USA v. Long

Filing 61

Final Report and Recommendation, Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CASE NO. 3:10-CR-00072-TMB
UNITED STATES OF AMERICA,
Plaintiff,

FINAL REPORT AND
RECOMMENDATION1 REGARDING
DEFENDANT’S MOTION TO DISMISS
[Doc. 41] AND MOTION FOR
EVIDENTIARY HEARING [Doc. 44]

v.

DAVID ASHTON LONG,
Defendant.

I. MOTIONS PRESENTED
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

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This report and recommendation is being issued as a final report and recommendation.
Pursuant to Fed. R. Crim. P. 59(b)(3), any objections will be considered by the District Court
Judge who will accept, reject, or modify the recommendation, or resubmit the matter to the
Magistrate Judge for additional consideration and recommendations.
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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).2 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
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That motion will be addressed by this Court in a separate order.
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not provide an affidavit.
II. AFFIDAVITS SUBMITTED
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.
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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
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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 jail on February 13, 2011. He attests that in his entire career as a prosecutor he has
never asked a prisoner to record or otherwise engage another prisoner in conversation to obtain
information about the other prisoner’s case. (Doc. 48-2).
Rachel Lauesen also submitted an affidavit. (Doc. 48-3). She asserts that she works for
Fortier & Mikko, P.C. and that her firm has entered a Limited Entry of Appearance on behalf of
John Doe 1 in the case against Mujahid, because John Doe 1 is a victim/witness in that case and
they were retained to protect his safety and privacy. She states that she has reviewed Long’s
motion to dismiss and the memorandum in support and asserts that Long’s allegations are false.
She asserts that the events described in Long’s affidavit never happened. She says that she has
visited John Doe 1 at the Anchorage Jail about four times and that the only person ever present at
these meetings with John Doe 1 was Samuel Fortier, a partner at Fortier & Mikko, P.C. She
asserts that she did not meet John Doe 1 with any prosecutor or with any other lawyer except
Mr. Fortier. She says that John Doe 1 never mentioned Long to her and that prior to this motion
being filed, she had never heard of Long. She attests that she has never asked anyone to wear a
wire and that she never asked John Doe 1 to wear a wire. (Doc. 48-3).

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III. DISCUSSION
Long asserts that the prosecutor, Mr. Collins, attempted to obtain statements from him
without counsel present. He argues that this action was an attempted violation of his right to
counsel and due process. He cites to Massiah v. United States, 377 U.S. 201, 206 (1964). In
Massiah, the defendant had made incriminating statements to his co-defendant after their
indictment and their release on bail. The defendant did not know that the co-defendant had
agreed to cooperate with the government and did not know that government agents were listening
to the conversation, with permission of the co-defendant, through a secret radio transmitter
device. Id. at 202-03. The government used those statements against the defendant at trial. The
Court held that the government violated the defendant’s Sixth Amendment right to counsel when
it used the co-defendant as an informant to “deliberately elicit” incriminating statements from
him after his indictment and without the presence of defendant’s counsel. Id. at 206. The
holding has been extended to the use of jailhouse informants who relay incriminating statements
by a defendant in pre-trial custody to the government. See United States v. Henry, 447 U.S. 264
(1980); Maine v. Moulton, 474 U.S. 159 (1985).
The usual remedy for a Massiah violation of the right to counsel is suppression of the
material obtained through the illegal interrogation. See United States v. Bagley, 641 F.2d 1235,
1238 (9th Cir. 1981); United States v. Kimball, 884 F.2d 1274, 1280 (9th Cir. 1989). In this
case, there is only an allegation of an attempt to get John Doe 1 to wear a wire and obtain
statements from Long. Long does not allege that he discussed his case with John Doe 1 or that
John Doe 1 in fact obtained statements from him. There is nothing on the record to demonstrate
that an actual violation of Long’s right to counsel occurred and thus there are no statements to
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suppress.
Long recognizes that suppression may not be an available remedy for the allegations
raised in this motion, but he asks the Court to instead dismiss the indictment in this case based on
the prosecutor’s attempt to violate his constitutional rights. To warrant a dismissal of this
indictment, Long must demonstrate that either 1) the prosecutors engaged in misconduct
amounting to a due process violation; or 2) the prosecutor’s misconduct was flagrant, wilful, or
conducted in bad faith. United States v. Chapman, 524 F.3d 1073, 1084-85 (9th Cir. 2008). A
court may dismiss an indictment for flagrant, wilful, or bad faith prosecutorial misconduct
pursuant to its supervisory powers but only when the defendant suffers “substantial prejudice.”
Id. at 1087.
This Court finds that Long has not proven such misconduct or prejudice. The
Government has responded to Long’s motion with affidavits denying the allegations. All three
attorneys, including John Doe 1’s attorney, have attested to the fact that no such meeting
occurred. The affidavits convincingly demonstrate that the allegations are false. The prosecutor
in this case Collins, did not know John Doe 1 and did not know that Long was cell mates with
John Doe 1. He did not approach John Doe 1 at the Anchorage Jail in February or at any other
time or place. He has never asked anyone, including John Doe 1, to wear a wire or otherwise
obtain statements against another prisoner on behalf of the Government. Mr. Cooper’s affidavit
and Ms. Lauesen’s affidavit corroborate Mr. Collins’s assertions. In addition, because Long only
alleges Mr. Collins attempted to obtain statements, there can be no finding of substantial
prejudice.
The only principal in this drama who has not provided the Court with an affidavit is John
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Doe 1. Thus, it is impossible on this record to conclude whether John Doe 1 made the false
accusations against the prosecutors when speaking to Long or whether Long fabricated the false
accusations and attributed them to John Doe 1. But this Court need not decide the issue for
purposes of this motion. The Court concludes no misconduct occurred. There is no evidence to
suppress and the severe remedy of dismissal is not warranted.
This Court has concluded that the events alleged in Long’s motion are false based on the
three affidavits filed and without an evidentiary hearing. “[A]n evidentiary hearing is generally
only required if the papers submitted in support of and in opposition to the motion are
sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that
there are contested issue of fact going to . . . the resolution of other issues necessary to decide the
motion.” United States v. Cheely, 814 F.Supp. 1430, 1436 (D. Alaska 1992). The papers must
demonstrate to the court that there is a substantial claim presented to it. Cohen v. United States,
378 F.2d 751, 760-61 (9th Cir. 1967).
In this case, the Court has reviewed the affidavits and concludes an evidentiary hearing is
not warranted. Long’s motion contains the hearsay statements of John Doe 1, and when weighed
against the three credible and convincing affidavits of attorneys who are officers of the Court and
who assert that no such meeting with or request of John Doe 1 took place, Long has failed to
present detailed, nonconjectural, reliable facts to warrant the use of the Court’s time and
resources in an evidentiary hearing.
Furthermore, even if the Court were to take Long’s allegations as true, he would still not
be entitled to the standard relief of suppression for such conduct because he does not allege that
any statements were actually obtained from him without counsel present. He also would not be
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entitled to dismissal of the indictment as a remedy because, even if Long’s allegations were true,
because he has failed to allege any prejudice from such conduct. Thus, an attempt to have a cell
mate obtain statements from a defendant without counsel does not warrant dismissal pursuant to
the Court’s supervisory powers. Because Long would not be entitled to the relief requested as a
matter of law, no evidentiary hearing is required. See United States v. Irwin, 612 F.2d 1182,
1187 (9th Cir. 1980) (stating that the court should consider whether the facts, if resolved in favor
of the defendant, would entitle him to relief when determining whether to grant an evidentiary
hearing, but also stating that if the affidavits show that as a matter of law the defendant is or is
not entitled to relief, no evidentiary hearing is required).
IV. CONCLUSION
This Court respectfully recommends that Long’s Motion to Dismiss at Docket 41 and
Motion for Evidentiary Hearing at Docket 44 be DENIED.

DATED this 5th day of April, 2011, at Anchorage, Alaska.
/s/ Deborah M. Smith
DEBORAH M. SMITH
United States Magistrate Judge
Pursuant to Fed. R. Crim. P. 59(b)(2) and D.Ak.L.M.R. 6(a), a party seeking to object to
this final finding and recommendation shall file written objections with the Clerk of Court no
later than CLOSE OF BUSINESS, April 8, 2011. Pursuant to Fed. R. Crim. P. 59(b)(3),
objections will be first considered by the District Court Judge who will then accept, reject, or
modify the recommendation, or resubmit the matter to the Magistrate Judge for additional
consideration. Failure to object to a magistrate judge’s findings of fact may be treated as a
procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus,
628 F.2d 1185, 1187-89 (9th Cir. 1980), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit
concludes that a district court is not required to consider evidence introduced for the first time in
a party’s objection to a magistrate judge’s recommendation. United States v. Howell, 231 F.3d
615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and
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shall not merely reargue positions presented in motion papers. Rather, objections and responses
shall specifically designate the findings or recommendations objected to, the basis of the
objection, and the points and authorities in support. Response(s) to the objections shall be filed
on or before CLOSE OF BUSINESS, April 13, 2011 The parties shall otherwise comply with
provisions of D.Ak.L.M.R. 6(a). The shortened objection and response deadlines are
necessary due to the looming trial date. D.AK. L.M.R. 6(a) authorizes the court to alter the
standard objection deadlines.

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