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United States v. Cooper

United States District Court, D. Kansas

June 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT L. COOPER, Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

         This matter comes before the court on defendant Robert L. Cooper's Motion to Dismiss Indictment (Doc. 22). Mr. Cooper has been charged with aggravated sexual abuse of his ex-wife's stepdaughter (hereinafter “JV1”). Mr. Cooper's motion asserts the court should dismiss his Indictment with prejudice because a grand jury witness presented false testimony, which the prosecutor did not correct. Fed. R. Crim. P. 12(b)(3)(A)(v). Specifically, Mr. Cooper contends, a grand jury witness incorrectly testified that the stepdaughter's Sexual Assault Forensic Exam indicated “some form of penetration.” The government concedes that the exam did not reveal any evidence of penetration. Mr. Cooper thus seeks dismissal of his Indictment.

         The government has filed a Response (Doc. 23). And the court conducted a hearing with the parties on June 3, 2019. For the reasons explained below, the court grants Mr. Cooper's motion in part and denies it in part. The court dismisses Mr. Cooper's Indictment, but the dismissal is without prejudice.

         I. Facts

         Mr. Cooper married Megan Browning, a solider stationed at Fort Riley. Mr. Cooper moved into Ms. Browning's home on Fort Riley, where Ms. Browning's three daughters from a prior marriage also lived. In October 2015, Ms. Browning was deployed to Kuwait, and she left her daughters in Mr. Cooper's care. During the weekend of February 26 to 28, 2016, Mr. Cooper allegedly rubbed the breasts of the older stepdaughter, JV1, and allegedly sexually penetrated JV1 with his finger.

         In June 2016, Ms. Browning returned home to Fort Riley. Mr. Cooper moved out in August 2016, and he and Ms. Browning then divorced in July 2017. Shortly after the divorce, JV1 purportedly told Ms. Browning about Mr. Cooper's alleged abuse. Ms. Browning reported the incident to law enforcement, and, on August 17, 2017, JV1 underwent a Sexual Assault Forensic Exam. The exam revealed no evidence of penetration.

         On August 29, 2018, the government empaneled a grand jury. The grand jury heard testimony from Jeremiah Griffin.[1] Agent Griffin is a team chief with the Special Victims Team at Fort Riley Criminal Investigator Division of the U.S. Army. Relevant to Mr. Cooper's motion is this exchange during the grand jury proceedings:

Grand Juror: You say [JV1] was examined by a physician?
The Witness [Agent Griffin]: Yes, she was.
Grand Juror: And when did that occur? And also what were the results?
The Witness [Agent Griffin]: The results were indicative of some form of penetrative-some form of penetration.
Ms. Graham [Special Assistant United States Attorney]: But that exam would have occurred after the disclosure?
The Witness [Agent Griffin]: Yes, it did.
Ms. Graham [Special Assistant United States Attorney]: Which would have been after July 2017. It would have been ...

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