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United States v. Allison

United States District Court, N.D. Indiana, South Bend Division

March 6, 2017

UNITED STATES OF AMERICA
v.
DONNIE ALLISON (03)

          OPINION AND ORDER

          JON E. DEGUILIO Judge United States District Court

         During a recorded interview with police on April 21, 2016, Donnie Allison made admissions concerning the involvement of himself and others in dealing drugs. Allison claims that about thirty-five minutes into the interview, officers promised him that he would not be charged federally. Based on this alleged promise, Allison divulged further information concerning the drug conspiracy.

         Thereafter, Defendants Jalen Wilson, Gregory Brown, Eric Smith, Terry Byrd, Daniel Mallet, and Donnie Allison were charged in count 1 of a superseding indictment for conspiring to distribute over 100 grams of heroin, in violation of 21 U.S.C. § 846, from January through July 2016.[1] Donnie Allison was also charged in counts 4 and 5 of the superseding indictment for distributing heroin in violation of § 841, on or about April 7, 2016 and April 12, 2016, respectively.

         Once indicted, Allison moved to dismiss the indictment and suppress his statements claiming that his confession was induced by the false promise that he would not face federal charges. After the motions were fully briefed, the Court held an evidentiary hearing. For the following reasons, the Court denies Allison's motion to dismiss [DE 75] and motion to suppress [DE 105].

         I. FACTS

         In early 2016, Michigan City police officers Sergeant Ken Drake and Detective Willie Henderson became involved in a heroin investigation of Defendant Gregory Brown (known as “Black”) who appeared to be a main source of heroin in the Michigan City area. The investigation involved the use of various confidential informants for the purchase of heroin from Brown's suspected associates, Jalen Wilson, Jimmy Thomas, Donnie Allison, Daniel Mallet, Terry Byrd, Eric Smith, and a juvenile suspect. The investigation revealed that this group was using several phones among themselves to set up drug sales.

         Relevant here is the fact that two controlled buys were set up and executed on April 7th and 12th of 2016 with a suspect known by law enforcement as “D. “D” was then tipped off by one of the confidential informants, Michael Crump, that officers had executed drug buys with him. In an effort to explore cooperation, “D” told Crump that he wanted to talk to the police. Crump then reported to Sergeant Drake and Detective Henderson that he had an associate who wanted to talk to officers. As a result, on April 21, 2016, Officers Drake and Henderson met Crump in a parking lot where “D”, later identified as Donnie Allison, got out of Crump's car and was transported to the MCPD. During the evidentiary hearing, both officers testified that until the interview began they did not realize that “D” was in fact Donnie Allison, despite the two controlled buys from him earlier that month and an unrelated encounter with Allison at his place of employment in 2015.

         Submitted into evidence, the Court has reviewed the entirety of the videotaped interview. Officers Drake and Henderson identified Allison, addressed his Miranda warnings, and spoke with Allison about his extensive drug dealing since age eighteen and after his release from prison in August of 2013. Allison freely discussed how he received heroin from Brown and then sold to four or five others-even acknowledging that the officers had him photographed selling drugs during the two controlled buys in April. Allison indicated that he was currently dealing about $20-$100 worth of heroin, one to three times a week.

         About thirty-five minutes into the interview, Allison hesitated in providing further details concerning the amount of drugs that he and others had been distributing, noting that he wasn't “trying to push [him]self deep in the hole.” (13:40:25). Allison explained at the suppression hearing that he was concerned about being federally prosecuted because he feared being sentenced as a career criminal, although he didn't express that specific concern directly to the officers. Sergeant Drake then explained to Allison that “this is a state case, ” while Detective Henderson clarified that “the conspiracy is the federal stuff.” (13:40:50-58). Sergeant Drake then clearly stated: “At this point in time, we have no intention of pushing it federal.” (13:41:00-02). It is these statements alone which Allison alleges created a promise that he would not be federally indicted.

         After this exchange, Allison proceeded to provide additional information regarding Brown, including his suppliers and sellers, along with phone numbers used to set up drug deals. He also provided vague references about others distributing drugs, many of whom appear already known to police. But he said little if anything about his own involvement with those activities.

         Even after the interview, Allison continued to provide information to the officers[2]- which Allison contends serves as further proof that he was cooperating pursuant to the officers' promise. However, Officers Drake and Henderson credibly testified that Allison was never enlisted as a CI because he was on probation[3] and they never promised him any type of leniency with respect to charges; rather, Allison continued to serve as a source of information on his own accord in an attempt to help himself. Detective Henderson confirmed his belief that there was a mutual understanding that Allison's being a source of information would be considered by any prosecutor, but there was never a promise with respect to the outcome of any case. In fact, Allison's testimony indicated that he was hopeful that his assistance would be rewarded by the officers making “a recommendation” with respect to any charges.

         Officers Drake and Henderson testified that at the time of the interview federal authorities were not involved in the case. Sergeant Drake explained that at that time, the investigation involved only controlled narcotics purchases which would normally be presented to the state prosecutor. In addition, more investigative work needed to be done, which ultimately involved conducting more than an additional dozen controlled buys.

         The testimony of Drug Enforcement Administration Special Agent David Ritchie corroborated the fact that federal authorities did not learn about the state investigation until the MCPD officers informed Special Agent Ritchie about it in late May or early June. Special Agent Ritchie became involved in the investigation in early July, about which time he conducted an interview with Allison. Ritchie disclosed that he was a federal agent. He testified that during that interview Allison never suggested he had been promised immunity from federal prosecution. Further, Special Agent Ritchie knew about Allison's assisting other police departments, but not the MCPD. Shortly thereafter, Special Agent Ritchie prepared a report and brought the case to the attention of the United States Attorney's Office.

         Subsequently, Allison was federally indicted for conspiring to distribute over 100 grams of heroin, in violation of § 846, from January through July 2016, and for distributing heroin on or about April 7th and 12th of 2016, in violation of § 841. Allison submits that the indictment ought to be dismissed or his statements suppressed because the officers of the Michigan City Police Department promised that he would not be federally prosecuted. Allison's attorney relies solely on the conversation already detailed by the Court at about the thirty-five minute mark of the interview. ...


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