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United States v. Barber

United States District Court, S.D. Alabama, Northern Division

February 15, 2018

UNITED STATES OF AMERICA
v.
JASON BARBER, Defendant.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on defendant Jason Barber's Motion to Suppress (doc. 20), Motion for Trial in the Northern Division (doc. 21), and Motion for Disclosure of 404(b) Materials (doc. 22). All three Motions have been briefed and are now ripe.

         I. Rule 404(b) Disclosures.

         In his Motion for Disclosure of 404(b) Materials, Barber requests that this Court “direct the Government to give pre-trial notice … of its intention to introduce evidence alleging Defendant's commission of other crimes, wrongs, acts and misconduct.” (Doc. 22.) The Government's response does precisely that by notifying Barber that it may “introduce the facts of, and the facts underlying, Barber's prior arrests” (doc. 27, at 2), as set forth on pages 10 and 11 of the Report on Probation Office Conference (doc. 25). The Government having thus complied with its Rule 404(b) pretrial disclosure obligations, no judicial directive is necessary to achieve such compliance. Therefore, the Motion for Disclosure of 404(b) Materials is moot.

         II. Motion for Trial in the Northern Division.

         Next, Barber moves for an order fixing the place of trial in the Northern Division of this District. As grounds for this request, Barber asserts the following: (i) the alleged offense occurred in Uniontown, Alabama, which lies in Perry County in the Northern Division; (ii) Barber (who is currently on conditions of release) resides in Uniontown, Alabama; and (iii) all of Barber's witnesses and all or most of the law enforcement witnesses reside in and around Uniontown, Alabama. In response, the Government concedes that Barber and any witnesses he may have “probably live in the Northern Division” and that several law enforcement witnesses live in the Northern Division, but also states that “no government witness would object to a Mobile trial.” (Doc. 27, at 1.) The Government generally posits that “prompt administration of justice favors a Mobile setting” (id. at 2), but does not identify any factors or considerations specific to this case that would militate against a Northern Division trial setting.

         Defendant's Motion is governed by Rule 18, Fed.R.Crim.P., which provides that a district court “must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.” Id. The Eleventh Circuit has explained that “[a] district court has discretion to fix the place of a trial in any division within the district.” United States v. Merrill, 513 F.3d 1293, 1304 (11th Cir. 2008); see also United States v. Dees, 603 Fed.Appx. 777, 779 (11th Cir. Feb. 26, 2015) (finding no abuse of discretion where district court “considered all of the Rule 18 factors, ” including convenience of defendant and witnesses, as well as issues concerning prompt administration of justice, such as matters of security and the state of the court's docket generally, including the impact of trial location on timely disposition of the instant case and other cases).

         After careful consideration of the Rule 18 factors, the Court agrees that a trial setting in the Northern Division is appropriate in this case. The convenience of Barber and witnesses strongly favors conducting the trial in Selma, rather than in Mobile. The convenience of the victim is a non-factor because this case does not involve a known or identifiable victim. And “prompt administration of justice” considerations do not counsel in favor of a Mobile setting here to a greater extent than they have in other recent cases in which judges of this District Court have fixed trials in Selma. Accordingly, Barber's Motion for Trial in the Northern Division (doc. 21) is granted. Pursuant to Rule 18, Fed.R.Crim.P., venue of Barber's trial is fixed for the federal courthouse in Selma, Alabama, in the Northern Division of this District.

         III. Motion to Suppress.

         Also pending is defendant's Motion to Suppress, which is directed at certain evidence seized from Barber's apartment and vehicle on or about March 26, 2017.[1]

         A. Circumstances of Issuance and Execution of Search Warrant.

         Record facts demonstrate that on March 24, 2017, Uniontown Police Department Lieutenant Adrian D. Watters submitted an Affidavit for Search Warrant (doc. 20-1) to Fourth Judicial Circuit Judge Donald McMillian. The Affidavit reflects that Lt. Watters had arranged for a confidential informant (“CI”) to purchase marijuana from Barber at “the apartment at 121 Hare Circle Uniontown, Al” on March 16, 2017, and that Lt. Watters gave the CI $10 for that purpose. (Doc. 20-1.) Although the Affidavit is typewritten, the last two digits of the address appear to have been added by hand. There is no indication in the record as to when, where, or by whom such additions or corrections to the address listed in the Affidavit were made. According to the Affidavit, the CI “went to the resident [sic] where Jason Barber resides and purchased a plastic bag containing a green leafy substance, ” which he turned over to Lt. Watters at a designated “secret location” once the transaction was completed. (Id.) The Affidavit is devoid of any other details or information.

         At 5:30 p.m. on March 24, 2017, Judge McMillian issued a Search Warrant authorizing a search of “the premises at 121 Hare Circle” for the purpose of seizing “illegal narcotics, marijuana, money and etc.” (Doc. 20-2.) Similar to the Affidavit, the last digit of the address listed on the Search Warrant appears to be a handwritten addition or correction. Once again, the record lacks any explanation as to when, where or by whom that modification was made.

         Two days later, Uniontown Police Department officers executed the Search Warrant at the residence located at 201 Hare Circle, Apartment 121, in Uniontown. Lt. Watters arrived on the scene shortly after other officers entered the home, which was occupied by Barber and a female companion. The officers found and seized a .38 caliber Rossi revolver in Barber's bedroom. They also searched an unlocked vehicle parked near the back entrance to Barber's apartment, which vehicle Lt. Watters recognized as belonging to Barber because he had witnessed Barber driving it during his investigation. (That said, it is not ...


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