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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, CASE NUMBER: 09-20473

HONORABLE VICTORIA A. ROBERTS

v.

RAFAEL C. MURREY (D-1),

CHARLES A. DAVIS (D-2),

JONATHAN A. DAVIS (D-3),

BRANDI N. DAVIS (D-4), and

AMBER KINGSLEY (D-5),

Defendants.

_________________________________/ 

ORDER 

I. INTRODUCTION 

This matter is before the Court on Defendant Charles A. Davis’ objections (Doc.

108) to the Magistrate Judge’s Report and Recommendation (R&R) (Doc. 106).

On December 15, 2009, the Government charged five Defendants with

conspiracy to distribute cocaine, and several related counts, in a five count superseding

indictment. Two of these Defendants, Charles A. Davis (“Davis”) and Rafael C. Murrey

(“Murrey”), filed nine pretrial motions. 

 Davis filed motions to: (1) disclose Brady materials (Doc. 69); (2) sever (Doc.

70); (3) require disclosure and production of informants or, in the alternative, for an in

camera hearing (Doc. 71); (4) obtain notice of the Government’s intention to offer

evidence (Doc. 72); and (5) suppress evidence seized from an illegal search (Doc. 73).

Murrey filed motions to: (1) compel discovery (Doc. 75); (2) suppress evidence
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or, in the alternative, for a Franks hearing (Doc. 76); (3) preclude his in-court

identification (Doc. 77); and (4) preclude admission of evidence (Doc. 78). 

On May 11, 2010, the Court referred Defendants’ motions to Magistrate Judge

Mark A. Randon for an R&R. After a hearing and an in camera interview of a

Government confidential source (“CS2"), the Magistrate recommends that all of Davis’

motions be denied. He also recommends that all of Murrey’s motions be denied, except

Murrey’s motion to preclude admission of certain 404(b) evidence (Doc. 78). 

On September 9, 2010, Davis filed timely objections to the R&R. Murrey did not

object to any of the Magistrate Judge’s recommendations. 

For the reasons stated, the Court ADOPTS the R&R in its entirety. 

II. BACKGROUND

The Government alleges that, from September 2007 until December 2008, the

Defendants purchased and distributed large quantities of cocaine. According to the

Government, Brandi N. Davis and Amber Kingsley transported cocaine from Chicago,

Illinois to Detroit, Michigan in cars with hidden compartments. Once in Michigan, the

cocaine was given to Defendants Rafael C. Murrey, Charles A. Davis, and Jonathan A.

Davis to sell.

The Government believes that the shipments of cocaine increased in frequency

and quantity over the course of the conspiracy. In the early months, the shipments

were approximately ten to fifteen kilograms every week or every other week. Beginning

in July 2008, the shipments increased to twenty-five kilograms twice each week. In

total, the Defendants allegedly transported and sold more than five hundred kilograms

of cocaine during the conspiracy. 
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III. STANDARD OF REVIEW

When reviewing a magistrate judge’s order on a preliminary, non-dispositive

matter, a district court must assess whether the order is “clearly erroneous or contrary

to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); United States v. Curtis, 237

F.3d 598, 602-03 (6th Cir. 2001). “A finding is ‘clearly erroneous’ when although there

is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948); see Hagaman v. Commissioner

of Internal Revenue, 958 F.2d 684, 690 (6th Cir. 1992). If two permissible views of the

evidence exist, a magistrate judge’s decision cannot be “clearly erroneous.” Anderson

v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).

IV. ANALYSIS

A. Motion to Sever (Doc. 70)

Davis seeks a separate trial from his co-defendants. He says that a joint trial will

be highly prejudicial to his defense because the indictment charges varying levels of

involvement for the individual Defendants. Because the case is complex, Davis

believes the jury will be confused by the differences in the levels of culpability among

Defendants, and will treat the Defendants as one. He says this will result in an unfair

trial to him.

Joinder of co-defendants is proper if the defendants participated in the same acts

or series of acts that constitute the crime. Fed. R. Crim. P. 8(b). However, even where

it is proper, Rule 14 of the Federal Rules of Criminal Procedure permits defendants
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relief from joinder likely to result in prejudice. The rule provides, “If the joinder of

offenses or defendants in an indictment . . . appears to prejudice a defendant or the

government, the court may . . . sever the defendants’ trials, or provide any other relief

that justice requires.” Fed. R. Crim. P. 14(a). 

However, “Rule 14 does not require severance even if prejudice is shown; rather,

it leaves the tailoring of the relief to be granted, if any, to the district court’s sound

discretion.” Zafiro v. United States, 506 U.S. 534, 538-39 (1993). District courts “should

grant a severance under Rule 14 only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” Id. at 539. Generally, limiting

instructions will cure the risk of prejudice created by a joint trial. Id. 

Clearly, there exists a strong presumption favoring joint trials when criminal

charges result from the same acts and will be proven by the same evidence. United

States v. Critton, 43 F.3d 1089, 1098 (6th Cir. 1995). This presumption is especially

weighty when defendants are charged with joint participation in a common conspiracy.

United States v. Cope, 312 F.3d 757, 779-80 (6th Cir. 2002). The defendant must

overcome this presumption with a ‘strong showing of prejudice.’ United States v. Moore,

917 F.2d 215, 219 (6th Cir. 1990) (quoting United States v. Hessling, 845 F.2d 617, 619

(6th Cir. 1988)). 

Davis says that his motion should be granted because the Defendants each had

varying levels of culpability, which may confuse the jury and result in an unfair trial. In

support, Davis cites to United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980), a case

in which failure to sever was found to be so prejudicial and confusing to the jury that it
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warranted a new trial. However, the facts in Sampol are distinguishable from Davis’ in

many important respects, and the case only serves to underscore why severance is not

necessary. 

In Sampol, Ignacio Novo Sampol was charged in an indictment with multiple codefendants. Many of the co-defendants were charged with conspiracy to murder and

murder, while Ignacio was charged with only false declarations to a grand jury and

failing to report a felony. Id. at 629. The court found that the evidence admitted at trial--

much of which addressed only the murder related charges-- created an inference that

Novo was a co-conspirator, despite the fact that he was not charged in the conspiracy. 

Here, Davis is not charged with vastly different crimes than his co-defendants; he

is charged as a co-conspirator. It is unclear why Davis believes that the indictment

charges the Defendants with very different levels of involvement. The only counts

alleged in the indictment in which Davis is not charged are counts which allege Murrey

attempted to buy cocaine in furtherance of the conspiracy, and assaulted officers during

a daring escape when officers tried to arrest him. The Court finds the risk of prejudice

to Davis minimal and a severance unjustified. 

The Magistrate is well within his discretion in finding that Davis did not carry his

substantial burden to show that strong prejudice would result from a joint trial with his

co-defendants; the Court adopts the Magistrate’s recommendation to deny Davis’

motion. 

B. Motion to Require Disclosure and Production of Informants or, in the

Alternative, an In Camera Hearing (Doc.71)

During the hearing, the Government and Davis agreed that the Magistrate would
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hold an in camera interview with CS2, a confidential Government informant, to

determine whether CS2's identity should be disclosed. Davis submitted questions for

the Magistrate to ask of CS2, and the Magistrate also asked followup questions. The

Magistrate found that CS2 has no information regarding Davis. 

 Davis objects to the Magistrate’s finding because he believes CS2 has

exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963).

Generally, the Government holds a privilege to withhold the identity of an

informant. Rovario v. United States, 353 U.S. 53, 59 (1957). This privilege encourages

citizens to communicate known criminal activity to law enforcement by protecting them

against reprisals. Id. at 59. However, “[w]here the disclosure of an informer’s identity, or

of the contents of his communication, is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must give way.”

Id. at 60-61. Under such circumstances, the trial court may require disclosure. 

To decide whether an informant’s identity must be disclosed, the trial court

balances the “public interest in protecting the flow of information against the individual’s

right to prepare his defense.” Id. at 62. The court must consider the circumstances of

the case, including the offense charged, the possible defenses, and the possible

testimony of the informer. Id. at 62. To determine this, an in camera review “has long

been the accepted practice in this circuit.” United States v. Sharp, 778 F.2d 1182, 1187

(6th Cir. 1985). 

The defendant bears the burden to show that the informant’s identity will assist in

his defense. United States v. Dexta, 136 Fed. Appx. 895, 904 (6th Cir. 2005) (citing

United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992)). Disclosure is warranted only
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when the defendant shows that disclosure is essential to a fair trial. Dexta, 136 Fed.

Appx. at 904. “Mere conjecture or supposition about the possible relevancy of the

informant’s testimony is insufficient to warrant disclosure.” Sharp, 778 F.2d at 1187. 

Davis believes that CS2 has exculpatory information that is essential to his

defense. However, Davis does not hint to what this exculpatory information might be, or

why he believes CS2 has it. During the Magistrate’s hearing, Davis suggested that CS2

has information showing that a particular transaction between CS2 and a co-defendant

was not part of the conspiracy. Thus, CS2's identity would help prove the alleged

conspiracy was not as broad as the Government claims. Additionally, Davis suggested

CS2 has information showing Davis was not involved in the conspiracy at all. Davis

says this is exculpatory information, and that Brady requires its disclosure. 

The argument advanced by Davis is similar to the argument of the defendant in

United States v. Dexta. In Dexta, the defendant was indicted with a co-defendant for

conspiracy to distribute, and filed a motion for disclosure of the identities of two

confidential government informants on the grounds that the informants had exculpatory

information relevant and essential to a fair trial, even though the informants provided no

information that implicated the defendant. Id. at 898. After an in camera hearing, the

Magistrate issued an R&R recommending that defendant’s motion be denied because

the defendant did not meet his burden of showing that the identity of the informant

would be of substantial assistance to his defense. 

The defendant objected to the R&R, based in part on the contention that this

burden violated Brady v. Maryland, because the government bears the burden to

disclose exculpatory information. Id. at 899. Despite the defendant’s objections, the
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District Court adopted the R&R. The Sixth Circuit affirmed, noting the informants

supplied no information about the defendant, and the defendant based his claim that the

informant had exculpatory information on speculation and conjecture. Id. at 905. 

Here, the Magistrate performed an in camera hearing, and concluded that CS2

has no information helpful to Davis’ defense, “or any other information essential to a fair

determination of the case.” This includes exculpatory information. The Court finds

Davis’ claim that CS2 has exculpatory information speculative and based on conjecture;

the Magistrate’s denial of Davis’ motion is proper.

C. Motion to Suppress Evidence Seized from an Illegal Search (Doc. 73)

Davis objects to the denial of his motion to suppress evidence seized from a

search of his home, claiming the affidavit failed to establish a nexus between the

alleged criminal activity and his residence; thus, there was no probable cause to search

the residence. 

Probable cause exists where the totality of the circumstances indicate “a fair

probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983). In order for a search to be justified, “the

circumstances must indicate why evidence of illegal activity will be found ‘in a particular

place.’” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004). In other words, a

nexus must exist between the place searched and the evidence sought. Id. However, a

finding of a nexus does not require the affidavit to allege that the criminal activity took

place at the location to be searched. United States v. Khami, 362 Fed. Appx. 501, 504

(6th Cir. 2010) (citing United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998)). 

In this case, the affiant, Special Agent Fountain (“SA Fountain”) of the Drug
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Enforcement Administration, swore facts that indicated Davis was involved in drug

trafficking. 

Through a confidential source, CS1, SA Fountain received information that two

persons referred to as “Mack” and “Baldy” were cocaine traffickers. During at least one

recorded phone call between CS1 and Baldy, the two specifically discuss 65 kilograms

of cocaine provided by CS1 to Baldy. Baldy says that he still has one kilogram to sell,

and so does Mack. (Aff. ¶ 7). 

On December 2, 2008, in a phone call between CS1 and Justin Turner, who

allegedly acted as a middleman in these transactions, Turner and CS1 discuss a

cocaine delivery. Turner negotiates a delivery of 80 kilograms of cocaine for Baldy and

Mack. (Aff. ¶ 8). Later that same day, CS1 calls Baldy to confirm the time and place of

delivery. They agree it will be delivered to the same place as previous shipments. 

When Baldy showed up to take the delivery that night, agents were there to arrest him,

but Baldy made a daring escape. 

Agents later determined that Mack was Defendant Davis. According to CS1,

Davis began buying cocaine directly from CS1 in October 2008. CS1 said he/she

provided Baldy and Davis with approximately 300 kilograms of cocaine from October

2008 to November 2008. Considered together, this information established probable

cause to believe that Defendant Davis was trafficking drugs. 

 Additionally, SA Fountain swore on the basis of his training and experience that

drug traffickers often keep records (including address books, telephone numbers, drug

quantity information, and debt records), which they conceal in readily accessible places

(for example, their homes, garages, offices, and cars). Based on this, the Magistrate
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found probable cause to search Davis’ residence for evidence of drug trafficking. The

Court agrees. 

Here, the Court finds United States v. Gunter, 551 F.3d 472 (6th Cir. 2009)

instructive. In Gunter, the defendant appealed his conviction for conspiracy to distribute

claiming the affidavit was insufficient to establish probable cause to search his

residence because there was no nexus between his alleged criminal activity and his

residence. The Sixth Circuit stated:

The affidavit contains evidence that Gunter was engaged in repeated

purchases of cocaine in the one to four kilogram range. Because the

quantity of drugs and repeated nature of the transactions make it

reasonable to conclude that Gunter was engaged in ongoing drug

trafficking, it was reasonable to infer that evidence of illegal activity would

be found at Gunter’s residence. 

Id. at 481. 

This reasoning applies with equal force to Davis; because there is probable cause to

believe Davis was involved in drug trafficking, there is probable cause to believe that

evidence of drug trafficking might be found at his residence. 

Davis’ objection is without merit. 

V. CONCLUSION

The Court ADOPTS the Magistrate Judge’s R&R. Accordingly, the Court DENIES

Davis’ motions in their entirety, and DENIES Murrey’s (1) motion to compel discovery

(Doc. 75); (2) motion to preclude his in-court identification (Doc. 77); and (3) motion to

suppress evidence or, in the alternative, for a Franks hearing (Doc. 76). 

The Court GRANTS Murrey’s motion to preclude admission of certain 404(b)

evidence (Doc. 78). 
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IT IS ORDERED. 

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: November 10, 2010

The undersigned certifies that a copy of

this document was served on the

attorneys of record by electronic means or

U.S. Mail on November 10, 2010.

s/Carol A. Pinegar 

Deputy Clerk