United States v. Randolph ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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v. ) Criminal No. 21-0332 (PLF)
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PAUL RUSSELL JOHNSON )
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and )
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STEPHEN CHASE RANDOLPH, )
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Defendants. )
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MEMORANDUM OPINION AND ORDER
The United States filed a Motion to Convert the December 14, 2021 Hearing for
Defendant Paul Russell Johnson’s Motion to Suppress to a Status Conference (“Mot. to
Convert”) [Dkt. No. 64]. In view of the “myriad issues raised in the parties’ briefing thereto,”
the Court vacated the December 14 hearing and status conference for both defendants. See
December 10, 2021 Minute Order. This Memorandum Opinion and Order provides the Court’s
reasoning in greater detail.
With the agreement of the parties, the Court had scheduled a motions hearing for
oral argument on Mr. Johnson’s Motion to Suppress Electronic Evidence or, in the Alternative,
to Appoint a Special Master [Dkt. No. 66] for December 14, 2021. Order [Dkt. No. 53]. On
December 9, 2021, the United States filed its motion to convert that motions hearing into a status
conference. According to the government, Mr. Johnson served twelve subpoenas on the FBI on
December 7, 2021, seeking the oral testimony of twelve FBI agents at the hearing. See Mot. to
Convert at 1. In support of its motion to convert, the government argued that the subpoenas are
unreasonable and oppressive because a suppression hearing featuring oral testimony of any
kind — let alone that of a dozen FBI agents — is unnecessary to resolve the issues raised in Mr.
Johnson’s motion to suppress. See id. at 2. In the government’s view, there are no disputed
material facts at issue. See id.
In his response to the motion to convert, Mr. Johnson argued that there are at least
three disputed facts at issue in the motion to suppress: (1) whether the government executed the
search warrant at the wrong address; (2) whether the government obtained the four walkie-talkies
at issue by opening a locked safe without a warrant; and (3) whether Mr. Johnson has a privacy
interest in his wife’s phone. See Response in Opposition to Government’s Motion to Convert the
December 14, 2021 Hearing for Defendant Paul Russell Johnson’s Motion to Suppress to a
Status Conference [Dkt. No. 69] at 3; see also Reply in Support of Paul Russell Johnson’s
Motion to Suppress Electronic Evidence or, in the Alternative, to Appoint a Special Master [Dkt.
No. 71] at 2-3, 6-8. As the United States notes, however, Mr. Johnson did not raise any of these
bases for suppression of the seized evidence in his motion to suppress and instead raised them for
the first time in his reply. See Reply in Support of Government’s Motion to Convert the
December 14, 2021 Hearing for Defendant Paul Russell Johnson’s Motion to Suppress to a
Status Conference [Dkt. No. 70] at 1-2.
“Generally, new arguments raised for the first time in reply may be disregarded
due to concern that the opposing party would lose an opportunity to respond.” United States v.
Brown, 249 F. Supp. 3d 287, 295 n.1 (D.D.C. 2017) (internal quotation omitted). “Considering
an argument advanced for the first time in a reply brief... is not only unfair to an [opposing
party] but also entails the risk of an improvident or ill-advised opinion on the legal issues
tendered.” McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986)
(internal citation omitted). Typically, the Court would not consider Mr. Johnson’s arguments
raised for the first time in reply because they have been waived. See, e.g., United States v.
Ford, 183 F. Supp. 3d 22, 38 (D.D.C. 2016) (citing In re Asemani, 455 F.3d 296, 300 (D.C.
Cir. 2006)).
That being said, the new Fourth Amendment arguments raised by Mr. Johnson are
important; they merit fuller briefing and careful consideration by the Court to assure that his
constitutional rights are protected. Furthermore, the arguments he now makes do raise factual
disputes that will require testimony in order for the Court to resolve Mr. Johnson’s motion to
suppress. The Court therefore will permit Mr. Johnson to file a supplemental brief addressing
the additional legal and factual issues raised in his reply, including those three listed above, and
permit the United States to respond.
Accordingly, it is hereby
ORDERED that the United States’ Motion to Convert the December 14, 2021
Hearing for Defendant Paul Russell Johnson’s Motion to Suppress to a Status Conference [Dkt.
No. 64] is DENIED as moot; it is
FURTHER ORDERED that the parties shall meet and confer to agree on a
briefing schedule for the additional issues raised in Mr. Johnson’s Reply in Support of Paul
Russell Johnson’s Motion to Suppress Electronic Evidence or, in the Alternative, to Appoint a
Special Master [Dkt. No. 71], and they shall also seek to agree on the number and names of
witnesses required for an evidentiary hearing; it is
FURTHER ORDERED that they shall file a joint status report setting forth their
agreements concerning the briefing schedule, proposed dates for an evidentiary hearing and legal
argument on the motion to suppress, and the number and names of witnesses required; and it is
FURTHER ORDERED that Mr. Randolph shall contact the Courtroom Deputy
Clerk Tanya Johnson (tanya_johnson@dcd.uscourts.gov) to schedule a status conference if he
believes that one would be helpful.
SO ORDERED.
Okan ZA
PAUL L. FRIEDMAN
United States District Judge
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