Virginia Lawyers Weekly VA Lawyers Weekly
Even though late disclosure of favorable evidence was an inadvertent oversight by prosecutors, a federal judge says the omission constituted suppression of Brady material that required dismissal of a firearm-related charge against an accused drug kingpin.
The recently disclosed video of an interview with a co-defendant undermined the government’s contention that the defendant obtained guns to support his drug enterprise, the judge said.
In the interview, the co-defendant said the guns were his and that the defendant was not a “gun guy,” according to the judge’s Jan. 4 opinion.
The opinion from U.S. District Judge Michael F. Urbanski is United States v. Jordan (VLW 020-3-651).
‘Kingpin’
A Roanoke Valley drug enforcement unit investigated Monta Jordan for suspected distribution of cocaine, methamphetamine and heroin during 2016 and 2017, according to Urbanski’s opinion.
Officers found 4.5 pounds of fentanyl in a car owned by Jordan on a return trip from New York, according to a news release issued in February after Jordan’s conviction by a Roanoke federal jury.
Jordan was arrested after a police pursuit in August 2017 where he was seen throwing packages of sham drugs off a bridge after receiving the packages in a controlled delivery, authorities said.
Prosecutors said Jordan ran an extensive drug distribution network. He was convicted Feb. 25 of conspiring to distribute heroin, fentanyl, methamphetamine and cocaine, possession of fentanyl with intent to distribute, attempted possession of cocaine and heroin with intent to distribute and possession of firearms in furtherance of the drug conspiracy, prosecutors said. A government news release labeled him a “drug kingpin.”
Guns at issue
Jordan cried foul. Often writing his own pleadings, he claimed police burglarized his home to force him to contact “his people” while he was under surveillance. He also claimed police fabricated evidence to support search warrants.
The one claim that found traction was Jordan’s allegation that the government intentionally suppressed a recorded interview between DEA agents and Perry Hash, a Jordan confederate, that tended to exonerate Jordan.
Hash and Jordan were longtime friends and sold drugs and guns together since at least 1994, the government contended. On July 1, prosecutors told the court they had located “previously undiscovered” video footage of a 2018 Hash interview.
In the interview, Hash said, “I got the guns, so the guns are on me. I’m not getting anybody else involved with that.” Hash agreed with a DEA agent that Jordan was “not a gun guy.”
‘Suppression’ at issue
The government conceded the video constituted exculpatory material subject to the disclosure requirements of Brady v. Maryland. But the government denied it suppressed the evidence or that timely disclosure would have altered the trial outcome.
DEA agents testified they lost track of the video amidst the ongoing investigation and personnel changes on the investigation team. At a Dec. 1 hearing, Urbanski found there was no evidence of bad faith or intentional misconduct by the government.
“Rather, this was an inadvertent mistake unknown to the government attorneys at the time of trial. Mistakes happen, and there is no hint of prosecutorial misconduct. Indeed, as soon as the government became aware of the existence of the 2018 Perry Hash video, it notified the court and defense counsel,” Urbanski wrote.
But suppression can occur irrespective of the good faith or bad faith of the prosecution, Urbanski said. The diligence of prosecutors and the inadvertence of the DEA error “does not negate suppression,” he said.
While the government argued Jordan had reason to know there was an undisclosed exculpatory interview of Hash, that information did not constitute knowledge of the substance of the video sufficient to avoid a suppression finding, the judge said.
Materiality
Jordan contended the video was plainly material to the gun charge but also material to all counts because its disclosure would have affected his defense of the case. Jordan believed the video corroborated his narrative of law enforcement burglarizing his home to illegally obtain search warrants, undermining the admissibility of “a large swath of the government’s evidence,” Urbanski said.
But Jordan never substantiated the claim the burglary was perpetrated by law enforcement, the judge said. Urbanski ruled Jordan had not met his burden of showing the video would have created a reasonable probability of his acquittal on the drug counts.
But the video was material to the firearm charge, Urbanski said. It “unsettles” the reliability of the jury verdict on that count, he said.
“The content of the Perry Hash video bears on this charge directly and undermines the government’s case that Jordan purchased the guns through Hash to support his drug enterprise. In the interview, Hash explicitly and repeatedly claims that he purchased the guns without Jordan’s involvement and that he intended to use them for self-protection given the crime in his neighborhood. He denied ever seeing Jordan possess a firearm and emphasized he had not purchased the firearms for Jordan’s use, though he did admit he would let his friend Jordan use a firearm,” Urbanski wrote.
Dismissing the gun charge, Urbanski set sentencing on the other convictions for March 9.
A spokesman said the U.S. attorney’s office for the Western District of Virginia would have no comment.
Jordan was represented by Louis K. Nagy and A. Gene Hart, both of Harrisonburg. Reviewing details of the opinion, Nagy declined to offer additional comment on the outcome.
