United States v. Dodge

803 F. Supp. 559, 1992 U.S. Dist. LEXIS 14379, 1992 WL 234923
CourtDistrict Court, D. New Hampshire
DecidedAugust 24, 1992
DocketNo. CR-91-63-18-S
StatusPublished
Cited by1 cases

This text of 803 F. Supp. 559 (United States v. Dodge) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dodge, 803 F. Supp. 559, 1992 U.S. Dist. LEXIS 14379, 1992 WL 234923 (D.N.H. 1992).

Opinion

ORDER

FUSTE, District Judge.

This case is a multi-cdunt criminal prosecution against sixteen remaining defendants, for a continuing criminal enterprise and drug conspiracy. Several firearms violations are also charged. The indictment mentions that defendants, some of whom allegedly belong to the Hells Angels Motorcycle Club, influenced other motorcycle groups and together distributed large quantities of methamphetamine, marijuana, tetrahydrocannabinol (THC), and mescaline, Schedule I or II controlled substances, in New Hampshire and other places. The government claims that the drug business generated substantial profits laundered through legitimate businesses and that drugs were supplied as a reward to loyal conspirators and denied to those failing to [561]*561perform as expected. The indictment mentions the use of threats, intimidation, beatings, and other forms of violence in defense of and to protect the drug business, the thwarting of investigative efforts by law enforcement, the threatening of witnesses and jurors, and the possession of weapons to accomplish the above.

Defendant R. Steven Dodge moves the court to dismiss the indictment against him based on alleged prosecutorial misconduct. (Docket Document No. 679). Specifically, he claims that state law enforcement officials, at the behest of the United States Attorney’s office, interfered with his right to counsel, to prepare a defense, and to due process. The government filed an opposition. Based on our review of the parties’ submissions and for the reasons outlined below, we deny defendant’s motion.

I.

As a result of matters discussed after informal status conferences held June 17 and 18, 1992, and pursuant to a written motion filed on June 25,1992, Docket Document No. 609, this court granted defendant’s motion requesting that we approve the contracting of private investigator James Lennon for purposes of trial preparation pursuant to 18 U.S.C. § 3006A(e)(l). (Docket Document No. 633).

On July 1, 1992, Lennon received a phone call from Frank Kenney, an auxiliary New Hampshire State Trooper. Kenney informed Lennon that one of the persons he was investigating, Kenneth Anderson, was in the Federal Witness Protection Program. Kenney inquired as to why Lennon was looking for Anderson. Lennon responded that he was providing investigative services for attorney Paul Garrity and was not looking for Anderson per se, but rather investigating his background. Kenney warned Lennon that if he did anything illegal in his investigation, he would place his investigator’s license in jeopardy. Kenney also requested that Lennon speak with state trooper Peter Hilchey. Lennon replied that, prior to speaking with Hilchey, he wished to speak with attorney Garrity. Kenney responded that Lennon should speak with Hilchey first.

A few minutes later, Lennon received a phone call from Hilchey. Hilchey requested that Lennon meet with him and Trooper Kenney the following day at the United States Attorney’s Office in Concord, New Hampshire. Hilchey also warned that Lennon should choose between protecting himself and his license, attorney Garrity or a member of the Hell’s Angels. Again, Lennon repeated his wish to contact attorney Garrity prior to any meeting with the troopers so as to avoid any disclosure which might affect the attorney-client privilege between Garrity and- Dodge.

The next day, Hilchey again-called Lennon requesting a meeting that afternoon. Hilchey explained that the troopers were interested in what Lennon’s instructions from attorney Garrity were and whether they were carried out. The officer also questioned the legality of Lennon’s investigation. When Lennon asked what would happen if he did not attend the meeting, Hilchey responded that Lennon would be deemed “uncooperative” and the investigation would be carried to the “next step.” Lennon again informed the officers of his desire to speak with attorney Garrity. Hilchey replied that it would be better for Lennon to speak with his own attorney.

Lennon then contacted attorney Garrity and explained the substance of his conversations with Hilchey. Lennon next called Hilchey and canceled the tentatively-scheduled meeting. Lennon also consulted with another attorney, Bruce Kenna, to seek independent advice. When Hilchey later called Lennon, the latter informed the officer that if he had any further questions, he should contact attorney Kenna. Hilchey responded that he would pass the information on to the Assistant United States Attorney (“AUSA”) handling the case.

In its opposition, the government explained that it had received information from its sources that a “contract” had been put out to kill government witnesses Kenneth and Joanne Anderson and that members of the Hell’s Angels were actively searching for them. Their conversations [562]*562with Lennon were for the purpose of investigating this angle and ruling out any relation to the threat. According to the government, once satisfied that the investigator’s activities posed no threat to the Andersons, no further contact was made.1

II.

“Dismissal of an indictment is an extreme remedy, appropriate only in cases of ‘serious and blatant prosecutorial misconduct that distorts the integrity of the judicial process.’ ” United States v. Font-Ramirez, 944 F.2d 42, 46 (1st Cir.1991) (quoting United States v. Giorgi, 840 F.2d 1022, 1030 (1st Cir.1988)) (quoting United States v. Ogden, 703 F.2d 629, 636 (1st Cir.1983)), cert, denied sub nom Ramirez v. United States, — U.S. —, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992). “The basic rule is that, because of the constitutionally mandated independence of the grand jury and the prosecutor, courts should be reluctant to dismiss an indictment.” Ogden, 703 F.2d at 636. The dismissal of an indictment is an infrequent occurrence and is used largely “as a prophylactic tool to discourage further misconduct of a like nature.” Giorgi, 840 F.2d at 1030. See also United States v. Houghton, 554 F.2d 1219, 1224 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). Before dismissing an indictment based on prosecutorial or governmental misconduct in the context of grand jury proceedings, the First Circuit has opined that the misconduct must be sufficiently egregious so as to “deceive”, “overreach”, or “overbear the will” of the grand jury. United States v. Rodriguez, 738 F.2d 13, 16-17 (1st Cir.1984). Applying these standards to the defendant’s claim, we find that the actions complained of do not rise to the level required to apply the remedy of dismissal.

First, we note that defendant raises no challenge to the grand jury proceedings leading up to the indictments nor does he challenge the indictment itself. We, therefore, “begin with the premise that an indictment, valid on its face, returned by a legally constituted grand jury, calls for a trial on the merits.” Rodriguez, 738 F.2d at 16; United States v.

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Bluebook (online)
803 F. Supp. 559, 1992 U.S. Dist. LEXIS 14379, 1992 WL 234923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dodge-nhd-1992.