USA v. Stoltenberg et al

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
EDWIN ALLEN STOLTENBERG,
Defendant.
3:18-CR-00109-TMB-MMS
FINAL REPORT AND
RECOMMENDATION REGARDING
MOTION TO DISMISS BASED ON
PROSECUTORIAL MISCONDUCT
[DKT. 383]
I. 	MOTION PRESENTED
The superseding indictment, filed in September 2019, charges Edwin Allen
Stoltenberg with one count of drug possession with intent to distribute,1 one count of
carrying a gun during a drug trafficking crime,2 two counts of felony gun possession,3 and
one count of access device fraud.4 The allegations in this case arise from a narcotics
investigation that involved several state and federal agencies.
1. 	USAO’s 	prosecutorial 	misconduct 	that 	undermined 	and 	violated 	defendant’s
constitutional rights resulting in prejudice, violation of substantive due process, and
the public’s faith in the legal system;
2. 	Substantive due process violations caused by USAO’s Investigators’ interference
with defendant’s right to representation resulting in violation of right to counsel;
3. 	Substantive due process violations caused by false testimony from the USAO’s
Prosecution Team’s Case Officer;
1 21 U.S.C. § 841(a)(1), (b)(1)(A)
2 18 U.S.C. § 924(c)(1)(A)
3 18 U.S.C. §§ 922(g)(1), 924(a)(2)
4 18 U.S.C. § 1029(a)(1), (C)(1)(A)
Case 3:18-cr-00109-JMK-MMS Document 681 Filed 10/29/21 Page 1 of 6

2
4. 	Substantive due process violations caused by the USAO’s introduction of false
testimony by their Case Officer;
5. 	Substantive 	due 	process 	violations 	caused 	by 	the 	USAO’s 	inaccurate 	and
misleading statements to the Court;
6. 	Substantive due process violations caused by the USAO’s failure to correct the
record after providing the Court inaccurate and misleading information;
7. 	Substantive 	due 	process 	violations 	caused 	by 	the 	USAO’s 	Investigators’
concealment and destruction of evidence;
8. 	Substantive due process violations caused by USAO’s failure to train subordinates,
supervise subordinates, maintain systems of compliance, and to report a violation
of the rules of professional accountability; and
9. 	Substantive 	due 	process 	violations 	caused 	by 	USAO’s 	failure 	to 	provide
exculpatory and impeachment evidence resulting in a “Brady” violation.
[sic] [Dkt. 383 at 1-2]. The government opposes the motion to dismiss on thirteen bases:
1. 	Stoltenberg’s right to counsel did not attach until the September 2018 original
indictment;
2. 	Stoltenberg waived attorney-client privilege because the attorney’s failed to register
their numbers and an automated warning was played;
3. 	None of the Pontious calls were “sensitive” and the number of “access events” is
exaggerated;
4. 	The prosecutors did not receive information from the “seven or eight” Carlson calls
that TFO Vik and TFO Clark listened to;
5. 	Carlson did not represent Stoltenberg and did not receive discovery;
6. 	TFO Vik’s October 28, 2019 testimony was not false;
7. 	USAO investigated the discrepancies in the Securus logs;
8. 	USAO did not intentionally mislead or deceive the Court;
9. 	USAO consistently alerted the Court to what was known and understood at the time;
10. USAO corrected previous misrepresentations to the Court;
11. The FBI and DOC did not hide, obfuscate, or otherwise destroy evidence;
12. USAO did not fail to supervise; and
13. No Brady violation occurred.
[Dkt. 405].
This 	Court 	hereby 	issues 	a 	Final 	Report 	and 	Recommendation 	regarding
Stoltenberg’s motion to dismiss due to prosecutorial misconduct. [Dkt. 383]. For the
reasons below, this motion should be DENIED. 28 U.S.C. § 636(b)(1)(B).
Case 3:18-cr-00109-JMK-MMS Document 681 Filed 10/29/21 Page 2 of 6

3
II. 	LEGAL STANDARD
A federal court has an inherent role to supervise the judicial system. United States
v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004). This supervisory power of the federal
judiciary “implies the duty of establishing and maintaining civilized standards of procedure
and evidence.” [Id.] (citing McNabb v. United States, 318 U.S. 332, 340 (1943)). Courts
have exercised their supervisory authority to rectify a violation of a criminal defendant’s
rights. [Id.]. The supervisory power can be used to “exclude evidence taken from the
defendant by willful disobedience of law.” United States v. Payner, 447 U.S. 727, 735 n.7
(1980) (inner quotations omitted). It may relatedly be used to “correct an error which
permeated [a judicial] proceeding.” Ballard v. United States, 329 U.S. 187, 193 (1946). A
court can dismiss an indictment, reverse a trial, or declare a mistrial to rectify violations of
prosecutorial misconduct. [Id.].
Prosecutorial misconduct can be the basis to dismiss an indictment if the misconduct
“amount[ed] to a violation of one of those few, clear rules which were carefully drafted
and approved by [the Supreme Court] and by Congress to ensure the integrity of the grand
jury’s functions.” United States v. Williams, 504 U.S. 36, 46 (1992) (internal citations and
quotation marks omitted). A defendant must prove actual prejudice if they seek a dismissal
of an indictment due to prosecutorial misconduct. United States v. Morrison 449 U.S. 361,
365-66 (1981). Prosecutorial misconduct can also be grounds for reversal of a trial or
mistrial if it denied a defendant’s right to trial. Green v. Miller, 483 U.S. 756, 765 (1987).
The prosecutorial misconduct is reviewed in the context of the entire trial. [Id. at 766]. A
court employs a two-step test: (1) were the prosecutor’s actions improper, and (2) if they
Case 3:18-cr-00109-JMK-MMS Document 681 Filed 10/29/21 Page 3 of 6

4
were, whether the trial was rendered “fundamentally unfair.” Drayden v. White, 232 F.3d
704, 713 (9th Cir. 2000).
III. 	ANALYSIS
Stoltenberg argues that the “prosecution team” violated his substantive due process
rights by committing prosecutorial misconduct in the form of: (1) interfering with
Stoltenberg’s right to Sixth Amendment right to counsel, (2) TFO Vik’s false testimony,
(3) AUSA Corso propounding TFO Vik’s false testimony, (4) AUSA Corso making
inaccurate and misleading statements to this Court, (5) AUSA Corso failing to correct the
record, (6) the “USAO’s Investigators’” concealing and destroying evidence, (7) the
USAO’s failure to train and supervise employees, failure to have compliance systems, and
failure to report violations of professional accountability, and (8) AUSA Corso’s Brady
violation. [Dkt. 383 at 1-2].
Here, Stoltenberg’s right to trial has not been denied for the very good reason that a
trial has not occurred. Drayden, 232 F.3d at 713; see also Green, 483 U.S. at 765. This
Court’s supervisory power is therefore limited because Stoltenberg’s case is at the pretrial
stage and because Stoltenberg has failed to allege that prosecutorial misconduct occurred
in relation to the September 2019 superseding indictment. See Ross, 372 F.3d at 1107.
Stoltenberg raised several grounds for relief but failed to establish that any prosecutorial
misconduct affected the integrity of grand jury proceedings. Williams, 504 U.S. at 46. The
cases cited by Stoltenberg involved trials, arguments attacking the indictment, and different
requests for relief intended to cure the denial of the right to a fair trial or defects in the
grand jury proceedings. Again, no trial has yet occurred, and Stoltenberg does not allege
Case 3:18-cr-00109-JMK-MMS Document 681 Filed 10/29/21 Page 4 of 6

5
deficiencies in the September 2019 grand jury proceedings. Whatever remedies may be
available in theory following the outcome of an eventual trial, none obtain here, prior to
trial. Stoltenberg’s failure to raise his argument within the appropriate procedural
framework sets this case apart from the cases cited in his motion. See Giglio v. United
States, 405 U.S. 150, 155 (1972) (“[T]he judgment of conviction is therefore reversed
….”); see also Napue v. People of State of Ill., 360 U.S. 264, 265 (1959) (“At the murder
trial of petitioner ….”); see also United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993)
(“Following James’ trial, Catherine’s began.”); see also United States v. Barnes, No. 305-
CR-001, ECF No. 580 (D. Alaska. 2014) (explaining that the defendant's conviction was
reversed and “the government subsequently decided to retry [defendant].”); see also United
States v. Karjala, No. 317-CR-063 (D. Alaska 2019) (explaining that the defendant moved
to suppress jail calls.) (emphasis added).
Stoltenberg’s motion to dismiss for prosecutorial misconduct is procedurally
improper. The motion could be construed as a motion to dismiss the indictment, however,
this Court declines to substitute its own judgment for Stoltenberg’s strategic and tactical
choices in motions practice. Thus, Stoltenberg’s motion to dismiss should be DENIED
without prejudice.
Case 3:18-cr-00109-JMK-MMS Document 681 Filed 10/29/21 Page 5 of 6

6
IV. 	CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	Stoltenberg’s 	Motion 	to 	Dismiss 	Due 	to
Prosecutorial Misconduct [Dkt. 383] should be DENIED without prejudice.
DATED this 29th day of October, 2021, at Anchorage, Alaska.
s/ Matthew M. Scoble
CHIEF MAGISTRATE JUDGE
Pursuant to Fed. R. Crim. P. 59(b)(2) and D. Alaska Loc. Mag. R. 6(a), a party
seeking to object to this final finding and recommendation shall file written objections with
the Clerk of Court no later than the CLOSE OF BUSINESS on November 12, 2021.
Pursuant to Fed. R. Crim. P. 59(b)(3), objections will be considered first by the District
Court Judge, who will then accept, reject, or modify the recommendation, or resubmit the
matter to the Magistrate Judge for additional consideration. Failure to object to a magistrate
judge’s findings of fact may be treated as a procedural default and waiver of the right to
contest those findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012).
The Ninth Circuit concludes that a district court is not required to consider evidence
introduced for the first time in a party’s objection to a magistrate judge’s recommendation.
United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not
exceed five (5) pages in length, and shall not merely reargue positions presented in motion
papers. Rather, objections and responses shall specifically designate the findings or
recommendations objected to, the basis of the objection, and the points and authorities in
support. Response(s) to the objections shall be filed on or before the CLOSE OF
BUSINESS on November 19, 2021. The parties shall otherwise comply with provisions
of D. Alaska Loc. Mag. R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s
judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:18-cr-00109-JMK-MMS Document 681 Filed 10/29/21 Page 6 of 6