Defendant David L. Merryman’s Brief in Support of Motion for Appropriate Relief for Alleged Improper Conduct by Lead Case Agent in Connection with Certain Contacts with Potential Defense Witnesses — United States v. Merryman (Dkt. 32, E.D. Va.)

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Defendant David L. Merryman's brief in support of a motion for appropriate relief for alleged improper conduct by the lead case agent in contacts with potential defense witnesses, in United States v. David L. Merryman, Case No. 4:24cr4, in the U.S. District Court for the Eastern District of Virginia, Newport News Division, filed May 15, 2024 as Document 32. It states that on March 7, 2024, after the indictment, FBI Special Agent Theodore Roese visited two potential defense witnesses. It acknowledges the heavy burden for dismissal of an indictment for government misconduct but argues the conduct exists here, and seeks relief short of dismissal in the alternative.

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Case 4:24-cr-00004-RAJ-DEM Document 32 Filed 05/15/24 Page 1 of 7 PageID# 233




                          IN THE UNITED STATES DISTRICT COURT
                          FOR THE EASTERN DISTRICT OF VIRGINIA
                                NEWPORT NEWS DIVISION

UNITED STATES OF AMERICA

v.                                                Case No. 4:24cr4
DAVID L. MERRYMAN.

   DEFENDANT DAVID L. MERRYMAN’S BRIEF IN SUPPORT OF MOTION FOR APPROPRIATE
  RELIEF FOR ALLEGED IMPROPER CONDUCT BY LEAD CASE AGENT IN CONNECTION WITH
               CERTAIN CONTACTS WITH POTENTIAL DEFENSE WITNESSES

        COMES NOW the defendant, David L. Merryman, and as and for his Brief In Support

Of Motion For Appropriate Relief For Alleged Improper Conduct By Lead Case Agent In

Connection With Certain Contacts With Potential Defense Witnesses, respectfully states the

following in support thereof:

                                               FACTS

       The undersigned defense counsel respectfully represents that the following

information has been presented to him in connection with the instant Motion:

       Ms. Reyna Espinal has been the defendant’s girlfriend for some time. The defendant

is presently separated from his wife. Reyna has a son named Kevin, who is a young adult.

Reyna and Kevin had been working in the defendant’s landlord rental business assisting the

defendant with managing his properties.

       Kevin and Reyna advised that on Thursday, March 7, 2024 (post-Indictment), in the

early evening, FBI Special Agent Theodore Roese (hereinafter identified as “the Agent”),

known to them also as “FBI Agent Ted” visited Kevin and Reyna as part of the Agent’s

ongoing investigation.

       During the course of the investigative meeting, Kevin and Reyna alleged that the



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Case 4:24-cr-00004-RAJ-DEM Document 32 Filed 05/15/24 Page 2 of 7 PageID# 234




Agent “talked about the case.” Kevin and Reyna assert that the Agent:

                 … said even if David takes a plea, he is looking at 10-12 years,
                 and 60 years if he [sic] charged and convicted of everything.
                 Ted said they usually seize property in a case like this, but not
                 in this case because there is an $8 million civil case form [sic]
                 the “general attorney” (Attorney General or “AG”) and they will
                 come for everything – property, bank accounts, etc. He said all
                 of the Judges have something against Dave and he won’t get
                 out.

                 *Ted said that if they keep helping Dave, they can be charged
                 with conspiracy. He basically told them to leave now or risk
                 losing everything (b/c AG will take everything & b/c Dave is not
                 getting out).

                        Ted told Reyna that in 2022 Dave went to jail for a
                 couple of months, and he was telling his ex-wife* (Ann, LNU)
                 the same bs he is telling Reyna now. (*Note: Dave and Ann are
                 technically still married but she is not in the picture other than
                 that she picks up her monthly support income). Ted said they
                 were easy on Dave last time…

Excerpts from Redacted Internal Memorandum prepared by Sacks & Sacks Senior Paralegal

Ivana Cobanov reflecting information presented to her by Kevin and Reyna in an office

interview with them on Friday, March 8, 2024 at p. 2 thereof.

         Kevin further stated during this interview that he “is worried that he and his mom

could get charged with something.” Id. at p. 3.1

         In addition, a friend of the defendant, one Tyler Kline, has advised that during a post-

Indictment interview of him conducted by the Agent, Mr. Kline got the impression that the

Agent was in effect telling him that, “If I were you, I would steer clear of the defendant with

everything going on.”

                                            ARGUMENT


1
    Well prior to the filing of the instant Motion, defense counsel provided a copy of the entire

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                         History of Supervisory Powers of Federal Courts

       In McNabb v. United States, 318 U.S. 332 (1943) (Frankfurter, J), the Supreme Court

reversed a lower Court judgment affirming convictions of second degree murder, finding that

admissions by the defendants that were crucial to the convictions were improperly received

into evidence.

       In doing so, the Court rested its decision not specifically upon conventional principles

of constitutional criminal law and procedure, but, rather, upon the much broader and more

general “exercise of its supervisory authority over the administration of criminal justice in

the federal courts…” 318 U.S. at 341 (emphasis added).

       The Court found that certain methods utilized by law enforcement officers in that

case to extract admissions from the accused defendants were anathema to the ordered and

“civilized standards” that must be applied to the administration of criminal justice in the

federal courts, and, accordingly, ruled that such statements procured pursuant to such

offensive tactics were inadmissible as a matter of supervisory fairness.

       In parsing and delineating the nature and scope of the federal courts’ inherent

supervisory powers to eschew and/or condemn unscrupulous police conduct in matters

before those Courts, the Supreme Court noted in McNabb, first, as follows:

                 Judicial supervision of the administration of criminal justice in
                 the federal courts implies the duty of establishing and
                 maintaining civilized standards of procedure and evidence.
                 Such standards are not satisfied merely by observance of those
                 minimal historic safeguards for securing trial by reason which
                 are summarized as "due process of law" and below which we
                 reach what is really trial by force.

318 U.S. at 340 (emphasis added).


Redacted Internal Memorandum to Government Counsel for their consideration.
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Case 4:24-cr-00004-RAJ-DEM Document 32 Filed 05/15/24 Page 4 of 7 PageID# 236




        In further explaining the basis for the existence of such supervisory powers, the

McNabb Court also noted that:

              The principles governing the admissibility of evidence in federal
              criminal trials have not been restricted, therefore, to those
              derived solely from the Constitution. In the exercise of its
              supervisory authority over the administration of criminal justice
              in the federal courts, see Nardone v. United States, 308 U. S.
              338, 308 U. S. 341-342, this Court has, from the very beginning
              of its history, formulated rules of evidence to be applied in
              federal criminal prosecutions.

318 U.S. at 341 (emphasis added).

       Finally, in what can only be described as very powerful and unusually inspiring

language, the McNabb Court additionally expounded upon the policy underpinnings of the

supervisory powers doctrine, as follows:

              A democratic society, in which respect for the dignity of all men
              is central, naturally guards against the misuse of the law
              enforcement process. Zeal in tracking down crime is not in
              itself an assurance of soberness of judgment.
              Disinterestedness in law enforcement does not alone prevent
              disregard of cherished liberties. Experience has therefore
              counseled that safeguards must be provided against the
              dangers of the overzealous, as well as the despotic. The awful
              instruments of the criminal law cannot be entrusted to a single
              functionary. The complicated process of criminal justice is
              therefore divided into different parts, responsibility for which is
              separately vested in the various participants upon whom the
              criminal law relies for its vindication.

318 U.S. at 343 (emphasis added).

       Although decided many years ago, the defendant respectfully submits that the

principles that McNabb espoused remain valid and relevant today. If ever there were a

situation justifying the application of supervisory powers to enforce the highest standards of

criminal justice and individual rights, it would be under circumstances, as here, where, if



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Case 4:24-cr-00004-RAJ-DEM Document 32 Filed 05/15/24 Page 5 of 7 PageID# 237




accurately represented by the witnesses, the lead case Agent allegedly makes highly biased,

negative comments, including very personal ones, about the defendant, and potentially

chills the willingness of potential defense witnesses to participate on behalf of the

defendant in the development and presentation of the defendant’s defense, including

testifying.

                            The Supervisory Powers Doctrine Today

        In United States v. Terry, 14 F. App.’x 253, 255 (4th Cir. 2001), the Court said as

follows:

                      To prevail on a claim of governmental misconduct and
               obtain the extreme remedy of dismissal of his indictment, a
               defendant must show: (1) the government’s conduct was
               improper; and (2) the conduct prejudicially affected his
               substantial rights so as to deprive him of a fair trial.

Accord United v. Cruz-Polanco, 797 F. App.’x 92, 94 (4th Cir. 2019).

        The defendant recognizes that even where, as here, there is alleged significant police

misconduct in the approach to potential defense witnesses, the defendant bears a heavy

burden to show prejudice sufficient to justify total dismissal of the indictment. Nevertheless,

the defendant respectfully submits that such conduct exists here, but also notes that trial is

still months away, the defendant’s investigation and trial preparation continues, and

additional evidence and information may well be developed that place the challenged

conduct in an even more compelling context justifying dismissal.

        On the other hand, even if, arguendo, the Court finds that the conduct at issue does

not rise to the extreme level of dismissal, surely lesser forms of appropriate relief remain

available to the Court in the exercise of its supervisory powers. These include, but are not

limited to, limitations on the lead Agent’s in-Court testimony, leave to permit defense


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Case 4:24-cr-00004-RAJ-DEM Document 32 Filed 05/15/24 Page 6 of 7 PageID# 238




counsel greater latitude in cross-examination of the Agent with respect to witness credibility

matters contained in the statements assigned to him by the potential defense witnesses,

and an appropriate jury instruction addressing the particular allegations in this Motion,

                                         CONCLUSION

       The defendant respectfully submits that the challenged comments and statements

by the Agent should not have been made. No legitimate investigative or fact-gathering

purposes or policies can be served by exposing potential defense witnesses to such

commentary. It should not be surprising, therefore, that potential defense witnesses,

particularly Kevin and Reyna, would be concerned about having anything to do with the

defendant, much less participate in his defense. The prejudice here is real, and the

defendant, by counsel, is still assessing its scope and breadth.

       For the foregoing reasons, therefore, the defendant respectfully submits that he has

demonstrated good cause in the interest of justice for the application of the Court’s

supervisory powers to this particular situation and for the granting of appropriate relief in

response thereto as prayed for in the instant Motion.

                                            DAVID L. MERRYMAN
                                            By:         /s/
                                                  Andrew M. Sacks, Esquire

Andrew M. Sacks, Esquire, VSB#: 20082
Attorney for defendant David L. Merryman
SACKS & SACKS, P.C.
Town Point Center
150 Boush Street, Suite 505
Norfolk, VA 23510
Telephone: (757) 623-2753
Facsimile: (757) 274-0148
E-mail: andrewsacks@lawfirmofsacksandsacks.com




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Case 4:24-cr-00004-RAJ-DEM Document 32 Filed 05/15/24 Page 7 of 7 PageID# 239




                                             CERTIFICATE OF SERVICE

        I hereby certify that on this 15th day of May, 2024 I will electronically file the
foregoing with the Clerk of Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to:

                 Brian James Samuels, Esquire     and      David M. Coleman, Esquire
                 Assistant United States Attorney          Assistant United States Attorney
                 United States Attorney’s Office           United States Attorney’s Office
                 Fountain Plaza Three                      Fountain Plaza Three
                 721 Lakefront Commons, Suite 300          721 Lakefront Commons, Suite 300
                 Newport News, Virginia 23606              Newport News, Virginia 23606
                 Telephone: 757-591-4032                   Telephone: 757-591-4028
                 Facsimile: 757-591-0866                   Facsimile: 757-591-0866
                 E-mail: brian.samuels@usdoj.gov           E-mail: mack.coleman@usdoj.gov


                                                                       /s/
                                                           Andrew M. Sacks, Esquire

Andrew M. Sacks, Esquire, VSB#: 20082
Attorney for defendant David L. Merryman
SACKS & SACKS, P.C.
Town Point Center
150 Boush Street, Suite 505
Norfolk, VA 23510
Telephone: (757) 623-2753
Facsimile: (757) 274-0148
E-mail: andrewsacks@lawfirmofsacksandsacks.com
F:\IC\MERRYMAN David\Mot5ever5 15 2024.doc




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