In United States v. Burrell, law enforcement received an anonymous tip that Burrell was engaged in drug trafficking. This prompted an investigation lasting approximately four months during which officers, using personal surveillance and GPS tracking information, tracked Burrell to and from several residences. In addition, agents tracked Burrell to a grocery store in Ohio, where he engaged in a suspected drug transaction with Stephanie Harris. Agents stopped Harris shortly after the transaction and found heroin in her possession. She also provided a description to the arresting officers that matched Burrell's description.
Based on their investigation, agents obtained search warrants for three residences they claimed Burrell used to further his drug transactions. Executing the search warrants, officers seized 800 grams of fentanyl, hundreds of prescription pills, three handguns, ammunition, and other drug trafficking evidence. They also arrested Burrell at one of his residences, where, during a post-arrest interview, he indicated he occasionally stayed at another location (Farnham Avenue) and "expressed concern that the DEA would search that residence as well." His concerns were well-founded. The DEA subsequently obtained a warrant for Farnham Avenue, where they discovered 83 grams of cocaine and a hydraulic press used to press drugs into bricks.
Based on the evidence seized from the four locations, a federal grand jury indicted Burrell for possessing heroin and fentanyl intending to distribute the same, one count of maintaining a drug premises, one count of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The district court subsequently denied his motion to suppress the evidence received from the four residences.
Two weeks prior to his trial, Burrell again moved to suppress the referenced evidence, and he moved to dismiss the counts of his indictment charging him with being a felon-in-possession of firearms and ammunition pursuant to New York State Rifle & Pistol Association Inc. v. Bruen. The district court again denied his motion to suppress, and it denied his motion to dismiss as untimely. Additionally, it denied Burrell's challenge to the indictment on its merits, noting that various courts nationwide had rejected Bruen challenges to § 922(g)(1). A jury ultimately convicted Burrell on all counts.
In addition to raising several evidentiary issues on appeal, Burrell also challenged the district court's order denying his motions to suppress and dismiss. The Sixth Circuit affirmed, however.
It first addressed Burrell's appeal from the district court's order denying his motion to suppress and his late-filed motion to dismiss his firearms charges. It first noted that the Sixth Circuit had yet to address the standard of review in such a situation, i.e. where a defendant raises an issue anew that he or she had previously raised in a pretrial motion that the district court denied as untimely. The Court held that it would review any order denying such a motion as untimely for an abuse of discretion. In addition, where the party raises the issue anew on appeal, it held it would treat such claims as forfeited and apply a plain-error standard to the forfeited claims. Applying this analysis, the Court held the district court did not abuse its discretion in denying Burrell's late-filed motion as untimely, and it held the district court did not plainly err in denying his motion to dismiss his firearms charges under Bruen.
The Court also upheld the district court's order denying Burrell's motion to suppress. It found that law enforcement sufficiently corroborated the informant's tip, which prompted their investigation that provided a significant basis for the search warrants. It further found that a sufficient nexus existed between the warrants and three of the four residences at issue. Although it found that the alleged nexus to the fourth location (Fairmont Avenue) was a closer call, it held Burrell did not establish he had standing to contest the search of that residence. Finally, it held that, even if the warrants were invalid, the Leon good faith exception applied. Finding no error, the Court affirmed the district court's order denying his motion to suppress.
The Court also rejected Burrell's challenges to some of the district court's evidentiary rulings. During his trial, he objected to testimony provided by Zachary Snyder - the lead investigator in his case - in which he repeated out-of-court statements made to him by Renee Slaughterbeck (the previously unidentified tipster) that Burrell had tasked her with delivering drugs to Harris, and that she was afraid to return to him without the money or the drugs. The Court, however, held such statements were non-hearsay since the Government offered them to explain why the DEA decided to stage Harris's traffic stop. Thus, the Court concluded, the statements violated neither the hearsay rule nor the Confrontation Clause.
Burrell next claimed the district court improperly allowed the Government to introduce improper testimony regarding the credibility of a gas station clerk present during the referenced drug transaction involving Harris. The clerk had apparently denied to Snyder that she had purchased drugs from Burrell. Snyder testified on direct examination, however, that he did not believe her, citing her criminal background. On appeal, Burrell argued the Court should reverse for prosecutorial misconduct. The Court disagreed, noting that Snyder, not the prosecutor, offered testimony regarding the clerk's lack of credibility. It also held such evidence was relevant and that it did not violate FRE 608 and 609 because the clerk was not a witness. Finally, it held Snyder did not offer improper opinion testimony in violation of FRE 701.
Among the many issues addressed by the Court in Burrell's appeal, perhaps one should stand out to practitioners: make use of motions to extend pretrial motion deadlines, or, if you do not, make a showing as to why you had to file your motion after the deadline. Otherwise, the district court and the Sixth Circuit may hold you are out of luck.
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