United States v. Darden
This text of 346 F. Supp. 3d 1096 (United States v. Darden) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
In this criminal case, the Government alleges that the 12 named Defendants are or were members of the Gangster Disciples who operated in and around Clarksville, Tennessee.1 Count One is a conspiracy count brought under the Racketeer Influence Corrupt Organizations Act ("RICO"),
The case set is for a two month trial beginning March 1, 2019, and the parties have filed dozens of substantive Motions in anticipation thereof. By Order entered January 29, 2018 (Doc. No. 344), the Court set aside the week of November 26-30, 2018 for hearings on pending motions. Upon review of the Motions that have been filed, however, it is clear that a hearing is unnecessary for many of them and they *1104are resolved in this Memorandum Opinion and Omnibus Order. The remaining Motions will be scheduled for hearing at a precise date and time during the week previously set aside.
I. Motions to Join
Several Defendants have filed Motions to Join in Motions filed by other Defendants. These include: (a) Decarlos Titington's "Motion to Join in and Adopt CoDefendant Burk's Motion for Daily Transcripts" (Doc. No. 572); Marcus Darden's "Motion to Join Co-Defendant Burks' Motion [to] Compel Notice of Intent to Offer Evidence of Other Crimes, Wrong or Acts" (Doc. No. 645); and (c) James Anderson Luke's "Motion to Adopt and Join CoDefendants Pretrial Motions" (Doc. No. 701).2 Those Motions are GRANTED.
II. Motions for Daily Transcripts
Some Defendants have filed Motions for Daily Trial Transcripts or variants thereof. In response, the Government "take[s] no position as to defendants' requests and submits defendants' motions to the discretion of the Court," (Doc. No. 670 at 1), but then cites a number of cases suggesting that the right to daily transcripts is not of a constitutional dimension.
"[T]he decision to supply daily transcripts to indigent defendants is a matter within the discretion of the trial judge." United States v. Bari,
Though not addressing daily transcripts, the Supreme Court in Britt v. North Carolina,
Given the anticipated length of the trial, the nature, scope and breadth of the charges, the number of witnesses likely to be called including cooperating witnesses, the voluminous discovery that has been provided, and the fact that many of Defendants are represented by one lawyer, the Court finds that daily transcripts will be invaluable and that there is no appropriate substitution for such transcripts.3 It may be that not all Defendants need transcripts for each witness who testifies because the evidence does not pertain to them, or is not of great significance. However, rather than adopting an ad hoc approach whereby some Defendants receive some transcripts, while others receive transcripts for different witnesses, daily transcripts will be made available for all witnesses who testify.
*1105That said, the Court expects counsel to exercise discretion in ordering transcripts, so as to keep the transcription costs and/or copy costs down by requesting transcripts only where truly necessary to provide "an adequate defense."
The previously-mentioned Guide to Judicial Policy also quotes a Resolution adopted by the Judicial Conference in March 1980 and modified in September 1986 that provides:
That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate.
That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned.
Based on the foregoing, the Motions for Daily Transcripts filed by Maurice Burks (Doc. No. 563), and Derrick Kilgore (Doc. No. 637) are GRANTED
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WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
In this criminal case, the Government alleges that the 12 named Defendants are or were members of the Gangster Disciples who operated in and around Clarksville, Tennessee.1 Count One is a conspiracy count brought under the Racketeer Influence Corrupt Organizations Act ("RICO"),
The case set is for a two month trial beginning March 1, 2019, and the parties have filed dozens of substantive Motions in anticipation thereof. By Order entered January 29, 2018 (Doc. No. 344), the Court set aside the week of November 26-30, 2018 for hearings on pending motions. Upon review of the Motions that have been filed, however, it is clear that a hearing is unnecessary for many of them and they *1104are resolved in this Memorandum Opinion and Omnibus Order. The remaining Motions will be scheduled for hearing at a precise date and time during the week previously set aside.
I. Motions to Join
Several Defendants have filed Motions to Join in Motions filed by other Defendants. These include: (a) Decarlos Titington's "Motion to Join in and Adopt CoDefendant Burk's Motion for Daily Transcripts" (Doc. No. 572); Marcus Darden's "Motion to Join Co-Defendant Burks' Motion [to] Compel Notice of Intent to Offer Evidence of Other Crimes, Wrong or Acts" (Doc. No. 645); and (c) James Anderson Luke's "Motion to Adopt and Join CoDefendants Pretrial Motions" (Doc. No. 701).2 Those Motions are GRANTED.
II. Motions for Daily Transcripts
Some Defendants have filed Motions for Daily Trial Transcripts or variants thereof. In response, the Government "take[s] no position as to defendants' requests and submits defendants' motions to the discretion of the Court," (Doc. No. 670 at 1), but then cites a number of cases suggesting that the right to daily transcripts is not of a constitutional dimension.
"[T]he decision to supply daily transcripts to indigent defendants is a matter within the discretion of the trial judge." United States v. Bari,
Though not addressing daily transcripts, the Supreme Court in Britt v. North Carolina,
Given the anticipated length of the trial, the nature, scope and breadth of the charges, the number of witnesses likely to be called including cooperating witnesses, the voluminous discovery that has been provided, and the fact that many of Defendants are represented by one lawyer, the Court finds that daily transcripts will be invaluable and that there is no appropriate substitution for such transcripts.3 It may be that not all Defendants need transcripts for each witness who testifies because the evidence does not pertain to them, or is not of great significance. However, rather than adopting an ad hoc approach whereby some Defendants receive some transcripts, while others receive transcripts for different witnesses, daily transcripts will be made available for all witnesses who testify.
*1105That said, the Court expects counsel to exercise discretion in ordering transcripts, so as to keep the transcription costs and/or copy costs down by requesting transcripts only where truly necessary to provide "an adequate defense."
The previously-mentioned Guide to Judicial Policy also quotes a Resolution adopted by the Judicial Conference in March 1980 and modified in September 1986 that provides:
That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate.
That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned.
Based on the foregoing, the Motions for Daily Transcripts filed by Maurice Burks (Doc. No. 563), and Derrick Kilgore (Doc. No. 637) are GRANTED , as is Brandon Hardison's "Motion for 'Real Time' Transcription" (Doc. No. 640) to the extent he seeks daily transcripts. To the extent Hardison's request for "real time" relates to following the testimony during the questioning of a witness, the Court simply notes that screens are provided on counsel's table and, absent technical glitches, counsel can read along as the testimony is being transcribed.
III. Motions to Increase Peremptory Challenges
Hardison and Burks have both filed Motions for Additional Peremptory Challenges. Hardison requests that Defendants be allowed to exercise twenty (20) challenges jointly with the other defendants, with the Government being allowed to exercise twelve (12) challenges. Similarly, Burks "requests an adequate number of peremptory strikes to eliminate biased or questionable jurors and select a fair and impartial jury," and "moves the Court to increase the number of peremptory challenges to twenty (20), or to such an extent as the Court deems proper, to assure a fair trial." (Doc. No. 643 at 2).
Rule 24(b) of the Federal Rules of Criminal Procedure provides that in a non-capital felony case,4 "the government is entitled to 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year." Fed. R. Crim. P. 24(b). The rule goes on to provide that "the court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly."
If this case goes to trial in its present posture, the Court is inclined to grant Defendants' request to increase the number of peremptory challenges while at the same time correspondingly raising the number of Government peremptory challenges, so as to preserve the same ratio as that set forth in Rule 24.5 However, and as *1106the Government points out in its response (Doc. No. 697), the trial in this case is months away, and the Court at this point in time has no way of knowing which Defendants may go to trial and on what counts. Accordingly, a ruling on the Motions to Increase Peremptory Challenges (Doc. Nos. 639 & 643) is DENIED. Said denial is WITHOUT PREJUDICE to raising the issue again at the Final Pretrial Conference scheduled for February 14 and 15, 2019.
IV. Motion to Pay for Childcare Costs
Burks has filed a "Motion for the Court to Pay For Care of Dependent Children and Family Members of Single Parents Who Are Selected as Jurors" (Doc. No. 564). In it, he writes:
2. Mr. Burks is entitled to a trial by a fair and impartial jury composed from a fair cross-section of the community pursuant to his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
3. In major cases generally, and particularly in cases which last as long as Maurice Burks' trial is expected to last, a large percentage of single parents, especially single African-American parents and women, are struck for cause by the Court due to the fact that they have no money to pay for alternative child care arrangements during a trial the length of Mr. Burks', or no money to pay for alternative care of dependent (usually elderly) family members during such a lengthy trial.
4. The Government's interest in not causing undue juror hardship does not outweigh the Accused's constitutional rights to a fair jury trial.
5. As a result of a jury selection process in which jurors who cannot afford child care are excluded, Maurice Burks may face a venire pool that is non-representative of a general cross-section of the community because certain poor and/or African-American individuals and/or women are removed due to hardships imposed by the length of the trial anticipated in Mr. Burks' case.
(Id. at 2). He then cites Duren v. Missouri,
Turning to the latter point first, the cited statute has nothing to do with paying for child or elder care in the routine case. Rather, it provides:
(e) During any period in which a jury is ordered to be kept together and not to separate, the actual cost of subsistence *1107shall be paid upon the order of the court in lieu of the subsistence allowances payable under subsection (d) of this section. Such allowance for the jurors ordered to be kept separate or sequestered shall include the cost of meals, lodging, and other expenditures ordered in the discretion of the court for their convenience and comfort.
Funding aside, Burks has not shown that the failure to provide funding for childcare will deny him equal protection or result in him being tried by a jury that is not a fair-cross section of the community. Batson, on which he relies, applies to peremptory strikes by the government against certain classes of persons. J.E.B. v. Alabama ex rel. T.B.,
Duren and Taylor also do not aid Burks. Taylor merely holds that a male defendant had standing to challenge the systematic exclusion of women from jury pools, and that "the fair-cross-section requirement is violated by the systematic exclusion of women." Taylor,
In his Motion, Burks does not discuss the Duren factors, let alone try to establish them. True, the systematic exclusions of African-Americans, Strauder v. State of W. Virginia,
Regardless, Burks' complaint is not about unlawful exclusion by the Court or the Government, but about the possibility that certain individuals will seek to be excused because of family care issues. Setting to the side whatever implicit bias might be suggested by Burks' unstated premise that poor African-American men or women (or poor females in general) would be more sympathetic to his plight, this possibility exists for any a number of potential jurors be they Caucasian, Asian, Hispanic, male, female, married or unmarried, employed or unemployed.
Simply put, the probability that some jurors will not be able to serve because of child or elder care responsibility does not mean that Burks or the other Defendants will not be tried by a jury representing a fair cross-section of the community. To the contrary, even in the context of exclusion by statute, the Supreme Court in Duren"recognize[d] that a State may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. An exemption appropriately tailored to this interest would, we think, survive a fair-cross-section challenge."
Accordingly, Burks' Motion for the Court to Pay For Care of Dependent Children and Family Members of Single Parents Who Are Selected as Jurors (Doc. No. 564) is DENIED.
V. Motion to Preclude Evidence of Overt Acts Previously Adjudicated
Burks is named in six counts in the controlling Second Superseding Indictment. In Count One, an alleged RICO conspiracy, Burks is alleged to have engaged in 11 overt acts, including overt act "x." Overt act "x" states that "on or about February 4, 2010, Burks possessed with intent to distribute and distributed cocaine in Hopkinsville, Kentucky." (Doc. No. 380 at 14). Pursuant to the Double Jeopardy Clause of the Fifth Amendment, Burks requests that the Court prohibit the Government from introducing any evidence of overt act "x" because, in a Western District of Kentucky (Case No. 5:13-CR-54 (W.D. Ky, 2013), he was previously charged with, and plead guilty to, possessing with intent to distribute cocaine on the date and place alleged in overt act "x." More specifically, he pled guilty to seven charges contained in the Western District of Kentucky Indictment for which he received a 60 month sentence (Doc. No. 696-4 at 3), including that on February 4, 2010, he knowingly and intentionally distributed 10.686 grams of a mixture and substance containing a detectable amount of cocaine. (Doc. No. 692-2 at 2).
The Double Jeopardy Clause of the Fifth Amendment commands that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It protects a criminal defendant from being tried twice for the same offense, United States v. Dinitz,
*1109In Garrett v. United States,
Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature - in this case Congress - intended that each violation be a separate offense. If Congress intended that there be only one offense - that is, a defendant could be convicted under either statutory provision for a single act, but not under both - there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis.
The Supreme Court in Garrett next "determine[d] whether prosecution for a CCE offense after an earlier prosecution for a predicate offense is constitutional under the Double Jeopardy Clause of the Fifth Amendment," with the "critical inquiry [being] whether a CCE offense is considered the 'same offense' as one or more of its predicate offenses within the meaning of the Double Jeopardy Clause."
Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the "same" offense as one of the predicate offenses. The CCE offense requires the jury to find that the defendant committed a predicate offense, and in addition that the predicate offense was part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more other persons, that the defendant occupied the position of an organizer or manager, and that the defendant obtained substantial income or resources from the continuing series of violations.
In order to properly analyze the successive prosecution issue, [a court] must examine not only the statute which Congress has enacted, but also the charges which form the basis of the Government's prosecution [in the case at issue].
Much the same has repeatedly been said about RICO. See, United States v. Gonzalez,
The language and legislative history of RICO indicates little doubt that Congress, in enacting RICO, sought to allow the separate prosecution and punishment of predicate offenses and a subsequent RICO offense. RICO's statutory language indicates that Congress sought to supplement, rather than supplant, existing crimes and penalties. Section 1961(5) provides that a:
"pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment)
*1110after the commission of a prior act of racketeering activity.
18 U.S.C. § 1961 (5) (emphasis added). This language suggests that Congress envisioned the situation where a defendant is convicted and sentenced for a racketeering act and subsequently charged with a RICO violation based on the prior conviction.
This interpretation of the language of RICO is fully supported by the statute's legislative history:
It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.
United States v. Grayson,
There is nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions or consecutive sentences for a RICO offense and the underlying or predicate crimes which make up the racketeering pattern. The racketeering statutes were designed primarily as an additional tool for the prevention of racketeering activity, which consists in part of the commission of a number of other crimes. The Government is not required to make an election between seeking a conviction under RICO, or prosecuting the predicate offenses only. Such a requirement would nullify the intent and effect of the RICO prohibitions.
United States v. Rone,
"As the Court made clear in Garrett, multi-layered conduct offenses, such as CCE and RICO violations, are generically distinct in the double jeopardy arena," United States v. Crosby,
Burks's reliance on the United States v. Persico,
Similarly, the Seventh Circuit in United States v. O'Connor,
Accordingly, Burks's "Motion to Preclude Evidence of 'Overt Act' Previously Adjudicated in Federal Court" (Doc. No. 592) is DENIED.
VI. Motion to Dismiss for Pre-Indictment Delay
Among the overt acts in the RICO count of the Second Superseding Indictment are the allegations that "on or about January 15, 2006" Darden "shot, and attempted to kill, Person 8 in Clarksville, Tennessee," and that "[o]n or about December 14, 2007" he "shot Person 9," also in Clarksville. Because those events occurred approximately a decade before the return of the Superseding Indictment wherein they were first charged, and some evidence was destroyed in 2010 and 2012,7 Darden seeks dismissal on due process grounds. Alternatively he requests that the Court provide the jury with a spoliation instruction and/or set a hearing outside the presence of the jury at which time the Government would be required to present proof of Darden's alleged involvement in the shooting.
Turning first to the due process argument, statutes of limitations, "which provide predictable, legislatively enacted limits on prosecutorial delay," are the primary safeguard against "overly stale criminal charges." United States v. Lovasco,
"In this circuit," however, "dismissal for pre-indictment delay 'is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.' " United States v. Schaffer,
Defendant bears the "heavy burden to prove that pre-indictment delay caused actual prejudice." United States v. Wright,
At this point, Darden's motion is long on conjecture but short on proof, both as to the prejudice and tactical advantage prongs of the inquiry. He vaguely asserts that the "[b]ullet fragments, phone records, *1113guns, and shell casings could all serve to exonerate [him] or, at least, weaken the government's case," and that he has to "defend himself from decade-old charges with no ability to examine, challenge, or present what could be the most compelling evidence." (Doc. 638 at 6). He does not explain, however, how testing the forensic evidence referred to in Clarksville Police Department ("CPD") reports would exonerate him or weaken the government's case. This is particularly problematic because CPD reports point to him as being a suspect in both shootings, and there is no suggestion that he was not charged because someone else was responsible. Apparently, he was not charged because witnesses were uncooperative, and there was insufficient proof in the eyes of the CPD or Montgomery County prosecutors.
"Similarly, the mere absence of records is not enough to establish actual prejudice." United States v. Corona-Verbera,
Nor has Darden come close to showing that the delay was the result of the Government seeking to obtain a tactical advantage. He simply argues, with no supporting proof, that federal agents were "well aware, long before [the instant] indictment, that Clarksville had closed the case and destroyed the evidence"; that the U.S. Attorney's Office thus "made the tactical decision to build a RICO case" and add the shootings above as overt acts in the RICO conspiracy charge, "in the hope that otherwise inadequate evidence showing Marcus Darden's involvement would be bolstered by inclusion in a much larger, wide-ranging indictment"; and that the government "has not, and will not, be able to show the discovery of any new evidence related to the shootings between the time the cases were closed by [CPD] and the date of the indictment." (Doc. No. 638 at 2, 6).
In response, the Government represents that federal agents were unaware that the CPD had destroyed evidence in connection with the January 15, 2006, shooting until approximately July 2016, and they were also unaware that the CPD had destroyed evidence in connection with the December 15, 2007, shooting until approximately November 2017. The Government also claims that it developed new evidence in November 2017 regarding Darden's involvement in both shootings. It then superseded its original indictment, on December 14, 2017, and included those shootings as overt acts of racketeering activity in furtherance of the RICO conspiracy.
As for general delay in bringing this case, the Government relies on the same representations that it made regarding a substantially similar Motion (Doc. No. 373) filed by Burks. In a Memorandum and Order denying Burks' Motion, the Court discussed those representations. That discussion *1114(Doc. No. 472 at 6-7) is incorporated herein by reference.
As pointed out in the prior Order, the Court can rely on representations from the Government in considering the reasons for delay. See, Rogers,
Darden's alternative requests for a spoliation instruction and/or a hearing are also DENIED. The request for a spoliation instructions is premature, even leaving aside the question of whether bad simple negligence or bad faith must be shown for such an instruction. See United States v. Braswell,
Nor is Darden entitled to a hearing that "will give the Court (and the defense) some context in determining whether these shootings bear any relationship to the RICO conspiracy alleged here, or indeed constitute evidence that is inadmissible as character evidence under Rule 404(b) of the Federal Rules of Evidence." (Doc. No. 638 at 7). This amounts to an impermissible attempt to preview how the Government intends to prove its case. See, United States v. Presser,
VII. Motions to Compel Notice of Intent to Offer Evidence of Other Crimes, Wrongs, or Acts
Burks requests that the Court enter an Order "requiring the Government to provide written notice of what, if any, evidence of other crimes, wrongs, or acts of the Accused it intends to introduce in its case-in-chief or in any reasonably foreseeable *1115rebuttal." (Doc. No. 567 at 1). He notes "that empirical studies, common sense, and review of actual case results lead inescapably to the conclusion that admission of other crimes evidence heavily tilts the scales of justice toward the side of conviction," and that the Sixth Circuit has stated "notice given to the defense regarding 'other crimes' evidence must be sufficiently clear so as 'to permit pretrial resolution of the issue of its admissibility.' " United States v. Barnes,
Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of other crimes, wrongs, acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed. R. Evid. 404(b). Thus, "[u]nder Rule 404(b), when the defendant requests notification of the government's intent to introduce other-act evidence, the government must provide such notice in a reasonable form and manner." United States v. Gonzalez,
In response to both Motions, the Government represents that, at present, any "evidence of other crimes, wrongs, or acts" that it expects to introduce at trial are intrinsic to the RICO and drug conspiracy charges and, as such need not be noticed under Rule 404(b). As for true Rule 404(b) evidence that it will use in its case-in-chief, the Government request that it be not be required to provide notice of such evidence until January 15, 2019.
In Count One of the Indictment, Burks and Darden are both charged with being part of a racketeering conspiracy in violation of
" 'Unlike a substantive RICO charge, a RICO conspiracy charge does not require proof that the defendant committed any predicate acts' and 'does not even require proof that the defendant 'agreed to commit two predicate acts himself, or even that any overt acts have been committed.' " United States v. Rios,
Likewise, "the United States Supreme Court has made clear that '
*1116
Notwithstanding the foregoing, Darden argues that "[a]dvance notice of the Government's intent to introduce such evidence comports with Federal Rule of Evidence 404(b) [.]" (Doc. No. 645 at 2). However, that Rule deals with extrinsic, not intrinsic evidence.
"Extrinsic acts include other crimes or wrongs which 'occurred at different times and under different circumstances from the offense charged,' while intrinsic acts 'are those that are part of a single criminal episode.' " United States v. Knox,
Even though the Rule 404(b) analysis is not necessary for determining the admissibility of intrinsic evidence in a RICO case, and assuming that the Government has properly viewed whatever crimes or wrongs evidence it possesses is truly intrinsic, the Court is still concerned about notice to Defendants. "Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure," and "[i]f notice is not given, and the adversary process is not permitted to function properly, there is an increased chance of error." Lankford v. Idaho,
With the wide latitude accorded the prosecution to frame a charge that a defendant has "conspired" to promote the affairs of an "enterprise" through a "pattern of racketeering activity" comes an obligation to particularize the nature of the charge to a degree that might not be necessary in the prosecution of crimes of more limited scope. In this case the indictment charges a RICO conspiracy of seven years' duration carried out through various extortion offenses. The indictment puts Davidoff on notice that he will be obliged to defend against extortionate schemes directed at one company, AEI, and companies associated with it in contemplation of a merger. At trial Davidoff is then confronted with evidence of extortions aimed at entirely different companies. Though we agree with the Government that even in a RICO case it is not obliged to disclose before trial all of its evidence, we believe the trial judge exceeded his discretion in this RICO prosecution by denying a bill of particulars identifying at least the victims of discrete extortionate schemes that the prosecution intended to prove... We do not mean to imply that even in a RICO
*1117case the prosecution must always disclose in advance of trial every act it will prove that may violate some criminal statute. But here it is simply unrealistic to think that a defendant preparing to meet charges of extorting funds from one company had a fair opportunity to defend against allegations of extortions against unrelated companies, allegations not made prior to trial.
United States v. Davidoff,
Here, the RICO count encompasses the period from 2005 until the return of the Indictment in 2017, and includes 76 overt acts running the gamut from gathering to discuss the affair of the Gangster Disciples, to retaliation, to murder, "among others." (Doc. No. 380 at 11). The last thing Defendants need is for the Government to offer proof at trial of still other violent acts or crimes without advanced notice.
The "well-established rule" is "that the overt act element of a conspiracy charge may be satisfied by an overt act that is not specified in the indictment," but this is only true "so long as there is no prejudice to the defendant." Rios,
This leave the question of when such disclosures should be required. The Government's request for a January 15, 2019 deadline is entirely reasonable because it is a month and a half before trial. See e.g., United States v. Northington, No. CRIM. A. 07-550-05,
VIII. Motions for Bill of Particulars
Darden, Burks, Xavier Jenkins, and James Luke have each filed Motions for Bill of Particulars (Doc. Nos. 591, 595, 599, and 700). Prior to addressing those Motions, the Court sets forth the applicable standard.
A. Standard of Review
A district court, in its discretion, United States v. Robinson,
B. Motion for Bill of Particulars - Count One
Among the overt acts alleged in Count One is the following:
a. On or about January 15, 2006, in or near Clarksville, Tennessee, [1] DARDEN and [11] WHITLOCK planned to shoot Person 8 for disrespecting the Gangster Disciples.
b. On or about January 15, 2006, [1] DARDEN shot, and attempted to kill, Person 8 in Clarksville, Tennessee.
l. On or about December 15, 2007, [1] DARDEN shot Person 9 in Clarksville, Tennessee.
jjj. In or about March 2014, [1] DARDEN and other Gangster Disciples gathered in Nashville, Tennessee, to administer a "smashing" or "violation" of Person 1.
(Doc. No. 380 at 11, 19). Darden has filed a Motion for Bill of Particulars (Doc. No. 595) requesting the "exact" date, time, place, and name of the alleged victim for the foregoing overt acts.
"[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States,
Leaving aside the voluminous discovery that has been provided and likely answers many of the questions posed by Darden, a court is not required to grant a Bill of Particulars seeking the exact date, time, and location of overt acts. See United States v. Chen,
Furthermore, the "Persons" listed in the excerpted portions of Count One may well be Government witnesses. To the extent they are, disclosure via a bill of particulars is not appropriate. Musick,
To the extent they are not witnesses, significant concerns have been raised about victims' safety in this case. United States v. Lorenzana-Cordon,
*1120Darden's Motion for a Bill of Particulars (Doc. No. 595) is DENIED. To the extent Darden truly does not know the identify of Persons 1, 8 and 9, he can raise the issue at the pretrial conference.
C. Motion for Bill of Particulars - Count Two
Burks and Luke have filed Motions for a Bill of Particulars (Doc. Nos. 591 and 700) in relation to Count Two. Burks claims that Count "is uncommonly vague," and "[i]t is hard to imagine a case where a bill of particulars is more necessary." (Doc. No. 591 at 3). He "specifically requests this Court to order the Government to provide the specific time, place and locations of overt acts allegedly committed by [him] comprising the alleged conspiracy alleged in Count Two." (Id. at 4-5). Similarly, Luke argues that "Count Two of the Indictment is extremely vague." (Doc. No. 700 at 2). He asks to "be provided with a list of and brief summary of all overt acts the government alleges defendant committed in furtherance of the drug conspiracy charged in Count Two of the Indictment." (Id. at 6).
Count Two reads:
Beginning on a date unknown but at least as of in or about 2005, and continuing through the return date of this Indictment [April 19, 2018], in the Middle District of Tennessee and elsewhere, the defendants, [1] MARCUS TERMAINE DARDEN, [2] MAURICE DUNCAN BURKS, [4] LAMAR ANDRE WARFIELD, [5] DERRICK LAMAR KILGORE, [6] ELANCE JUSTIN LUCAS, [7] DECARLOS TITINGTON, [8] LAWRENCE MITCHELL, [9] LORENZO CORTEZ BROWN, [11] REX ANDREW WHITLOCK, and [12] JAMES ANDERSON LUKE, did combine, conspire, confederate, and agree, together and with others known and unknown to the Grand Jury, to knowingly and intentionally distribute and possess with intent to distribute five kilograms or more of cocaine hydrochloride; 280 grams or more of cocaine base, that is, crack cocaine; oxycodone; methadone; and hydrocodone, all Schedule II controlled substances; and marijuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).
All in violation of Title 21, United States Code, Section 846.
(Doc. 380 at 21-22). "To prove a defendant guilty of conspiracy to distribute and possess with intent to distribute controlled substances, the government has to show '(1) an agreement to violate drug laws (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.' " United States v. Warman,
No doubt the length of the alleged conspiracy is long - twelve years - but that is not unheard of. See, United States v. Calabrese,
*1121Nor is Count Two unconstitutionally vague. Consider, by comparison, the allegations involving a drug conspiracy in Korbe where Count Five alleged:
From in or around 1990, and continuing thereafter to on or about November 19, 2008, in the Western District of Pennsylvania, the defendant CHRISTINA MARIE KORBE, did knowingly, intentionally and unlawfully conspire with persons both known and unknown to the grand jury, to distribute and possess with the intent to distribute five hundred (500) grams or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, contrary to the provisions of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(ii).
In violation of Title 21, United States Code, Section 846.
Korbe,
The Indictment in this case does not contain the same infirmities. Not only does Count Two (1) identify the specific types of controlled substances alleged to have been trafficked by Burks, Luke and their co-conspirators - cocaine, crack cocaine, oxycodone, methadone, hydrocodone, and marijuana; the quantities of cocaine and crack cocaine trafficked - five kilograms or more of cocaine and 280 grams or more of crack; the location - the Middle District of Tennessee and elsewhere; and the duration of the alleged conspiracy - from on or about 2005 until the return date of the initial Indictment, (2) it also expressly identifies certain co-conspirators with whom Burks and Luke are alleged to have engaged in the drug trafficking conspiracy -- Marcus Darden, Lamar Warfield, Derrick Kilgore, Elance Lucas, DeCarlos Titington, Lawrence Mitchell, Lorenzo Brown, Rex Whitlock, and others.
Furthermore, and even though as already noted overt acts need not be alleged or proven in a Section 846 conspiracy, Shabani,
*1122Marcus Darden's (a) distribution, and possession with intent to distribute cocaine in Clarksville, Tennessee, within one thousand feet of property comprising a public university, namely, Austin Peay State University, on or about January 24, 2014, (b) distribution, and possession with intent to distribute cocaine in Clarksville, Tennessee, on or about April 4, 2014, and © distribution, and possession with intent to distribute 28 grams or more of crack cocaine in Clarksville, Tennessee, on or about June 17, 2014; (5) Lorenzo Brown's (a) distribution, and possession with intent to distribute crack cocaine in Murfreesboro, Tennessee, within one thousand feet of the real property comprising a private elementary school, namely, Saint Rose of Lima Catholic School on or about February 20, 2014, March 11, 2014 and April 1, 2018, (b) distribution, and possession with intent to distribute 28 grams or more of crack cocaine in Murfreesboro, Tennessee, on or about May 8, 2014; and (6) Derrick Kilgore's possession with intent to distribute cocaine in Clarksville, Tennessee, on or about June 18, 2017.
Count Two is more than sufficient to serve its purposes, i.e. provide sufficient information to prepare a defense and plead double jeopardy as a bar to prosecution. On this latter point, both Burks and Luke argue the discovery that has been provided is insufficient to determine whether the double jeopardy clause serves as a bar to prosecution. Burks does so in a separately filed Motion to Dismiss that will be set for an evidentiary hearing, while Luke raises the argument in his Motion for Bill of Particulars.
Luke's double jeopardy argument is underdeveloped. Luke asserts that "he was charged in state court in Montgomery County, Tennessee with some of the conduct referenced in the current federal indictments" for which he was imprisoned from December 28, 2012 through June 13, 2013, after which he successfully completed a one-year drug and alcohol treatment program. (Doc. No. 700 at 1-2). Without more, this does not suggest possible punishment twice for the same crime because the alleged crime here is an agreement to distribute drugs for a lengthy period of time.11 Moreover, "[u]nder what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses-and thus may subject a person to successive prosecutions-if it violates the laws of separate sovereigns." Puerto Rico v. Sanchez Valle, --- U.S. ----,
Luke also points to another federal indictment that was returned against him in United States v. Trotter, et al. , No. 3-14-cr000172 (M.D. Tenn. 2014), that is pending before Judge Richardson. There, Luke is charged with two others (neither of whom is an alleged co-conspirator in this *1123case) with conspiracy to distribute crack cocaine within 1,000 feet of a public elementary school during the period of January 24, 2012 through March 9, 2012. This short-lived conspiracy is nothing like that alleged here. Besides, that case is pending: he has not either been acquitted or convicted of that conduct.
Accordingly, the Motions for a Bill of Particulars (Doc. Nos. 591 & 700) as to Count Two are DENIED.
D. Bill of Particulars - Count Twelve
Jenkins has filed a Motion for Bill of Particulars (Doc. No. 599) in relation to Count Twelve which alleges violent crimes in aid of racketeering ("VICAR"). Count Twelve reads:
COUNT TWELVE
(Assault Resulting in Serious Bodily Injury in Aid of Racketeering as to M.W.)
THE GRAND JURY FURTHER CHARGES:
1. The allegations contained in paragraphs 1 through 5 of Count One and paragraphs 2 and 3 of Count Three of this Indictment are re-alleged and incorporated by reference as if fully set forth herein.
2. On or about November 3, 2012, in the Middle District of Tennessee, [1] MARCUS TERMAINE DARDEN, [3] BRANDON DURELL HARDISON, and [10] XAVIER RAPHAEL JENKINS, for the purpose of maintaining and increasing position in the Gangster Disciples, an enterprise engaged in racketeering activity, did knowingly assault M.W., resulting in serious bodily injury to M.W., and did aid and abet in the assault of M.W., resulting in serious bodily injury to M.W., in violation of Tennessee Code Annotated, Sections 39-13-101, 39-13-102, and 39-11-402.
In violation of Title 18, United States Code, Sections 1959(a)(3) and 2.
(Doc. No. 380 at 28).
Jenkins requests a bill of particulars identifying the bodily injury M.W. allegedly suffered. He argues:
Count Twelve alleges that Mr. Jenkins "did knowingly assault M.W., resulting in serious bodily injury to M.W." But M.W. was allegedly murdered by co-defendant Burks. (See, Count Eleven). And in discussions with the prosecutor, the Government does not allege that Jenkins shot M.W. Yet, Count Twelve alleges that M.W. suffered serious bodily injury. So what serious bodily injury did M.W. suffer? The gunshot wound ? Yet the Government does not allege that Jenkins fired the gun, only that he assaulted M.W. So what bodily injury did M.W. suffer as a result of Jenkins' alleged assault other than the fatal gunshot wound ?
(Doc. No. 599 at 4).
Despite the seeming simplicity of the request, i.e. disclosure of the injury, the Government opposes Jenkins' Motion by pointing out he has received extensive discovery, including copies of the medical examiner's report that detail M.W.'s injuries. True enough, but the coroner's examination had to have occurred after M.W. was allegedly shot and killed by Burks (who is not named in the VICAR count). While a "bill of particulars is not intended as 'a means of learning the government's evidence and theories,' " Musick,
Accordingly, Jenkins' Motion for Bill of Particulars (Doc. No. 599) in relation to Count Twelve is GRANTED , and the Government shall disclose to defendant the *1124"serious bodily injury" M.W. is alleged to have suffered as a result of the assault on November 3, 2012. Said information shall be disclosed by January 15, 2019.
IX. Motions to Sever
Motions to Sever have been filed by Burks (Doc. No. 566), Hardison (Doc. No. 642), and Luke (Doc. No. 698). In response to each of these motions, the Government acknowledges that proper joinder under Rule 8 is not raised by any of the Defendants, but "nevertheless elect[s] to demonstrate that joinder is proper, as the propriety of that joinder helps explain why severance would be inappropriate here." (Doc. Nos. 672 at 3, n.1; 722 at 3 n.1; 739 at 3 n.1). Because improper joinder under Rule 8 is not the basis for the Motions, the Court finds it unnecessary to follow suit, other than to note that "[i[f the requirements of Rule 8 are not met, 'the district court has no discretion on the question of severance.' " United States v. Cody,
Turning to what is argued, Rule 14 provides:
If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.
Fed. R. Crim. P. 14(a). Whether to grant a severance lies in the sound discretion of the Court, and abuse occurs only where there is a "strong showing of prejudice," that is, "that joinder would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Tran,
Burks identifies "numerous problems inherent in the notion of trying all of the co-defendants together in the instant case." (Doc. No. 566 at 1). These include (1) impairment of the right to confront witnesses because some co-defendant may have implicated themselves and others in crimes; (2) the "unquestionable difficulty" the jurors will have in remembering which facts apply to which defendant throughout the course of a lengthy trial, particularly because defendants "are linked not just by the fact that they are charged together, but also shared characteristics, such as race, age, and background"; and (3) the possibility of mutually antagonistic defenses. (Id. at 2-4).
Hardison argues that the jury will be "inundated with proof of multiple acts of violence and drug trafficking that occurred at times when [he] was incarcerated," (Doc. No. 642 at 6), and the only way to counter those allegations would be to point out that he was in custody from April 2004 until May 2011, and again from May 2013 to June 2015. This would require him to present evidence thereby "depriv[ing] him of the fundamental right to require the Government to carry its burden of proof." (Id. ). He also raises the additional concern expressed by Burks about prejudicial spillover.
Luke, too, raises many of the same concerns expressed by Burks. Additionally, Luke, who is not charged with murder, argues that "[e]vidence of murder, attempted murder, and other heinous crimes will be admitted in a joint trial that would not be admissible if [he] was tried alone, and this circumstance alone requires severance. " (Doc. No. 698 at 3) (emphasis in original).13
*1125The general problems inherent in joint trial identified by Defendants are legitimate, but they do not mandate severance. For example, in Zafiro v. United States,
Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion.
We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty.
When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened.... Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice.... Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial.... The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but ... less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.
This is indeed a complex case. The Court has already made that finding for purposes of
While this Court has exercised its discretion in severing a complex criminal case in the past, see, United States v. Johnson,
Hardison is alleged to be a member of the Gangster Disciples who committed numerous overt acts in furtherance of that criminal organization. Among other things, he is alleged to have traveled with others *1126to Clarksville to locate D.S., and once located, confronted, shot, and killed him over a drug debt. At the same time he allegedly killed D.S.'s girlfriend, A.W. Thereafter, Hardison is said to have given the murder weapon to another Gangster Disciples member for disposal, and also spoken to several Gangster Disciples about the murders. It is further alleged that Hardison talked with several co-Defendants and other gang members about retaliating against rival Bloods gang members and, shortly thereafter confronted and assaulted M.W., a Bloods gang member, in C-Ray's Social Club. Hardison is also charged with an array of substantive offenses based upon those overt acts including VICAR murder of D.S. (Count Five), and A.W. (Count Seven) in violation of Title 18, United States Code, Section 1959(a)(1) ; Causing Death Through the Use of a Firearm in relation to D.S. (Count Six) and A.W. (Count Eight), in violation of Title 18, United States Code, Section 924(j) ; Tampering with a Witness, Victim, or Informant by Killing or Attempting to Kill A.W., in violation of Title 18, United States Code, Section 1512(a)(1)(c) (Count Nine); and Assault Resulting in Serious Bodily Injury in Aid of Racketeering in relation to M.W., in violation of Title 18, United States Code, Sections 1959(a)(3) and 2 (Count Twelve).
Burks is also alleged to have committed murder, along with drug trafficking crimes. In the RICO count, Burks is identified as a Gangster Disciples member who attended membership meetings, and advanced the goals of the organization by (1) by possessing with intent to distribute and distributing cocaine in Hopkinsville, Kentucky on February 4, 2010, February 26, 2010, and December 17, 2010; (2) meeting with other Gangster Disciples in or near Clarksville on or about September 23, 2012 to discuss possible retaliation against members of the Bloods gang for the murder of S.F., a Gangster Disciples' associate; (3) communicating with other Gangster Disciples on or about November 3, 2012, about retaliating against members of the Bloods gang; and (4) shooting and killing M.W. inside C-Ray's, on or about November 3, 2012. He is also charged in Count Two with drug conspiracy, and in Counts Ten, Eleven, Thirteen, and Fourteen, for offenses arising from the murder of M.W., including Unlawful Possession of a Firearm by a Convicted Felon, in violation of
If the allegations of the Second Superseding Indictment are to be believed, Luke is not an innocent bystander either. In his Motion, Luke is quick to point out that, unlike Hardison and Burks, he is not charged with murder. However, Luke, like the other Defendants, is allegedly a member of the Gangsters Disciples and is charged with RICO conspiracy. Among the over acts attributed to him are that: (1) he possessed with intent to distribute and distributed cocaine, crack cocaine, and other controlled substances, in Clarksville and elsewhere between 2009 and 2012; (2) he and other members of the Gangster Disciples shot at, and attempted to kill, Person 10, a member of the Vice Lords gang, in Clarksville on or about June 24, 2009; (3) he and other members of the criminal organization shot at, and attempted to kill, members of the Vice Lords gang, in Clarksville on September 13, 2009, during which Person 11 was struck by bullets; and (4) he shot at, and attempted to kill, Person *112712, in or around Clarksville on or about April 12, 2012. Luke is also charged in the conspiracy to distribute cocaine and other controlled substances alleged in Count Two.
Were the Court to grant the motions to sever, this would require a minimum of four trials. In one, trial would be held against Hardison on Counts One, Five, Six, Seven, Eight, Nine, and Twelve. A second trial involving Burks would require trial of Count One again, plus, Counts Two, Ten, Eleven, Thirteen, and Fourteen. Yet a third trial, against would involve trying Count Ones and Two again, this time against Luke. Still a fourth trial against the remaining seven Defendants would involving trying the RICO count for the fourth time, the drug conspiracy count for the third time, plus all of the other substantive counts in which Hardison, Burks and Luke are not named.
Hardison argues that, because he in jail for a long portion of the life of the alleged conspiracy, he would be subject to prejudicial spillover. This would include "proof regarding the murder of J.H. that occurred in 2007, multiple counts of drug trafficking crimes that occurred 2014 and several instances alleging the attempted murders of multiple individuals in 2014, all of which occurred during times when [he] was incarcerated." (Doc. No. 642 at 5). He argues the only way to counter this would be to provide proof of his incarceration, which would not only be highly prejudicial, but also require him to present evidence in violation of his right to remain silent.
The Court recognizes that a joint trial in which all Defendant are tried could result in some spillover, but "[a] spillover of evidence between counts does not require severance unless there is 'substantial,' 'undue,' or 'compelling' prejudice." Thomas v. United States,
Hardison's argument also fails to take into account that he is charged with a RICO conspiracy alleging that he actively participated in the ongoing affairs of a criminal organization. To the extent his claim is that he withdrew from the conspiracy, that claim, as already noted is an affirmative defense that he must prove. " 'Mere cessation of activity is not sufficient' to establish withdrawal from a conspiracy ..., and a defendant's arrest or incarceration does not qualify as an affirmative, volitional act of withdrawal." United States v. Robinson,
Nor have Defendants established truly antagonistic defenses, or that co-Defendants have given statements that implicate them and impact their right to confront witnesses. Hardison makes no such claim, while Burks asserts "some of the co-defendants may have given statements implicating themselves and/or others in some of the crimes charged in the indictment," and that "[t]here may also be defenses asserted by some co-defendants that are prejudicial to Maurice Burks" (Doc. No. 566 at 1-2, 3), but identifies none. Luke claims that *1128"some defenses may be conflicting, but this is "an analysis that can only be completed closer to trial," and states that Bruton issues "may arise" even though "the defense is unaware that any such statements exist." (Doc. No. 698 at 4, 5).
In Bruton v. United States,
As for potentially antagonistic defenses, "in order to prevail on a motion to sever, a defendant mush show that the antagonism will mislead or confuse the jury.... The defendant carries the heavy burden of making a strong showing of prejudice." United States v. Weiner,
In sum, "to prevail on a motion for severance, a defendant must show compelling, specific, and actual prejudice from a court's refusal to grant the motion to sever." United States v. Saadey,
Given that (1) "[t]here is a preference in the federal system for joint trials of defendants who are indicted together" because "[t]hey promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts," Zafiro,
*1129X. Motion for Jury View
Burks requests that the Court allow a jury view of C-Ray's social club so that the jury can view the scene of Wright's death. That request will be denied at this time.
Allowing or disallowing a request for a jury to view a crime scene is discretionary, United States v. Wilson,
Acknowledging that a jury view is discretionary, Burks argues:
The physical setting of C-Ray's is going to be a central focus of both the prosecution and defense for the charge that Maurice Burks is guilty of causing Mr. Wright's death. While the Government and the defense will undoubtedly utilize photographs and diagrams to attempt to paint the picture of the events leading to Mr. Wright's death, neither photographs nor diagrams will be able to provide the jury with a perfectly clear picture of the physical setting at C-Ray's.
(Doc. No. 593 at 1-2).15 Burks goes on to assert that visiting C-Ray's would "provide the jury with the best possible opportunity to envision the scene of Mr. Wright's shooting." (Id. at 2).
Because much the same can be said about most physical crime scenes, Burks' arguments fall short of persuading the Court that a jury view is necessary. Indeed, he concedes that both he and the Government will present photographs and diagrams depicting the scene, and the Government represents that it has provided a great deal of discovery relating to C-Ray's, including "multiple bodycam videos taken by a CPD detective of the area outside of C-Ray's on the night of the murder; a CPD video of the inside of C-Ray's taken during the daylight hours; hundreds of CPD photographs taken inside and outside of C-Ray's; and multiple CPD diagrams of C-Ray's." (Doc. No. 730 at 4).
Further, the Court cannot ignore the logistical problems such an excursion would create. On this point, the Government argues that Burks' "proposal requires transporting the Court, twelve jurors, four (or more) additional alternate jurors, a court reporter, numerous incarcerated defendants, 15 defense attorneys, at least two prosecutors, the government's case agent, and multiple members of the United States Marshals Service ("USMS") to view a nightclub, presumably in the middle of the day." (Doc. No. 730 at 3-4). The Government also notes that it would be difficult to hide from the jury the shackles Defendants will likely need to wear if they were allowed to walk around C-Ray's during a jury view. According to the Government, Supervisory Deputy U.S. Marshal Jeff Dill has indicated that "accommodating [Burk's] request would be extraordinarily difficult, if not impossible, given all of these logistical concerns." ( *1130
It may be, however, that Defendants' presence would not be necessary because "there is no absolute constitutional right for a criminal defendant to be present during a jury view of a crime scene." United States v. Banks,
In his reply brief, Burks argues that, because "the Court has set aside the week of November 26th for hearings in this case, it would be appropriate for the Court to require the Government to bring the exhibits it believes will 'best' depict C-Ray's nightclub and to wait until that hearing to make further argument on this consideration." (Doc. No. 772 at 4). That would be one way to address the issue, but it fails to take into account that, even though a picture may be worth a thousand words, they can sometimes be better understood through the testimony of witnesses and cross examination. See Crochiere,
Accordingly, Burks Motion for a Jury View (Doc. No. 593) is DENIED WITHOUT PREJUDICE.
XI. Motion to Dismiss Count Four for Improper Joinder of Offenses
Whitlock requests that Count Four be dismissed because it improperly joins two separate and distinct offenses and is therefore duplicitous. That Count reads:
On or about September 1, 2007, in the Middle District of Tennessee, REX ANDREW WHITLOCK , during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, namely, the murder in aid of racketeering of J.H. charged in Count Three of the Indictment, did use *1131and carry a firearm, and in furtherance of such crime, did possess a firearm, and in the course of that crime did cause the death of a person through the use of a firearm, which killing is murder as defined in Title 18, United States Code, Section 1111(a), namely, REX ANDREW WHITLOCK caused the death of J.H. by discharging a firearm at J.H.
In violation of Title 18, U.S.C. § 924(j).
(Doc. No. 380 at 24).
Section 924(j) authorizes the death penalty or imprisonment for life where a defendant's violation of
Relying primarily on Savoires, Whitlock argues that, "[b]ased on the wording of Count Four, a jury might improperly conflate the two offenses set forth in § 924(c) and find Mr. Whitlock guilty of an 'offense' that is not criminalized by § 924(c) (or by § 924(j) ). Accordingly, because Count Four improperly charges two separate and distinct crimes in a single count [using or carrying a firearm in relation to a crime of violence of drug trafficking crime and possessing firearm in furtherance of such a crime], that count should be dismissed." (Doc. No. 546-1 at 3).
In Savoires, like here, defendant was charged with both possessing a firearm in furtherance of a crime, and using and carrying that firearm. Based upon United States v. Combs,
In reversing the conviction, the Sixth Circuit in Savoires acknowledged the settled principle a duplicitous "charge is not prejudicial per se , because proper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise exist as to whether all members of the jury had found the defendant guilty of the same offense."
Proper instructions and a unanimity verdict aside, duplicitous charges can be cured by other means. For example, "courts have held that prior to a defendant's conviction, prejudice to the defendant can be avoided *1132by having the government elect to proceed based upon only one of the distinct crimes included within a duplicitous count." United States v. Sturdivant,
Accordingly, Whitlock's Motion to Dismiss Count Four for Improper Joinder (Doc. No. 546) is DENIED.16 Whitlock may raise the issue of a special unanimity instruction at the appropriate time, or seek to avail himself of the opportunities endorsed in Kakos.
XII. Motion to Dismiss Count Four - Failure to State an Offense
As noted in the previous section, Count Four references the murder in aid of racketeering of J.H. that is charged in Count Three. After incorporating portions of Count One, identifying the Gangster Disciples as an "enterprise" for purposes of RICO, and describing assorted alleged acts of racketeering, Count Three alleges:
4. On or about September 1, 2007, in the Middle District of Tennessee, [11] REX ANDREW WHITLOCK , for the purpose of maintaining and increasing position in the Gangster Disciples, an enterprise engaged in racketeering activity, did knowingly murder J.H. In violation of Tenn. Code Annotated, Section 39-13-202 and 39-13-210.
In violation of 18, United States Code, Section 1959(a)(1).
(Doc. No. 380 at 23).
Noting that a "crime of violence" under Section 924(c)(3) must fall under Section 924(c)'s "force clause" (
Whether the residual clause of Section 924(c) is unconstitutional was seemingly resolved by the Sixth Circuit in United States v. Taylor,
Even though Taylor proceeded Dimaya, which held that the similarly worded residual clause defining a "crime of violence" as set forth in the Immigration and Nationality Act was impermissibly vague, the Sixth Circuit has refused to reverse course. It *1133avoided doing so most recently in United States v. Richardson, No. 17-2157,
This Court has grappled with the interplay between Johnson, Dimaya, and Taylor in the past, see United States v. Kimbrough,
First, Count Four specifically alleges Whitlock caused the death of J.H. through violence, and this death constituted a murder in violation of
Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.
Second, even if the Court ignores the plain language of Count Four and looks to the alleged violation of state law set forth in Count Three, the result is the same. At the time of J.H.'s alleged murder, Tennessee law defined "first degree murder" as
(1) A premeditated and intentional killing of another;
(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
(3) A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.
(1) A knowing killing of another, or
(2) A killing of another that results from the unlawful distribution of any Schedule I or Schedule II drug, when the drug is the proximate cause of he death of the user.
In making his argument, Whitlock fails to consider that the Count Three is written in the conjunctive, i.e. "in violation of Tennessee Code Annotated, Sections 39-13-202and 39-13-210." (Doc. No. 380 at 23). This is not improper. "It is settled law that an offense may be charged conjunctively in an indictment where a statute denounces the offense disjunctively. Upon the trial, the government may prove and the trial judge may instruct in the disjunctive form used in the statute." United States v. McAuliffe,
As for Tenn. Code Ann. 39-13-202, that statute defines second degree murder to include the death of another as a result of the unlawful distribution or narcotic drugs, or alternatively the "knowing killing of another." This is a "disjunctive definition of the crime [requiring] "differing mens rea for each type of second degree murder," and therefore "
In determining whether a statutory offense is a "crime of violence," the Sixth Circuit has observed:
We use a "categorical approach" to determine whether an offense constitutes a "crime of violence" for purposes of § 924(c)(3).... Under the categorical approach, a court "focuses on the statutory definition of the offense, rather *1135than the manner in which an offender may have violated the statute in a particular circumstance." ... "Courts use 'a variant of this method-labeled (not very inventively) the "modified categorical approach"-when a prior conviction is for violating a so-called "divisible statute," ' which 'sets out one or more elements of the offense in the alternative.' "
.... "If [the underlying] statute could be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine" a limited set of documents "to determine whether the conviction necessarily depended on the commission of a crime of violence."
United States v. Rafidi,
The charging document in this case - the Second Superseding Indictment - alleges (as noted) that J.H. was shot and killed by Whitlock. This is further alleged in the overt acts that are incorporated by reference into Count Three. Specifically, over act "j" alleges that Whitlock "shot and killed J.H., a member of the rival Bloods gang, on Tobacco Road in Clarksville, Tennessee." (Doc. No. 380 at 12). Clearly, Whitlock is charged with a crime of violence for purposes of Section 924(c).
Third, and notwithstanding Whitlock's a lengthy response brief wherein he insists that the Court cannot look beyond the 924(c)'s language because "in Taylor,
As one court has explained:
Practically speaking, the categorical approach "ignor[es] the particular facts of the case" and allows the court to "focus solely on whether the elements of the crime of conviction sufficiently match the elements of" the generic offense. Mathis v. United States, --- U.S. ----,136 S.Ct. 2243 , 2248,195 L.Ed.2d 604 (2016). The Supreme Court adopted the categorical approach in 1990 when it was "called upon to determine the meaning of 'burglary' " for purposes of determining whether a sentence enhancement under the Armed Career Criminal Act ("ACCA") was appropriate. Taylor v. United States,495 U.S. 575 , 577-78,110 S.Ct. 2143 ,109 L.Ed.2d 607 (1990).
* * *
[In contrast, a] motion to dismiss challenges the legal sufficiency of a count that requires the government to prove that "during and in relation to any crime of violence" the defendants used or carried a firearm.18 U.S.C. § 924 (c)(1)(A).
*1136At the motion to dismiss stage, the court's inquiry is the converse of the categorical approach: Instead of deciding whether every manner of commission of the crime of kidnapping would constitute a crime of violence, [the court] need only decide whether some manner of commission of that crime could constitute a crime of violence. If so, the sufficiency inquiry shifts to the Rule 29 and post-trial motion phase when it will be appropriate to decide whether the government's evidence is sufficient to prove that the defendants actually did carry or use a firearm during the commission of a crime of violence. [The court has] no need to engage in "elaborate factfinding" in order to determine that the kidnapping, as alleged, satisfies the predicate crime of violence threshold. Similarly, because the jury will be finding facts, including whether the alleged kidnapping satisfies the "crime of violence" element of the charged offense, there are no Sixth Amendment concerns present. Thus, the fundamental premise upon which the categorical approach depends is absent at the pretrial motion to dismiss stage.
United States v. Cook, No. 3:17-CR-00065 (SRU),
Cases in which the categorical approach has been utilized outside the sentencing contexts are sparse. In the vast majority of cases, this one dimensional analytical construct is used by sentencing courts conducting a cold record review of a prior conviction to determine whether its elements square with the definition of "crime of violence" articulated in § 924(e)(3), the Armed Career Criminal Act. Unlike the retrospective analysis conducted by sentencing courts, trial courts have the benefit of viewing the evidence as it unfolds.
United States v. Standberry,
Numerous other courts have come to the same conclusion. See e.g., United States v. Wells, No. 2:14-cr-00280,
While most of the cases rejecting the categorical approach when analyzing motions to dismiss have been decided thus far at the district court level, there is also some support for this rejection at the appellate court level. See Weingarten v. United States,
Because the residual clause is not a factor in light of the VICAR allegations and the wording of the Superseding Indictment, Whitlock's Motion to Dismiss Count Four for failure to state an offense (Doc. No. 555) is DENIED.
XIII. Motion to Suppress Evidence Obtained September 29, 2003
On September 29, 2003, a vehicle in which Whitlock was a passenger was stopped by a CPD officer for failure to use a turn signal. During the stop, the officer allegedly smelled burnt marijuana emanating from the automobile, and ordered the occupants out of the vehicle. Even though a pat-down search of Whitlock and a search of the vehicle revealed nothing, Whitlock was held at the scene and other officers were called. Whitlock was then taken to the police station and strip-searched. That search revealed a rocklike substance found in Whitlock's rectum. Arguing that the discovery that has been provided reveals nothing to suggests that the officers had a basis to detain him after the initial pat-down, Whitlock moves to suppress the fruits of the search.
In response, the Government indicates that it does not intend to introduce evidence of this incident in its case-in-chief at trial, but reserves the right to introduce such evidence for impeachment purposes. In reply, Whitlock concedes that, pursuant James v. Illinois,
XIV. Motion to Dismiss - Statute of Limitations
"The crime of conspiracy carries a five year statute of limitations.
With respect to Counts One and Two, there is no specific allegation in the indictment indicating any act taken by Mr. Luke within the statute of limitations. Indeed, the indictment allegations, that *1138are specific to Luke, show his last act is outside the statute. Mr. Luke was not involved in criminal activity after October 2012, according to the specific indictment allegations. Thus, the last date he could have been indicted was October 31, 2017. This [instant] federal prosecution was not commenced until December 14, 2017.
(Doc. No. 699 at 6). Luke further assert that "[a]fter review of more than 300 GBs of government discovery, there is not one scintilla of evidence to support any argument that Mr. Luke was a member of the Gangster Disciples within the necessary five-year statutory limitation timeframe." (Id. at 6). Finally, Luke argues that "[a]n evidentiary hearing will be required to establish the facts necessary for the Court to decide" the statute of limitations issues. (Id. at 5). Luke's arguments fail.
"[A] RICO conspiracy offense is complete, thus commencing the running of the five-year statute of limitations, only when the purposes of the conspiracy have either been accomplished or abandoned." United States v. Tocco,
Although a "substantive RICO charge is barred by limitations as to any defendant unless that defendant committed a predicate act within the five-year limitations period," a RICO conspiracy "is complete, thus commencing the running of the five-year statute of limitations, only when the purposes of the conspiracy have either been accomplished or abandoned." ... Accordingly, even if a defendant engaged in predicate conduct that occurred outside of the statute of limitations, that defendant remains liable for RICO conspiracy unless the evidence shows that the conspiracy concluded or he withdrew from that conspiracy more than five years before the indictment.... This is because once the government meets its burden of proof to establish a RICO conspiracy, "it is entitled to a presumption that the conspiracy continued until [the] defendant demonstrate[s] otherwise."
United States v. Yannotti,
The same is true for the drug conspiracy charged in Count Two. "In a § 846 conspiracy, the government must show the willful formation of a conspiracy and the willful membership of the defendant in the conspiracy, but need not prove that defendant committed an overt act in furtherance of the conspiracy." United States v. Layne,
To be sure, "[t]he presumption of continuity does not carry the same force for every member of a conspiracy," particularly "in large scale drug conspiracies where levels of participation vary greatly *1139among the conspirators." Brown,
Accordingly, Luke's Motion to Dismiss on Statute of Limitations grounds (Doc. No. 699) is DENIED.
XV. Motion for Jury Questionnaire
Rule 24 provides that "the court may examine prospective jurors or may permit the attorneys for the parties to do so," Fed. Crim. P. 24(a), and "gives the court very broad discretion on the conduct of the voir dire examination of prospective jurors." United States v. Schmucker,
Burks has requested that prospective jurors in this case be provided with a juror questionnaire, and attaches to his Motion a "Special Juror Questionnaire" that is 14-pages long, and includes 70 questions, plus sub-parts. In response, the Government does not oppose the idea of jurors being provided a questionnaire, but objections to some questions as being "overly intrusive," and others as being "inflammatory." (Doc. No. 731 at 1-2). The Government also requests that, if the Court elects to use a juror questionnaire in this case, it be allowed "the opportunity to submit its own proposed questionnaire to the Court." (Id. at 2). In reply, Burks takes issue with the Government's characterization that some of the proposed questions are improper, and notes that the questionnaire was prepared by "an eminently qualified jury consultant and contained questions that have all been used, in similar or exact form, in courts throughout the country, both federal and state, including the Middle District of Tennessee." (Doc. No. 771 at 2). Burks also assert that his "jury consultant could come to Nashville during the week of November 26th ... to further explain the methodology for preparing a jury questionnaire in a case like this one." (Id. ).
The Court agrees with the parties that a questionnaire sent to prospective jurors would be of benefit, particularly if this case proceeds to trial in its present posture. However, the Court also believes that many of the questions are unnecessary, others are covered in the Court's standard colloquy with the jury venire, and some are intrusive. Further, the Government should be allowed input into the questions to be asked. While Burks represents that his jury consultant could be made available *1140during the week the Court has set aside for hearings, the Court is not concerned about the methodology that was employed, and finds a hearing unnecessary. Instead, the matter of a juror questionnaire will be placed upon the Court's agenda for the status conference to be held on November 29, 2018.
Accordingly, Burks' Motion for Jury Questionnaire (Doc. No. 644) is GRANTED (assuming this case goes to trial in its present posture), but the precise questions to be asked will be resolved at a later date.
XVI. Remaining Motions
Hardison's Motion to Set Exhibit Review Conference (Doc. No. 641) is DENIED AS MOOT. An exhibit review conference has been scheduled for January 9, 2019 though January 11, 2019. Burks' and Hardison's Motion to Defer Setting Trial Schedule (Doc. No. 249) filed November 39, 2017 is DENIED AS MOOT in light of the agreed trial setting of March 1, 2019. Burk's Motion to Amend his Motion for Reconsideration (Doc. No. 516) to cite the appropriate rule is GRANTED.
The remaining Motions and a follow-up status conference are set for hearing as follows:
TUESDAY, NOVEMBER 27, 2018
Time Motion Type of Hearing 9:00 a.m. Whitlock's Motion to Suppress Evidence Evidentiary Hearing Obtained on 3/3/05 (Doc. No. 553) 1:00 p.m. Whitlock's Motion to Require Immediate Oral Argument Production of Unredacted Witness Statements (Doc. No. 579) 2:00 p.m. Whitlock's Motion to Dismiss Count Two Oral Argument (Doc. No. 573) 3:00 p.m. Whitlock's Motion to Suppress Instagram Oral Argument/Evidentiary Account (Doc. No. 584) Hearing
WEDNESDAY, NOVEMBER 28, 2018
Time Motion Type of Hearing 9:00 a.m. Darden's Motion to Suppress Cell Phone Evidentiary Hearing Evidence (Doc. No. 636) and Supplement (Doc. No. 787) 2:00 p.m. Darden's Motion for Disclosure of Grand Jury Oral Argument Testimony (Doc. No. 590) and Motion to Compel Disclosure of Confidential Informants (Doc. No. 646)
THURSDAY, NOVEMBER 29, 2018
*1141Time Motion Type of Hearing 9:00 a.m. Burk's Motion for Reconsideration of Magistrate Oral Argument Judge's Ruling Re: Exculpatory Evidence, Witness Lists and Jencks Material (Doc. No. 515) 10:30 a.m. Burk's & Jenkins' Motion for Review Re: Oral Argument Tattoos (530) 1:00 p.m. Follow-up status conference involving all defendants and all counsel
At the status conference, counsel should be prepared to discuss the possible severance of Hardison from this case, juror questionnaires, and the Government's Motion to Set Plea Deadline (Doc. No. 807).
The Court believes that this Memorandum Opinion and Omnibus Order either resolves all pending Motions, sets them for hearing, or sets them on the agenda for the status conference, except as to (1) sealed matters, and (2) the Government's recently filed Motion to Consolidate Luke's Federal Cases for Trial (Doc. No. 806). To the extent that is not the case, it should be brought to the Court's attention promptly so that the Motion can be addressed, or set for a hearing.
IT IS SO ORDERED.
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346 F. Supp. 3d 1096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-darden-tnmd-2018.