United States v. Ledbetter

107 F. Supp. 3d 849, 2015 U.S. Dist. LEXIS 70817, 2015 WL 3463558
CourtDistrict Court, S.D. Ohio
DecidedJune 1, 2015
DocketCase No. 2:14-cr-127
StatusPublished

This text of 107 F. Supp. 3d 849 (United States v. Ledbetter) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ledbetter, 107 F. Supp. 3d 849, 2015 U.S. Dist. LEXIS 70817, 2015 WL 3463558 (S.D. Ohio 2015).

Opinion

ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter comes before this Court pursuant to this Court’s April 29, 2015 Order requesting that the fourteen defendants who no longer are facing the death penalty submit a motion detailing why their individual cases are complex to the extent that two counsel are warranted for adequate representation. (Doc. 571). Ten defendants submitted motions to continue representation by two counsel.1 In [851]*851addition, two defendants who were not previously death penalty defendants have submitted motions requesting the appointment of second counsel.2

II. BACKGROUND

On June 23, 2014, the federal grand jury returned a twenty-five count Indictment charging seventeen defendants3 with a number of violations under federal law connected to their alleged involvement in the Short North Posse, an alleged criminal organization in the Short North Area of Columbus, Ohio. (Doc. 14). The first count in the Indictment alleges the existence of a RICO conspiracy, in which the enterprise, the Short North Posse, operated through the methods of murder, attempted murder and robbery, the distribution and possession with the intent to distribute controlled substances, tampering with witnesses; extortion, robbery and retaliation against witnesses. The remaining counts included eleven counts of murder in aid in racketeering, one count of murder through the use of a firearm during and in relation to a crime of violence, four counts of murder through the use of a firearm during and in relation to a drug trafficking crime, one count of conspiracy to murder a witness; one count of use of a firearm during and in relation to a crime of violence, four counts of felon in possession of a firearm, one count of possession with intent to distribute cocaine, and one count of possession with intent to distribute heroin.

On October 20, 2014, a Superseding Indictment was returned by the grand jury adding three new defendants and thirteen counts, bringing the total to twenty defendants, one of whom is still at large, and 38 counts.4 These thirteen new counts included one count of attempted possession with intent to distribute cocaine, five counts of use of a firearm during and in relation to a drug trafficking crime, murder in aid of racketeering,, four counts -of possession with the intent to distribute marijuana, one count of attempted possession with intent to distribute marijuana, and one count of witness tampering. The three new Defendants were Andre M. Brown, Johnathan Holt, and Christopher V. Wharton.

Fourteen of the defendants are charged in the RICO conspiracy count, which includes 112 overt acts allegedly committed in furtherance of the conspiracy, but the Government has reserved the right to adduce evidence of any overt act about which it has evidence, even if that overt act is not specifically identified in the indictment. The six Defendants who are not charged in the first count are all charged with at least one count of Murder in the Aid of Racketeering relating to their membership and/or association with the Short North Posse. The number of counts may continue to grow, however, as the Government uncovers new evidence related to the Short North Posse, and as it discovers instances of witness tampering and intimidation. Case in point: on April 2, 2015, the grand jury indicted Defendants Ledbetter, Harris, Liston and Ussury for murder in aid of racketeering and murder'through use of a [852]*852firearm during and in relation to a drug trafficking crime. The Government sought joinder of that indictment with the superseding indictment in this case, and on May 26, 2015, this Court granted the Government’s motion. Thus, the current number of counts in this case totals 40.

Fourteen of the Defendants were targeted originally with a potential capital prosecution. Within the months of July and August 2014, all fourteen were appointed two counsel pursuant to 18 U.S.C. § 3005. On April 17, 2015 the Government informed the Court and Defendants of its intent not to seek the death penalty for any of the defendants previously facing potential capital prosecution.

Since August 2014, the Government has provided Defendants more than 56,000 documents in discovery, which span a ten-year period. The Government has suggested it will call nearly 100 witnesses, play a surfeit of telephone calls, and introduce hundreds of documents in order to meet its burden of proof.

At a pretrial status conference on April 24, 2015, the government proposed its tentative groupings of Defendants for three trials it anticipates in this case. The Government has estimated that it will take three months to try the first proposed group, consisting of Ledbetter, Robert Wilson, Harris, Liston, Ussury, Rastaman Wilson, and Patterson. In the first proposed group, the jury would consider sixteen counts, including count one, which includes over a hundred overt acts. The Government has estimated it would take six to eight weeks to try the second proposed group, consisting of Green, Wright, Gordon, Coates, and Johnson. In the second proposed group, there would be five counts for the jury to consider, including Count One. Finally, the Government estimated it would take six to eight weeks to try the third proposed group, consisting of Bowers, Hill, Smith, Reynolds, Brown, Holt and Wharton. In the third proposed group, the jury would consider 21 counts, including count one.

III. STANDARD

18 U.S.C. § 3005 provides that Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or , a judge thereof, shall promptly, upon the defendant’s request, assign 2 ... counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours....

18 U.S.C. § 3005. “The statute is silent on whether a defendant may still be entitled to the appointment of the learned counsel if the government decides that it shall not seek the imposition of the death penalty against a defendant.” U.S v. Jones, No. CRIM.A. 07-143(JAG), 2008 WL 2967028, at *2-3 (D.N.J. July 31, 2008) (citing U.S. v. Douglas, 525 F.3d 225, 235 (2d Cir.2008)). All circuits to have considered the issue, however, except for the Fourth Circuit, have held that when the government decides not to seek the death penalty, defendants no longer have a statutoiy right to a second court-appointed counsel who is learned in capital cases, because the matter is no longer a capital case within the meaning of § 3005. See, e.g., United States v. Douglas, 525 F.3d 225, 237 (2d Cir.2008) (“[W]e agree with the majority of the federal courts of appeals that once the government has formally informed the court and the defendant of its intention not to seek the death penalty, the matter is no longer a capital case within the meaning of § 3005.”); United States v. Waggoner,

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Bluebook (online)
107 F. Supp. 3d 849, 2015 U.S. Dist. LEXIS 70817, 2015 WL 3463558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ledbetter-ohsd-2015.