STATE OF NEW JERSEY VS. THOMAS EVERETT(15-09-1184, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1421-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
THOMAS EVERETT,
Defendant-Respondent.
______________________________
Argued September 14, 2017 – Decided October 18, 2017
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
15-09-1184.
Michael R. Philips, Assistant Prosecutor,
argued the cause for appellant (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Mr. Philips, of counsel and on the brief;
John J. Scaliti, Legal Assistant, on the
briefs).
Dennis D.S. McAlevy argued the cause for
respondent.
PER CURIAM
The State appeals from the Law Division's dismissal of the
indictment charging defendant, Thomas Everett, with second-
degree possession of a weapon without a permit, N.J.S.A. 2C:39-
5(b), third-degree possession of stolen property, N.J.S.A.
2C:20-7, and second-degree possession of a handgun by a person
not lawfully permitted to possess a weapon, N.J.S.A. 2C:39-7(b).
The motion judge dismissed the indictment after he concluded
that the State failed to produce a statement from a federal
agent working for the United States Department of Homeland
Security about a confidential informant (CI) involved in the
events that led to defendant's arrest. On appeal, the State
contends it was error for the court to dismiss the indictment
under the circumstances. We agree and reverse.
The facts leading to the dismissal of the indictment can be
summarized as follows. The CI was working with a Homeland
Security agent on an unrelated matter when he advised the
federal agent that he could arrange for the purchase of weapons
from a third party, who turned out to be defendant. The agent
informed local police who set into motion a series of events
that led to the CI scheduling a purchase from defendant while
under police surveillance. At the scheduled purchase, the
police stopped defendant while he was with the CI. The police
found a handgun in defendant's possession. He was arrested,
charged and later indicted.
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During the ensuing prosecution, defense counsel filed a
motion for a bill of particulars, R. 3:7-5, seeking information
from the prosecutor about the CI. The motion judge granted the
application, entering an order on April 28, 2016, identifying
specific information that the prosecutor was to turn over to
defense counsel relating to the CI. According to the court's
order, the prosecutor was to produce the following information
by May 13, 2016:
1. Documentation regarding the length of
[the CI's] employment with [the local
police]; copies of all oral/written
agreements between [the CI] and [the local
police], and any/all benefits given or
promised by [the local police] to [the CI];
2. Documentation regarding the length of
[the CI's] employment with Homeland
Security; copies of all oral/written
agreements between [the CI] and Homeland
Security, and any/all benefits given or
promised by Homeland Security to [the CI];
or in the alternative, if the State is
unable to obtain such documentation, then to
provide defense counsel with the name,
address and telephone number of the Homeland
Security agent who is supervising [the CI's]
work for said agency;
3. A true copy of [the CI's] criminal
history[.]
[(emphasis added).]
The prosecutor wrote to defense counsel on May 16, 2016,
providing him with information responsive to the court's order.
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That information included confirmation that the CI did not have
any oral or written agreements with local law enforcement. As
to Homeland Security, the prosecutor explained:
[he] reached out to the. . . [a]gent . . .
[who] conveyed . . . that there was no
written confidential informant agreement
between . . . Homeland Security and [the
CI]. . . . [The CI's] length of service as
an informant to . . . Homeland Security was
less than six (6) months. For helping . . .
Homeland Security, [the CI] potentially had
an opportunity to benefit himself with
regard to his own criminal charges in New
Jersey. However, [the CI] received no
benefit with regard to any of his own cases
and was dropped by . . . Homeland Security
as an informant when it was discovered that
he was continuing to commit crimes in New
Jersey.
The prosecutor's letter also advised counsel of the CI's
federal and state criminal history and identified by name,
address and telephone number the agent who supervised the CI's
work with Homeland Security.
At a status conference held before the motion judge on May
23, 2016, defense counsel argued that the prosecutor's response
was not sufficient and that counsel intended to subpoena the
federal agent. Counsel issued the subpoena and, in response,
assistant chief counsel to Homeland Security wrote that before
the agency would respond to the subpoena, defense counsel was
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required to comply with the federal "Touhy regulations,1" and
that compliance was "an absolute condition precedent to
obtaining testimony . . . from a . . . Homeland Security
employee." Defense counsel made no effort to comply with the
regulations.
After making another unsuccessful attempt to seek
compliance, defense counsel filed a motion to dismiss the
indictment. The motion judge granted defendant's motion,
placing his reasons on the record. In his oral decision, the
judge concluded that, under Rule 3:13-3(b), defendants have the
right to information relevant to the credibility of a State
witness, including any cooperation agreement setting forth any
benefits promised to the witness. The court found the
prosecutor and the federal government were working together when
defendant was arrested, and the prosecutor's statement that
Homeland Security told him that no written cooperation agreement
existed was hearsay and inadequate to satisfy the State's burden
under Rule 3:13-3(b). The judge concluded that the withholding
1
United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S. Ct.
416, 95 L. Ed. 417 (1951) (recognizing agency's right to
promulgate regulations governing the disclosure of information).
See also 6 C.F.R. §§ 5.41-.49 (addressing conditions to Homeland
Security personnel responding to subpoenas).
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of the information violated defendant's federal and state
constitutional rights.
The State filed a notice of appeal on December 13, 2016 and
the motion judge issued a written amplification of his decision
under Rule 2:5-1(b). In his comprehensive amplification, the
judge acknowledged that Homeland Security was "not the
prosecuting agent in this State Court proceeding," but because
it participated in a "joint investigation" with local
authorities it should not be permitted to "stand[] behind an
opaque veil, refusing to comply" with the court's order. He
also recognized that the court may not have "authority to compel
federal agencies" to produce discovery, but it could compel the
prosecutor to be responsible for obtaining the information
sought in satisfaction of the State's obligation under Rule
3:13-3(b). The judge concluded by rejecting the argument that
the prosecutor's version of what he was told by the federal
agent satisfied that obligation. The judge stated:
The Assistant Prosecutor is not a
witness and cannot independently verify the
accuracy of the hearsay statements made by
the federal agent regarding the relationship
between the federal government and the CI.
In this State prosecution initiated by
federal agents, with the direct involvement
of a federal CI, the State must either (1)
produce the appropriate federal entity with
knowledge of the relationship, or (2)
produce a written statement from the federal
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agency confirming the existence or non-
existence of a cooperation agreement with
its CI.
The failure of the State to provide
information pertaining to the CI has
deprived defendant of the right to confront
the CI and attack his credibility, and has
also deprived defendant with information
which may be relevant to the defense of
entrapment.
[(emphasis added).]
On appeal from the order dismissing the indictment, the
State argues the motion judge erred because federal regulations
prevented the prosecutor from obtaining the information
defendant sought from the federal agent, and "the assistant
prosecutor's representations, regarding the nature of the CI's
arrangement with law enforcement authorities, satisfied the
State's discovery obligation."
"We review a trial court's decision [on] a motion to
dismiss an indictment for a clear abuse of discretion." State
v. Zembreski, 445 N.J. Super. 412, 424 (App. Div. 2016) (citing
State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010)).
"[T]he decision whether to dismiss an indictment lies within the
discretion of the trial court, and that exercise of
discretionary authority ordinarily will not be disturbed on
appeal unless it has been clearly abused." State v. Hogan, 144
N.J. 216, 229 (1996) (citations omitted). "However, if a trial
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court's discretionary decision is based upon a misconception of
the law, a reviewing court owes that decision no particular
deference." Zembreski, supra, 445 N.J. Super. at 424 (quoting
Lyons, supra, 417 N.J. Super. at 258).
Although courts have "inherent powers" to dismiss an
indictment where the State has failed to comply with discovery,
State v. Abbati, 99 N.J. 418, 429 (1985); see also R. 3:13-3(f),
granting a motion to dismiss an indictment should occur only in
limited circumstances. Zembreski, supra, 445 N.J. Super. at
424-25. "One of the guiding principles to be followed by a
court when considering a motion to dismiss an indictment is that
'a dismissal of an indictment is a draconian remedy and should
not be exercised except on the clearest and plainest ground.'"
Ibid. (quoting State v. Williams, 441 N.J. Super. 266, 271 (App.
Div. 2015) (alteration omitted)). Dismissal of an indictment
"is the last resort because the public interest, the rights of
victims and the integrity of the criminal justice system are at
stake." State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div.
2004) (citations omitted). "[T]his drastic remedy is
inappropriate where other judicial action will protect a
defendant's fair trial rights." State v. Clark, 347 N.J. Super.
497, 508 (App. Div. 2002).
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Before a dismissal of an indictment is
warranted in such circumstances, . . . there
must be a finding of intention inconsistent
with fair play and therefore inconsistent
with due process, or an egregious
carelessness or prosecutorial excess
tantamount to suppression. In the absence
of these conditions, the right of the public
to its day in court in the prosecution of
properly found indictments should be
forfeited only if otherwise there would be
manifest and harmful prejudice to defendant.
[State v. Laganella, 144 N.J. Super. 268,
282-83 (App. Div. 1976).]
"A trial judge is not limited to dismissal as a remedy.
The rule specifically provides for discretion in formulating a
sanction for a discovery violation." Clark, supra, 347 N.J.
Super. at 509 (citations omitted); see also R. 3:13-3(f).
Applying these guiding principles, we conclude that the
motion judge mistakenly exercised his discretion by dismissing
the indictment. At the outset, we concur with the motion judge
that the hearsay statement of the prosecutor about what the
federal agent told him did little to protect defendant's
Confrontation Clause rights under the federal and state
constitutions. We disagree, however, that dismissing the
indictment was warranted under the circumstances.
First, there was no legal basis for the judge to find the
prosecutor violated the State's discovery obligations because of
the federal agent's or Homeland Security's conduct. The
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prosecutor complied with the only order entered by the court
prior to dismissal that required him "to provide counsel with
the name, address and telephone number of the Homeland Security
agent who is supervising [the CI's] work for said agency" if the
prosecutor was unable to obtain a written statement directly
from the agent. The provisions of the court's order were never
violated. If the motion judge believed the prosecutor had to do
more, he should have specified in another order the action to be
taken so that the prosecutor could attempt to comply or seek
alternate relief.
Second, defense counsel's subpoena did not comply with the
Homeland Security regulations provided in 6 C.F.R. §§ 5.41-.49.
Specifically, 6 C.F.R. § 5.45 required that defense counsel "set
forth in writing, and with as much specificity as possible, the
nature and relevance of the official information sought." If
defendant complied with the regulations and Homeland Security
denied his request, pursuant to the considerations indicated in
6 C.F.R. § 5.48(a), then defendant's recourse would have been to
challenge that decision through an Administrative Procedure Act
proceeding in federal court, See 5 U.S.C. § 702 (limiting
Administrative Procedures Act review to the federal courts), as
that court remained the ultimate authority as to whether
Homeland Security –— a federal agency –— should be required to
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turn over any information to a defendant in a state court
criminal action. See Chrysler Corp. v. Brown, 441 U.S. 281,
295-96, 99 S. Ct. 170560 L. Ed. 2d 208 (1979) ("agency
regulations implementing federal statutes . . . pre-empt state
law under the Supremacy Clause"); see also Edwards v. U. S Dep't
of Justice, 43 F.3d 312, 314-15 (7th Cir. 1994).
In light of the motion judge's misapplication of the law,
we are constrained to reverse the order dismissing the
indictment.
Reversed and remanded for an order reinstating the
indictment and for further proceedings consistent with our
opinion. We do not retain jurisdiction.
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