United States District Court, D. Colorado
For John Bowen, Defendant: Lisa Monet Wayne, LEAD ATTORNEY, Law Office of Lisa M. Wayne, Denver, CO.
For James Johnson, Defendant: Matthew C. Golla, Office of the Federal Public Defender, Denver, CO.
For Donald Creager, III, Defendant: Laura A. Menninger, Norman R. Mueller, Haddon, Morgan & Foreman, P.C., Denver, CO.
For Orlando Martinez, Defendant: Kevin Michael McGreevy, LEAD ATTORNEY, Marci A. Gilligan, Ridley McGreevy & Winocur, P.C., Denver, CO.
For Kenneth Chastain, Defendant: Siddhartha H. Rathod, LEAD ATTORNEY, Rathod | Mohamedbhai LLC, Denver, CO.
For Peter Karfias, Defendant: Anthony Viorst, LEAD ATTORNEY, The Viorst Law Offices, P.C., Denver, CO.
For Stephanie Christensen, Defendant: Alaurice Marie Tafoya-Modi, LEAD ATTORNEY, The Law Office of Alaurice Tafoya-Modi, Denver, CO.
For USA, Plaintiff: Jaime A. Pena, LEAD ATTORNEY, Tim R. Neff, Tonya Shotwell Andrews, U.S. Attorney's Office-Denver, Denver, CO.
PHILIP A. BRIMMER, United States District Judge.
This matter comes before the Court on Defendant Orlando Martinez's Motion for Kastigar Hearing and to Dismiss Indictment or Suppress Evidence Obtained in Violation of His Fifth Amendment Rights [Docket No. 286]. On January 13, 2015, the Court held a Kastigar hearing. Docket No. 432. Both parties filed supplemental briefs. Docket Nos. 446, 452. This motion is fully briefed and ripe for disposition.
I. FINDINGS OF FACT
Mr. Martinez is the owner of O's Pipes & Tobacco (" O's" ), a retail establishment located in Denver, Colorado that sells tobacco. Ex. 4 at 13:2-4. Count One of the indictment [Docket No. 1] charges Mr. Martinez under 18 U.S.C. § 371 with conspiracy
(1) to defraud the United States Drug Enforcement Administration (DEA), an agency of the United States, for the purpose of impeding, impairing, obstructing, and defeating their lawful governmental functions of regulating controlled substances; (2) to defraud the United States Food and Drug Administration (FDA), an agency of the United States, for the purpose of impeding, impairing, obstructing, and defeating their lawful governmental functions of regulating drug labeling and approving new drugs, before introduction into interstate commerce; and (2) [sic] to commit certain offenses against the United States, that is, to violate Title 21, United States Code, Sections 841(a)(1) and (b)(1) by knowingly and intentionally possessing with the intent to distribute, dispensing and distributing controlled substances, to wit AB-Fubinaca, in violation of the Controlled Substances Act.
Docket No. 1 at 8. The indictment alleges that Mr. Martinez and other defendants " possessed, packaged, labeled, marketed, distributed and sold substances containing ADB-Pinaca and AB-Fubinaca" in products with brand names such as " 10X," " Crazy Clown," or " Sunburst." Id. at 8-9, ¶ ¶ 31-32. The products were commonly referred to as " spice" or synthetic cannabinoids. Id. at 3, ¶ 9.
A. Immunized Testimony
On September 6, 2013, Mr. Martinez received a subpoena from the Colorado Attorney General's Office ordering him to appear and provide testimony under oath. Docket No. 286-1 at 2. On September 13, 2013, September 17, 2013, and October 10,
2013, Mr. Martinez was deposed by Assistant Colorado Attorney General Jeffrey Leake in In the Matter of O's Pipes & Tobacco. Ex. O at 1. The parties do not dispute that Mr. Martinez's testimony on these three dates (collectively, the " immunized testimony" ) was given pursuant to Colo. Rev. Stat. § 6-1-111, which provides that testimony compelled by the Colorado Attorney General " shall not be admissible in evidence in any criminal prosecution against the person so compelled to testify." § 6-1-111(1). Mr. Martinez's testimony covered several topics, including how he purchased spice products from Creager Mercantile, the spice product brand names associated with the present case, his interactions with Tony Worth, an employee of Creager Mercantile, and his knowledge of the chemicals contained within certain spice products. See, e.g., Ex. 4 at 113:4-17; see generally Exs. 4-6.
B. Denver Police Department Investigation
In March and April 2012, investigators from the Denver Police Department (" DPD" ) confiscated spice products from O's. Ex. 1 at 00018202. DPD tests of the seized products revealed that some of the products contained synthetic cannabinoids. Id. at 0018202-03. In March and April 2013 and on September 7, 2013, DPD investigators conducted undercover purchases of spice products from O's, some of which tested positive for synthetic cannabinoids. Id. at 00018202-05. On September 20, 2013, DPD arrested Mr. Martinez and executed a search warrant for O's and Mr. Martinez's apartment, seizing several products that later tes ted positive for synthetic cannabinoids. Id. at 00018206-12. Mr. Leake did not provide the DPD with information concerning Mr. Martinez's immunized testimony until October 4, 2013 at the earliest. Ex. O at 2, ¶ 5.
C. Aurora Police Department Investigation
Aurora Police Department (" APD" ) Investigator Craig Morgan testified that, on September 5, 2013, APD conducted a controlled purchase of spice from Puff N Jewelry in Aurora, Colorado. Docket No. 443 at 9:18-23. APD executed a search warrant of Puff N Jewelry and seized several spice products. Ex. 3A at 00022872-74. Investigator Morgan interviewed Puff N Jewelry's owner, Byung Keuk Lee, who explained that he acquired spice products from a local company called Creager Mercantile and an online retailer called incensecenter.com. Docket No. 443 at 12:25-13:3. Mr. Lee told Investigator Morgan that to purchase spice products from Creager Mercantile Mr. Lee would contact a man he knew as " Tony W.," who would then deliver spice products to Puff N Jewelry that day. Id. at 24:22-25:4. Mr. Lee provided APD with five invoices for spice purchases from Creager Mercantile and the phone number he used to contact Tony W. Id. at 20:1-6. Mr. Lee also stated that Tony W. told Mr. Lee that several stores including " Orlando's" were currently selling " incense." Id. at 19:5-11; Ex. 3A at 00022762.
On September 9, 2013, through law enforcement databases, Investigator Morgan identified Tony W. as Tony Worth, a Creager Mercantile employee. Docket No. 443 at 17:15-19. APD began surveillance on Mr. Worth independent of any other agency. Id. at 18:2-9. APD Investigator John Borquez replaced Investigator Morgan as the primary contact for APD with respect to this investigation. Id. at 17:3-8. Investigator Morgan did not know when APD informed the United States Department of Justice Drug Enforcement Administration (" DEA" ) of the Puff N Jewelry investigation or when APD
provided the DEA with a copy of the APD investigation report. Id. at 32:14-24.
D. DEA Investigation
DEA Special Agent Michael Marshall was the primary agent assigned to this case. Shortly before September 15, 2013, Special Agent Marshall was contacted by the Brunswick, Georgia Police Department, an agency that had just made an arrest related to the sale of spice products in Georgia. Id. at 37:10-23. The individual in custody (" CS1" ) told local authorities that CS1's spice products came from Colorado through an individual named James Johnson. Id. Special Agent Marshall spoke with Investigator Borquez, who indicated to Special Agent Marshall that APD had identified Mr. Worth as the individual supplying spice products to Puff N Jewelry. Id. at 38:12-18. Based upon that information and James Johnson's cell phone records, Special Agent Marshall identified Mr. Worth as a person of interest. Id. at 39:8-11. On September 17, 2013, Special Agent Marshall interviewed CS1 in Colorado. Id. at 37:21-23.
On September 19, 2013, Special Agent Marshall attended a meeting of several local law enforcement agencies (the " September 19 meeting" ). Investigator John Borquez from the APD and representatives from the North Metro Task Force were present at the meeting. Docket No. 443 at 38:10-16. The parties agree that Mr. Leake discussed the contents of Mr. Martinez's September 13 and September 17 testimony at the meeting. Ex. O at 1. Special Agent Marshall testified that September 19 was the first time he heard anything about Mr. Martinez. Docket No. 443 at 58:2-4. However, Special Agent Marshall had no specific recollection of what Mr. Leake said at the September 19 meeting; thus, the extent to which Mr. Leake discussed the immunized testimony is unclear. Special Agent Marshall recalled speaking to APD investigators about Creager Mercantile, Tony Worth, and the Puff N Jewelry investigation. Docket No. 443 at 40:4-16. However, there is no evidence that APD discussed Mr. Martinez with Special Agent Marshall. Special Agent Marshall testified that, as of September 19, 2013, he had no information regarding the DPD's investigation of Mr. Martinez, id. at 44:7-16, but did not otherwise recall when he became aware of the DPD's investigation except to say that it was " possible" that he spoke with DPD prior to preparing wiretap affidavits in December 2013 or January 2014. Id. at 47:1-5. On cross examination, Special Agent Marshall testified that he read transcripts of the immunized testimony before he saw any reports from DPD. Id. at 72:23-73:1.
On October 4, 2013, Mr. Leake sent transcripts of Mr. Martinez's September 13 and September 17 testimony to the DEA, and, on October 16, 2013 Mr. Leake sent a transcript of Mr. Martinez's October 10 testimony (collectively, the " transcripts" ) to the DEA, including Special Agent Marshall and Intel Analyst Kyle McGee. Ex. O; Docket No. 443 at 68:6-10. Special Agent Marshall testified that he continued to speak with Mr. Leake about Mr. Martinez and the investigation generally, but does not recall the substance of those conversations. Docket No. 443 at 62:9-21. Special Agent Marshall testified that he did not use any procedures to segregate the transcripts from other federal agents involved in the DEA's investigation. Docket No. 443 at 89:1-4. Special Agent Marshall testified that he did not rely on any information provided ...