UNITED STATES of America v. Mark STUBBLEFIELD, Defendant.
Criminal No. 08-171(RCL)
United States District Court, District of Columbia.
March 20, 2013
931 F. Supp. 2d 118
In addition, Plaintiffs’ Complaint named 199 John and Jane Does, five of whom were subsequently named in Plaintiffs’ Notice of Intent to Name (ECF No. 8). They include three additional King County judges and two King County prosecutors. In the event the Court were to add these judges and prosecutors as Defendants, it could not exercise personal jurisdiction over them for the same reasons as set forth above: Plaintiffs fail to demonstrate that these parties have had any contacts with the District of Columbia.
While this Opinion simply holds that Plaintiffs brought suit in the wrong forum, the Court cautions that they should think twice before filing their Complaint elsewhere. Because “state judges are absolutely immune from liability for their judicial acts,” Briscoe v. LaHue, 460 U.S. 325, 334, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), Plaintiffs’ central theory of liability appears to rest on a rotten foundation. Persisting in this frivolous fight will waste everyone‘s time.
IV. Conclusion
Because the Court lacks personal jurisdiction over these Defendants, their Motions to Dismiss will be granted. A separate Order consistent with this Memorandum Opinion shall issue this date.
Jonathan Jeffress, Federal Public Defender, Washington, DC, for Mark Stubblefield.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
Before the Court is defendant Mark Stubblefield‘s pro se Motion [109] to Vacate, Set Aside, or Correct Sentence pursuant to
I. BACKGROUND
A. Defendant‘s Underlying Offenses
Defendant‘s criminal conduct in this matter began with the robbery of Washington First Bank at 1500 K Street, N.W., in the District of Columbia on January 29, 2008, and lasted until his arrest on May 13, 2008. Presentence Investigation Report ¶¶ 4-5, Revised May 7, 2009, ECF No. 69 (“PSR“). On January 29, March 26, and April 7, 2008, the Washington First Bank was robbed by a man witnesses described on each occasion as a very short black man with an unusual facial complexion. See Opp‘n 2, ECF No. 114 (citing trial transcripts). On March 21 and April 11, 2008, a witness-described short black man with an unusual facial complexion robbed United Bank at 1875 I Street, N.W. Id. at 4-5. Eyewitnesses at the respective institutions stated that the same individual perpetrated the repeated offenses. Id. at 3, 5.
B. The Criminal Investigation and Arrest
After robbing the Washington First Bank on April 7, 2008 (“the April 7 bank robbery“), the perpetrator, wearing a trench coat and carrying an umbrella, exfilled west on K Street towards 16th Street, N.W. See Opp‘n 15. Video surveillance from the Capital Hilton Hotel, located at 16 and K Streets, N.W., recorded a black man wearing a trench coat and carrying an umbrella running up K Street minutes after the robbery, briefly entering the hotel, and then exiting onto 16 Street and entering a taxi. Id. FBI Special Agent Luis DeJesus used this video surveillance to locate the driver of the taxi in which the perpetrator completed his getaway. Id. at 16. The driver provided Special Agent DeJesus the intersection where he dropped off the perpetrator—7th Street and Florida Avenue, N.W.—and the twenty-dollar bill used to pay for the fare. Id. The serial number on that twenty-dollar bill matched the serial number of one of the “bait” bills provided to the robber at Washington First Bank. Id.
A U.S. Secret Service sketch artist met with a bank teller who witnessed two robberies at Washington First Bank and created a sketch of the perpetrator, which law enforcement circulated throughout the District of Columbia. Id.; see also 05/16/08 Tr. 18, ECF No. 17. The teller described the perpetrator as a black male approximately forty to fifty years old, approximately five feet two inches in height, and with some “facial disfiguration or scarring on the left cheek.” See 05/16/08 Tr. 18; DeJesus Aff. ¶ 7, ECF No. 1-1. During canvassing operations, a citizen informed an FBI Agent that the sketch resembled an individual he knew and that the individual “frequented the area around 7 Street, N.W., and Florida Avenue, N.W.” (where the suspect was dropped off after the April 7 bank robbery). DeJesus Aff. ¶ 13. On May 12, 2008, the same citizen notified the FBI1 that he made contact with the suspect at 7th Street and Rhode Island Avenue, N.W. (three blocks from 7 Street and Florida Avenue, N.W.). Id. at 25; see also 12/09/08 Tr. 130, ECF No. 62 (citing grand jury testimony of Special Agent DeJesus stating that the informant “stated he heard someone talking to him and referred to him by the name Mark“).
Metropolitan Police Department (“MPD“) officers arrived at the identified intersection in a marked cruiser and approached the suspect. Id. at 16. In his affidavit, Special Agent DeJesus reported
Myself and my partner, Agent Sanborn, arrived almost simultaneously as a uniformed member of the police department was approaching Mr. Stubblefield in [a] sunken patio area in the rear of [an] apartment building [in the alley of 7th and S Street, N.W.].
...
I got there in a millisecond after apparently he was asked to go ahead, and you know, lie on the ground, and he was subsequently placed in a pair of handcuffs, patted down very quickly, and then removed from the patio through a door in this building and taken out to the alley where our vehicles were.
At that point, we asked Mr. Stubblefield, of course, his name, and at that point is when he elicited the response that his name was Michael Smith.
...
[At the time I arrived], he was not free to go. He was stopped.
Id. at 17-18, 20.
At some point during this stop, law enforcement searched the suspect and found a “crack cocaine stem” in his possession.2 See Opp‘n 11, 16-17; Mem. in Support of Mot. Vacate 10-11, ECF No. 109 (“Def.‘s 2255 Mem.“). The suspect was then arrested for possession of drug paraphernalia (“PDP“) and taken to MPD headquarters where a fingerprint analysis positively identified him as Mark Stubblefield, a 5‘2” African American male born in 1957. Opp‘n 17; 05/16/08 Tr. 38. Law enforcement used Mr. Stubblefield‘s booking photograph in a photo array shown to two of the April 7 bank robbery witnesses, one of whom positively identified Mr. Stubblefield as the robber, while the other at first said it was not him, but then stated he looked like the robber. 05/16/08 Tr. 28-30. Incorporating the photo array identification into his affidavit, Special Agent DeJesus received and executed an arrest warrant against Mark Stubblefield on May 13, 2008, for the criminal complaint charging him with bank robbery. See Arrest Warrant, ECF No. 2.
C. Procedural History
On May 16, 2008, Mr. Stubblefield appeared before Magistrate Judge Alan Kay in a preliminary and detention hearing on the criminal complaint charging him with bank robbery. See 05/16/08 Tr. 3. Federal Public Defender Jonathan Jeffress represented Mr. Stubblefield at this hearing. Id. Mr. Jeffress argued that the complaint and accompanying affidavit sworn by Special Agent DeJesus lacked a sufficient basis to support a finding of probable cause for the preliminary hearing. Id. at 9-11. Judge Kay disagreed:
Bearing in mind that this is not ... proof beyond a reasonable doubt.... [T]he facts set forth in the complaint might well reflect evidence that the individual is not responsible for the crime, [but] the Court can still find probable cause ... bearing in mind that the threshold is not very strong, the barrier is not very high. You‘ve got an individual who had left the bank at a certain particular time, there was a camera following an individual who left the bank at that time, that he was wearing certain clothing, carrying an umbrella, that he went to the Capital Hilton on 16th and K Street.
A cab driver picked up an individual at the Capital Hilton on that same date ... maybe there is some time connection also, and that cab driver was paid by the individual that he picked up with a $20.00 bill that came from bait money given to the robber by the bank. I think, albeit not [] beyond a reasonable doubt at this point ... there‘s enough for probable [cause].
Id. at 11-12.
Assistant U.S. Attorney Catherine Connelly questioned Special Agent DeJesus about Mr. Stubblefield‘s facial complexion. Id. at 34-35. Special Agent DeJesus stated that Mr. Stubblefield has “deep indentations.... Just when he‘s in a normal posture, when he‘s talking, there‘s just divots ... or impressions that are deep under his cheeks.” Id. at 34. He further explained that, when law enforcement attempted to photograph Mr. Stubblefield following his arrest, he “did not want his photo taken, kept having his head down and puffing out his cheeks.... So that we could not get a good facial shot.” Id. at 35. Judge Kay found that the totality of the factors presented—the photo array identification by one robbery witness; Mr. Stubblefield‘s match to the witnesses’ description of the perpetrator‘s age, height, facial complexion, race, and gender; Mr. Stubblefield‘s location in the same area where the robber was dropped off; and Mr. Stubblefield‘s act of distorting the configuration of his face—supported a finding of probable cause. See id. at 41-42.
A grand jury handed down an indictment on June 13, 2008, charging Mr. Stubblefield with six counts of bank robbery and one count of attempted bank robbery, in violation of
The court heard argument on the suppression motions on December 9, 2008. See generally 12/09/08 Tr. Ms. Shaner attempted to argue the defendant‘s
Prior to trial, Ms. Shaner filed oppositions to the government‘s evidentiary motions and filed a motion to suppress statements and testimony of a government informant. See Minute Entries accompanying ECF Nos. 28, 29, 35, 40. Additionally, during trial, Ms. Shaner filed a motion to reconsider the motion to suppress Mr. Stubblefield‘s post-arrest statements, in which she argued that video-taped statements made by the defendant during questioning at police headquarters were involuntary, and that the interrogation, conducted not by arresting officers but by Bank Task Force personnel, was of an investigatory nature “with an eye towards prosecution.” See Mot. Recons., ECF No. 46. In that motion, Ms. Shaner acknowledged “[t]he illegal nature of the arrest and search” were not at issue at that time, but were “facts for the Court to consider in the ‘totality of the circumstances’ test.” Id. ¶ 3.3 The court denied the motion.
Jury trial began on January 26, 2009, and included thirty-seven witnesses called by the government over the course of six days, followed by the defense‘s eight witnesses, all who testified on the same day. See Minute Entries for Case No. 1:08-cr-00171-RCL, Jan. 27-Feb. 9, 2009 (“Minute Entries“). None of the eyewitnesses to the bank robberies made an in-court identification of the defendant; rather, their testimony focused on the pre-trial identifications made upon presentation of the photo array created after defendant‘s arrest on May 12, 2008.4 See Reply 8; accord United States v. Stubblefield, 643 F.3d 291, 297 (D.C.Cir.2011) (“At trial, the govern-
On February 13, 2009, the jury returned a verdict of guilty on all charged counts. See Minute Entries, Feb. 13, 2009. Prior to sentencing, Judge Kennedy granted Ms. Shaner‘s motion to withdraw as counsel, and new counsel was appointed by the Federal Public Defender‘s Office. On September 16, 2009, Judge Henry Kennedy, Jr. sentenced Mr. Stubblefield to 180 months imprisonment. J. & Commitment 1-2, Sept. 24, 2009, ECF No. 90. This sentence fell within the Guidelines range based on a total offense level of 30 and criminal history category of VI. See PSR ¶ 154. Mr. Stubblefield appealed on various grounds, including Speedy Trial violations and errors that he claimed the district court made in limiting defense counsel‘s closing argument and in admitting evidence of an uncharged bank robbery. Stubblefield, 643 F.3d at 292. Appellant did not raise any matters related to his now-advanced
Defendant now asks this Court to order an evidentiary hearing to determine if he received ineffective assistance from Ms. Shaner. Def.‘s 2255 Mem. 18. Defendant submits that Ms. Shaner (1) “failed to file motion to quash indictment on the basis of lack of probable cause to stop, seize, and search the defendant;” (2) “failed to file motion to suppress the government‘s use of a booking photograph as the ‘fruit’ of an illegal arrest;” and (3) “failed to raise in the district court that defendant‘s arrest on the minor offense was a pretext to search for evidence of bank robber[y] that he was suspected of committing.” Mot. Vacate 5, ECF No. 109. The government believes the Court may dismiss the instant motion without a hearing, finding defendant‘s first claim to be “legally insupportable” and arguing the latter two claims fail because law enforcement had probable cause to arrest defendant for the April 7 bank robbery after they stopped him on May 12, or, alternatively, that his photograph was not suppressible. See Gov‘t Opp‘n 19-30.
To succeed on his ineffective assistance of counsel claim, the defendant must show that his “counsel‘s representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also United States v. Weathers, 493 F.3d 229, 234 (D.C.Cir.2007) (stating that the Strickland test controls in evaluation of ineffective assistance of counsel claims). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700, 104 S.Ct. 2052.
A showing of deficient performance requires proof “that counsel failed to act reasonably considering all the circumstances.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quotations and internal modifications omitted). “As a general matter, the bar of objective reasonableness is set rather low.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C.Cir.2008). “Counsel ... has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052 (citing Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). This Court‘s review of counsel‘s performance “must be highly deferential,” and “the court should keep in mind that counsel‘s function ... is to make the adversarial testing process work in the particular case ... [and] recognize that counsel is strongly presumed to have rendered adequate assistance.” Id. at 689-90. In sum, the burden on the defendant is “obviously [ly] highly demanding.” Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
Deficient performance alone does not constitute ineffective assistance of counsel; the deficiencies “must be prejudicial to the defense.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. Prejudice requires that there be “a substantial, not just conceivable, likelihood of a different result.” Cullen, 131 S.Ct. at 1403. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
When the alleged deficiency is counsel‘s failure to raise a
Here, defendant asserts three separate but overlapping grounds that all boil down to a multi-faceted
A. A Motion To Quash the Indictment Would Have Been Meritless.
Defendant argues his counsel rendered ineffective assistance when she failed to file a motion to quash the indictment on the basis of an illegal search. See Def.‘s 2255 Mem. 13. Defendant articulates a convincing basis for his
Regardless of whether defendant‘s
B. Failure to File a Motion to Suppress Was Not Prejudicial Because Defendant‘s Fourth Amendment Claim Fails.
The dispositive issue here is whether a motion to suppress defendant‘s booking photograph would have succeeded, and if so, whether “there was a reasonable possibility that the verdict would have been different absent the excludable evidence.” Wood, 879 F.2d at 934. The Court construes the defendant‘s claim to be that law enforcement lacked reasonable suspicion to stop him, but even if the stop was lawful, police exceeded the limits of the investigatory stop when they searched him and found the crack stem that was used to justify his arrest. See Def.‘s 2255 Mem. 10-13. Defendant alleges that “the crack cocaine stem was not detected in [his] pocket during that search ostensibly for weapons.” Id. at 11. In its opposition, the government claims that, because law enforcement possessed probable cause to arrest the defendant for bank robbery, defendant‘s “search and apprehension was proper.” Opp‘n 23.6 Thus, the threshold issue is whether defendant‘s arrest on May 12 was lawful.
The government correctly states that if probable cause to arrest the defendant for bank robbery existed at the time of the stop, notwithstanding the failure to communicate that to the defendant, the seizure of drug paraphernalia would have been the result of a lawful search incident to arrest, and defendant‘s
1. MPD officers possessed reasonable suspicion to conduct an investigatory stop of defendant.
Police do not need probable cause to stop a suspect thought to be involved in a completed crime. United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (“[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry Stop may be made to investigate that suspicion.“). Indeed, investigatory stops require “considerably less than probable cause.” United States v. Davis, 235 F.3d 584, 586 (D.C.Cir.2000).
The Court begins its analysis with the question of whether there was reasonable suspicion to conduct an investigatory stop of the defendant. The defendant relies on Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), to ar-
J.L. is wholly distinguishable to the facts at bar. In J.L., the police would not have known about the ongoing criminal activity but for the anonymous tip. Here, law enforcement knew a crime—the April 7 bank robbery—had been committed, the investigation of which was ongoing at the time of the tip that led to the suspect‘s apprehension. Furthermore, the tip here was not anonymous. Prior to calling in the tip on May 12, the same citizen stated, in-person, to the same FBI Agent, that he knew the subject of the sketch and that the subject frequented the area around 7th Street and Florida Avenue, N.W.—the area where evidence showed the perpetrator was dropped off following the robbery. See 12/09/08 Tr. 8 (testimony of Special Agent DeJesus). On the date of defendant‘s arrest, the informant notified the FBI that the subject of the sketch was located at 7th Street and Rhode Island Avenue, N.W., three blocks from the area law enforcement already had reason to believe the suspect would be found.
More importantly, prior to the tip, witnesses to the April 7 bank robbery provided law enforcement with a unique description of the bank robber, including gender, race, approximate height, approximate age, and an unusual facial complexion. Thus, because law enforcement received a tip from an individual known to them from a previous face-to-face encounter and which was in response to—and corroborated with—an ongoing criminal investigation seeking a particularly described individual, the police had reasonable suspicion that the identified individual was connected to past criminal activity. See United States v. Davis, 235 F.3d 584, 587-88 (D.C.Cir.2000) (finding that police officers, armed with descriptions of a criminal suspect relayed from police channels and by a 911-caller, had reasonable suspicion to stop an individual matching the described suspect‘s clothing, location, and race); cf. United States v. Thompson, 234 F.3d 725, 729 (D.C.Cir.2000) (finding that a face-to-face tip, made after the tipster “just saw” a man carrying a gun, bore greater indicia of reliability compared to the anonymous tip in J.L.).
2. Reasonable suspicion ripened into probable cause upon apprehension of the defendant.
Circumstances arising during the course of a lawful stop may cause reasonable suspicion to ripen into probable cause. Rice v. District of Columbia, 774 F.Supp.2d 18, 23 (D.D.C.2011). “Whether the police have probable cause for an arrest is determined by viewing the totality of the circumstances from the perspective of a prudent police officer and in light of the police officer‘s training and experience.” United States v. Catlett, 97 F.3d 565, 573 (D.C.Cir.1996) (citing Illinois v. Gates, 462 U.S. 213, 230-32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Probable cause to arrest exists where ‘the facts and circumstances’ within a law enforcement officer‘s knowledge are ‘sufficient to war-
The issue of whether probable cause existed to arrest the defendant was reviewed by Judge Kay during Mr. Stubblefield‘s preliminary post-arrest detention hearing on May 16, 2008. There, Judge Kay found the following circumstances were sufficient to establish probable cause for the defendant‘s arrest for bank robbery: (1) defendant‘s apprehension in the immediate vicinity of the known location where the bank robber was dropped off following the April 7 bank robbery; (2) defendant‘s race, gender, age, height, and facial complexion all matched witness descriptions of the perpetrator; (3) defendant‘s act of distorting his facial appearance during police attempts to photograph him; and (4) photo-array identification of the defendant as the perpetrator by one of the bank robbery witnesses. The issue before the Court is whether the totality of the facts and circumstances known to law enforcement leading up to and during the May 12 apprehension—prior to the discovery of drug paraphernalia, which established independent probable cause supporting an arrest for PDP—were sufficient to warrant a prudent police officer to believe that Mr. Stubblefield committed the April 7 bank robbery and thus provide probable cause for his arrest and a lawful search incident to arrest. See Gilliam, 167 F.3d at 633. The Court finds they were.
In Smith v. United States, 358 F.2d 833 (D.C.Cir.1966), the D.C. Circuit held that the correct test for evaluating probable cause is “whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on what information he individually possessed.” Id. at 837. After receiving information that a subject sought in connection with recent bank robberies was spotted in a specific location, MPD officers responded to the location reported by the informant. 12/09/08 Tr. 12. Although the responding MPD officers that arrested the defendant were not members of the joint FBI/MPD task force investigating the crimes, the evaluation of probable cause to arrest the defendant encompasses the collective knowledge of the task force investigation team with the observations of the responding MPD officers. See United States v. Hawkins, 595 F.2d 751, 752-53 n. 2 (D.C.Cir.1978) (“[P]robable cause may emanate from the collective knowledge of the police, though the officer who performs the act of arresting or searching may be far less informed.“).
In addition to the particularized knowledge regarding the robbery suspect and the corroborated information provided by the informant, the Court may consider the
Here, police found the defendant, who was recognized by the FBI informant as the subject of the witness-corroborated sketch of the perpetrator, in the immediate vicinity of the last known location of the bank robber. Defendant fled when he was approached by MPD officers.7 He provided a name that did not match the name the informant overheard. After police detained the defendant, following his flight, they were able to corroborate the unique descriptors of the suspect—gender, age, height, race, and, most importantly in the Court‘s eyes, his unique facial complexion. The Court believes that, at that time, given the totality of the circumstances, probable cause existed to arrest the defendant for the April 7 bank robbery. See United States v. Carpenter, 342 F.3d 812, 814-15 (7th Cir.2003) (finding probable cause to arrest defendant due to his match with the suspected bank robber‘s age, race, height, and the same “unusual” pants worn during the robbery, along with his presence with two other men who fit a general description of additional robbers, and furtive actions observed by police).
Having probable cause to arrest Mr. Stubblefield for the April 7 bank robbery, the subsequent search that produced drug paraphernalia was not unlawful, and thus, the failure to file a motion to suppress caused no prejudice. Wood, 879 F.2d at 933. Additionally, defendant‘s claim that his arrest for PDP was pretextual also fails for the same reasons. Bookhardt, 277 F.3d at 558, 564.
C. An Evidentiary Hearing Is Not Required.
“A judge need not conduct an evidentiary hearing before denying a petition for relief under
III. CERTIFICATE OF APPEALABILITY
A petitioner must obtain a certificate of appealability (“COA“) before pursuing any appeal from a final order in a
Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court‘s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability.
IV. CONCLUSION
Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner‘s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant‘s case. Thus, defendant‘s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date.
ROYCE C. LAMBERTH
CHIEF JUDGE, UNITED STATES DISTRICT COURT
Babatu M. RUDO, Plaintiff, v. John McHUGH, Secretary of the Army, Defendant.
Civil Action No. 09-02172(GK)
United States District Court, District of Columbia.
March 20, 2013