In the Court‘s Opinion on Reconsideration of Suppression, the Court positively cited its prior credibility ruling within the first suppression Opinion:
... the suppression issue in this case also required credibility assessments in relation to Mr. McBroom‘s use of his turn signal. The August 31, 2021 Opinion included the following relevant factual findings:
The brevity of the signal usage, with only one visible blink cycle, gives rise to a legitimate question of whether such a brief activation,
occurring nearly simultaneously with the movement of the car into the parking lane, was seen by the officers. Law enforcement testified that they did not see a signal. Such testimony is credible under the circumstances. The video, which demonstrates that the turn signal was briefly engaged before Mr. McBroom parked his vehicle, is also credible under the circumstances. ECF No. 55, at 5-6. Having previously concluded that the officers credibly testified that they failed to see Mr. McBroom activate his turn signal, the officers possessed specific, articulable facts that Mr. McBroom was violating a traffic law . . .
ECF No. 61 at 9 (quoting ECF No. 55, at 5-6). In its conclusion, the Court again stated: “the officers credibly testified that they did not observe a turn signal.” ECF No. 61 at 11. Therefore, there is no error of fact warranting reconsideration of the Opinion on Reconsideration of Suppression.
Finally, the defense states that the Renewed Motion may also be considered a preliminary motion in limine seeking exclusion of evidence. As trial has not been set yet, and, as a motion in limine, further briefing may be needed, the Court declines to rule on the Renewed Motion as a Motion in Limine.
For the above reasons, Mr. McBroom‘s Renewed Motion to Suppress and/or Exclude Evidence Obtained Due to an Unlawful Stop, Seizure and Searches is DENIED.
V. Motion for Leave to File Supplemental Pretrial Motions
Mr. McBroom seeks permission to assert additional Pretrial Motions, if necessary, after reviewing the government‘s discovery production as a result of the current pretrial motions. Mot. Leave Supp. Pretrial Motions, ECF No. 133. Given that both the government and defense have not yet confirmed that all materials previously produced to prior counsel have been provided to current counsel, the Motion will be GRANTED.
As explained above, Mr. McBroom‘s pretrial motions are resolved as follows:
- The Motion Requesting Notice Pursuant to Rule 404(b) (ECF No. 130) is GRANTED to the extent that the government must disclose such material no later than seven days prior to trial. The Motion is otherwise DENIED.
- The Motion for Pretrial Discovery (ECF No. 131) is DENIED as premature with respect to materials the parties must confer about. The Motion is DENIED, without prejudice, with respect to requests for information exchanged between law enforcement. The Motion is DENIED, without prejudice, as to the production of law enforcement‘s rough notes. The Motion is DENIED, insofar as Jencks materials are requested.
- The Motion for Early Disclosure of All Jencks Act Material (ECF No. 132) is DENIED. The Motion is DENIED as to the request for production of Grand Jury transcripts.
- The Renewed Motion to Suppress and/or Exclude Evidence Obtained Due to an Unlawful Stop, Seizure and Searches (ECF No. 128) is DENIED.
- The Motion for Leave to File Supplemental Pretrial Motions is GRANTED. Mr. McBroom shall be permitted to supplement his pretrial motions within twenty-one days following the completion of the Government‘s compliance with all court Orders regarding the disclosure of information and the production of all relevant discovery materials.
IT IS SO ORDERED.
Dated: July 12, 2023
Marilyn J. Horan
United States District Court Judge