As a preliminary matter, each of the Defendant's motions discussed in this order violates Local Civil Rule 11-3.2.[1] That rule requires as follows: “All documents shall be formatted for 8½ x 11 inch paper, and shall be numbered on the left margin with not more than 28 lines per page. The lines on each page shall be double-spaced and numbered consecutively with line 1 beginning at least one inch below the top edge of the paper.... ” (Emphasis added.) Any future filings by defense counsel that fail to comply with this rule – or any other Local Rule – may be stricken by the Court and not considered unless and until they are timely and properly filed in compliance with all the applicable rules.

The First Superseding Indictment charges Defendant Joseph Labbad with violation of 21 U.S.C. sections 846, 841(c)(2), conspiracy to possess pseudoephedrine and possession of pseudoephedrine (Count 1); and 18 U.S.C. section 2(a), aiding and abetting. Trial as to Defendant Labbad is set for Tuesday, May 6, 2014 at 9:00 a.m. The Court notes that Defendant Labbad made his initial appearance and was arraigned on the First Superseding Indictment on October 7, 2011, trial was initially set for March 13, 2012, and has been continued at the request of the parties no less than 10 times.

Failure of Proof as to the Motion to Exclude Evidence of August 2002 “Detroit Events” and to Suppress “intercepted Attorney-Client Calls”

Defendant filed the first two Motions discussed below unaccompanied by a declaration from Defendant or other person with personal knowledge of any of the facts upon which they are based. Local Criminal Rule 12-1.1 provides:

Thus, both Motions violate Local Criminal Rule12-1.1, and are unsupported by admissible evidence. This failure to comply with Rule 12.1 is not a mere technical violation, but constitutes a substantive deficit in proof.

1. Defendant's Motion to Exclude Evidence of August 2002 “Detroit Events” (Doc. No. 640.)

This is the third motion the Defendant has brought seeking to bar the Government from introducing evidence Defendant participated in a conspiracy to obtain and distribute pseudoephedrine in Detroit, Michigan in 2002. The Court denied the first motion, filed on November 30, 2012, finding the evidence was admissible as relevant to the issue whether Defendant “acted with the requisite knowledge and intent.” The Court denied the second motion, filed on March 26, 2013, seeking reconsideration. This third attempt lacks merit as well.

*2 The defense now argues the Court should bar the Government from presenting this evidence because the Government has destroyed, or failed to preserve, eight assertedly “key” items of evidence. Defendant offers no evidence in support of this bald assertion; the Motion is not accompanied by his declaration, for example, describing the exculpatory nature of the evidence. This alone is sufficient grounds to deny the Motion. Even if the Court considers the Motion despite its total lack of evidentiary support, however it must be denied for the reasons discussed below.

The items the defense seeks to exclude are:

As to all but item N-14, the electronic organizer, the Government has demonstrated that it has already produced these items in discovery. (SeeEx. E to Govt's Opp'n. to Def's Motion to Exclude Evidence of August 2002 “Detroit Events” (Doc. No. 654).) The Motion is frivolous to the extent it claims the Government has not produced these items or has destroyed them, or that copies of the items do not suffice[2]. Defendant acknowledges the Government retained the two cellular telephones, but complains that in the lengthy period of time during which he was a fugitive, the telephones may lack sufficient power to permit defense counsel to examine their contents. This conveniently overlooks the existence of the two chargers for the telephones, which the Government also maintained and made available to defense counsel to examine. It also is an attempt to shift the blame to the Government for the consequences of Defendant's flight and nearly decade-long fugitive status. At the hearing on this Motion, defense counsel acknowledged he had succeeded in charging the telephones and retrieving information contained on them.

Turning to the electronic organizer, the Government acknowledges this piece of evidence was destroyed in 2009, during the time Defendant was a fugitive, by Task Force Officer (“TFO”) Heppner from the Detroit Police Department. TFO Heppner acted under the mistaken belief that Defendant had been convicted and thus this piece of evidence was no longer needed. The Government argues, however, that (1) Defendant has not met its burden of demonstrating the organizer contained admissible exculpatory evidence; (2) the organizer did not have “exculpatory value” that was apparent at the time of its destruction; and (3) Defendant can testify in his own defense at trial about his activity in Detroit, and thus he cannot show he would be unable to obtain comparable evidence due to the destruction of the organizer. Finally, the Government contends Defendant cannot show TFO Heppner acted in bad faith when he destroyed the organizer, thus defeating Defendant's attempt to prove a constitutional violation.

A. Did the organizer contain exculpatory evidence, and if so, was its exculpatory nature apparent before its destruction?

*3 The Due Process Clause requires the Government to disclose to criminal defendants favorable evidence that is material to guilt or to punishment. See United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). In California v. Trombetta, 467 U.S. 479, 489 (1984), the Supreme Court established a standard to determine when the failure to preserve evidence constituted a due process violation. The Court held that the destroyed evidence must be “material” rather than potentially exculpatory and established a two-part test to determine whether evidence is constitutionally material. First, the unpreserved evidence must “possess an exculpatory value that was apparent before the evidence was destroyed.” Id. Second, the evidence must be “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. In Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988), the Supreme Court further clarified that when evidence is only potentially exculpatory, and not constitutionally material, destruction of evidence will not rise to the level of a constitutional violation unless the criminal defendant shows that the law enforcement officer acted in bad faith when he or she destroyed or failed to maintain the potentially exculpatory evidence.

The Government contends the organizer did not contain even potentially exculpatory evidence, as its contents are analogous to those in a defendant's diary, which would be hearsay if offered by the defendant. Defendant's failure to provide evidentiary support for his Motions is particularly critical as to this one. There is no declaration from Defendant describing what the organizer contains, why it is exculpatory, nor why the information is unavailable from other sources. Moreover, the Motion never provides a clear description of what exculpatory evidence the organizer contains. At one point, for example, the defense argues “[t]he personal organizer is necessary to jog Labbad's memory and help him find people, numbers, and addresses who can support the Rule 404(b) defense.” (Reply in Support of Motion to Exclude Evidence of August 2002 Detroit Events (Doc. No. 659) at 8.) At another, it claims the organizer contains information regarding his daily gambling winnings, comment[s] on clothes he liked and on his etiquette lapses,” which would somehow establish he could not also have been conspiring to distribute pseudoephedrine. (Mot. to Exclude 2002 Detroit Events at 15.)

What Defendant describes certainly is not materially exculpatory evidence, as it is inadmissible hearsay if offered by the defense at trial, and furthermore, no showing has been made that it contains anything remotely like what has been held to be materially exculpatory by other courts who have considered this question. See Olszewski v. Spencer, 466 F.3d 47, 51 (1st Cir. 2006) (witness's written police statement corroborating defendant's alibi was apparently exculpatory, but not irreplaceable); Moldowan v. City of Warren, 573 F.3d 309, 340 opinion amended and superseded on other grounds, 578 F.3d 351 (6th Cir. 2009) (statements by witness to police that discredited victim's identification of defendant as her assailant were materially exculpatory); State v. Burden, 104 Wash. App. 507, 512 (2001)(applying Trombetta and finding that a jacket was materially exculpatory evidence when it was key to defendant's defense of unwitting possession of the drugs in the pocket of the jacket).

Even relying on the description offered by the defense, the information on the organizer does not come close to the sort considered “potentially exculpatory” under the case law. Such information is a far cry, for example, from semen samples which might exculpate a defendant accused of a sexual assault – although in Arizona v. Youngblood, the Supreme Court found the destruction of that evidence did not rise to a due process violation. See 488 U.S. at 58. The defense's argument that this evidence is especially critical because he has been absent from Detroit for a number of years and his memory of events has faded is particularly ill-taken when considered in light of the cause for the delay: Defendant's flight after posting bond and his status as a fugitive for nearly a decade.

*4 Furthermore, given the defense's description of what the organizer contained, it would not have been “apparent” to TFO Heppner that an organizer containing information about Defendant's contacts, gambling winnings, preferences in clothing, and etiquette lapses was potentially exculpatory.

B. Did law enforcement act in bad faith when it destroyed the evidence?

As noted above, Defendant claims the information contained on his organizer was materially, not potentially, exculpatory, although he has submitted no evidence to support that contention. In fact, however, to the extent the motion papers describe the alleged contents of the organizer, it does not appear they are exculpatory at all.

Even assuming for the sake of this Motion that the organizer's information regarding Defendant's gambling winnings, clothing preferences and etiquette lapses, or contact names and telephone numbers, could be considered “potentially exculpatory” evidence, Defendant would be required to show that the Government acted in bad faith when it destroyed the evidence. He has not done so.

The DEA office in Detroit maintained the organizer for seven years after Defendant became a fugitive, fleeing the United States after being released from custody on bond. The defense relies on communications between the Riverside, California DEA agents and the U.S. Attorney's Office, but the Riverside DEA never had possession of the organizer. In September 2009, an Assistant United States Attorney from the Eastern District of Michigan told TFO Heppner that co-defendant Zumot had lost his appeal of his conviction, and TFO Heppner mistakenly understood that Defendant had fled the country after being convicted, rather than before trial. (Ex. D to Govt's Opp'n. to Mot. to Exclude 2002 “Detroit Events”.) In fact, Zumot fled after conviction, while out of custody on bond, and failed to appear for his sentencing. (See Ex. L. to Govt's Opp'n. to Mot. to Exclude 2002 “Detroit Events”.)

Defendant asserts in his Reply that he only need make a showing of bad faith if the evidence was “potentially exculpatory” rather than materially exculpatory. As discussed above, it does not appear that the organizer contained evidence of any exculpatory value at all. But if it did, it was at most potentially exculpatory, and Defendant's reliance on United States v. Toro-Barboza, 673 F.3d 1136 (9th Cir. 2012) is of no avail.

The defendants in Toro-Barbozo were charged with currency reporting violations and cash smuggling. They argued the government had violated their due process rights when it failed to preserve a box containing the duffel bag filled with drugs and currency, and failed to preserve the currency separately rather than depositing it into a financial institution; they claimed the box was materially exculpatory “because a sealed box would show [they] did not know its contents.” The Ninth Circuit disagreed, pointing out that agents had opened the box at the border, so at most, the box would show nothing more than it had been sealed at an earlier point. Noting the difference in applicable standards when the Government suppresses or fails to disclose “material exculpatory evidence” versus when it fails to preserve evidentiary material that is potentially exculpatory, the court found the box containing the duffel bag and currency were not “materially exculpatory, but “only potentially useful,” like the evidence found to be only potentially exculpatory in Arizona v. Youngblood.

*5 Likewise, here the evidence on the electronic organizer is at best, potentially useful, and as in Toro-Barboza, the defense must show bad faith on the part of the Government. And, as in Toro-Barboza, the defense here has made no such showing. As the Ninth Circuit there held: “A due process violation may arise where the government has intentionally destroyed evidence knowing it is of value for the defense against criminal charges. But where evidence is routinely destroyed or lost by the government with no knowledge that evidence is likely exculpatory, and evidence is later sought for testing, the destruction or loss of such evidence is not fundamentally unfair to a defendant and will not offend traditional notions of due process.” Id. at 1150. Even by the defense's own description of the material stored on the electronic organizer – a description unsupported by any declaration or affidavit from Defendant himself – it simply cannot be found here that the Government intentionally destroyed that item knowing it was of value for the Defendant against criminal charges. Rather, TFO Heppner's destruction of the organizer was exactly what the Ninth Circuit described as a routine destruction with no knowledge that evidence – here, evidence consisting allegedly of contacts, telephone numbers, gambling winnings, clothing preference and “etiquette lapses” – was even potentially useful.

Given the lack of evidence of bad faith presented by the defense, and in light of the evidence presented by the Government regarding the circumstances under which the organizer was destroyed, the Court finds Defendant has failed to make the requisite showing of bad faith.

C. Is the evidence available by other comparable means?

The Government argues Defendant cannot show the evidence allegedly stored on the organizer is not available by other means, specifically, through his own testimony at trial or through information stored on one or both of the cellular telephones confiscated. Defendant contends his testimony is no substitute for the information on the organizer because he needs that information to refresh his memory in the first place.

To the extent Defendant has claimed the organizer contains exculpatory evidence in the form of notes regarding his doings and whereabouts in Detroit in 2002, the information in the organizer would not be admissible at trial as it would be hearsay. In any event, as neither of the first two requirements for Defendant's success on this motion have been met, no further discussion of this third element is warranted.

2. Defendant's Motion to Suppress Intercepted Attorney-Client Calls(Doc. No. 649.)

Defendant moves to suppress “any use of intercepted attorney-client calls in May 2001 between Labbad and attorney Nasser Khoury” as well as “the evidence derived from or in any way the fruit of those calls.” (Not. of Mot. to Suppress Intercepted Attorney Client Calls at I-ii.) In the alternative, he seeks discovery of the intercepted attorney-client communications, “all related wiretap applications and court orders, the 10-day reports and any other reports of all intercepted calls, the minimization memorandum(a), all documents and records that show when the government knew that Mr. Khoury was an attorney and it knew he was Labbad's attorney, and o [sic] all the items sought in [various footnotes sprinkled throughout the Memorandum of Points and Authorities]” (Id. at ii.)

The Court DENIES the Motion because (1) it is unsupported by a declaration by Defendant as required by this Court's Local Rules, and thus there is no evidence before the Court supporting the Motion's central assertion, i.e., that an attorney-client relationship existed; (2) the Government does not intend to introduce the calls during its case in chief; (3) it does not appear that the calls were privileged; and (4) the subject matter of the two calls between Defendant and Khoury is unrelated to the issues to be tried in this case. Defendant's “alternate” request for discovery is overbroad, constitutes nothing more than a fishing expedition, and seeks information completely unrelated to the issues to be tried in this case. Therefore, it too is DENIED.

Again, Defendant's failure to comply with Local Criminal Rule 12-1 dooms this Motion. There is no declaration from Defendant supporting the existence of an attorney-client relationship with Nasser Khoury; this alone is grounds to deny the Motion. To the extent the Court is able to consider the merits of the Motion, given its lack of evidentiary support, it finds the arguments presented meritless.

*6 In April 2001, the Honorable Florence-Marie Cooper signed a wiretap authorization order for interception of calls to and from the cellular telephone of Abdullah Dais, a suspect in a investigation into a conspiracy to obtain and distribute pseudoephedrine. According to the Government's Opposition to this Motion, Defendant was not a potential target of the investigation when Judge Cooper issued this order. (Govt's Opp'n. to Mot. to Suppress Intercepted Attorney-Client Calls (Doc. No. 663) at 4.)

Defendant was intercepted on May 3, 2001, in conversations with Dais on the latter's telephone, arranging the sale of 23 cases of pseudoephedrine. Later that day, Dais called a number subscribed to Nasser Khoury, who, when he answered, did not identify himself as an attorney. Dais and Khoury discussed a “friend” who had been “caught” with almost $100,000 in cash. Eventually Defendant began talking to Khoury, telling him some details about why the driver (not Defendant) was stopped and the cash seized. Dais then took the telephone again and Khoury asked him to send some documents by fax the following morning. Khoury never identified himself as an attorney during the conversation. Defendant's suggestion that the Government agents intercepting this conversation had some affirmative duty to research and discover Khoury was an attorney licensed to practice in California has no support in the facts or the law.

The second telephone call occurred on May 11; in the meantime, Defendant had been intercepted on other calls with Dais, discussing the delivery of pseudoephedrine, and had been arrested, charged with drug offenses, and released from custody. During the May 11 conversation, Khoury was present in the room while Dais was talking on the telephone to Defendant, and Dais handed the telephone to Khoury at one point. This was the first time Khoury identified himself as a lawyer. He gave Defendant suggestions for alternative stories the latter could use to try to obtain the money seized by the authorities.

The first conversation is not privileged because, to the extent that Khoury (who is not even identified as an attorney during the conversation) is dispensing legal advice, he is not advising Defendant. His advice is directed to a third party, the unidentified driver from whom $100,000 had been seized by law enforcement. Moreover, he appears to be advising the commission of a crime, advice that is not privileged, as the Government correctly points out. The second conversation is not privileged for the same reasons, i.e., it is a conversation directed to the commission of a crime. United States v. Martin, 278 F.3d 988, 1001 (9th Cir. 2002).

Not only is nothing in these conversations privileged, but Defendant has not shown there are any “fruits” from them that should be suppressed. The Government has demonstrated that the South Gate Police Department, working with the DEA, was investigating Defendant based on information from a confidential informant before the first conversation between Khoury and Defendant. (Ex. A to Govt's Opp'n. to Mot. to Suppress Intercepted Attorney-Client Calls.) The evidence from the storage facility in Pico Rivera, where agents surveilled Defendant and observed hand-to-hand transactions with co-conspirators and arrested Defendant, is independent from and not derived from the conversations with Khoury. Likewise, the evidence regarding the delivery of 100 cases of pseudoephedrine in Riverside, California on July 22, 2002 arose from the multiple telephone conversations with a government confidential informant; the evidence based on the August 8, 2002 execution of a search warrant and the discovery of 1400 pseudoephedrine tablets in Detroit is not based on any information contained in the telephone calls Defendant seeks to suppress in this Motion, nor related to them.

3. Defendant's Motion to Exclude Evidence of Prior Bad Acts (Doc. No. 642.)

*7 Defendant moves to bar the Government from introducing evidence at trial that he characterizes as evidence of prior bad acts covered under Federal Rule of Evidence 404(b). The Motion fails to describe specifically what evidence the defense seeks to preclude, other than as Defendant's “alleged, uncharged May-June 2001 Rule 404(b) acts and taped remarks.” (Mot. to Exclude Evidence of Prior Bad Acts at 1.)

The First Superseding Indictment (“FSI”) charges Defendant and four coconspirators with conspiring to possess pseudoephedrine knowing and having reasonable cause to believe it would be used to manufacture methamphetamine, a controlled substance. The FSI alleges the conspiracy began on a date unknown and continued until February 25, 2003; among the overt acts alleged are sales by the coconspirators of pseudoephedrine in 1999.

Accordingly, as the Government points out, the evidence that Defendant participated in illegal pseudoephedrine trafficking in the 2001 time period is direct evidence of the charged crimes, not Rule 404(b) evidence. (SeeGovt's Opp'n. to Mot. to Exclude Prior Bad Acts (Doc. No. 653) at 1.) Accordingly, the evidence of Defendant's wiretapped discussions during May and June 2001 with alleged coconspirators regarding purchase and delivery of pseudoephedrine is direct evidence the Government is allowed to introduce to prove its case in chief against Defendant. Likewise, the intercepted conversations and meetings in July, 2002, fall squarely within the time period alleged in the FSI.

Even if considered as evidence of other bad acts subject to Rule 404(b), the evidence of the intercepted conversations would be admissible. Rule 404(b)(2) permits such evidence to be admitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Rule 404(b) is a “rule of inclusion,” and evidence of other crimes or acts may be admitted “except where it tends to prove only criminal disposition.” United States v. Ayers, 924 F.2d 1468, 1472-1473 (9th Cir. 1991) (emphasis in original) (citations and internal quotations omitted).

The Ninth Circuit has established the following four-part test to determine whether evidence of other crimes or acts is admissible under Rule 404(b):

Ayers, 924 F.2d at 1473; United States v. Spillone, 879 F.2d 514, 518-520 (9th Cir. 1989), cert. denied, 498 U.S. 878 (1990).

Evidence that approximately one year earlier, Defendant had conversations regarding the illegal distribution of pseudoephedrine; prices charged; and his own arrest and charges, is material to his knowledge and intent with respect to the 2002 conduct. As to the third requirement, the Government represents that it will introduce recordings of Defendant discussing distribution of pseudoephedrine, as well as other evidence including the arrests and seizures of illegal pseudoephedrine. The fourth requirement, similarity, is satisfied as well. Thus, to the extent this evidence should be characterized as 404(b) evidence, it is admissible.

*8 Nor is the evidence barred under Federal Rule of Evidence 403. The evidence that Defendant committed the crime charged is neither unduly prejudicial, nor will it constitute an undue waste of time nor be likely to confuse the jury.

None of the other arguments advanced by the defense in support of this Motion have any merit whatsoever. Accordingly, the Court DENIES the Motion.

IT IS SO ORDERED.

That rule is made applicable to criminal cases by Local Criminal Rules 49-1.3.1 and 57-1.

In the Reply and at the hearing, Defendant argued that the copy he was given of this item is unsatisfactory because it could not be used for DNA testing purposes, i.e., so show it did not have Defendant's DNA and therefore was not retrieved from his mouth while he was in custody. Accepting this argument for the purposes of this motion, such evidence would be only potentially exculpatory, and thus subject to the requirement that Defendant show bad faith on the part of the Government in destroying the original. As discussed below, Defendant has failed to make that showing.