Price v. Lucas et al

Filing 251

Opinion and Order. Plaintiffs' Motion for Evidentiary Sanctions at Trial (Related doc # 203 ) is denied. Judge Christopher A. Boyko on 4/21/2017.(H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSHAWA WEBB,
HERMAN PRICE,
Plaintiffs,
Vs.
LEE LUCAS, ET AL.,
Defendant.

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CASE NO.1:07CV3290
1:09CV118
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Plaintiffs’ Motions for Evidentiary Sanctions at
Trial (ECF # 203 in case 09-118 and ECF #249 in 07-3290). According to Plaintiffs,
Defendant United States and the federal Defendants assured both the Court and Plaintiffs that
they had turned over to Plaintiffs, in the course of discovery, all relevant documents.
Defendants then moved for summary judgment which was subsequently granted. However,
Plaintiffs claim this was not the case as Defendants had in their possession thousands of pages
of documents, confirming the conclusions of federal investigators that Defendants engaged in
misconduct throughout the Operation Turnaround drug operations, including the Webb and
Price criminal prosecutions. These documents included key statements by Jerrell Bray

describing constitutional violations by Lee Lucas.
Although this Court did not have the benefit of this information when it made its
rulings, the Sixth Circuit did have it because Defendants turned it over post this Court’s
summary judgment rulings. With the benefit of the newly produced evidence, the Sixth
Circuit reversed this Court. Because Defendants failed to produce these key documents, with
no explanation why they did not produce it, sanctions are warranted.
According to Price, he spent two years in prison for a crime he did not commit.
Instead, he was framed by federal and state agents. After the suit was filed, Defendants
sought to bar discovery in the case, contending that the United States had already produced all
relevant documents in its possession, including the entire DEA investigative files and those of
the Richland County Sheriff’s Office.
This one set of documents were tendered by Defendants to Plaintiff’s counsel for use
in all those claims arising out of Operation Turnaround. These same representations were
made in the companion case of Webb v. Lucas. These misrepresentations were made in the
other cases arising out of Operation Turnaround involving other plaintiffs before other judges
in this district. Based on these representations, this Court limited discovery and proceeded to
summary judgment on qualified immunity.
However, on March 13, 2013, Plaintiff learned that these representations by
Defendants were untrue. In Westerfield v. Lucas, Defendants produced thousands of pages of
discovery not previously disclosed that were directly related to Plaintiff’s claims. These
documents were part of the United States’ own investigation of the alleged abuses
surrounding Operation Turnaround. The investigation of these alleged abuses was conducted

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by the United States Department of Justice through the Office of the Inspector General
(“OIG”). As a result of the investigation, the United States criminally prosecuted Agent
Lucas. The OIG investigation included interviews of more than fifty witnesses and the
review of thousands of documents. The OIG prepared a summary report of its investigation
on January 21, 2011. Its conclusions support the allegations in Plaintiff’s Complaint. The
OIG concluded that more than half of those charged in Operation Turnaround were not
present at the drug transactions. In many cases “stand-ins” were used for the controlled buys.
The OIG Report also describes significant evidence that Lucas falsified his reports, provided
false testimony at trials and failed to report exculpatory evidence within his knowledge,
particularly concerning the credibility of Bray and himself in order to convict innocent
citizens, including Price.
The OIG Report attached CD-Roms consisting of thousands of pages of documents.
These included witness statements from Bray wherein he admitted to conspiring with Lucas
throughout Operation Turnaround in order to frame Price and Webb, among others. Bray
admitted Lucas was directly involved in the decision to frame Price and Webb. Although he
later backed off such statements at Lucas’ criminal trial, Bray originally stated that he made
clear to Lucas that Price was not dealing with Bray but rather Bray had a friend of his,
Moxley, bring the drugs. In Webb, Bray told Lucas he was not going to buy drugs off Webb.
In spite of this knowledge, Lucas approved the deal.
Bray also stated Lucas pretended to hear Bray call Price when in fact the call was
faked. The OIG concluded Lucas lied under oath at his own trial about this matter. Bray
further represented that Mayer shot a video of the lead up to the Webb drug buy that included

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a clear shot of the front windshield. Metcalf expressed doubts that Webb was the person in
the car but after Lucas confronted Metcalf, the issue was dropped and no videotape was
found.
According to Plaintiff, there is no justification for the United States or the federal
Defendants failure to produce the OIG Report and supporting materials. It was within the
United States’ exclusive control, was relevant and discoverable. There is also real prejudice
to Plaintiffs because had they had the OIG Report they could have questioned Bray prior to
his passing in 2012.

Prior to the OIG Report, Plaintiffs only had Bray’s trial testimony

exculpating Lucas. Had they had the opportunity to question Bray, Plaintiffs could have
inquired why Bray flipped his testimony or been able to confront or impeach him on the
record.
Plaintiff asks for the following sanctions:
1)

The Government should be required to answer whether the AUSAs litigating Price
and Webb have knowledge of the Bray statements and OIG Report during discovery
and prior to moving for summary judgment. If not, when exactly did defense counsel
AUSAs learn of them and why were they withheld until after summary judgment was
briefed.

2)

Defendants should be barred from introducing any Bray testimony from Lucas’
criminal trial indicating Bray acted alone and that Lucas was not complicit in framing
Operation Turnaround suspects. This is only fair since the Defendants’ failure to
timely provide the OIG Report and supporting materials prevented Plaintiffs from
impeaching Bray on the very testimony they would seek to offer into evidence.

3)

An adverse jury instruction that reads as follows:
1. The United States was obligated to turn over to Plaintiffs all of the relevant
documents and evidence it had in its possession relating to this action.
2. The Defendants represented to the Court that it turned over all relevant
documents and evidence to Plaintiffs that it possessed.

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3. The Court accepted the Defendants’ representations that the United States
had turned over all of the relevant documents and evidence to Plaintiffs.
4. The Defendants’ representation that it had turned over all of the relevant
documents and evidence to Plaintiffs was false. The Defendants had not turned
over all of the relevant documents and evidence to Plaintiffs. The documents
that the Government improperly withheld included the investigation report of
United States Department of Justice, Office of the Inspector General,
pertaining to Operation Turnaround, and interview statements taken as part of
that investigation from, among other people: Jerrell Bray; Defendants Lucas,
Metcalf and Cross; local law enforcement officers Jamaal Ansari, Dawn
Brown, Larry Faith, Matt Mayer, and Perry Wheeler; DEA Agents Greg
Brodersen, Thomas Verhiley, and Defendant Lucas’ supervisor, John Ferster;
and Assistant United States Attorneys Ron Bakeman, Blas Serrano, and Greg
White.
5. You the jury are permitted, but not required, to draw the inference that the
reason the United States falsely represented to the Court and to the Plaintiffs
that it had turned over all the documents when in fact it had not was because
the Defendants believed the documents would be harmful to their position.
Defendants’ Response
Defendants oppose Plaintiffss Motions, contending that they did not improperly
withhold the OIG Report and supporting documents. Defendants refer to the long and
complicated discovery process in this case and the surrounding investigations arising from the
drug investigations by the Richland County Sheriff’s Office and federal agencies in 2005. As
a result, many arrests and prosecutions occurred in 2005 and 2006. After his arrest in 2007
for shooting another individual, Bray informed his public defender that he was a participant in
a conspiracy with state and federal officials to frame innocent people for drug dealing. He
further alleged Lucas falsified evidence and falsely accused innocent people. This led to an
investigation by the Department of Justice through the OIG and ultimately led to criminal
charges against Lucas on eighteen counts of providing false information in his DEA reports or
in his testimony against nine different defendants. Lucas was acquitted of all charges.
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At Lucas’s administrative proceedings resulting from the OIG investigation, the
Department of Justice’s final findings and conclusions were entered into a stipulated
Settlement Agreement. As part of the Agreement, Lucas was given a 45 day suspension for
failure to include all required information in his DEA-6 Reports in matters related to Noel
Mott and Roosevelt Williams.
Given the broad ranging scope of the allegations in this and other similar cases arising
from Operation Turnaround, the parties coordinated discovery. It was initially stayed pending
Lucas’ criminal trial. After his acquittal, the United States obtained the trial transcript from
the Lucas criminal proceeding along with over 22,000 pages of all the exhibits.
Although discovery was stayed until resolution of the qualified immunity briefings
and discovery is restricted by law when issues of qualified immunity are raised, the United
States provided all the above information to Plaintiffs’ counsel without cost.

There was no

mistaking what documents would be produced as the Court’s Orders in Lucas’ criminal case
and in the civil case of Danny Brown, another Operation Turnaround Defendant, reflect the
parties agreement as to what was going to be produced. After qualified immunity issues were
resolved by the Sixth Circuit in other cases arising from Operation Turnaround, full discovery
commenced and the parties reached a global resolution of all outstanding discovery requests
in those cases. The United States then produced the OIG Report and exhibits, Lucas’s
personnel file from 2010-2012, the final stipulated agreement in Lucas’s administrative
action, the DEA final report on Cross with exhibits, and Cross’s personnel file.
The United States’s voluntary production of Lucas’s transcript and exhibits along with
its supplemental production of documents pursuant to the stipulated agreement were intended

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to prevent piecemeal discovery while providing Plaintiffs the discovery needed to address
issues of qualified immunity. The United States contends it made no misrepresentations as
evidenced by its submission of 2011 in response to the Court’s Order that Plaintiffs submit a
list of the discovery sought concerning the individual claims of qualified immunity. Nothing
by the Defendants indicated they had provided all materials. They complied with exactly
what they said they produced, which included all the investigative materials from the
Mansfield drug transactions, all proffers to Defendants, statements by Bray relating to the
drug transactions, all audio and visual recordings of the drug transactions and expert reports
concerning the alteration of recordings. It further included the entire internal files of the U.S.
Attorney’s Office in Cleveland, the DEA internal files, Richland County Sheriff and other law
enforcement agencies involved in Operation Turnaround. Not only did they provide all this
but also the transcript and all exhibits in the Lucas criminal trial and transcripts and exhibits
in six criminal trials arising from Operation Turnaround.
As evidenced by Plaintiff Webb’s own admission in 2011, Plaintiffs acknowledged
that Defendants only produced limited discovery, therefore, Plaintiffs cannot now assert they
believed they had received all relevant discovery. Furthermore, the existence of the OIG
investigation was public knowledge in 2009 when in a press release issued by the U.S.
Attorney for the Western District of Pennsylvania announcing the indictment against Lucas,
the statement included that it was the result of an OIG investigation. In fact, the individual in
charge of the OIG investigation testified at Lucas’s criminal trial and was questioned
extensively about the OIG investigation and her numerous interviews with Bray. Having in
their possession the trial transcripts containing this testimony, Plaintiffs never requested the

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OIG Report when the Court ordered Plaintiffs to list the discovery they sought from
Defendants. Bray was still alive at that time, yet Plaintiffs never requested the OIG
investigation.
Defendants oppose the proposed sanctions submitted by Plaintiffs. According to the
United States no adverse jury instruction may be entered against it because Plaintiffs’ FTCA
claims must be tried to the bench. As no misrepresentations were made Plaintiffs suffered no
prejudice as the documents produced by Defendants were exactly what they stated they would
provide, therefore, no sanctions are warranted. The OIG Report was not provided to
Plaintiffs earlier because it was not an exhibit at Lucas’ criminal trial because it was not
completed until January 2011. It was produced in 2013 only after a valid discovery request
was made for it. Finally, there was nothing disclosed in the OIG Report that was not
previously disclosed in particular as it relates to the conflicting statements of Bray.
Therefore, for all these reasons, the United States asks that the Court deny Plaintiff’s Motion.
Plaintiffs move for sanctions to include barring Defendants from using certain
evidence as described above at trial and Plaintiffs are entitled to an instruction outlining
Defendants’ allegedly improper conduct. “A court has inherent authority to sanction badfaith conduct in litigation.” Chambers v. NASCO, Inc., 501 U.S. 32, 49, (1991); Roadway
Express, Inc. v. Piper, 447 U.S. 752, 766-67, (1980).
Having reviewed the Motion, Opposition Briefs and Replies along with the rulings in
the case, the Court’s docket and discovery orders, the Court declines to exercise its inherent
authority to sanction Defendants for not producing the OIG Report during the limited
qualified immunity discovery period.

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This case has presented many unique and difficult challenges primarily due to the
number of intertwined cases arising from Operation Turnaround. The parties proceeded with
discovery often in a global fashion. Typically, qualified immunity issues are resolved without
any discovery because the very intent is to free municipalities and government entities from
the cost and expense of discovery on largely issues of law. The Supreme Court in
Crawford El v. Britton, 523 U.S. 574, 598–99, 118 S. Ct. 1584, 1597, 140 L. Ed. 2d 759
(1998), described the process for addressing qualified immunity and the district court’s
authority on discovery to address the issue as follows:
If the defendant does plead the immunity defense, the district court should
resolve that threshold question before permitting discovery. Harlow, 457 U.S.,
at 818, 102 S.Ct., at 2738. To do so, the court must determine whether,
assuming the truth of the plaintiff's allegations, the official's conduct violated
clearly established law. Because the former option of demanding more
specific allegations of intent places no burden on the defendant-official, the
district judge may choose that alternative before resolving the immunity
question, which sometimes requires complicated analysis of legal issues.
If the plaintiff's action survives these initial hurdles and is otherwise
viable, the plaintiff ordinarily will be entitled to some discovery. Rule 26 vests
the trial judge with broad discretion to tailor discovery narrowly and to dictate
the sequence of discovery. On its own motion, the trial court “may alter the
limits in [the Federal Rules] on the number of depositions and interrogatories
and may also limit the length of depositions under Rule 30 and the number of
requests under Rule 36. The frequency or extent of use of the discovery
methods otherwise permitted under these rules ... shall be limited by the court
if it determines that ... (iii) the burden or expense of the proposed discovery
outweighs its likely benefit, taking into account the needs of the case, the
amount in controversy, the parties' resources, the importance of the issues at
stake in the litigation, and the importance of the proposed discovery in
resolving the issues.”
Rule 26(b)(2).
Additionally, upon motion the court may limit the time, place, and
manner of discovery, or even bar discovery altogether on certain subjects, as
required “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Rule 26(c). And the court may also
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set the timing and sequence of discovery.
Thus, Plaintiffs were not entitled to full discovery at the qualified immunity stage.
Even so, as a result of Defendant Lee Lucas’s criminal trial, the parties agreed to provide
Plaintiffs with the transcripts, evidence and exhibits produced at his trial. This was unique in
that all the relevant defendants in the above civil actions testified in the Lucas criminal trial
and Lucas’s alleged misconduct in the above captioned cases was tried in the criminal
proceeding. The result was an enormous amount of evidence available to Plaintiffs that they
would not normally have had access to in a standard qualified immunity case.
On March 3, 2011, the Court granted limited discovery on qualified immunity and
ordered the parties to submit their proposed discovery plans. Plaintiff in Price sought to
depose thirteen individuals, including Kim Thomas, the investigator on the OIG Report and
Bray. After conferring with counsel and hearing the parties’ representations on how to
proceed with discovery, the Court granted limited discovery due to the unprecedented amount
of discovery already provided Plaintiff. This included sworn testimony from most of the
witnesses identified by Plaintiff Price in his April 27, 2011 Report. The Court limited the
discovery to interrogatories.
In Webb, Plaintiff sought the deposition of Defendants and the Court ordered
interrogatories in light of the unprecedented discovery already provided.
Based on the substantial discovery provided Plaintiffs resulting from the Lucas
criminal trial, the Court limited additional discovery on qualified immunity to interrogatories.
Webb did not seek to depose Bray, but Price did. Regardless, the Court acted within its
discretion to limit the qualified immunity discovery to interrogatories of those named

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individuals in Plaintiff’s 2011 discovery requests in light of the United States Supreme
Court’s express holding that trial court’s may narrowly tailor qualified immunity discovery.
After the Sixth Circuit reversed in part and remanded the case for further adjudication
the Court set a full discovery schedule. While Bray’s untimely death presents problems for
all parties in the litigation based on his conflicting statements, the Court finds that sanctions
are not justified even thoughPlaintiffs do not have the opportunity to depose him.
Furthermore, the Court has not found sufficient evidence of Defendants’ bad faith. Plaintiffs
point to the representations by the Defendants as to what had been provided to Plaintiffs in
discovery as clearly deceptive. For instance, in Lucas’s December 19, 2011 Response to
Plaintiff’s List of Discovery it sought to obtain, he recounted:
At this juncture, and since the conclusion of the Lucas criminal trial in
February of 2010, so much discovery has been made available to plaintiff
Webb that the Sixth Circuit’s Westerfield decision is rendered moot. Since that
decision has been decided, plaintiff Webb has been provided with almost 4,000
pages of trial transcript from the Lucas criminal trial. Also provided to him
were all of the trial exhibits admitted into evidence at the Lucas criminal trial,
consisting of over 22,000 document pages.
These documents and exhibits included, among other things, the entire
internal files of the United States Attorney’s Office in Cleveland, United
States Drug Enforcement Administration, Richland County Sheriff’s Office
and the other law enforcement agencies involved in the Mansfield cases. The
following categories of evidence has been provided to plaintiff on all of the
Mansfield deals, including the one deal on October 14, 2005 that Webb was
alleged to have been involved: all investigative reports of the undercover
transactions and proffers of the Mansfield defendants, the trial testimony of
Bray, including on the October 14, 2005 deal, all audio and video recordings
of the Mansfield transactions, as well as complete transcripts of these
recordings. (Emphasis added).
However, the OIG Report was completed in January of 2011. Thus, the parties had it
in their possession when Lucas made the above representation.

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The Court finds that there is no clear indication of Defendants’ bad faith sufficient to
warrant the harsh sanctions Plaintiffs seek. It is unclear whether the Defendants’
representation that they had produced the internal files of the DEA included the OIG Report
which was produced by the Department of Justice and the Office of the Inspector General.
Moreover, the limited discovery on qualified immunity in this case did not require Defendants
to turn over everything. Unquestionably, Defendants provided significant discovery on
qualified immunity. Plaintiffs had the Lucas trial transcripts wherein the OIG investigator
described in detail the investigation of Lucas. Furthermore, this Court’s qualified immunity
discovery orders only permitted limited interrogatories in light of all the materials already
provided. Lastly, Plaintiffs are not prejudiced at trial having obtained the OIG Report during
full discovery.
For the foregoing reasons, the Court denies Plaintiffs’ Motions.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: April 21, 2017

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