Good Times: Dion Fearon in Baltimore, asking all about Jean Brown

By Van Smith

Baltimore, March 21, 2019

Yesterday at Studio 4 in downtown Baltimore, producer Dion Fearon asked me questions about lifer Jean Brown, the Baltimore-based Jamaican who in 2009 ordered and oversaw the tortuous murder and dismemberment of Michael Knight, Brown’s friend and co-conspirator in a $1M-a-month Mexican cannabis-trafficking operation. Knight’s body, which was sawed to pieces, packaged, and tossed into various dumpsters in the Baltimore area, was never recovered.

I’d first written about Brown in late 2010, when a search warrant in the case dropped at U.S. District Court in Maryland, and ended up writing about her two more times. Fearon is now putting together a documentary about Brown, and managed to track me down just in time for me to go back over my records and writings quickly in preparation for the shoot.

We covered a lot of ground involving Brown, but Fearon also asked me about how the Brown conspiracy compared to other major pot-trafficking cases I’d covered. That prompted me to recall that the very building we sat in was once part of the real-estate holdings of Jeremy Landsman, who played a role in the globe-trotting, jet-setting cannabis conspiracy headed by Matt Nicka, and that next door used to be the location of Sonar, Dan McIntosh‘s nightclub that prosecutors contended, unsuccessfully, was part of the scheme.

When I arrived at the studio just prior to the appointed time, former federal prosecutor Stefan Cassella, who led the prosecution of Brown, was seated in front the cameras. When we were introduced, he was incredibly pleasant – considering all the words I’ve written about his work in Maryland over the years, much of which was critical reporting. There were stories about seizing assets from South Mountain Creamery, prosecuting online gambling and synthetic drugs, a forfeiture case marred by agents’ creating a faked drug-dog certification in litigation, and an occasion when Cassella drew the ire of a veteran federal judge – and that’s just what I can readily recall.

That’s Cassella on the right. Photo: Dion Fearon

When my interview was over, Fearon and I spoke about other stories, including Querida Lewis – Fearon brought her up her name, asking if I had heard of her – and Sean Hinton, the Baltimore police trainee whose body was found floating off Manhattan in 1992, and whose son Ronald Hinton was later convicted, on shaky evidence and a controversial confession, of raping and murdering a four-year-old girl.

I had presumed Fearon was a Californian – which she is – but it turns out she grew up in Baltimore. I predict we’ll be crossing paths again, and look forward to seeing what comes of her Brown biopic.

Frisky Business: Faked drug-dog certification puts Baltimore drug-money forfeiture at risk

By Van Smith

Published by City Paper, July 23, 2014

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Early last year, the U.S. Supreme Court elevated the legal status of drug-detecting dogs, ruling that a police search can be presumed lawful if it is predicated on a positive alert by a well-trained dog with basic paperwork. Such training, though, is bunk if not accompanied by valid certification of the dog and its handler. Not only was it lacking in an ongoing drug-money forfeiture case in Maryland U.S. District Court, in which the government is seeking to keep $122,640 in cash seized last September from a passenger’s luggage at Baltimore-Washington International Airport, but a fraudulent certification was produced by Maryland Transportation Authority Police (MTAP) and used by federal prosecutors, who sought to disguise and downplay the document’s false provenance, according to a Baltimore attorney’s recent filing in the case.

When the government is caught producing a fraudulent document in litigation, and then proceeds to stand by it, suffice it to say the matter is highly sensitive. It came to light during a July 9 deposition in the forfeiture case, which the government filed last December, and was made public last week in a claimant’s motion to dismiss the case.

The claimant is an Indiana real-estate investor, Samantha Banks, whose attorney, C. Justin Brown, asked U.S. District judge James Bredar not only to dismiss the case, but to “impose any other sanction the Court deems appropriate, on the grounds that the Government violated its duty of candor,” the motion states. The lead prosecutor, Stefan Cassella — a titan in the field, who wrote a 1,250-page book on federal asset-forfeiture law — cited personal reasons in asking for an extension until September to respond to the dismissal motion.

Brown’s motion calls to mind a dust-up last year involving Cassella, when he was reprimanded in another drug-related asset-forfeiture case by U.S. District judge Paul Grimm for coming “uncomfortably close” to violating his “duty of candor to the Court” by disingenuously cherry-picking supportive elements of cases in prior court rulings that, in their entireties, actually undermined the government’s position.

“The motion speaks for itself,” says Brown of the Banks’ case, “and beside that, I can’t comment.”

Maryland U.S. Attorney’s Office spokeswoman Marcia Murphy provided an emailed statement, saying that “we are looking into the document issue” and that “there was no intent to deceive anyone.” She also explained that Cassella is “on long-term family medical leave, and we won’t be able to respond to the claim until he returns,” but “the U.S. Attorney’s Office will file a full response to Mr. Brown’s allegations.” She noted that “the dog did not find the money,” but “subsequently was brought in to sniff the currency” after “a Transportation Security Administration [TSA] employee found $122,640 bundled in heat-sealed plastic in a bag checked for a flight from Baltimore to Atlanta.” The money, Murphy added, “is subject to forfeiture if it is from an illegal source, regardless of whether it had the odor of drugs.”

The cash was seized last Sept. 12 from Jerry Lee Banks, Samantha Banks’ husband, after a TSA inspector opened his unlocked, checked luggage and saw “a clear plastic vacuum sealed bag containing a large amount of U.S. Currency” that was sitting “on top of the clothing,” wrapped in “black rubber bands,” according to an affidavit signed by U.S. Drug Enforcement Administration task-force officer Kevin Davis, which was attached to the initial forfeiture filing. Another bundle was found “concealed inside a pair of sweat pants located in the bag,” the affidavit continues, and still others were found “underneath more articles of clothing in the bag.” Jerry Lee Banks’ explanation for the money was that “he was in the real estate business and that some transactions are done in cash,” the affidavit states.

After the cash was seized, MTAP K-9 officer Joseph Lambert had his drug-detecting dog, Falco, sniff it, and Falco gave it a positive alert for the presence of narcotics. This is not surprising, since forensic studies have shown the vast majority of bank notes in circulation are contaminated with narcotics, especially cocaine.

Three days later, on Sept. 15, Samantha Banks talked on the phone with law enforcers about the cash. She “stated that she was the owner of Banks Management,” Davis’ affidavit explains, and that “she felt that she had done nothing wrong.” She told agents the money was for a real-estate purchase, though “she could not provide an address or a person that she was purchasing from” or explain why it was “concealed in a suitcase in vacuum sealed freezer bags.” She added that “she had researched how to travel with U.S. currency with TSA and Delta Airlines and stated that she wasn’t doing anything illegal.”

Within a month of the government’s December filing of the forfeiture case, Brown filed a claim for it on Banks’ behalf. The litigation proceeded in the usual fashion, with Cassella providing discovery to Brown, including documentation in support of the government’s seizure. On April 15, a packet arrived with a cover letter from Cassella, stating that the certification for Lambert and Falco, dated Aug. 16, 2013, was included. Cassella described it as “a reproduction of the original certificate.”

Brown’s motion last week called the document “a critical piece of evidence” because it “would have been operative for the dog and handler at the time of the narcotics scan of the defendant currency.” Brown’s attention was drawn to the document not only because of its legal significance, but because, as he wrote, it was “produced as a color copy,” the only document “produced in this form.”

Brown’s efforts to get more documentation from Cassella to back up the K-9 team’s training ended with a June 16 letter from Cassella, stating that “after a reasonable search of the files in the possession of MTAP’s training personnel, the certification score sheets and photographs for the Aug. 16, 2013 Certification cannot be located.” It added that “this office is unaware of any information relating to any lack of competency, integrity or reliability on the part of Cpl. Lambert.”

The game-changing day in the case came on July 9, during a deposition of Michael McNerney, described by Brown as the head trainer of MTAP’s K-9 trainers. Cassella and another assistant U.S. attorney, Evan Shea, who is not the attorney of record on the Banks forfeiture, at the last minute had tried to cancel the deposition, but Brown’s efforts to have it go forward prevailed — and it unearthed remarkable admissions by McNerney.

The sworn deposition of McNerney, a partial transcript of which is included in Brown’s motion, revealed that he believed the certification was a fake; that it had been made specifically for the Banks forfeiture case on a home computer by one of MTAP’s K-9 trainers, officer John McCarty, who provided it to Lambert; that MTAP’s chain of command knew about the document’s production, as did MTAP’s assistant attorney general, Sharon Benzil, and federal prosecutors Shea and Cassella; and that all of them, when he raised concerns about the document, responded by saying simply that it was a duplicate.

During a break in McNerney’s deposition, Brown “questioned the two prosecutors about how they could use such a document in litigation,” his motion states. “Shea initially claimed that he had verbally told [Brown] about the true nature of the document,” and when Brown told Shea “this was not correct,” Shea “then changed his position and stated that the nature of the document had been disclosed in a letter from Cassella,” a point on which “Cassella agreed.”

The two prosecutors then referred to the April 15 letter from Cassella that called the document a “reproduction of the original certificate,” and, according to Brown’s motion, “took the position that, by calling the document a ‘reproduction,’ they had adequately disclosed the truth about the document.”

They also “took the position that Cpl. Lambert, Officer McCarty, and others at the MTAP had done nothing wrong in this episode – despite Officer McNerney’s assertion that his colleagues had committed fraud. Shea and Cassella further stated that they had made no follow up inquiry and had not contacted either Lambert or McCarty about the document.”

Brown contacted McCarty, though, who explained that “because Lambert was his superior officer, he felt that he was compelled by a direct order to produce the certificate,” according to Brown’s motion. McCarty described the certificate as having “no value,” the motion continues, because it lacked “underlying documentation, and he had no way of knowing whether August 16, 2013, was the correct date of the certification. When he faxed the document to Lambert, he did not know that the document he produced would be passed off in litigation as a ‘reproduction.'” As Brown point out in his motion, “somehow, the certification was transformed from a black-and-white fax” sent to Lambert from McCarty “into a color document with a gold seal.”

After McNerney’s deposition, Brown’s motion states, “the U.S. Attorney’s Office proceeded as if nothing remarkable had happened.” Brown’s motion, though, suggests he was shocked at what had transpired.

“This episode,” the motion states, “amounts to a violation of the Government’s duty of candor and merits dismissal of the case. It is not disputed that the K-9 Falco and the handler Lambert were actually certified at the time in question. But to focus on that fact misses the point. What matters is the lengths to which members of MTAP and the U.S. Attorney’s Office went to mislead the Claimant and gain an advantage in litigation. What matters is the institutional harm caused when officers of the court commit this type of conduct. It is inescapable that the April 15, 2014, letter was designed to prevent the Claimant from learning the truth about how the document was created. In addition, it appears that the letter was at least partially intended to provide cover in the off chance that somebody discovered the truth.”

Cassella’s letter, despite his knowledge of the certification’s fraudulent origins, also vouched for Lambert’s character, stating that “this office is unaware of any information relating to any lack of competency, integrity or reliability on the part of Cpl. Lambert.”

In arguing for dismissal and sanctions, Brown’s motion stresses that “it is irrelevant that Falco and Lambert were probably actually certified around the time in question” because “the Supreme Court has rejected this very type of argument” in a case in which a party’s attorney had introduced into evidence an article the attorney had co-authored, but claimed the co-author was the sole author. When “proof of the fraudulent claim regarding authorship surfaced,” the Supreme Court noted that one can’t “escape the consequences” of deception just because the fake document’s contents were truthful, saying “truth needs no disguise.”

Whether Cassella and the U.S. Attorney’s Office can escape the consequences Brown is asking for is in the hands of Bredar, who will rule after Cassella responds to Brown’s motion sometime in the early fall.

Prove It: Judge Still Not Satisfied That Drug-Dealer’s Mercedes Is Drug-Related Property

By Van Smith

Published by City Paper, Oct. 8, 2013

Maryland U.S. District judge Paul Grimm spent more than 15 years as a federal magistrate judge before being elevated to his current perch in 2012. That’s a lot of time to gain a nuanced understanding of the rules of evidence that must be met before law enforcers can lawfully seize or search property – one of a magistrate’s key bailiwicks.

So now that Grimm is a district judge with a docket that includes civil proceedings, called forfeitures, in which the government seeks to keep criminally derived property it has seized, he has a sensitive nose for the required legal thresholds – and in one case this year, he’s twice cited a dearth of evidence in denying the government’s move to keep convicted drug-dealer John Edward Butler Jr.’s 2003 Mercedes Benz CL500.

Butler was a St. Mary’s County drug dealer who pleaded guilty in a large federal cocaine conspiracy, and in 2011, the government filed a forfeiture case to keep his seized Mercedes. Grimm’s second denial, issued on Oct. 2, was in response to the government’s motion for reconsideration of his first, which was handed down in July. What’s clear from the second is that Grimm’s patience with the government’s arguments is wearing quite thin.

Grimm recapped his July decision by explaining that, “although the Government had shown that” Butler purchased the Mercedes from Gaunzie Hart for $4,000 up front, with the promise of another $9,500 over time, and that “the vehicle was seized in front of a location” that Butler used for drug-dealing, “the Government had not shown that Mr. Butler’s payment to Ms. Hart was proceeds from drug transactions” or that Butler “drove the Mercedes to and from the drug distribution location or that he drove it to distribute drugs, rather than to visit his mother.”

“Significantly,” Grimm continues, “the Government has not alleged that the Mercedes was Mr. Butler’s only vehicle at the time or that he never visited his mother’s residence without engaging in cocaine distribution. If either were the case, then I could reasonably believe that, on at least some of the occasions that Mr. Butler drove the Mercedes to his mother’s residence, he drove it there to engage in drug trafficking.”

Grimm aimed stinging criticism at the prosecutor in the case, assistant U.S. attorney Stefan Cassella – who, as CP has noted before, is considered the nation’s top asset-forfeiture prosecutor, having written a 950-page book on the intricacies of seizing and forfeiting criminally derived property.

In essence, Grimm accuses Cassella of making disingenuous pleadings in the case of Butler’s Mercedes because his arguments ignored the court’s contrary position in prior forfeiture cases Cassella had brought since he was hired in 2009 by Maryland U.S. Attorney Rod Rosenstein.

“While I do not find Counsel’s failure to disclose this history of directly contrary rulings to be a violation of his duty of candor to the Court,” Grimm wrote, “it comes uncomfortably close.”

In order for the government to keep Butler’s Mercedes, Grimm explained, Cassella will need to put on the record enough detailed evidence to support a reasonable belief that “at trial, the Government will be able to prove the nexus between the Mercedes and Mr. Butler’s criminal activity by a preponderance of the evidence.”

Cassella had argued that this threshold could be sidestepped because, despite the fact that all the required public notifications had been made about the impending forfeiture of Butler’s Mercedes, no one came forward with a timely and legitimate court claim to it. Grimm acknowledged that Cassella, citing precedents in various districts, had found “some instances” in which that was sufficient to grant forfeiture – but he implied that Cassella was again being disingenuous by leaving out important elements of the cited cases that cut the other way.

“It appears that the Government has cited these cases selectively to support the proposition that I should reconsider my denial,” Grimm wrote, adding that “far more significant is what the Government has omitted from its discussion of the cited cases.” Looking at them “in their entireties,” Grimm continued, “supports the conclusion reached here, that, at least in this district and perhaps more broadly, the Government has the obligation to provide sufficient facts to support a reasonable belief that the Government will be able to demonstrate a substantial connection between the defendant property and the alleged criminal conduct by a preponderance of the evidence at trial.”

Grimm has invited Cassella, again, to present such facts. Absent that, though, it’s looking like Butler may someday be able to drive his Mercedes to his mother’s house again. Either way, given Grimm’s stern admonishments, it’s a safe bet that the U.S. Attorney’s Office in Maryland will be seeking to tighten up its evidence in future forfeiture cases – and certainly so in cases that come before Grimm, whose name must seem especially poetic these days to Cassella.