UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DIVISION No. 2:14-CR-14-D-1 v. HARRY C. MANN MOTION TO SUPPRESS AND FOR ADVERSE INFERENCE JURY INSTRUCTION Because the Government destroyed or intentionally dissipated the cash seized from the Defendant s and his wife s home at a time when the exculpatory value of such evidence was apparent, the Defendant moves this Honorable Court to suppress the evidence of the cash seizures and for an adverse inference jury instruction. Defendant requests leave to file this suppression motion past the deadline for filing pretrial motions on the ground that Defendant learned that the evidence was dissipated after the pretrial deadline. At the hearing on July 24, 2015, the Government confirmed that the cash was no longer available, July Hr g Tr. 33; see also [D.E. 143] 10, at which point, the Defendant promptly requested a remedy. July Hr g Tr. 34-35. The Court s Order after that hearing [D.E. 143] confirmed that the evidence was gone, but the Court neither granted nor denied the Defendant s requested remedy. LEGAL STANDARD Due process requires the government and its agent to preserve evidence that might be expected to play a significant role in the suspect s defense. California v. Trombetta, 467 U.S. 479 488 (1984). Due process is violated when the government fails to preserve evidence at a Case 2:14-cr-00014-D Document 146 Filed 10/26/15 Page 1 of 5
time when the exculpatory character of the evidence is known and when the defendant cannot obtain comparable evidence by other reasonably available means. See id. As to potentially exculpatory evidence, when the government or its agents by their conduct indicate that the evidence could form a basis for exonerating the defendant and destroy it nonetheless, such actions constitute bad faith destruction of evidence warranting dismissal or suppression. Arizona v. Youngblood, 488 U.S. 51, 57 (1988). DISCUSSION In this case, the Government seized roughly $245,000 in cash from the Defendant s and his wife s home in May 2011. In June 2013, shortly after initially indicting the Defendant, the Government intentionally dissipated that evidence by transferring it to the custody of the U.S. Marshals who, by standard practice, deposited it into a bank account and returned the physical currency into circulation in the national and global economy. In short, after transferring it to the U.S. Marshals, the physical cash was gone. [D.E. 143] 10. The Government s theory of prosecution is that the Defendant received this cash directly from the alleged co-conspirators, and the Government purportedly seized the cash as evidence of those transactions. The cash itself was the best evidence of that allegation for if Lozano and Williams handed money to the Defendant, their fingerprints and DNA would be on the money. But like conducting a lineup, where a positive identification of the suspect is inculpatory while a negative identification is exculpatory, the cash was a double-edged sword: it was either inculpatory or exculpatory. It was not neutral evidence. This would have been obvious to these experienced federal agents. By actively getting rid of this evidence without testing it or allowing the Defendant to do so, the agents conduct indicates either (1) that they knew that the cash was favorable for the 2 Case 2:14-cr-00014-D Document 146 Filed 10/26/15 Page 2 of 5
Defendant or (2) that they did not want to risk the Defendant being able to prove that it was not connected to the alleged co-conspirators, for example if it had the fingerprints of Mr. Mann s and his wife s rental tenants on it. Either way, this active, intentional dissipation of evidence prevented the Defendant from challenging a critical part of the Government s case the allegation that he had in his possession a significant amount of cash that he received from the alleged co-conspirators. This cash was seized as evidence and then actively dissipated by the investigating agents. Thus, by their conduct, the agents showed that they believed it was favorable for the Defendant, not the Government. This constitutes a due process violation under both Trombetta and Youngblood. The bad faith required to prove a violation under Youngblood is shown not only by the destruction of evidence at a time when its potentially exculpatory character had to have been known to the agents but also because the dissipation of the evidence violated the forfeiture law, see [D.E. 43] 31-32, and, upon information and belief, violated NCIS and DCIS procedure, which must prohibit the destruction of critical evidence. Cf. United States v. Elliott, 83 F. Supp. 2d 637, 647 (E.D. Va. 1999) ( [T]he failure to follow established procedures is probative evidence of bad faith.... ). CONCLUSION Because the Government intentionally dissipated critical evidence that cannot be obtained from other sources when the exculpatory value of that evidence was apparent, the Government violated the Defendant s due process right to access exculpatory evidence. The Defendant submits that suppression of the evidence of the cash seizures (except any cash that the Government may be able to connect to alleged co-conspirator Williams based on 3 Case 2:14-cr-00014-D Document 146 Filed 10/26/15 Page 3 of 5
the serial numbers of the bills) is the appropriate remedy. The Defendant also moves for a curative instruction that the jury shall infer by the intentional dissipation of such evidence that neither the co-conspirator s fingerprints or nor their DNA was present on any of the seized cash. Cf. United States v. Suarez, Case No. 9-932, 2010 WL 4226524 *7-11 (D.N.J. October 21, 2010) (discussing possible sanctions for violation of Jencks Act and concluding an adverse inference jury instruction was warranted). Respectfully submitted, this the 26th day of October, 2015. CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC /s/ Elliot S. Abrams Elliot S. Abrams N.C. State Bar # 42639 133 Fayetteville Street, Ste 500 P. O. Box 1029 Raleigh, NC 27602 (919) 833-3114 (TEL) (919) 832-0739 (FAX) elliot.abrams@cheshirepark.com TARLTON LAW, PLLC /s/ Raymond C. Tarlton Raymond C. Tarlton N.C. State Bar# 38784 333 Fayetteville St., Ste. 1513 P.O. Box 1386 Raleigh, NC 27601 tarlton@tarltonlaw.com Attorneys for Defendant 4 Case 2:14-cr-00014-D Document 146 Filed 10/26/15 Page 4 of 5
CERTIFICATE OF SERVICE The undersigned hereby certifies that on the date shown below, he electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following Assistant United States Attorneys: Susan Menzer and Felice Corpening. This the 26th day of October, 2015. TARLTON LAW PLLC /s/ Raymond C. Tarlton Raymond C. Tarlton 5 Case 2:14-cr-00014-D Document 146 Filed 10/26/15 Page 5 of 5