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U.S. v. EDELIN

January 23, 2001

UNITED STATES OF AMERICA,
V.
TOMMY EDELIN, EARL EDELIN, SHELTON MARBURY, HENRY JOHNSON, MARWIN MOSLEY, BRYAN BOSTICK, DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

      MEMORANDUM AND ORDER

Upon consideration of the various motions filed by the defendants and the government, the Court will deny the defendants' requests for additional discovery and grant the government's requests for an anonymous jury, a delay in the production of witness names, and the ability to recall witnesses during its case-in-chief. Before addressing each of the motions individually, the Court will analyze the dangerousness of the defendants and their willingness to interfere with the judicial process. These are crucial elements for determining what information should be disclosed and when it should be provided to the defendants.

I. Background

The charges in this case stem from an alleged large drug conspiracy in the District of Columbia. The violence associated with this alleged conspiracy is remarkable. The conspirators allegedly committed fourteen murders and multiple counts of assault with intent to murder.

The six defendants,*fn1 scheduled to be tried beginning on March 26, 2001, are charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, fifty grams or more of cocaine base, and one kilogram or more of heroin, in violation of 21 U.S.C. § 846; continuing criminal enterprise, in violation of 21 U.S.C. § 848(a) and (b); conspiracy to participate in a racketeer influenced corrupt organization, in violation of 18 U.S.C. § 1962(d); armed robbery, in violation of 22 D.C.Code §§ 2901 & 3202; assault with intent to murder while armed, in violation of 22 D.C.Code §§ 503 & 3202; first degree murder while armed, in violation of 22 D.C.Code §§ 2401 & 3202; continuing criminal enterprise murder, in violation of 21 U.S.C. § 848(e)(1)(A); violent crime in aid of racketeering activity, in violation of 18 U.S.C. § 1959; illegal use of a firearm, in violation of 18 U.S.C. § 924(c)(1); assault with a dangerous weapon, in violation of 22 D.C.Code § 502; possession of a firearm during a crime of violence, in violation of 22 D.C.Code § 3204(b); money laundering, in violation of 18 U.S.C. § 1957; distribution of five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii); distribution of fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii); possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); possession with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii); possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii); possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i); possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(ii); aiding and abetting, in violation of 22 D.C.Code § 105; and aiding and abetting, in violation of 18 U.S.C. § 2. One of the defendants, Tommy Edelin, faces the death penalty. The government has decided not to seek the death penalty against the other five defendants, although they are accused of crimes that could lead to death penalty prosecution. These five defendants face the possibility of life in prison without parole.

II. Finding of Dangerousness/Willingness to Interfere with the Judicial Process

Defendant Tommy Edelin and other defendants in this case have made requests for further discovery from the government. The government has responded before this Court that all discovery requests for information that does not threaten the safety of witnesses or informants have been complied with. The government further proffered that attorneys for the government have gone beyond the requirements of Federal Rule of Criminal Procedure Rule 16 and Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government has provided extensive discovery related to this case, along with descriptions of some of the evidence and how the government plans to use that evidence at trial. The government has already provided a wide variety of discovery materials, including its theory of liability, the factual scenario for each alleged murder, and a list of relevant aggravating and mitigating factors.

The defendants have requested additional discovery; some of the additional information requested includes plea agreements and other information that is sealed under order of this Court because the Court has determined that the release of such information would place potential witnesses at risk of injury or violence. It would be counterintuitive for the Court to allow discovery of such information at this time, as it would endanger individuals who are cooperating with law enforcement in this case. The disclosure of the information requested by defendant Tommy Edelin is not required under the law if the Court finds that the defendant poses a danger to witnesses against him. See 18 U.S.C. § 3432 (allowing the Court to delay the production of witness names when it is shown to a preponderance of the evidence that the safety of any person may be jeopardized). This statute, which provides discovery related protection for capital defendants, does not apply to the other five defendants in this case. See infra Section III(A).

The Court has come to the conclusion that the defendants here are dangerous and a threat to government witnesses on the basis of the indictment in this case and the information provided by the government to this Court. See Government's Reply to Defendants Marbury's and Mosley's Oppositions to the Government's Motion for Empaneling an Anonymous Jury and Delaying the Production of Witness Names; Affidavit of Stephen Pfleger, Assistant United States Attorney, December 18, 2000. The indictment, supported by a finding of probable cause by the grand jury, shows multiple acts of violence by various defendants against potential witnesses against them.

The Superseding Indictment in this case shows that the Grand Jury found probable cause to find that defendant Tommy Edelin made efforts to arrange the murders of several potential witnesses against him. See Superseding Indictment, Count One, Overt Acts 33, 90-93. Defendant Tommy Edelin is also charged with arranging the murder of Ronnie Middleton, an incarcerated co-defendant and a potential witness in this case. See Superseding Indictment, Counts 46-69. The government has proffered other information regarding an ongoing pattern of behavior by defendant Tommy Edelin and several other defendants in this case to threaten and intimidate potential witnesses to prevent those witnesses from providing full and accurate testimony at trial. The grand jury found probable cause to believe that the defendants committed multiple violent acts, with each defendant being charged with at least one count of murder, as well as additional counts of assault with intent to murder. While all of the murders allegedly committed by the conspiracy were not perpetrated against witnesses, the showing of probable cause that supports the accusations of violent acts lends credence to the government's assertions that the defendants in this case are extremely dangerous and prone to violent acts.

In addition to the indictment, the government has made oral proffers of evidence and a written affidavit proffering examples of other known attempts made by the defendants and their associates to interfere with the judicial process. These examples, not included in the Superseding Indictment, allege efforts by defendant Tommy Edelin, and others working on his behalf, to convince several witnesses to lie for him during the upcoming trial. The government proffers that in 1997, defendant Tommy Edelin allegedly assisted another member of the organization by making arrangements for the murder of a critical witness who was cooperating with the government in another case against that member of the organization. That murder attempt was ultimately unsuccessful. Defendant Tommy Edelin made statements at that time that if he were ever charged with a serious offense he would not plead guilty, but would instead kill anyone who cooperated with the government.

Allegations against defendant Earl Edelin include that he has made a series of contacts with the family of a potential government witness to intimidate the witness and prevent the witness from testifying at the upcoming trial. The government proffers that defendant Earl Edelin has previously assisted another member of the organization by hiding a critical witness from the government so that the case pending against that member of the organization would be dismissed.

Defendant Shelton Marbury, while not named in the affidavit submitted by the government, has allegedly committed numerous violent acts, although not specifically against potential witnesses in this case. Defendant Shelton Marbury allegedly committed at least two murders while using a firearm. The government proffers that in 1997, defendant Henry Johnson allegedly threatened to kill two witnesses in a case prosecuted in the Superior Court for the District of Columbia involving an assault with a firearm and related charges. In this case, defendant Henry Johnson is charged with committing multiple murders while using a firearm.

The government alleges that while incarcerated in relation to this case, defendant Mosley, and others acting on his behalf, have repeatedly threatened to kill a potential government witness and a member of the witness's family if the potential witness testifies at the upcoming trial in this matter.

Defendant Bryan Bostick is alleged to have arranged for another person to deliver a threatening message to the family of a potential government witness in order to prevent the witness from testifying at the upcoming trial. Defendant Bostick is also alleged to have informed the potential witness that he wanted to kill all the witnesses who were cooperating with the government; these allegations are in addition to the charges against defendant Bostick in United States v. Kevin Gray, et al., criminal case no. 00-157(RCL), also before this Court. Defendant Bostick faces further allegations of ongoing efforts to threaten and intimidate potential witnesses in the Gray case.

Aside from the specific counts in the indictment against the different defendants, and the proffers by the government with respect to those individual defendants, the government asserts that another member of the organization has interfered with the judicial process. The government proffers that during the 1998 murder trial of a juvenile member of the defendants' organization, an associate of the defendants made threatening gestures to a witness who was in the process of testifying. The witness stopped testifying and did not resume until the person making threatening gestures was removed from the courtroom.

All of the activities mentioned above indicate that the defendants in this case, and their associates, are willing to interfere with the judicial process. In this case there are charges of multiple murders and a wide-ranging conspiracy to distribute drugs. Most of the defendants here face the possibility of life imprisonment without parole; one defendant, Tommy Edelin, faces the possibility of the death penalty. The serious nature of these potential penalties may cause the defendants to overlook a potential additional sentence for obstruction of justice or tampering with a witness. It would be unwise for the Court to require the government to release the names of potential witnesses to the defendants in this case at this time.

The dangerousness of the defendants, their access to other individuals who are willing to act on their behalf, and their willingness to approach potential witnesses in this case in order to alter or prevent damaging testimony all indicate that the defendants should not be provided with the information they seek in the discovery motions and the requests for witness and informant names. If the Court were to provide this information to the defendants here, it would needlessly jeopardize the safety of potential witnesses and government informants. While the defendants claim that they are unable to mount a constitutionally adequate defense without this information, other courts have found that withholding the names of potential witnesses until several days before those witnesses testify is not a violation of a criminal defendant's constitutional rights. See, e.g., United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984) (holding that turning over Giglio material on the day the government witnesses are scheduled to testify satisfies defendants' right to a fair trial).

The Supreme Court has never established a specific amount of time before trial when a Brady disclosure regarding witnesses must be made. It is true that a disclosure by the government

must be made at such a time as to allow the defense to use favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criteria requires pre-trial disclosure. United States v. Pollack, 534 F.2d 964, 973 (D.C.Cir. 1976), accord United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988).

It is also true that the interests of justice would not be served by premature release of information that could compromise the security and safety of witnesses and informants who have been cooperating with law enforcement.

The facts set forth by the government establish by a preponderance of the evidence that providing defendants with a list of witnesses, along with the additional information defendants have requested, "may jeopardize the life or safety of any person." 18 U.S.C. § 3432. Given the findings by the Grand Jury, the Court finds that the defendants' willingness to interfere with the judicial process through a pattern of intimidation, threats and violence indicates that the names of witnesses should not be provided to the defendants or defense counsel prior to the Thursday before each witness will testify. This will allow defense counsel a minimum of three days to prepare for the testimony and cross-examination of government witnesses. The government has stated that all material will be provided to the defendants at trial so that defense counsel may effectively challenge the credibility of the government's witnesses and secure the defendant's right to a fair trial. See United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984).

III. Motions Related to Witnesses, Informants, Co-conspirators
A. Motion by Government to Delay the Production of Witness Names

The Motion by the government to Delay the Production of Witness Names is GRANTED, pursuant to the analysis given above in the discussion of the dangerousness of the defendants and the reasoning below. See supra Section II. Defendants Marbury, Mosley, and Tommy Edelin opposed the government's motion to Delay the Production of Witness Names, they were recently joined by defendant Earl Edelin. The government has already declined to seek the death penalty against defendants Marbury, Mosley, and Earl Edelin, therefore, these three defendants are not entitled to the benefits conferred by 18 U.S.C. § 3432. The statute plainly reads that a "person" charged with a capital offense is covered by the statute, it does not say that a person tried with a capital defendant is covered by the statute. 18 U.S.C. § 3432.

Defendants Marbury, Mosley, and Earl Edelin nevertheless claim that they have standing pursuant to 18 U.S.C. § 3432 because they are being tried with a capital defendant and they were death-penalty eligible before the government declined to seek the death penalty against them. Different circuits have interpreted the law to the contrary. See United States v. Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998) (finding that statutes such as 18 U.S.C. § 3432 do not apply to defendants where the government has declined to seek the death penalty in their cases); United States v. Kaiser, 545 F.2d 467, 475 (5th Cir. 1977); United States v. Crowell, 498 F.2d 324, 325 (5th Cir. 1974); United States v. Hoyt, 451 F.2d 570, 571 (5th Cir. 1971), cert. denied, 405 U.S. 995, 92 S.Ct. 1272, 31 L.Ed.2d 465 (1972); Reed v. United States, 432 F.2d 205, 206-08 (9th Cir. 1970); Hall v. United States, 410 F.2d 653, 660-61 (4th Cir. 1969), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969).

Even if these three defendants did have standing under the statute, and because defendant Tommy Edelin does have standing under § 3432, the Court finds that given the showing of probable cause in the indictment and the proffers of evidence made by the government as to the dangerousness of the defendants and their willingness to interfere with the judicial system, the Court will not order that the names of witnesses be produced to the defendants until the Thursday before each witness will be called at trial. The Court must find by a "preponderance of the evidence that providing the list [of witnesses] may jeopardize the life or safety of any person." 18 U.S.C. § 3432. The analysis in Section II supra plainly shows why the Court is not ordering the immediate production of witness names and addresses in this case. The same analysis applies to the Court's decision to delay the production of witness names until the Thursday before those witnesses testify in this trial. The government has shown by a preponderance of the evidence that the release of witness names may jeopardize the life or safety of those witnesses or their family members. The alleged activities of the defendants in threatening potential witnesses and their families has given the Court a preview of the danger witnesses would face if their names and addresses were to be revealed to the defendants prior to trial. The government motion is GRANTED.

B. Motion by Defendant Tommy Edelin for Disclosure of Impeaching Information [310]

Although defendant Tommy Edelin does have the right to discovery of impeaching information, further impeaching information need not be produced at this time, given the Court's decision to delay the production of witness names. See supra Section III(A). The willingness of the defendants to harass and intimidate witnesses, and the willingness of the defendants to interfere with the judicial process led to the decision of this Court to not produce the names of witnesses until the Thursday before they testify in the upcoming trial. The same analysis supports the delay in disclosing impeaching information against those witnesses. Defendant Tommy Edelin's Motion is hereby DENIED.

C. Motion by defendant Tommy Edelin for Pretrial Production of Statements of Individuals Not to be Called as Witnesses [308]

The Court DENIES the Motion on the grounds that the government has proffered that all evidence has been submitted to the defendant unless it threatens the safety of a witness. Insofar as defendant Tommy Edelin's request applies to information not covered by Brady, the lack of legal support for the assertions of defendant Tommy Edelin, combined with the provisions of Rule 16 of the Federal Rules of Criminal Procedure, indicate that the requested material need not be provided to the defendant. Criminal defendants are only entitled to statements of non-testifying witnesses or co-conspirators if those statements qualify as Brady material. See United States v. Williams-Davis, 90 F.3d 490, 512-12 (D.C.Cir. 1996), cert. denied, 519 U.S. 1128, 117 S.Ct. 986, 136 L.Ed.2d 867 (1997).

As to Brady information that is being withheld due to the concern for the safety of individuals in conjunction with 18 U.S.C. § 3432, this situation requires that the Court proceed cautiously, aware not only of the defendant's rights to pretrial discovery, but also of the threat defendant Tommy Edelin poses to the safety of witnesses and potential witnesses. See supra Sections II and III(A). The Court has made extensive findings of the dangerousness of the defendants in this case.

The court in United States v. Tarantino stated that it would be a violation of the law to disclose witness statements prior to the trial. 846 F.2d 1384, 1414 (D.C.Cir. 1988), cert. denied, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988). "Federal Rule of Criminal Procedure 16(a)(2) prohibits discovery of statements by government witnesses or prospective government witnesses except as provided in the Jencks Act, 18 U.S.C. § 3500(a)." Id. It would be nonsensical to disclose the statements of witnesses who will not be appearing at trial while protecting those witnesses who will be testifying at trial. So long as the defendants are provided Brady information, the statements of witnesses who will not be called at trial shall remain in the hands of the government.

The Court, cognizant of the government's proffer that all exculpatory evidence and other materials that can be released to the defendants without endangering the safety of witnesses has been turned over to the defendants, DENIES the motion by defendant Tommy Edelin, with the understanding that all Brady information will be provided to the defense at the appropriate time.

D. Motion by defendant Tommy Edelin to Disclose Confidential Informants [309]

The Court, after considering the Motion by defendant Tommy Edelin and the Motion by the government to delay the production of witness names, DENIES the Motion by defendant Tommy Edelin to Disclose Confidential Informants. See supra Section III(A). The Supreme Court has refused to adopt an inflexible rule that the identity of an informer or cooperating witness must be disclosed whenever the testimony may be relevant and helpful to the accused. Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The government enjoys a qualified though "time-honored privilege to withhold the identity of its informants from criminal defendants." United States v. Brodie, 871 F.2d 125, 128 (D.C.Cir. 1989). The privilege is appropriately used here if the government otherwise complies with Brady v. Maryland and other applicable cases protecting the interests of the defendants. Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government has indicated to the Court that to the extent that the defendant is entitled to information about confidential informants for impeachment purposes, the government thoroughly intends to disclose all such information as required by Brady, and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), at the same time it discloses Jencks material, so that such information may be used during cross-examination.

The Court must balance the public's interest in law enforcement and protecting the informant's identity against the defendant's right to prepare a defense. See United States v. Jefferson, 593 F. Supp. 85, 89 (D.C. 1984); Roviaro v. United States, 353 U.S. at 62, 77 S.Ct. 623. The government is not required to disclose the identity "`of an informant who was not an actual participant in or a witness to the offense charged.'" United States v. Warren, 42 F.3d 647, 654 (D.C.Cir. 1994) (quoting United States v. Skeens, 449 F.2d 1066, 1071 (D.C.Cir. 1971)). It is the defendant's "`heavy burden . . . to establish that the identity of an informant is necessary to [the] defense.'" United States v. Warren, 42 F.3d at 654 (quoting United States v. Skeens, 449 F.2d at 1070). In making this determination as to whether disclosure of the informant's identity is required, the Court must use a totality of the circumstances approach, consider the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant circumstances. Roviaro, 353 U.S. at 62, 77 S.Ct. 623.

Defendant Tommy Edelin has failed to articulate a sufficient basis as to why the testimony of the informants might be helpful to his defense. Defendant's "mere speculation that the informer might possibly be of some assistance is not sufficient to meet [defendant's] burden." United States v. Mangum, 100 F.3d 164, 172 (D.C.Cir. 1996). For this reason alone, disclosure is not required. United States v. Skeens, 449 F.2d 1066, 1070 (D.C.Cir. 1971). In this case, there is the additional element of the dangerousness of the defendants. The Court will not order the disclosure of the identities of confidential informants when it will unnecessarily place the personal safety of those informants in danger. Where the disclosure will place the informant in personal danger, and the prospective testimony is not exculpatory, courts should not order disclosure. United States v. Pelton, 578 F.2d 701, 797-08 (8th Cir. 1978), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1979). The government has represented to the Court that the prospective testimony of the informants in this case is not exculpatory. Therefore, because of the serious nature of the crimes charged, and concern for the safety of the confidential informants, the government is not required to disclose the names of all confidential informants.

Defendant Tommy Edelin has not even speculated as to the information the informants whose identities he requests might provide in aid of his defense. His request for their identities is DENIED.

E. Motion by defendant Tommy Edelin for Discovery of Statements of Co-defendants and Co-conspirators [311]

The government has represented to this Court that all discovery under Brady v. Maryland has been produced to the defendants unless the release of that information would compromise the security of witnesses or informants. See supra Section II. Defendant Tommy Edelin would be entitled to the information he requests if it were exculpatory, including that information which might affect the jury's determination of the credibility of a material prosecution witness. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The request for statements of co-defendants and co-conspirators goes beyond Brady and Giglio however, and should be addressed apart from the Brady discussion infra Section IV.

This Circuit has also found that the pretrial disclosure by the government of witness statements, except as provided by the Jencks Act, would be a violation of Federal Rule of Criminal Procedure 16(a)(2). See United States v. Tarantino, 846 F.2d 1384, 1414 (D.C.Cir. 1988), cert. denied, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988). A natural extension of this rule would be to prohibit the disclosure of statements by individuals who will not be called as witnesses at trial, so long as the government complies with Brady and its other discovery obligations. Defendant Tommy Edelin's request for all statements made by codefendants has already been complied with by the government. Defendant Tommy Edelin's Motion for further discovery of statements of co-defendants and co-conspirators is DENIED.

F. Motion by defendant Earl Edelin for Discovery and Inspection Concerning Government's Use of Informants, Operatives and Cooperating Individuals [296-1]; Motion by defendant Earl Edelin for Disclosure of Exculpatory Evidence and Notice to the Government of Exculpatory Evidence Requested Concerning ...

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