United States v. Holley

849 F. Supp. 2d 622, 2012 WL 1032487, 2012 U.S. Dist. LEXIS 40967
CourtDistrict Court, E.D. Virginia
DecidedMarch 22, 2012
DocketCriminal No. 2:11cr73-3
StatusPublished
Cited by1 cases

This text of 849 F. Supp. 2d 622 (United States v. Holley) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Holley, 849 F. Supp. 2d 622, 2012 WL 1032487, 2012 U.S. Dist. LEXIS 40967 (E.D. Va. 2012).

Opinion

MEMORANDUM OPINION

REBECCA BEACH SMITH, Chief Judge.

This matter is before the court on Defendant’s Motion to Dismiss Indictment or in the Alternative to Suppress Evidence (“Motion to Dismiss”) and Defendant’s Motion for Severance (“Motion for Severance”), each filed on January 17, 2012. The government filed responses in opposition on January 30, 2012. The court held a hearing on these motions on February 27, 2012, and took the matter under advisement.1 After further review of the evidence that was presented at the hearing, and for the reasons set forth below, the court DENIES defendant’s Motion to Dismiss and Motion for Severance.

I. Factual Background

Xavier Holley was indicted on May 4, 2011, along with co-defendants Montarius Murry, Kevin Stevens, Jr., and Raneisha Sifford. The Indictment charged the defendant with Conspiracy to Interfere with Commerce by Violence, in violation of 18 U.S.C. § 1951; Attempt to Interfere with Commerce by Robbery, in violation of 18 U.S.C. §§ 1951 and 2; and- Use of a Firearm Causing Death During a Violent Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A), (j)(l), and 2.2 On December 17, 2011, the government filed a five-count Superseding Indictment, naming the defendant along with Kevin Stevens, Jr., and Ronald Gober, II. In addition to re-alleging the previous three charges, the Superseding Indictment also charged the defendant with Use and Carry of a Firearm During a Violent Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)® and 2; and a second count of Attempt to Interfere with Commerce by Robbery, in violation of 18 U.S.C. §§ 1951 and 2.3 The allegations stem from the attempted robbery of the Gold Shop in Portsmouth, Virginia, on October 6, 2010, which resulted in the murder of Robert Nelson. See Superseding Indictment 2-6.

Portsmouth Homicide Detective Mark Luck was assigned as lead detective of the Gold Shop investigation. On November 10, 2010, he and his partner, Detective Ralph Ferrell, first interviewed Xavier Holley as part of the investigation at the state circuit court in Portsmouth, Virginia.4 [625]*625The detectives had received information that the defendant had supplied the gun used in the crime in this case. The defendant agreed to be interviewed and was informed of his right to leave the interview at any time. Gov’t Ex. 1, 2:26-2:55.5 The detectives asked the defendant if he knew anything about the gun or the Gold Shop murder, but the defendant consistently denied any knowledge of the crime other than what he had seen on the news. See, e.cj., id. at 33:13-33:18. The detectives repeatedly emphasized that their primary interest was in the weapon, stating: “I want the gun. I don’t care how we get it, I want the gun.” Id. at 26:20-26:25. At one point, Detective Ferrell asked the defendant: “If we can make the burglary charges go away, and the marijuana charges go away, and not charge you with anything else, you walk away a free man, will you give us the gun?” Id. at 32:59-33:10. The detectives also told the defendant that they would believe him, if he said he did not know that the robbery was going to occur. See, e.g., id. at 24:57-25:05. The defendant continued to disavow any knowledge of the gun or the other alleged participants in the crime through the duration of the interview.

Over the next several months, the defendant had repeated interactions with the Portsmouth Police Department, as well as federal authorities, concerning this case.6 Sometime in late January or early February of 2011, Portsmouth Detective James Lowe7 arranged a meeting, along with his partner Detective Hall, with the defendant. At this meeting, Detective Lowe told the defendant that the ease could become a federal one. The defendant then indicated that he wanted an FBI agent present for the discussion, so the meeting was terminated.

On February 25, 2011, the defendant, along with his mother, Deborah Holley, his father, Benjamin Perry, and a family friend, Twe Sisco, met with Detective Luck, Detective Lowe, and FBI Special Agent Wendell Cosenza in the break room of an office building in Portsmouth, Virginia, that houses both the Portsmouth Commonwealth Attorney and some units of the Portsmouth Police Department.8 Special Assistant United States Attorney (“SAU-SA”) Elizabeth Fitzwater9 participated in a portion of the meeting via speakerphone. The defendant was informed that he would be offered a proffer letter governing the terms of his cooperation, but the physical letter was not provided to him at that time. The defendant indicated that he wanted to obtain counsel, and the meeting adjourned with the understanding he would do so. Afterward, the defendant did have a free consultation with an attorney, Richard [626]*626Davis, from the law firm Kozak & Associates, P.C., but did not retain him. SAUSA Fitzwater actually sent Mr. Davis a copy of the proffer letter at issue in the case, after the consultation. See Gov’t Ex. 3.

On March 3, 2011, the defendant, his mother, father, and Twe Sisco voluntarily went to the Walter E. Hoffman United States Courthouse in Norfolk, Virginia, for a meeting with SAUSA Fitzwater, Special Agent Cosenza, Detective Luck, and Detective Lowe. The defendant’s father was unable to enter the courthouse because he did not have any identification. The defendant was not detained or placed in custody at any time during the interview. The defendant was given a copy of the proffer letter and allowed to review it for some period of time with his mother.10 After this review, SAUSA Fitzwater read the letter aloud to the defendant, and asked him if he had any questions. The proffer letter states, in pertinent part, that:

Second, except as provided below, in any prosecution brought by the United States against you, no statements or other information provided by you during the interview session will be admissible against you in the government’s case-in-ehief or at sentencing.
Third, the United States will be permitted to make derivative use of, and pursue any investigative leads suggested by, any statements or information provided by you. Such derivative information can be used against you at any stage of any criminal or civil proceeding.
Finally, your proffer is made in accordance with the understandings set forth herein. No promises, agreements or understandings exist between the parties other than those set forth in this agreement, and no modification of this agreement will have effect unless executed in writing by the parties with the same formalities as in this agreement.

Gov’t Ex. 2, at 1-2.

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United States v. Kevin Stevens, Jr.
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Bluebook (online)
849 F. Supp. 2d 622, 2012 WL 1032487, 2012 U.S. Dist. LEXIS 40967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-holley-vaed-2012.