Opinion
Criminal No. 02-404 (JRT/RLE)
May 14, 2004
Christian S. Wilton, Minneapolis, MN, for plaintiff
Michael W. McDonald, Esq., McDONALD KERR, Prior Lake, MN, for defendant
MEMORANDUM OPINION AND ORDER
Defendant Robert Clarence Adams ("defendant") is charged with one count of possession with intent to distribute in excess of 50 grams of a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). Defendant brought a number of pretrial motions, which were addressed at a hearing before United States Magistrate Judge Raymond L. Erickson on February 23, 2004. Currently before the Court are defendant's objections to the Magistrate Judge's Report and Recommendation dated March 19, 2004 and defendant's appeal of the Magistrate Judge's Order of the same date. The Court has conducted a de novo review of the defendant's objections pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). The Court has also reviewed the Magistrate Judge's Order to determine whether it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). For the reasons set forth below, the Court overrules the defendant's objections and adopts the Report and Recommendation of the Magistrate Judge, and affirms the Magistrate Judge's Order.
Defendant filed a document entitled Motions in Limine [Docket Nos. 53, 54, 55, 56, 57] challenging portions of the Magistrate Judge's Order and Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1, the Magistrate Judge may hear and determine any nondispositive pretrial motion, and may issue a report and recommendation ("RR") regarding potentially dispositive pretrial motions.
A party wishing to challenge any portion of a Magistrate Judge's order regarding nondispositive issues must do so by filing an appeal within 10 days of service of the order. Where no appeal is filed, the Magistrate Judge's order stands. A party may similarly challenge any portion of a Magistrate Judge's recommendation by filing objections within 10 days of service of the Report and Recommendation.
Defendant's Motions in Limine pertain directly to the Magistrate Judge's order and Report and Recommendation and were filed within 10 days of service of the Magistrate Judge's order. Further, the government addressed each of the defendant's point in the government's Answer to the Defendant's Objections to Magistrate's RR [Docket No. 62]. Therefore, the Court will construe defendant's Motions in Limine as an appeal of the Magistrate Judge's order or, where appropriate, as objections to the Magistrate Judge's RR.
BACKGROUND
Beginning in May 2002, Duluth police became aware of defendant's presence in Duluth and suspected his involvement in drug activity. During that month, Duluth police employed a confidential informant ("CI") to make three separate controlled purchases of crack cocaine from defendant. These purchases totaled between .6 and 1.2 grams of crack cocaine. Additionally, police learned that defendant had two outstanding arrest warrants, one for a controlled substance crime in Hennepin County and one for a parole violation. It was also learned that defendant resided at 326 North Tenth Avenue East in Duluth.
Sometime in mid to late September 2002, Duluth police received reports from several CIs that defendant was selling crack cocaine in Duluth, and that he was cooking and storing the crack in his residence. Police had another CI attempt a controlled purchase of crack from defendant. On October 7, Officer James Jungers was informed by a CI that defendant was in Duluth and could be found at a particular location. The CI identified defendant in a photograph. Jungers and other officers traveled to the location given by the CI, observed defendant walking down the street, and arrested him. Defendant was arrested on the basis of his two outstanding warrants as well as probable cause for sale of narcotics in the three controlled substance purchases in May. A search of defendant incident to his arrest turned up approximately 258 grams of crack cocaine packaged for sale, approximately 29 grams of marijuana packaged for sale, over $500 cash, "pay and owe" sheets, postal receipts for packages mailed in the previous few months, and blank "Money Gram" forms.
Upon returning to the police station, Jungers was advised by several CIs that word was out that defendant had been arrested. Jungers decided to secure defendant's residence. After doing so, Jungers returned to the police station and prepared a search warrant for the residence. The search warrant was signed by a judge at 1:00 a.m. and executed the next morning.
Defendant was indicted on December 17, 2002 and initially pled guilty. However, defendant later moved and was permitted to withdraw his plea. At the same time, defendant moved for substitution of counsel, which was also granted. Defendant's current attorney was appointed to represent him shortly thereafter. Through his current counsel, defendant brought pretrial motions for discovery, for a change of venue, for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), for disclosure of the grand jury transcripts, to dismiss the indictment, to suppress searches, statements, admissions and answers, and to suppress evidence obtained as a result of search and seizure. In an order dated March 19, 2004, the Magistrate Judge granted the motion for discovery, and denied the motions for a change of venue, and for a Franks hearing. In a separate order dated March 25, 2004, the Magistrate Judge denied the motion for disclosure of grand jury transcripts. Finally, the Magistrate Judge issued a Report and Recommendation, recommending denial of defendant's remaining motions. Defendant appeals the orders and objects to the recommendation.
Defendant has filed numerous pro se motions in addition to the motions filed by his counsel. The Magistrate Judge declined to consider the pro se motions submitted to that point, noting that "[i]t is well settled that `[t]here is no constitutional or statutory right to simultaneously proceed pro se and with the benefit of counsel.'" Citing United States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994), Brasier v. Jeary, 256 F.2d 474, 478 (8th Cir. 1958). Thus, "[a] district court has no obligation to entertain pro se motions filed by a represented party." Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001). This is particularly true where the issues raised in the pro se briefing have been brought to the attention of counsel. Id.
The Court notes that defendant's pro se motions were forwarded to counsel. ( See Letter from the Court to defendant dated April 9, 2004 [Docket No. 64].) The Court agrees with the Magistrate Judge's conclusion that in light of defendant's continuous representation by counsel, it is unnecessary for the Court to consider defendant's pro se motions. Therefore, the Court declines to consider any of defendant's pro se motions, including the several filed since the Magistrate Judge's orders and recommendation were issued, and will accordingly dismiss them.
The Court notes that in the event that defendant is convicted at trial and determines that trial counsel was ineffective in representing defendant, defendant may raise that issue on appeal from his conviction.
ANALYSIS
I. ORDER OF MARCH 19, 2004
A. Standard of Review
An order of a Magistrate Judge on nondispositive pretrial matters may be reversed only if it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). Defendant appeals the Magistrate Judge's order denying his motions for change of venue, for disclosure of Grand Jury transcripts, and for a Franks hearing. However, he has provided the Court with no reason to overrule the Magistrate Judge's order. Rather, he merely makes the conclusory statements that "the Magistrate should have granted defendant's motion for a change of venue," "should have granted defendant's motion for a Franks hearing," and "should have granted defendant's requested relief," namely to order disclosure of transcripts or review the transcripts in camera to determine whether the Grand Jury was mislead by hearsay or false information. Upon review of the defendant's submission and the files, records and proceedings, the Court finds nothing in the record that suggests the Magistrate Judge's rulings are either clearly erroneous or contrary to law. Rather, the Magistrate Judge exhaustively set forth the applicable standards, and applied them carefully and accurately. Therefore, defendant's appeal of the Magistrate Judge's order denying a change of venue, denying a Franks hearing, and denying disclosure of the grand jury transcripts is denied.
II. REPORT AND RECOMMENDATION OF MARCH 19, 2004
A. Motions to Dismiss the Indictment
Defendant moved to dismiss the indictment on the following grounds: (1) the indictment is facially insufficient, (2) the Court lacks jurisdiction over this matter under United States v. Lopez, 514 U.S. 549 (1995), (3) 21 U.S.C. § 841 is null and void, (4) the Grand Jury was mislead by the admission of hearsay and false information, and (5) his rights were violated due to the ineffective assistance of his first appointed attorney. The Magistrate Judge recommended denial on each of these grounds, and defendant objects.
1. Sufficiency of the indictment
"[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Cuervo, 354 F.3d 969, 983 (8th Cir. 2004) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). "Typically an indictment is not sufficient only if an essential element of the offense is omitted from it." Id. (citation omitted). "An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted." United States v. Hernandez, 299 F.3d 984, 992 (8th Cir. 2002) (internal quotation omitted).
In this case, the indictment asserts a violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). 21 U.S.C. § 841(a)(1) provides that "it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance." 21 U.S.C. § 841(b)(1)(A) specifies sentences for varying crimes included under § 841. Specifically, § 841(b)(1)(A)(iii) provides the sentence for a violation involving "50 grams or more of a mixture or substance . . . which contains cocaine base." Count One of the Indictment alleges that "[o]n or about October 7, 2002, in the State and District of Minnesota and elsewhere, the defendant, Robert Clarence Adams, knowingly and intentionally possessed with intent to distribute in excess of 50 grams of a mixture and substance containing a detectable amount of cocaine base ("crack"), a controlled substance."
The language of the indictment tracks the language of the two relevant statutory provisions very closely. Further, the indictment includes each of the elements of the crime charged. It clearly indicates the time and place of the alleged criminal action, and the degree to which defendant is alleged to have violated the statute. From this information, defendant is adequately able to discern the charges against him and prepare and assert a defense. See Hernandez, 299 F.3d 992. The indictment is clearly sufficient and will not be dismissed on this ground.
2. Jurisdiction
Defendant asserts that the indictment should be dismissed because 21 U.S.C. § 841 attempts to regulate wholly intrastate activity contrary to Article I, Section 8, Clause 3, the Commerce Clause, of the United States Constitution. It has long been established that the United States Congress may properly regulate entirely intrastate economic activity that substantially affects interstate commerce. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (production and consumption of homegrown wheat). However, in United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court struck down the Gun Free School Zones Act prohibiting possession of a firearm in a school zone, finding that Congress had exceeded its power under the Commerce Clause. 514 U.S. at 551. Specifically, the Court found that the Act "neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce." Id.
Defendant argues that to the extent that 21 U.S.C. § 841 addresses wholly intrastate activity, it is in no way connected to interstate commerce, and, like the Gun Free School Zones Act, must therefore fail. In United States v. Carter, 294 F.3d 978 (8th Cir. 2002) and United States v. Davis, 288 F.3d 359 (8th Cir. 2002), the Eighth Circuit addressed and rejected precisely the argument raised by defendant. "Congress may regulate intrastate drug trafficking under its Commerce Clause authority "because of the effect that intrastate drug activity has upon interstate commerce." Carter, 294 F.3d at 981 ( citing Davis, 288 F.3d at 362). The court in Carter noted that every other circuit to address this issue is in agreement. Id. (citation omitted). Defendant's argument is thus without merit, and the indictment will not be dismissed on this ground.
Defendant also argues that 21 U.S.C. § 841 is not published in the Federal Register, and is therefore not codified. Defendant cites 44 U.S.C. § 1505, which is a section of the Federal Registry Act. The Federal Registry Act, 44 U.S.C. § 1501 et seq., addresses publication of administrative and agency orders and guidelines in order to ensure that people are not held liable under unpublished regulations of which they were not aware. See, e.g., Applied Innovations, Inc. v. Regents of the University of Minnesota, 876 F.2d 626, 633-34 (8th Cir. 1989). It does not require the publication of the United States Code, which is published separately, in the Federal Registry. This argument cannot provide a basis upon which to dismiss the indictment.
3. Continuing validity of 21 U.S.C. § 841
Defendant also alleges that 21 U.S.C. § 841(b)(1) is facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it does not explicitly require the government to prove the amount or type of drugs involved in the offense. Apprendi requires that any fact, other than a prior conviction, that increases a defendant's sentence beyond the statutory maximum be proven beyond a reasonable doubt to a jury. Apprendi, 530 U.S. at 490. Thus, a criminal statute that required a judge to determine key sentencing factors, or required sentencing factors to be proven only by a preponderance of the evidence would be facially invalid under Apprendi. Carter, 294 F.3d at 980-81. Apprendi does not require a criminal statute to explicitly identify sentencing factors, provide that sentencing factors must be found by a jury, and specify the requisite burden of proof. Id. The indictment alleges that defendant possessed with intent to distribute more than 50 grams of crack cocaine. Should the government fail to prove these facts, beyond a reasonable doubt, to a jury, then defendant may have an Apprendi claim. However, he does not have one at this stage, and the indictment will not be dismissed on this ground.
Defendant points to United States v. Vazquez, 271 F.3d 93 (3rd Cir. 2001), in support of his argument. In Vazquez, the Third Circuit determined that the district court had violated Apprendi by determining the quantity of narcotics involved in the case itself rather than submitting it to a jury, but ultimately found the error harmless. Vazquez, 271 F.3d at 96. Vazquez therefore is not relevant or helpful to defendant's argument. Defendant also points to the concurrence in Vazquez, in which Judge Becker, joined by Judge Ambro, expressed the view that Congress intended type and quantity of drugs to be elements of an offense under § 841. 271 F.3d at 108. As elements of the offense, type and quantity must always be submitted to the jury, not just when they increase the potential penalty beyond the statutory maximum. Id. In support of this opinion, the concurrence points out that although § 841 discusses type and quantity under the subsection heading "Penalties," these headings were added for administrative convenience but were never officially adopted by Congress. Id. at 111. Thus, the headings should not be read as an indication of Congressional intent to have type and quantity considered sentencing factors rather than elements of the offense. Id. According to defendant, the continued inclusion of these headings somehow renders the statute invalid.
Further, or perhaps in the alternative, defendant argues that in light of the fact that type and quantity should be considered elements of an offense under § 841(a), the continued relegation of any reference to type or quantity to § 841(b) means that subsection (a) "does not define a complete offense because it includes no punishment. A jury verdict finding only that the defendant had committed the acts described in subsection (a), without more would not render the defendant guilty of a crime requiring any ascertainable punishment." According to defendant, this separation constitutes a structural defect in the statute that is per se prejudicial and clearly violates the right to a fair trial.
The Court notes that the indictment in this case explicitly sets forth the type and quantity of narcotics involved in the offense with which defendant is charged. Presumably, the government will prove those facts at trial, rendering defendant's argument moot. Further, in United States v. Sprofera, 299 F.3d 725 (8th Cir. 2002), the Eighth Circuit joined the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits in rejecting the argument that "because § 841(a) prescribes no penalty absent a determination of drug quantity and type, then § 841 cannot constitutionally serve as the basis for a criminal conviction." 299 F.3d at 728-29.
4. Grand Jury Proceeding
Defendant argues that the indictment should be dismissed because the Grand Jury was misled by the introduction of hearsay and false information. Defendant requests disclosure of the Grand Jury transcripts in order to look for evidence to support this argument. In the alternative, defendant requests the Court to review the transcripts in camera to determine whether they contain any information to support this argument.
Defendants request for transcripts is a nondispositive matter that could properly have been resolved by order of the Magistrate Judge. D. Minn. L.R. 72.1(b(1). However, because it is closely related to defendant's potentially dispositive motion to dismiss the indictment, the Magistrate Judge chose to address it in the Report and Recommendation along with the motion to dismiss.
The Court notes initially that hearsay is permissible in Grand Jury proceedings. Costello v. United States, 350 U.S. 359, 363 (1956); see also United States v. Rossbach, 701 F.2d 713, 716 (8th Cir. 1983) (refusing to dismiss indictment based solely on hearsay). However, the government may not engage in fundamentally unfair tactics, deliberately mislead the jury, introduce evidence that is known to be perjured, or conceal substantial evidence negating guilt. United States v. Lame, 716 F.2d 515, 518 (8th Cir. 1983).
While disclosure of grand jury proceedings is proper under certain circumstances, see Fed.R.Crim.P. 6, a long-established policy in the federal courts maintains the secrecy of these proceedings. United States v. Benson, 760 F.2d 862, 864 (8th Cir. 1985) ( citing In Re Disclosure of Testimony Before the Grand Jury, 580 F.2d 281, 285 (8th Cir. 1978)). A party seeking disclosure must show a "particularized need," and the decision to permit disclosure lies within the sound discretion of the trial judge. Benson, 760 F.2d at 864 ( citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, (1979)). "A criminal defendant must point to specific evidence of prosecutorial overreaching in order to show particularized need to consult grand jury transcripts. A defendant who has not pointed to anything in the record which might suggest that the prosecution engaged in improper conduct before the grand jury has not carried his burden of persuasion." Lame, 716 F.2d at 518.
Defendant has not pointed the Court to any evidence, either in his motion or in his objections to the Magistrate Judge's recommendation, indicating that the government's conduct before the grand jury violated his rights or was otherwise improper. Defendant has thus failed to carry his burden with respect to his motion for production of grand jury transcripts and his motion to dismiss the indictment due to misleading evidence presented to the grand jury. Both motions will therefore be denied.
5. Ineffective assistance of counsel
Finally, defendant seeks dismissal of the indictment due to the ineffective assistance of his first counsel. Defendant did not provide the Court with any indication in his motion of how his first counsel was ineffective, and has not provided any new information in his objection. Further, any prejudice suffered by defendant due to actions of his first counsel has been adequately remedied by the appointment of new counsel and the opportunity to withdraw his plea and proceed to trial in this matter. The indictment will not be dismissed on this grounds.
In his pro se motions, defendant appears to assert that his first counsel was ineffective because although he initially indicated to defendant that the government would not seek to sentence defendant as a career offender, and that defendant might be eligible for a challenge program, those indications were apparently wrong. The Court notes that even if making ultimately untenable promises to a client amounted to ineffective assistance, any prejudice to defendant was eliminated when he was allowed to withdraw his plea and proceed to trial with new counsel.
B. Motion to Suppress Searches, Statements, Admissions and Answers
It is axiomatic that in the case of an unlawful arrest, any statements or other evidence obtained as a result of that arrest may be suppressed. United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001) ( citing Wong Sun v. United States, 371 U.S. 471, 484-88, (1963)). Defendant asserts that his arrest was unlawful and that, consequently, any searches, statements, admissions, answers, or other evidence obtained as a result of his arrest must be suppressed. The Court disagrees.
A police officer may properly conduct a warrantless arrest when he has probable cause to believe that the person has committed a felony. United States v. Travis, 993 F.2d 1316, 1323 (8th Cir. 1993). "Probable cause to conduct a warrantless arrest exists when at the moment of arrest police have knowledge of facts and circumstances grounded in reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested." United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001) (citing Beck v. Ohio, 379 U.S. 89, 91, (1964)). In this case, police knew that defendant had sold crack to a CI on three separate occasions in May. In the two weeks prior to defendant's arrest, police learned from several CIs that defendant was again, or still, selling crack in Duluth, and was using the residence at 326 North Tenth Avenue East as a stash house and a place to cook the drugs. Further, on the night of defendant's arrest a CI identified defendant in a photograph and correctly directed police to where defendant could be found.
Information provided by confidential informants can, alone, provide the basis for probable cause. United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998). This is particularly true where details of the information can be corroborated or where the informant(s) has a track record of providing reliable information. See United States v. Carpenter, 341 F.3d 666, 669 (8th Cir. 2003) (corroboration of details); United States v. Koons, 300 F.3d 985, 993 (8th Cir. 2002) (track record). Jungers testified that the CIs involved had previously provided reliable information, that the information provided by the various CIs was internally consistent, and that much of the information was capable of corroboration and turned out to be accurate.
Taken together, the information available to police was reliable and sufficient to establish probable cause that defendant had committed a felony. Initially, defendant committed three separate felonies during the controlled buys in May. Further, the three controlled buys in May coupled with the more recent information that defendant was selling drugs reasonably indicates that defendant was likely engaged in the ongoing sale of narcotics. See United States v. Smith, 266 F.3d 902, 904-5 (8th Cir. 2001) (discussing investigations of ongoing narcotic operations). Duluth police had more than adequate probable cause to believe that defendant had committed or was committing a felony and his arrest was therefore valid. Consequently, any evidence obtained as a result of defendant's arrest, including as a result of the pat-down search conducted incident to the arrest, is also admissible and will not be suppressed. United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999); Conrod v. Davis, 120 F.3d 92, 96 (8th Cir. 1997) (citing United States v. Robinson, 414 U.S. 218, 235 (1973)).
In addition to the foregoing reasoning, the Court notes that, as there is not evidence that defendant's outstanding warrants were invalid, police likely could have arrested defendant based solely on their knowledge of the two outstanding warrants. See United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992). A subsequent search incident to that arrest would also have been permissible. Id.
C. Motion to Suppress Evidence Obtained as a Result of Search and Seizure
Finally, defendant challenges the search of his residence. Defendant complains that the warrant was not based on probable cause. A valid search warrant must be supported probable cause that evidence of a crime will be found in the place to be searched, that is, by information indicating "a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Koons, 300 F.3d 985, 990 (8th Cir. 2002); United States v. Etheridge, 165 F.3d 655, 657 (8th Cir. 1999) ( citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Any evidence obtained through an unlawful search may be excluded. Wong Sun, 371 U.S. at 484.
Defendant also complains that the warrant was executed improperly. However, the Court is not aware of any evidence that police somehow acted improperly in executing a valid search warrant and therefore cannot credit that complaint.
As discussed above, following defendant's arrest, Jungers secured that address and then prepared an application for a search warrant, which was reviewed and signed by a judge. The search warrant detailed the three controlled buys and the more recent information received from CIs. This information included that defendant had brought a large amount of crack to Duluth from Michigan, that he was selling crack in Duluth, frequently at the location where defendant was eventually arrested, that he resided at 326 North Tenth Avenue East in Duluth, that he was using the apartment as a stash house and place to cook the drugs. The warrant also indicated that the CIs providing the information had identified defendant in a photograph. Finally, the warrant described the events of the night — namely that police had arrested defendant based on a CI's tip and had found crack cocaine, narcotics, substantial cash, drug writings, and a cell phone.
This information clearly provides a reasonable basis upon which to conclude that there was a fair probability that contraband or evidence of a crime would be found at 326 North Tenth Avenue East in Duluth. See Etheridge, 165 F.3d at 657; see also Willis, 967 F.2d at 1224. Neither the warrant to search defendant's residence, nor any evidence obtained as a result of the search of defendant's residence will be excluded.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant's objections [Docket No. 60] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 51]. Further, the Court AFFIRMS the Magistrate Judge's Orders [Docket Nos. 52, 59]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to dismiss the indictment [Docket Nos. 34, 35, 38, 46] are DENIED;
2. Defendant's motion to suppress searches, statements, admissions and answers [Docket No. 39] is DENIED;
3. Defendant's motion to suppress evidence [Docket No. 37] is DENIED;
4. Defendant's motions in limine [Docket Nos. 53, 54, 55, 56, 57] are DENIED;
5. Defendant's pro se motions [Docket Nos. 18, 19, 27, 28, 29, 61, 65] are DISMISSED.