USA v. Hardison

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No.: 	3:25-CR-48-TAV-DCP
)
BRYAN HARDISON, 	)
)
Defendant. 	)
MEMORANDUM OPINION AND ORDER
This criminal matter is before the Court on defendant’s “Motion to Dismiss for
Prosecutorial 	Misconduct 	and 	Vindictive 	Prosecution” 	[Doc. 	205], 	to 	which 	the
government responded [Doc. 207]. Thereafter, defendant filed a “Motion to Dismiss the
Indictment in [sic] Pursuant to Multiple Franks Violations in [sic] Pursuant to the 4th
Amendment” [Doc. 212], “Motion to Reopen Suppression Litigation, Compel Production
and Authentication of Discovery, and For a Franks (Hearing)” [Doc. 214], and “Pro Se
Notice of Renewal and Incorporation of Prior Motions and Request for Leave to
Supplement Following Superseding Indictment” [Doc. 215]. 	For the reasons below,
defendant’s motions [Docs. 205, 212, 214, 215] are DENIED.1
I. 	Timeliness
In response to defendant’s “Motion to Dismiss for Prosecutorial Misconduct and
Vindictive Prosecution” [Doc. 205], the government argues that defendant’s pretrial
1 Because all of defendant’s motions [Docs. 205, 212, 214, 215] raise overlapping issues,
the Court addresses all of those motions cumulatively in this memorandum opinion and order.
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motion deadline expired on October 23, 2025, and the Court prohibited defendant from
filing any untimely pretrial motion without first filing a motion for leave and showing good
cause for the late filing [Doc. 207, p. 1]. The government contends that defendant’s motion,
filed on April 20, 2026, is untimely, and defendant failed to first seek leave to file the
motion and/or show good cause for the late filing [Id.]. 	Nonetheless, the government
acknowledges that defendant can likely establish good cause for his belated filing based on
a recently disclosed inaccuracy in the search warrant affidavit supporting the search
warrant [Id.]. However, the government argues that defendant has not shown good cause
with respect to any other issues in his untimely motion [Id. at 2].
The Court finds that all of defendant’s pending motions [Docs. 205, 212, 214, 215]
are untimely. Pursuant to Rule 12(c), the Court may “set a deadline for the parties to make
pretrial motions,” and a motion is untimely if a party “does not meet the deadline.” 	See
Fed. R. Crim. P. 12(c)(1), (3). However, the Court may consider the pretrial motion “if the
party shows good cause.” Id. “Good cause is a flexible standard heavily dependent on the
facts of the particular case as found and weighed by the district court in its equitable
discretion.” United States v. Walden, 625 F.3d 961, 965 (6th Cir. 2010); see United States
v. Trujillo-Molina, 678 F. App’x 335, 338 (6th Cir. 2017) (“Good cause is a ‘flexible
standard’ requiring an explanation for both the delay and the potential prejudice.”) (citation
omitted) (emphasis in original). 	At bottom, “it requires [defendant] to articulate some
legitimate explanation for the failure to timely file.” Walden, 625 F.3d at 965.
Here, the Court set a pretrial motion deadline for October 23, 2025, after extending
the deadline five times, twice while defendant was representing himself [Docs. 18, 27, 37,
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51, 62]. In denying defendant’s sixth request for an extension on November 14, 2025, the
Court informed defendant that if he “discovers a pretrial motion that he could not have
previously filed by the deadline, he may move for leave to file the motion” [Doc. 96, p. 4].
The Court ordered that defendant “must show good cause for the belated filing and must
attach a copy of the proposed pretrial motion to his motion for leave” [Id.].
Defendant filed the instant motions on April 28, 2026 [Doc. 205; see Doc. 205-1],
April 28, 2026 [Doc. 212; see Doc. 212-1], and May 1, 2026 [Docs. 214, 215; see Docs.
214-1, 215-1], approximately six months after the pretrial motion deadline expired [See
Doc. 62 (extending pretrial motions deadline to October 23, 2025); Doc. 96 (denying
further extension of the pretrial motions deadline)]. 	See Cretacci v. Call, 988 F.3d 860,
865–66 (6th Cir. 2021) (explaining that, under the prison mailbox rule, courts treat pro se
prisoner filings, filed through the prison mail system, as filed on the date when the prisoner
delivered the notice to prison authorities for mailing).
Additionally, defendant’s motions totally disregard the Court’s prior order to first
seek leave to file an untimely pretrial motion and largely ignore the Court’s directive to
show good cause for any such untimely pretrial motions [See Doc. 96, p. 4].2 	However,
defendant does, in at least some of his motions, mention newly discovered evidence
regarding the accuracy of a statement in the search warrant affidavit [See e.g., Doc. 212, p.
2 Although the Court has overlooked defendant’s failure to comply with the Court’s prior
order in this instance, in deference to his pro se status, it will not do so again. Any further untimely
pretrial motions that are not filed in compliance with the Court’s prior directive for the defendant
to first seek leave from the Court to file such motion and show good cause for the untimely filing
[see Doc. 96, p. 4] will be summarily denied on that ground.
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8; Doc. 214, p. 1]. Specifically, defendant has repeatedly raised arguments that the search
warrant affidavit contained false statements that there was a K-9 search of a confidential
informant’s vehicle at a traffic stop that resulted in the confidential informant identifying
defendant as a drug dealer [See e.g., Doc. 150, pp. 3, 20; Doc. 159, pp. 10, 20]. On April
18, 2026, a few days before trial was set to commence, the government filed a supplement
to a prior filing indicating that it had recently learned that the search warrant affidavit
incorrectly stated that a K-9 sniff of the vehicle at the traffic stop occurred, and, rather, the
search of the vehicle at the traffic stop was based on consent [Doc. 203, p. 1].
In light of this newly disclosed information regarding an inaccurate statement in the
search warrant affidavit, which defendant has previously challenged under Franks v.
Delaware, 438 U.S. 154 (1978), the Court finds good cause to permit defendant to
belatedly raise challenges to the statements in the search warrant relating to the alleged K-9
sniff of the vehicle. Defendant has not, however, shown good cause for any other issues
raised in his motions, and those motions [Docs. 205, 212, 214, 215] are therefore DENIED
as untimely to the extent they raise any grounds for relief beyond a challenge to the
statements in the search warrant affidavit regarding an alleged K-9 sniff of a vehicle during
a traffic stop.3
3 Although the Court denies all other grounds for relief as untimely, the Court will
nonetheless briefly address the merits of these arguments, as an alternative basis for denial of the
motions.
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II. 	Franks Issues
A. 	K-9 Search Statement
Turning first to the search warrant affidavit’s statement about the K-9 sniff search,
which the government now admits was incorrect [see Doc. 203], defendant argues that this
new information raises serious questions about the truthfulness, completeness, and
reliability of the affidavit [Doc. 214, p. 2]. 	And the discrepancy regarding a K-9 search
versus a consent search is material because the affidavit used the traffic stop as support for
probable cause [Id. at 3, 7]. Specifically, defendant argues that this distinction is important
because a K-9 search versus a consent search involves different facts, witnesses,
documentation, legal standards, etc. [Id. at 5]. Defendant contends that, if a K-9 was not
present at the traffic stop, the affidavit created a false impression about how the relevant
evidence was discovered [Id.]. Defendant asks the Court to review the sufficiency of the
affidavit after removing the false K-9 statement [Id. at 7; see also Doc. 212, p. 8].
The government, on the other hand, argues that this information should not result in
the suppression of evidence because the incorrect statement in the affidavit “was not made
knowingly, intentionally, or with reckless disregard for the truth, and it was not essential
to the probable cause finding” [Doc. 207, p. 2].
As the Court previously explained [see Doc. 213, p. 33], under the Franks test, the
defendant must (1) make a substantial preliminary showing that specified portions of the
affiant’s statements are deliberately or recklessly false, and (2) demonstrate that the
challenged statements are necessary to a finding of probable cause. 	Franks, 438 U.S. at
171. 	Further, the Court previously addressed defendant’s arguments regarding the
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statements in the affidavit about the existence of a K-9 search during the traffic stop under
the second prong of Franks [See Doc. 213, p. 35]. 	Indeed, in that order, the Court
acknowledged the government’s admission that the statement regarding the K-9 search was
inaccurate, but concluded that “probable cause exists even if details about the traffic stop
were removed from the affidavit” and therefore “defendant’s argument regarding the K-9
does not provide a meritorious basis for a Franks hearing” [Id.]. 	Specifically, the Court
relied upon the information in the search warrant affidavit regarding the existence of
controlled buys of narcotics from defendant as independently establishing probable cause
for the search warrant [Id. at 21–26, 33–35].
Defendant’s arguments in his new motions to dismiss primarily center around the
first prong of the Franks test, rather than this second prong, on which the Court has already
found that a Franks hearing is not warranted. Defendant does make conclusory allegations
that, without this information (and other challenged information in the affidavit), there is
insufficient probable cause for issuance of the search warrant [Doc. 205, p. 6]. Defendant
further attempts to rebut the evidence of the controlled buys from the search warrant
affidavit, as an independent ground establishing probable cause, by arguing that the
government is not charging him with those controlled buys [Id. at 7]. 	But whether the
government is currently proceeding with charges against defendant based on the controlled
buys is irrelevant to whether the affidavit’s information about those controlled buys was
sufficient to support a finding of probable cause for a search warrant. 	Accordingly, the
Court finds that defendant has not raised any meritorious ground for revisiting the Court’s
prior determination that he has not met the required showing under the second prong of the
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Franks test, even considering the newly disclosed inaccuracy. To the extent his motions
seek to raise or reopen a Franks challenge based on this newly discovered inaccuracy about
the K-9 search, they are therefore DENIED.
B. 	Photo Array Statement
Similarly, in his motions, defendant attempts to reargue his claims regarding the
search warrant affidavit’s statements regarding a six-photo array shown to the confidential
informant [Doc. 205, p. 7; Doc. 212, pp. 1–5; Doc. 214, pp. 1, 4]. 	But, as with the K-9
search issue, the Court previously addressed this issue and concluded that “even if the
affidavit included an incorrect statement about the . . . photo-array, the Court finds that
there is still probable cause for the search warrant based on the controlled buys . . .” [Doc.
213, p. 34]. 	For the same reasons discussed, supra, defendant has not raised any
meritorious ground for revisiting the Court’s prior determination that he has not met the
required showing under the second prong of the Franks test. Accordingly, to the extent his
motions seek to raise or reopen a Franks challenge based on this argument, they are
DENIED.
III. 	Discovery
Next, defendant argues that the government has not met its discovery obligations
under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, Giglio v. United States, 405
U.S. 150 (1972), the Jencks Act, 18 U.S.C. § 3500(a),4 Rule 16 of the Federal Rules of
4 	The Jencks Act codified Jencks v. United States, 353 U.S. 657 (1957), in which the
Supreme Court held that a criminal defendant has a constitutional right to inspect, for impeachment
purposes, prior statements made to government agents by government witnesses. 	See United
States v. Roseboro, 87 F.3d 642, 645 (4th Cir. 1996) (noting that Congress enacted the Jencks Act
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Criminal Procedure, and/or the Court’s Due Process Protections Act order [Doc. 205, pp.
1–2]. 	Defendant largely raises vague assertions that material evidence has not been
provided, that the government acted with reckless disregard for its obligations, and that he
has been prejudiced by the nondisclosure [Id. at 3–5, 13]. Defendant appears to assert that
some evidence related to the traffic stop discussed supra has not been disclosed [Id. at 16;
Doc. 212, pp. 2–3, 7].
“There 	is 	no 	general 	constitutional 	right 	to 	discovery 	in 	a 	criminal 	case.”
Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Rather, “in most criminal prosecutions,
the Brady rule, Rule 16 and the Jencks Act, exhaust the universe of discovery to which the
defendant is entitled.” United States v. Presser, 844 F.2d 1275, 1285 n.12 (6th Cir. 1988).
However, “the government typically is the sole judge of what evidence in its possession is
subject to disclosure.” Id. at 1281.
Here, the government represented in writing that it fully complied with its discovery
obligations, and would continue to do so [Doc. 186, p. 1]. 	The Court relies on this
representation in resolving defendant’s motions to dismiss. 5 See Puertas v. Overton, 168
in response to the Supreme Court’s decision in Jencks, to codify, and, in some respects, regulate,
the Supreme Court’s decision).
5 	The Court notes that the time for disclosure under the Jencks Act has not yet passed;
however, the Court relies on the government’s representation that it has and will continue to
comply with its discovery obligations. See 18 U.S.C. § 3500(a); see also United States v. Fletcher,
295 F. App’x 749, 753 (6th Cir. 2008) (“[A]ny [Jencks Act] materials disclosed prior to trial
exceeded the government’s obligations under the Act.”); United States v. Reed, No. 11-20551-53,
2014 WL 12703713, at *2 (E.D. Mich. May 29, 2014) (“The Government will be required, of
course, to turn over any statements after their witnesses testify but, until such time, the Government
is not mandated by the Constitution or the Jencks Act to produce the statements.”).
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F. App’x 689, 706 (6th Cir. 2006) (“The Supreme Court has repeatedly held that a
defendant can reasonably rely on the prosecution’s representation that it has disclosed all
Brady evidence.”); see also United States v. Hernandez, 31 F.3d 354, 361 (6th Cir. 1994)
(noting that the court is entitled to accept a prosecutor’s representations that documents do
not contain any Brady material); United States v. Faller, No. 1:13-CR-29, 2014 WL
12691595, at *5 (W.D. Ky. May 29, 2014) (stating that “the undersigned is entitled to rely
on the [government’s] representations as it has no reason to believe that the [government]
has made any false representations regarding its Brady compliance”); United States v.
Bothra, No. 2:18-CR-208, 2020 WL 13980286, at *3 (E.D. Mich. June 5, 2020) (denying
the defendant’s motion to compel discovery where the government represented that it
complied with its obligations under Brady, the Jencks Act, and Rule 16); United States v.
Kollman, No. 1:10-CR-44, 2011 WL 6016893, at *3 (W.D. Ky. Dec. 2, 2011) (relying on
the government’s representations that it would comply with its obligations under Brady
and Giglio).
Furthermore, 	to “challenge the government’s representation that it does not have
Brady evidence, [the defendant] must do more than speculate that Brady material exists.”
United States v. Stark, 758 F. App’x 518, 520 (6th Cir. 2019) (citing United States v. Lucas,
841 F.3d 796, 809 (9th Cir. 2016)). Defendant has not identified any alleged exculpatory
materials withheld by the government, therefore, his claims are merely speculative.
Accordingly, to the extent that defendant’s motions seek relief based on the
government’s failure to meet its discovery obligations, the motions are DENIED.
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IV. 	Prosecutorial Misconduct and Vindictiveness
Defendant sprinkles various allegations of prosecutorial vindictiveness and/or
prosecutorial misconduct throughout his motions. 	Defendant alleges that the prosecutor
has committed fraud on the court by (1) being complicit in manufacturing evidence (related
to defendant’s Franks arguments) and (2) withholding discovery [Doc. 205, p. 5; Doc. 212,
pp. 4, 6]. 	Defendant further asserts prosecutorial vindictiveness because defendant is
exercising his legal rights to challenge evidence and complaining about the search warrant
affiant violating policies [Doc. 205, pp. 3, 18].
First, to the extent that defendant alleges prosecutorial misconduct based on his
Franks and discovery arguments, the Court has addressed these arguments supra and
determined that they are meritless. 	Accordingly, defendant also has not established any
prosecutorial misconduct on those same grounds.
Turning to prosecutorial vindictiveness, the Court notes that “the [g]overnment
retains ‘broad discretion’ as to whom to prosecute.” Wayte v. United States, 470 U.S. 598,
607 (1985) (quotation omitted). “‘[S]o long as the prosecutor has probable cause . . . , the
decision whether or not to prosecute, and what charge to file or bring before a grand jury,
generally rests entirely in his [or her] discretion.’” Id. at 607 (quoting Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978)) (alternation in original). A defendant claiming vindictive
prosecution must demonstrate “a realistic likelihood of vindictiveness” by showing that
“(1) the prosecutor has some stake in deterring the [defendant’s] exercise of his rights and
(2) the prosecutor’s conduct was somehow unreasonable.” 	United States v. Howell, 17
F.4th 673, 687 (6th Cir. 2021) (citing United States v. LaDeau, 734 F.3d 561, 566 (6th Cir.
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2013)) (citation modified). Here, defendant fails to show either that the government had a
stake in deterring the exercise of his rights or that the prosecutor’s conduct was
unreasonable.
As to the government’s stake in deterring the exercise of defendant’s rights, “pretrial
motions do not generally provide a sufficient basis for vindictiveness[.]” United States v.
Zakhari, 85 F.4th 367, 381 (6th Cir. 2023) (citation omitted). Rather, “[d]efense counsel
routinely file pretrial motions to suppress evidence[,]” and it is not realistic “to assume that
a prosecutor’s probable response to such motions is to seek to penalize and to deter.” United
States v. Goodwin, 457 U.S. 368, 381 (1982); see also United States v. Suarez, 263 F.3d
468, 479–80 (6th Cir. 2001) (describing the government’s burden to respond to pretrial
suppression motions as “rather minimal”). 	Defendant’s pretrial motions to suppress
evidence and statements are routine pretrial motions [See Docs. 115, 118, 180, 181]. While
defendants’ motions led to the burden of filing a response, the Court finds that these
motions are unlikely to “inflict[a] a mortal blow” to the government’s ability to prove its
case. See Ladeau, 734 F.3d at 569. Further, “a defendant before trial is expected to invoke
procedural rights that inevitably impose some ‘burden’ on the prosecutor.” 	Suarez, 263
F.3d at 479–80. 	Thus, defendant has not shown a prosecutorial stake in deterring
defendant’s right to file pretrial motions.
Turning to the second requirement, defendant has not shown that the prosecutor’s
conduct was unreasonable. 	Notably, defendant’s initial prosecution could not have been
based on his filing of pretrial motions, as those motions were necessarily filed after the
start of this prosecution. 	To the extent that defendant’s arguments can be construed as
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alleging vindictiveness based on the filing of a superseding indictment, “the mere presence
of 	a 	superseding 	indictment 	bringing 	additional 	charges 	is 	not 	sufficient 	to 	be
presumptively unreasonable.” Suarez, 263 F.3d at 480. Rather, “a potentially vindictive
superseding indictment must add additional charges or substitute more severe charges
based on the same conduct charged less heavily in the first indictment.” Id. In this case,
the superseding indictment modified Count Two from charging possession with intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
to charging only the lesser included offense of possession with intent to distribute cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) [Compare Doc. 8 with Doc. 193; see also
Doc. 195]. The superseding indictment also dropped the forfeiture allegations contained
in the original indictment [Id.]. 	Since the superseding indictment clearly does not add
additional 	charges 	or 	substitute 	more 	severe 	charges, 	and 	indeed, 	only 	includes
modifications that benefit defendant, the requirements for vindictiveness are not met.
For the reasons above, defendant failed to demonstrate prosecutorial misconduct or
vindictiveness, and, to the extent his motions seek relief based on such, they are DENIED.
V. 	Renewal of Prior Motions
Finally, defendant seeks to renew all of his prior pretrial motions in this case in light
of the filing of the superseding indictment [Doc. 215]. 	But the superseding indictment,
which the Court described supra, does not have any affect on defendant’s prior pretrial
motions. Accordingly, to the extent defendant renews or re-raises any previously filed and
adjudicated pretrial motion, such is denied for the reasons previously set forth on the record
denying those motions in the first instance.
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VI. 	Conclusion
Accordingly, defendant’s motions [Docs. 205, 212, 214, 215] are DENIED.
Defendant is hereby on notice that the Court has fully adjudicated these issues addressed
herein, and any subsequent filings seeking to re-raise these same arguments will be
summarily denied.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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