The opinion of the court was delivered by: Phillips/Shirley
This criminal case is presently before the court on the following:
(1) Defendant's objection [Doc. 107] to the Report and Recommendation (R&R) [Doc. 98] filed by the Honorable C. Clifford Shirley, Jr., United States Magistrate Judge, on October 10, 2007;
(2) Government's objection [Doc. 108] to that R&R;
(3) Defendant's motion to suppress statements [Doc. 99];
(4) Defendant's motion to dismiss the indictment on Double Jeopardy grounds [Doc. 101];
(5) Defendant's motion to adopt a prior suppression motion [Doc. 103];
(6) Defendant's motion to dismiss for prosecutorial vindictiveness [Doc. 104]; and
(7) Defendant's motion to exclude a statement [Doc. 105].
The issues raised have been fully briefed by the parties [see Docs. 100, 106, 109, 110, 111, 112, and 113].*fn1 Thus, all of these matters are ripe for adjudication. For the reasons that follow, the court will take the following actions: (1) defendant's objection to the R&R will be overruled and the government's objection will be sustained whereby the R&R will be accepted in part and rejected in part so that defendant's underlying motion to declare the plea agreement void [Doc. 83] will be denied and the government's underlying motion to reinstate count one of the indictment [Doc. 95] will be granted; and (2) all other defense motions will be denied.*fn2
I. Background Information
In order to understand the present posture of this case, a somewhat detailed recapitulation of the background of this case is necessary. On February 18, 2004, a grand jury for this district filed a three-count indictment charging defendant with: (1) being an ex-felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) knowingly, intentionally and without authority possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) knowingly using and carrying a firearm during and in relation to a drug trafficking crime, namely possession with the intent to distribute crack cocaine, as charged in count two, in violation of 18 U.S.C. § 924(c)(1) [see Doc. 1].
On December 7, 2004, the defendant pled guilty to counts two and three of the indictment pursuant to a written "Plea Agreement" [Doc. 46] and an "Agreed Rule 11 Factual Basis" [Doc. 47]. Of particular significance, the Plea Agreement provided that count one would be dismissed at sentencing [see Doc. 46, p.1, ¶ 1]. Pursuant to the Agreed Rule 11 Factual Basis and as noted by the Sixth Circuit, the following underlying facts were stipulated by the parties:
On February 4,[*fn3 ]2004, officers from the Knoxville Police Department ("KPD") were conducting surveillance on Parking Lot F in the Walter P. Taylor Housing Project in Knoxville, Tennessee, in response to citizens' complaints of illegal drug activity. The officers, while surveilling the area, observed a dark colored vehicle being driven with the headlights off. The officers witnessed McCreary-Redd, the driver of the vehicle, leave the vehicle and enter a building.
As McCreary-Redd returned to the vehicle, he was approached by three KPD officers. Police Officer Doyle Lee ("Lee") greeted McCreary-Redd and asked if he could speak with him. McCreary-Redd agreed. Lee then informed McCreary-Redd of the headlight violation and asked to see his identification. McCreary-Redd handed Lee his driver's license. Lee asked McCreary-Redd if he had any weapons or drugs on him, to which McCrearyRedd stated that he did not. Lee then asked McCrearyRedd if he could search him. In response to this request, McCreary-Redd placed his hands in the air and turned around.
As Lee frisked McCreary-Redd, Lee felt a hard object in McCreary-Redd's waistband which he immediately recognized to be a handgun. Lee then yelled "gun" and pushed McCreary-Redd forward onto his car. Thereafter, Lee removed the firearm, a loaded Smith & Wesson 10 mm semiautomatic pistol, from McCrearyRedd's waistband and placed him under arrest. Incident to the arrest, officers recovered a vial attached to McCrearyRedd's key chain that contained approximately three grams of crack cocaine, individually wrapped and packaged.
United States v. McCreary-Redd, 475 F.3d 718, 720 (6th Cir. 2007).
The Plea Agreement contains many fairly standard provisions, the following of which are pertinent to the issues raised by defendant in his pending motions. First, this document is a "cooperation" Plea Agreement, stating as follows:
7. The Defendant further agrees to cooperate fully, truthfully, and completely with any law enforcement agents, including but not limited to personnel of the United States Attorney's office. This cooperation includes but is not limited to meeting with such law enforcement agents or United States Attorney's personnel whenever requested. The Defendant further agrees not to protect anyone who was truly involved and not to falsely implicate anyone who was not truly involved. The Defendant further agrees to testify fully, truthfully, and completely before a federal grand jury, at any trial, or any other time or proceeding if called upon by the United States to do so. The Defendant also knowingly, voluntarily and intentionally waives his right (where applicable) to have an attorney present during the course of his cooperation including questioning.
[Doc. 46, pp.3-4]. In conjunction with the cooperational aspect of the Plea Agreement, paragraph 12 provides as follows:
12. The United States further agrees that any self-incriminating information provided by the Defendant pursuant to his cooperation under this written plea agreement will not be used against the Defendant. The Defendant, however, recognizes that nothing in this plea agreement shall be applied to restrict the use of information
(1) known to the government prior to entering into this plea agreement; (2) obtained from any other source; (3) in any prosecution for perjury or giving of false statements; (4) in the event that the Defendant withdraws from the plea agreement; (5) if there is a breach of the plea agreement by the Defendant; (6) if the Defendant violates any of the terms or conditions of the Court's order setting conditions of release (if applicable); or (7) concerning the Defendant's prior record.
[Id. at pp.4-5 (emphasis added)]. Additionally, paragraph 14 of the Plea Agreement discusses certain appeal rights waived by the defendant:
14. The Defendant further agrees not to file a direct appeal of his convictions or any motions or pleadings pursuant to 28 U.S.C. § 2255. However, he reserves the right to pursue a direct appeal of his sentence. Thus, the Defendant knowingly, intentionally, and voluntarily waives his right to collaterally attack the plea or sentence in the instant case. The Defendant understands that if the Defendant files any such motion, he will have breached the plea agreement and the United States will then have the following options: (1) move to dismiss the motion, (2) be relieved of any obligations under the plea agreement or (3) both. The parties agree that the Defendant retains his right to raise claims of ineffective assistance of counsel or prosecutorial misconduct.
[Id., p.5]. Finally, this document sets forth the usual provision regarding the defendant's failure to comply with the Plea Agreement:
17. If the Defendant fails in any way to fulfill each one of his obligations under this plea agreement, the United States may elect to be released from any or all of its commitments under this plea agreement. The United States may then prosecute the Defendant for any and all federal crimes that he has committed related to this case, including any charges dismissed pursuant to this plea agreement. The Defendant expressly waives any statute of limitations defense and any constitutional or statutory speedy trial defense in such a prosecution. In addition, the Defendant agrees that, in such a prosecution, all admissions and other information that he has provided at any time, including all statements he has made and all evidence he has produced during proffers, interviews, testimony, and otherwise may be used against him, regardless of any constitutional provision, statute, rule, or agreement to the contrary. Finally, the Defendant understands that his violation of the terms of this plea agreement would not entitle him to withdraw his guilty plea in this case. [Id. at pp.6-7] (emphasis added).
It must also be noted at this juncture that the defendant had, in a pretrial suppression motion, raised an extremely interesting and novel issue as to whether the act of raising his hands and turning around under the circumstances could be equated with consent to search his person [see Doc. 17]. Although Judge Shirley agreed with defendant and recommended the suppression motion be granted [see Doc. 23], the district court*fn4 disagreed, affirming in part and denying in part that motion, thereby allowing the seized items (a firearm and drugs) to be entered as evidence but suppressing any statements the defendant made after he was placed in custody for violation of his Miranda rights. [See Doc. 42, pp.14-15]. Nevertheless, the Plea Agreement ultimately reached by the parties was not a conditional one pursuant to Fed. R. Crim. P. 11(a)(2);*fn5 rather, as noted above, the Plea Agreement does not preserve this issue but instead allows the defendant only "the right to pursue a direct appeal of his sentence." [See Doc. 46, p.5, ¶ 14].
Pursuant to that cooperation Plea Agreement, on December 16, 2004, in the presence of his then attorney of record, Kim A. Tollison, Assistant Federal Community Defender, the defendant was interviewed by FBI Special Agent Dave Bukowski and KPD Investigator Ed Kingsbury [see Doc. 109, p.2]. There was no Assistant United States Attorney present for that interview [see id.]. It is undisputed that defendant hoped to obtain a sentencing "break" through his cooperation with law enforcement at that time.
The defendant's sentencing hearing was conducted on February 23, 2005 [see Doc. 53]. Even though the defendant had escaped from a halfway house while on pretrial release and fled to Michigan, the government took the position at sentencing that the defendant had "accepted responsibility for his actions and had made efforts to cooperate with the United States" and therefore the government did "not object to defendant receiving a two point reduction for acceptance of responsibility." [See Doc. 51, p.4]. Consequently, the district court sentenced the defendant to 123 months of incarceration [see Docs. 53-54].*fn6
On March 4, 2005, AFCD Tollison filed a timely notice of appeal from that judgment [see Doc. 55].*fn7 On October 19, 2005, AFCD Tollison filed his final brief with the Sixth Circuit Court of Appeals appealing only the sentence imposed by the district court and not the underlying conviction as specifically allowed by the Plea Agreement. On May 15, 2006, however, the Sixth Circuit granted defendant's motion to dismiss AFCD Tollison, allowing the defendant to proceed pro se. McCreary-Redd, 475 F.3d at 720-21. On that same date, the defendant also filed a pro se supplemental brief attacking the guilty plea itself, asserting that the district court did not properly determine a factual basis for the plea in accordance with Fed. R. Crim. P. 11 [see Doc. 88-3].
II. The Sixth Circuit's Mandate and Subsequent Proceedings
On February 6, 2007, the Sixth Circuit filed its opinion agreeing with the defendant, concluding as follows:
For the reasons stated above, we VACATE the guilty plea on counts two and three and REMAND for pleading anew on the grounds that the district court failed to determine that McCreary-Redd understood the nature of the charges against him.
McCreary-Redd, 475 F.3d at 727. The mandate from the Sixth Circuit was subsequently filed on July 30, 2007 [see Doc. 79].
On August 9, 2007, the defendant made his initial appearance before Judge Shirley [see Doc. 80]. The defendant did not, however, at that time plead anew. Neither did the defendant enter a not guilty plea to the indictment, nor did he file notice of his intent to plead guilty.*fn8 Consequently, a trial date was set for October 18, 2007, and a motion schedule was established [see id.]. On September 10, 2007, a status conference was held before Judge Shirley, during which the defendant requested and was granted leave to file motions [see Doc. 85]. Notably, the defendant did not, at that ...