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United States v. Anhalt

United States District Court, M.D. Tennessee, Nashville Division

October 2, 2019

UNITED STATES OF AMERICA,
v.
GEORGE ANHALT, JR.

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER United States District Judge

         The Government has filed a Motion in Limine to Prohibit the Defendant from Presenting an Entrapment Defense (Docket No. 177), to which the defendant has filed a Response (Docket No. 194), and the Government has filed a Reply (Docket No. 204). For the reasons set out herein, the motion will be denied.

         I. BACKGROUND

         On August 30, 2019, Anhalt pleaded guilty to five of the nine counts he was facing in the Government's Second Superseding Indictment. (Docket No. 190.) Among the remaining charges is Count One, which alleges:

Beginning not later than on or about May 24, 2018, through on or about June 10, 2018, in the Middle District of Tennessee, GEORGE ANHALT, JR., did attempt to kill another person, with intent to prevent the attendance and testimony of the person in an official proceeding, that being Case Number 3:17-cr-00220 in the Middle District of Tennessee, and to prevent the communication by the person to a law enforcement officer and judge of the United States of information relating to the commission and possible commission of a Federal offense, that being a conspiracy to distribute and possess with intent to distribute controlled substances.

         In violation of Title 18, United States Code, Sections 1512(a)(1)(A) and (C). (Docket No. 152 at 1.) Specifically, the Government anticipates putting on evidence that Anhalt participated in what appeared, to him, to be a plot to administer a lethal overdose of controlled substances to a witness cooperating in the federal prosecution of one of Anhalt's associates, Darrell Lockridge. That witness was, in fact, an invention of law enforcement, with whom Lockridge was cooperating in a sting directed at Anhalt.

         The events leading up to the sting appear to have begun in mid-2017, when another associate of Anhalt's, Juan Carranza, was charged in state court with the especially aggravated kidnapping of Kayla Biggs.[1] Biggs apparently was, or appeared to be, cooperating with the State of Tennessee in the prosecution, having testified against Carranza in his preliminary hearing. On October 10, 2017, Biggs died of what appeared to be a lethal drug overdose. In May of 2018, Lockridge, who had been indicted on a drug conspiracy charge and had agreed to cooperate with the Government, told federal agents that Anhalt had claimed to have been involved in administering a fatal overdose to Biggs in order to prevent her from testifying against Carranza. Lockridge and the agents agreed to work together to gain evidence against Anhalt. They decided, however, that they would not limit their efforts to evidence about Biggs, but would solicit Anhalt to commit a similar killing of a supposed witness against Lockridge

         On May 24, 2018, Lockridge made a recorded phone call from jail to Anhalt. The Government has provided a transcript of the call. (Docket No. 177-1.) In the call, Lockridge claimed to Anhalt that someone whom Lockridge knew through an associate was “in [his] paperwork, ” meaning that the man was cooperating with law enforcement against Lockridge. (Id. at 4.) Starting from early in the conversation, Lockridge appears to have been suggesting, somewhat elliptically, that something needed to be done about the witness. At one point, Lockridge complained, “I don't even know how to say it.” Anhalt responded, “Uh, I don't know either.” (Id. at 5.) Lockridge told Anhalt that he considered Anhalt one of “the only motherf***ers I got that I can really just count on for anything.”[2] (Id.) The two discussed the issue in oblique terms a bit more and, although Lockridge had not, at that point, requested that anything specific needed to be done, Anhalt eventually said “You don't need to say anymore. I already know.” (Id. at 7.)

         After some more back and forth discussion in which Lockridge raised a number of concerns about his situation, Anhalt responded “Uh, I mean, whatever you want, man. You know, you know you're my boy. I got you. You know what I'm saying?” (Id. at 8.) After some cross-talk, Anhalt asked, “I mean, it's just, you know, do you want, do you want it to be a permanent solution, or, um, you know or just-. . . .” (Id. at 9.) Lockridge replied, “Yeah. That's the only way. You know what I'm saying?” Anhalt responded, “Okay. I got you.” Lockridge pressed again, “It-cause if not, if not-then if it ain't permanent then he can-you know what I'm saying?” Anhalt said, three more times, “I got you.” (Id. at 9.) Anhalt said he would look into the matter, and the conversation eventually concluded. (Id. at 9, 11.) During a second call, Lockridge apparently gave Anhalt a number to contact regarding the plan. That number, unbeknownst to Anhalt, went to an undercover law enforcement agent. (Docket No. 177 at 4.)

         The Government has previewed the evidence of the ongoing interactions between Anhalt and the undercover agent, although it has done so largely without citation to the record. The communications apparently involved several text messages and a total of nine phone conversations, in which it was allegedly agreed that Anhalt would provide two doses of drugs to be given to the witness, one of which would be normal and one of which would be lethal. (Docket No. 177 at 4-5; see, e.g., Docket Nos. 204-1, 204-2.) On June 7, 2018, Anhalt and the agent met in person and discussed the plan. At the conclusion of the meeting, the agent allegedly paid Anhalt $500 as a down payment for the doses to be used in the killing. (Docket No. 177 at 9.) Finally, on June 10, 2018, Anhalt and the agent met again. The agent allegedly gave Anhalt cash and two firearms as the rest of his payment, and Anhalt gave the agent the two doses. Anhalt was arrested immediately after the agent left. (Id. at 10.) After he was arrested, Anhalt was questioned, and he denied involvement in the killing of Kayla Biggs, explaining that, any time he had boasted of his involvement, he had merely been falsely trying to “t[ake] credit” in order to “look bad on the streets.” (Docket No. 194 at 4.) His counsel has previewed evidence suggesting an alternate theory of Biggs' death that did not involve Anhalt in any way. The Government now seeks to prevent Anhalt from presenting evidence on an entrapment defense or receiving a jury instruction with regard to that defense at trial. (Docket No. 177.)

         II. LEGAL STANDARD

         The Government characterizes its motion as “only asking this Court to make a pre-trial finding regarding relevance” of evidence related to entrapment. (Docket No. 204 at 6.) Evidence is “relevant” if it bears on a fact that “is of consequence in determining the action.” Fed.R.Evid. 401(b). As applied to this case, that means that the Government, to prevail on its motion, must show that facts relating to an entrapment defense will not be “of consequence in determining the action, ” because the defense will categorically be unavailable to Anhalt.

         Because the Government has chosen to raise this issue prior to trial, the court must make any such determination based only on a limited preview of the evidence. Ultimately, however, it is up to the court, not the Government, to determine when this issue should be resolved. When the Government seeks to raise “[q]uestions of relevance and the sufficiency of the evidence to establish a given defense” in a pretrial motion, the court may, if it deems it necessary, deny the motion so that the underlying issues can instead be “raised in the ordinary course” of trial. United States v. Meredith, No. 3:12CR-143-S, 2014 WL 897373, at *2 (W.D. Ky. Mar. 6, 2014).

         III. ...


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