The opinion of the court was delivered by: John D. Bates United States District Judge
A. General Severance Issues
B. Sixth Amendment Confrontation Clause Issues .
II. Brady/Jencks Violations
A. The Alleged Brady/Jencks Violations
B. Summary of Legal Standards.
C. Analysis of the Individual Brady Violations
1. Evidence Pertaining to the X-ray of the Victim's Skull.
2. Russel Joseph's January 17, 2006 Statement to Trinidad Police.
3. Clauss's Grand Jury Testimony Concerning Ricardo Stevenson
4. The False Campsite Testimony and Diagram
5. Cumulative Impact of Late Disclosures
III Other Due Process Issues
A. Limitations on Challenging the Citizenship of Balram Maharaj
B. Napue Violations Arising from the False Testimony of
C. Trial in U.S. Court for Crimes Occurring in Trinidad
IV. Other Evidentiary Issues
A. Government Fingerprint Expert Dawn Schilens.
B. Dismemberment Evidence.
V. DeFour's Alibi Defense
A. Denial of DeFour's Motion to Continue the Trial; New Evidence. . .
B. Denial of Alibi Instruction
B. Prejudicial Reference to Criminal Organization
C. Alternative Theory of Guilt Offered by the Government With Respect to Sealey and Nixon
VII. Sufficiency of the Evidence
A. Sufficiency of the Evidence - Issues Common to All Defendants
B. Sufficiency of the Evidence - Evidence Supporting Each Defendant's Convictions
This case arises from the abduction and death of a U.S. citizen, Balram Maharaj, in the Republic of Trinidad and Tobago ("Trinidad") in April 2005. Twelve defendants were extradited from Trinidad to the United States over the course of two years, to face charges of conspiracy to commit hostage taking resulting in death in violation of 18 U.S.C. § 1203 ("Hostage Taking Act"), and aiding and abetting hostage taking resulting in death. Seven defendants went to trial in May 2009: Zion Clarke, Ricardo DeFour, Kevon Demerieux, Anderson Straker, Wayne Pierre, Christopher Sealey, and Kevin Nixon.*fn1
Several rounds of pretrial motions were briefed, including motions to dismiss the charges, motions to suppress statements, motions to exclude other crimes evidence, motions for severance, and motions concerning the matter of Maharaj's U.S. citizenship. The Court issued five written opinions and an oral opinion from the bench, and also entered a series of orders on other matters as they were presented at trial. See United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008) (decision on other crimes evidence, Rule 15 depositions, and discovery); United States v. Straker, 596 F. Supp. 2d 80 (D.D.C. 2009) (decision on legality of extradition and suppression motions filed by Straker and Sealey); United States v. Clarke, 611 F. Supp. 2d 12 (D.D.C. 2009) ("Clarke I") (decision on admissibility of out-of-court photographic identifications and suppression motions filed by Clarke, DeFour, and Demerieux); United States v. Clarke, 628 F. Supp. 2d 1 (D.D.C. 2009) ("Clarke II") (decision addressing issues related to the U.S. citizenship of the victim); United States v. Clarke, 628 F. Supp. 2d 15 (D.D.C. 2009) ("Clarke III") (second decision addressing issues related to the U.S. citizenship of the victim); Oral Opinion, Preliminary Tr. at 2-24 (May 1, 2009) (denying motions for severance). See also ECF #454, 509, 519, 568, 602, 603 (orders on issues arising during the course of trial).
Jury selection commenced on May 22, 2009, and the trial of the case began on May 27, 2009. The case was submitted to the jury on July 27, 2009. The jury returned a unanimous verdict of guilty as to all seven defendants on both counts of the indictment on July 31, 2009.
Defendants have submitted lengthy post-trial motions arguing that various legal errors require dismissal of the charges against them or, in the alternative, a new trial, and also renewing their earlier motions for judgment of acquittal based on the sufficiency of the evidence.*fn2 A hearing on the motions was held on April 16, 2010.
The indictment charges the defendants with participating in a conspiracy -- beginning on or about February 1, 2005, and ending on or about April 15, 2005 -- to seize and detain Balram Maharaj and his son Dinesh, in order to compel the payment of ransom money for their release, in violation of 18 U.S.C. § 1203.*fn3 The evidence presented at trial showed that the conspirators' initial plan was to kidnap 5-year old Dinesh, but that the target instead became Balram Maharaj due to complications involved with kidnapping his child. After a series of planning meetings at the Mellow Moods Bar and other locations, the kidnapping took place on April 6, 2005, at the Samaan Tree Bar. Maharaj was taken at gunpoint, forced into a waiting vehicle, and driven to a cocoa field. From there, he was taken to a forested area where he was held for seven days under the watch of two guards. During that time a series of ransom calls was made to the victim's family, demanding $3 million Trinidad dollars -- approximately $500,000 U.S. dollars -- and the captors attempted to obtain "proof of life" from the victim to advance their ransom demands. During the period of captivity, Maharaj, a diabetic, did not have access to medication, and his health took a precipitous decline -- he turned pale, had difficulty speaking and breathing, and began hallucinating. On April 13, 2005, Maharaj died. After his death, several co-conspirators dismembered the body with a machete, hid the body parts in two containers -- a blue barrel and a white styrofoam cooler -- and buried the containers.
Trinidad police and the FBI both were involved in the investigation.
The case went cold after the victim's death on April 13, but by the
fall of 2005, the Trinidad police had found sources of information,
including Winston Gittens (a cooperating co-defendant), about those
involved in the kidnapping. This led to a series of arrests in early
2006, and confessions from five
defendants: Clarke, Demerieux, Straker, DeFour, and Sealey.*fn4
During that period, there were also arrests of three other
defendants -- Russel Joseph, Jason Percival, and Leon Nurse -- who,
like Gittens, eventually pled guilty and entered into cooperation
agreements with the U.S. government. Soon after Clarke's arrest, he
led the Trinidad police and FBI to a place he identified as the camp
site where Maharaj was held, and on January 6, 2006, he then led them
to the burial site and showed them where the two containers holding the
victim's remains were buried. The FBI recovered the remains, which
were positively identified as Maharaj's through dental and other
medical records. Although the state of Maharaj's body precluded a
conclusive determination of a cause of death, the medical evidence
indicated that the likely cause of death was deprivation of his
diabetes medications while being held in captivity.
Based largely on the defendants' confessions and the testimony of the cooperators, the evidence presented at trial established the co-conspirators' roles as follows. Anderson Straker was one of the originators and leaders of the conspiracy. He had a close relationship with Doreen Alexander -- Dinesh's mother and Maharaj's former lover -- who originally came up with the kidnapping for ransom plan. Straker enlisted the assistance of Leon Nurse -- a longtime friend and member of the Trinidad military -- in carrying out the plan, and he participated in virtually all of the planning meetings. Straker relied on Nurse to bring in others, including Percival and DeFour, both of whom had military experience and experience with other hostage takings. Straker also made or assisted in several ransom calls and visited the victim during the period of captivity to obtain proof of life recordings.
Percival and Pierre also had leadership roles in the conspiracy. They assigned roles to the various co-conspirators including the "snatchers," the drivers, the guards, the ransom negotiator, and the recorder of proof of life; they led planning meetings at Pierre's home and the Mellow Moods Bar; and they made the significant decisions, such as the date for executing the abduction (Percival and Pierre), the site for holding the victim hostage (Pierre), the strategy for conducting ransom negotiations (Percival and Pierre), and disposal of the victim's body (Pierre). Their leadership roles were similar to the roles they played in three other hostage takings that occurred close in time to the Maharaj hostage taking.
As the hostage taking plan developed, all of the charged defendants participated in one or more planning meetings at Wayne Pierre's house, his brother Kenneth's house, and/or the Mellow Moods Bar to further the hostage taking conspiracy. The plan included surveillance of the victim at his neigborhood bar to ensure they all had identified the correct target, arrangements to obtain a getaway car and a clearing car, arrangements for obtaining and distributing the guns, and the above-mentioned roles.
The abduction took placed on April 6, 2005, with Sealey, Nixon, Joseph, DeFour, and Percival handling the actual abduction and getaway. They drove first to Maharaj's neighborhood bar, and then to the Samaan Tree Bar in Lower Santa Cruz, with Joseph driving one car with Sealey and Nixon as passengers, and Percival and DeFour driving separately. After arriving at the bar, DeFour provided Sealey and Nixon each a gun -- a 9 mm and a .357. DeFour and Percival then waited in DeFour's vehicle on the street, close to the bar where they could see what was going to happen. Joseph pulled up near the bar, where Sealey and Nixon got out and entered the bar. Sealey grabbed Maharaj from his seat and pulled him out of the bar. Nixon waved to Joseph to come forward, and Sealey and Nixon then forced Maharaj into the back seat of the vehicle between them. Joseph then drove off, with DeFour and Percival's vehicle in front. DeFour's role was to "clear the roads" -- that is, to clear traffic and deal with any police officers or roadblocks that might hamper the kidnapping.
At Nixon's direction, Joseph drove to a cocoa field in Upper Santa Cruz. Sealey and Nixon then took the victim out of the car and left him somewhere in the cocoa fields. Joseph then dropped Sealey off at his father's store on his way back to the Mellow Moods Bar. There, Joseph and Nixon met up with DeFour, Nurse, Straker, Pierre, and Percival. Pierre and Percival instructed Joseph and Nixon to move the victim to another location, finding the first location unsafe. Joseph, Nixon, and Percival drove back to the cocoa fields, where Nixon retrieved Maharaj. From there, Joseph and Nixon drove the victim up Gran Curacaye Road, and handed the victim over to Demerieux and Clarke. Nixon gave one of the guns -- the .357 -- to Clarke, and Joseph and Nixon then left. That night, Joseph returned to the Mellow Moods Bar, where he met again with DeFour, Nurse, Percival, Pierre, and Straker, and further plans were made for holding the victim and proceeding with ransom demands.
Clarke and Demerieux acted as guards during the period of captivity from April 6-13, 2005. During that period, they kept Maharaj bound and/or gagged, and waited while Joseph, Straker, and other co-conspirators came to the site to obtain proof of life from the victim and to obtain information from the victim about how to get the ransom money. Gittens was the primary ransom negotiator, making telephone calls to the Maharaj family from various locations to further their ransom demand of $3 million Trinidad dollars. Maharaj's health was visibly and rapidly deteriorating due to his being deprived of his medications for diabetes or other ailments --his breathing became heavy and labored, he had difficulty speaking, he was hallucinating, and, in his captors' words, appeared "in bad shape." Several co-conspirators, including Pierre, Percival, Joseph, and DeFour, had discussions by cell phone and in person during the period of Maharaj's captivity about concerns such as whether they had the right person, problems that arose during ransom negotiations, and the victim's failing health. Maharaj was held in captivity until April 13, 2005, when he died.
Several co-conspirators, including Percival, DeFour, Nurse, Pierre, and Joseph, then met at the Mellow Moods bar where they discussed the victim's death and plans to dispose of the body. The group resolved to bury the body, based on Pierre's assessment that this was their best chance of avoiding prison -- "no body, no evidence, no case." Clarke, Demerieux, Pierre, Percival, and Joseph then gathered at Pierre's house to make further plans. From there, they drove the body to a forested area where Pierre and Clarke dismembered the body with a machete, and then, along with the others, placed the body parts in two containers and buried them.
In addition to the cooperator testimony and confessions, the government presented other evidence to support its case. For purposes of resolving the post-trial motions, the following evidence is most relevant. The government presented evidence of three other hostage takings committed by Pierre, DeFour, Clarke and the cooperators (Percival, Joseph, Gittens, Nurse) in the months before and after the Maharaj abduction: (1) the hostage taking ofDexter Jagdeo which began on Thursday, December 16, 2004; (2) the hostage taking of Robin Ramadar, which began on March 4, 2005; and (3) the hostage taking of Sita Ragoonanan, which began on June 21, 2005. Pierre and DeFour were involved in all three hostage takings, with Pierre playing a leadership role in those crimes and DeFour taking on primarily a surveillance and driving role. Clarke was involved in the Jagdeo and Ragoonanan hostage takings, serving as a guard in each. The other crimes evidence was introduced for the legitimate purpose of proving "the background of the conspiracy and how the relationships between the participants developed, as well as defendants' motive, intent, knowledge, preparation, and plan." See Clarke I, 567 F. Supp. 2d at 179; Jury Instructions at 38-39. Evidence about the other crimes was presented primarily through the testimony of the cooperating witnesses -- Percival, Joseph, Nurse, and Gittens -- who also had participated in one or more of those other crimes, and also came through the testimony of one victim, Sita Ragoonanan.
The government also presented evidence of Maharaj's U.S. citizenship. This consisted primarily of his certificate of naturalization (Gov't Ex. 303-F) and a U.S. passport dated September 28, 2000 (Gov't Ex. 306), presented through officials from the U.S. Citizenship and Immigration Service. See Clarke III, 628 F. Supp. 2d at 17-24. Defendants sought to present evidence to show that the government should not have granted Maharaj citizenship because he was not actually qualified to become a U.S. citizen.*fn5 However, the Court held that Congress created an exclusive process for declaring the citizenship of a naturalized person void, as set forth in 8 U.S.C. § 1451(a), and that one's citizenship remains valid until an order setting aside citizenship has been issued in compliance with § 1451(a). See id. at 22-24; see also Clarke II, 628 F. Supp. 2d at 5-10. Therefore, the Court denied defendants' request to present evidence that Maharaj was not qualified to become a naturalized U.S. citizen or that Maharaj obtained his citizenship by fraud.*fn6
The government also presented evidence that Straker had several conversations with Jason Percival while they were incarcerated in close proximity to each other. At that time, Straker made several incriminating statements, including a request that Percival lie on the witness stand, and attempted to convince Percival not to cooperate further with the government. To this end, Straker sent Percival a note with a news article suggesting that the U.S. Attorney's Office did not have the power to ensure that a court would grant him leniency for his cooperation. See Trial Tr. at 2221-2231 (June 10, 2009). With respect to the note, the government presented the testimony of FBI Fingerprint Examiner Dawn Schilens, who identified the fingerprints on the note as Straker's, which corroborated Percival's testimony about Straker's statements to him. See Trial Tr. at 2980-89 (June 15, 2009).
In considering a motion for judgment of acquittal under Fed. R. Crim. P. 29, a court must view the evidence in the light most favorable to the government and must determine whether the evidence presented at trial is sufficient to sustain a conviction as a matter of law; in other words, the court must decide whether a reasonable jury could conclude that the government met its burden of proving each element of the offense beyond a reasonable doubt. See United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985); see also United States v. Gomez, 431 F.3d 818, 819 (D.C. Cir. 2005) ("As always with a defendant's claims of insufficient evidence, we review de novo, viewing the evidence in the light most favorable to the government. We affirm if a rational fact-finder could have found guilt beyond a reasonable doubt.").
With respect to a motion for new trial, "the [C]court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "In considering a motion for a new trial, a district judge weighs the evidence and evaluates the witnesses' credibility and decides whether 'a serious miscarriage of justice may have occurred.'" United States v. Rogers, 918 F.2d 207, 213 (D.C. Cir. 1990) (quoting Tibbs v. Florida, 457 U.S. 31, 38 n.11 (1982)).
"Unlike a motion for judgment of acquittal, when ruling on a motion for a new trial 'the Court need not accept the evidence in the light most favorable to the government.'" United States v. Howard, 245 F. Supp. 2d 24, 30 (D.D.C. 2003) (quoting United States v. Edmonds, 765 F. Supp. 1112, 1118 (D.D.C. 1991)). Ultimately, "[a] motion for a new trial is committed to the sound discretion of the trial judge, and should be reversed only for abuse or misapplication of the law." United States v. Mangieri, 694 F.2d 1270, 1285 (D.C. Cir. 1982) (quoting United States v. Reese, 561 F.2d 894, 902 (D.C. Cir. 1977)).
Where the defendant fails to object, or state the specific ground of an objection, plain error review applies. See United States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir. 2007); Fed. R. Crim. P. 52(b). Under the plain error standard, the defendant must demonstrate: "(1) a legal error that was (2) 'plain' (a term that is synonymous with 'clear' or 'obvious'), and that (3) affected [his] substantial rights." Id. (quoting United States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir. 2006)). Additionally, relief for plain error is available only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. The defendant bears the burden of proving each element of the plain error standard. Id.
A. General Severance Issues
Prior to trial, each of the defendants moved for severance pursuant to Fed. R. Crim. P. 14 based on the potential for prejudice from a joint trial, focusing on the disparity of the evidence, the potential spillover impact of other crimes evidence concerning some co-defendants, and the Sixth Amendment problems presented by admission of the confessions of non-testifying co- defendants. The Court denied those motions in an oral ruling from the bench on May 1, 2009. See Order, ECF #462, at 1 (memorializing bench ruling). Defendants now seek a new trial invoking largely the same arguments. The Court addresses each argument in turn, with a separate section on the Sixth Amendment issues.
First, it is useful to summarize the individual arguments pertaining to prejudice. Sealey contends that he was entitled to a separate trial because his role in the conspiracy -- 30 minutes, he says -- was limited in comparison to the other defendants, there was a great disparity in the evidence between himself and his co-defendants, and the admission of substantial other crimes evidence concerning his co-defendants prevented the jury from making a reliable judgment about his individual guilt or innocence. See Sealey's Mem., ECF #706, at 1, 9-12. Straker and Nixon contend that severance is required because of the prejudicial spillover effect from the other crimes evidence, with Straker focusing on the emotional testimony of "other crimes" victim Sita Ragoonanan. See Straker's Mem., ECF #700, at 54-55, 61-65; Nixon's Mem., ECF #699, at 5. Pierre contends that he is entitled to a new trial because of the disparity in evidence and spillover impact, emphasizing that he was tried with "five confessing defendants," whereas there was no similar type of evidence against him. See Pierre's Mem., ECF #694, at 1-2.
The Court begins with Rule 8 of the Federal Rules of Criminal Procedure. Rule 8 permits joinder of defendants who "are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). Once joined under Rule 8, defendants may seek relief from joinder under Rule 14, which provides that "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant . . . , the court may . . . sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). "The Supreme Court has instructed district courts to grant severance '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.'" United States v. Celis, 608 F.3d 818, 844 (D.C. Cir. 2010) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). Furthermore, "there is a preference in the federal system for joint trials of defendants who are indicted together" because joint trials "promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro, 506 U.S. at 537. "This preference is 'especially strong' when 'the respective charges require presentation of much the same evidence, testimony of the same witnesses, and involve two defendants who are charged, inter alia, with participating in the same illegal acts.'" United States v. Wilson, 605 F.3d 985, 1015 (D.C. Cir. 2010) (quoting United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989)). In this case, the preference for a joint trial is especially strong because all seven defendants are charged with being members of the same conspiracy -- a conspiracy to commit hostage taking resulting in death (Count One) -- and with aiding and abetting that hostage taking (Count Two); hence, the charges require presentation of much of the same witness testimony and other evidence.
In this context, the Court reviews each of defendants' arguments of unfair prejudice. Defendants Sealey, Straker, Nixon, and Pierre each contend that the "spillover effect" from a disparity in the evidence between each defendant demonstrates misjoinder. It is true that severance may be appropriate where there are "large disparities in the amount of evidence being offered against each defendant." See United States v. Edelin, 118 F. Supp. 2d 36, 44 (D.D.C. 2000). But courts have generally recognized that "the nature of a conspiracy, or of any criminal trial, is that there are different quanta of evidence against various defendants. . . . Severance is not appropriate merely because some co-conspirators were more active in the conspiracy, nor because some co-conspirators played a more central role." Id. at 43. The key to determining whether severance is warranted is "whether the jury could reasonably compartmentalize the evidence introduced against each individual defendant." Celis, 608 F.3d at 844.
The Court has carefully considered the evidence presented at trial and concludes, as it did before, that this case was not so complex that the jury could not carefully compartmentalize the evidence against each defendant. With regard to Straker, the evidence against him includes his own detailed confession to the FBI of his involvement in the conspiracy and hostage taking, the testimony of co-conspirators Russel Joseph, Leon Nurse, and Jason Percival as to his involvement in the crimes, cell phone records linking him to other co-conspirators, and his testimony at trial (which was extensively impeached). For Sealey, the evidence included his detailed confession to Trinidad police of his involvement in the crimes, a separate confession to the FBI, and the testimony of Joseph and Percival, which overwhelmingly established his participation as one of the abductors at the Samaan Tree Bar. As to Nixon, the primary evidence against him also was the testimony of Joseph and Percival, which likewise overwhelmingly established Nixon's participation as one of the abductors at the Samaan Tree Bar, and which was corroborated by testimony from Gittens and an eyewitness. And with respect to Pierre, the primary evidence against him consisted of the testimony of Joseph, Gittens, and Percival, each of whom testified as to Pierre's leadership role in the crime. In short, the nature of the evidence was readily subject to being compartmentalized by the jury. More importantly, the disparity of evidence was not actually great. To the extent there was some disparity, moreover, it was no more than in a typical conspiracy case.
Furthermore, the Court carefully instructed the jury on how to compartmentalize and weigh the evidence, and on the jury's responsibility to determine -- independently -- the guilt or innocence of each defendant on the basis of that evidence. Concerning any disparity in the evidence, instructing the jury on their duties and the evidence is generally sufficient "to cure any possibility for prejudice or jury confusion in all but the most extreme cases." United States v. Gray, 173 F. Supp. 2d 1, 11 (D.D.C. 2001). The instructions in this case included an instruction to render a verdict based on each defendant's "own conduct and from the evidence that applies to him as if he were being tried alone," as well as a separate instruction that the statements made by the confessing defendants could be considered "only with respect to the particular defendant who made the statement" and the jury "must not consider it in any way in [the] deliberations with respect to the other defendants." See Jury Instructions at 40 (Redbook 2.54); 42 (Redbook 2.55). The Court finds that, considering the nature and quantity of evidence and the limiting instructions given, the alleged disparity of evidence presented at trial does not warrant a new trial.
Nor does the Court find that the alleged spillover impact from other crimes evidence warrants a new trial. This argument is not appreciably different from defendants' argument concerning the alleged disparity in evidence. The presentation of other crimes evidence at a joint trial is permissible if the jury could reasonably "compartmentalize" the other crimes evidence introduced against each defendant and follow limiting instructions. See United States v. Manner, 887 F.2d 317, 325 & n.7 (D.C. Cir. 1989). Here, the government's other crimes evidence consisted of three other hostage takings allegedly committed by Pierre, DeFour, and Clarke in the months before and after the abduction in this case -- that is, the hostage takings of Dexter Jagdeo (December 2004); Robin Ramadar (March 2005); and Sita Ragoonanan (June 2005). The Court gave a limiting instruction both orally during trial and in the final instructions, directing the jury to compartmentalize its consideration of the evidence only as to those defendants the jury found to be involved and emphasizing the limited purpose for which the evidence was admitted:
You have heard evidence that some of the defendants engaged in other hostage takings not charged in the indictment. It is up to you to decide whether to accept this evidence.
Specifically, the government presented evidence that defendants Wayne Pierre, Ricardo DeFour and Zion Clarke were involved in the hostage taking of Dexter Jagdeo which began on Thursday, December 16, 2004. The government also presented evidence that defendants Ricardo DeFour and Wayne Pierre were involved in the hostage taking of Robin Ramadar which began on Friday, March 4, 2005. The government also presented evidence that defendants Wayne Pierre, Ricardo DeFour and Zion Clarke were involved in the hostage taking of Sita Roogananan which began on Tuesday, June 21, 2005.
If you decide that a particular defendant was involved in another hostage taking, consider that evidence only for the limited purposes that I am about to describe. This evidence is to be considered only against those defendants that you find were involved. If I did not name a particular defendant or you find that a defendant was not involved, then you are not to consider the evidence against him. You may consider the evidence to inform you of the background of the conspiracy charged in this case, and to help you decide whether there was a relationship between the defendants that you find were involved and the other cooperating co-conspirators involved in the hostage taking of Balram Maharaj. You may also consider this evidence in determining whether any of the defendants that you find were involved had motive, intent, knowledge, or a plan to commit the offenses charged in the indictment in this case, and to decide whether any of these defendants joined the conspiracy charged in the indictment inadvertently as the result of an accident or mistake.
It is up to you to decide whether to accept this evidence. If you decide not to accept it, then ignore it. If you decide to accept it, you may only use it for the purposes that I have mentioned and only against the defendants that you find were involved. You may not consider this evidence to conclude that a defendant has a bad character, or that a defendant has a criminal personality, or that it is more likely that, because he may have engaged in other acts or committed other offenses, he committed the offenses charged in the indictment in this case. The law does not allow you to convict a defendant simply because you believe that he may have done bad things not specifically charged as crimes in this case. These defendants are on trial for the crimes charged, and you may not consider this evidence in deciding whether the government has proved that any of the defendants that you find were involved committed the acts constituting the charged offenses, and you may not conclude from this evidence that because a defendant may have committed other offenses he also committed the acts charged in the indictment.
See Jury Instructions at 38-39 (emphasis added); see also Trial Tr. at 874-76 (June 2, 2009) (identical instruction to the jury on the fourth day of trial); Trial Tr. at 51 (May 27, 2009) (abbreviated limiting instruction given on first day of trial after opening statements); Trial Tr. at 644-45 (May 29, 2009) (abbreviated limiting instruction given after Joseph testimony on Jagdeo kidnapping).
None of the defendants contends that this instruction is flawed. Instead, they rely largely on the conclusory allegation that the other crimes evidence was unfairly prejudicial. But that is an argument that turns on the admissibility of the evidence in the first instance. The Court considered early in the pretrial proceedings whether other crimes evidence pertaining to Jagdeo and Ramadar should be excluded pursuant to the balancing required under Fed. R. Evid. 403, and concluded that the probative value of the other crimes evidence was not "substantially outweighed" by the danger of unfair prejudice or other considerations under Rule 403:
[T]he probative value is strong because the other crimes would show how the relationships between [certain] alleged co-conspirators developed and their motives for acting, within the relevant time frame. The danger of unfair prejudice is fairly low because, except perhaps for the [excluded] Gopaul hostage taking, the other crimes evidence "adds no emotional or other pejorative emphasis not already introduced by the evidence" of the charged offense.
Straker, 567 F. Supp. 2d at 177-79 (emphasis added) (quoting United States v. Lawson, 410 F.3d 735, 742 (D.C. Cir. 2005)); see also United States v. Cheng, No. 97-1016, 1997 WL 738588, at *1 (2d Cir. Nov. 21, 1997) (holding that the Rule 403 balancing favored admissibility where "the uncharged kidnapping was not more sensational or inflammatory than the charged crimes while tending to show how the relationships formed among the conspirators"). The Court reached the same conclusion for the Ragoonanan and two other hostage takings. See Order, ECF # 454 (Apr. 24, 2009). This rationale applies to defendants' present objections concerning unfair prejudice as well. Moreover, the Court further minimized the potential for prejudice from the other crimes evidence by restricting the government's evidence to three (of five) other hostage takings, and strictly limiting the government's trial time concerning other crimes evidence. See Trial Tr. at 814-16 (June 2, 2009) (colloquy with prosecution on excessive time spent on other crimes evidence, and bench ruling imposing time limit on prosecution of three hours of direct testimony for each 404(b) hostage taking). These measures kept the focus of the trial on the charged hostage taking and, along with the limiting instruction, ensured that the jury did not use the other crimes evidence for an improper purpose.
Only Straker and Demerieux offer any new or particularized arguments of unfair prejudice. Straker focuses on the testimony of Sita Ragoonanan, which he calls "chilling" in the intensity of its emotional presentation. See Straker's Mem., ECF #700, at 54-55, 61-65. Ms. Ragoonanan testified that she was abducted from her driveway by three men, blindfolded, and held in a shack for six days and six nights, and forced to make a recorded plea for ransom money. Trial Tr. at 3895-3903 (June 22, 2009). But this account was no more sensational or inflammatory than the charged crime in this case -- the hostage taking of an American citizen who was allegedly held for seven days, endured tremendous physical suffering, ultimately died, and had his body dismembered and buried. Furthermore, Straker's contention that the Ragoonanan testimony was unnecessary in light of testimony on that hostage taking from cooperating witnesses is without merit. As the government points out, the defendants repeatedly challenged the credibility of each of the cooperating witnesses, making it appropriate for the government to provide further evidentiary support for the Ragoonanan hostage taking. See Gov't Mem., ECF #712, at 83.
Demerieux argues that he, in particular, was unfairly prejudiced because the government failed to present evidence linking him to the Jagdeo hostage taking, though stating to the jury in its opening statement that it would show Demerieux served as a guard in the Jagdeo hostage taking and received payment of $1,500 Trinidadian dollars for that role. See Demerieux's Mem., ECF #698, at 14-17. The Court finds no unfair prejudice resulting from the government's failure of proof. First, the government did attempt to present evidence linking Demerieux to the Jagdeo hostage taking, through Gittens' testimony, but the substance of Gittens' testimony turned out to be not what the government expected. See Trial Tr. at 3138-39 (June 16, 2009) (Gittens' repeated testimony that he did not remember why Demerieux was given $1,500 from Percival after the Jagdeo hostage taking). The government's unexpected failure to present sufficient evidence of Demerieux's involvement was more of a benefit, rather than a harm, to Demerieux. In any event, the jury was specifically instructed that it could not consider the other crimes evidence against Demerieux. Between the government's failure to present sufficient evidence of Demerieux's connection to the Jagdeo kidnapping, and the instruction to the jury that it could not consider the other crimes against Demerieux, the Court sees no unfair prejudice to Demerieux.
In summary, because the other crimes evidence was neither sensational nor inflammatory in the context of the hostage taking charged in this case, and did not otherwise result in any unfair prejudice to the defendants, and the Court's jury instructions appropriately limited the jury's consideration of the evidence, defendants' renewed requests for severance and a new trial are denied.
B. Sixth Amendment Confrontation Clause Issues
Defendants also seek a new trial on the ground that the joint trial
violated their Sixth Amendment rights of confrontation -- that is, to
cross-examine witnesses. They complain that the government admitted
into evidence the pre-trial confessions of five co-defendants --
Straker, Sealey, Clarke, Demerieux, and DeFour -- who could not be
cross-examined on the portions of their statements allegedly
implicating their co-defendants in the crimes charged because of their
Fifth Amendment privilege against self-incrimination.*fn7
The gist of the argument is that under Bruton v. United
States, 391 U.S. 123 (1968), and its progeny, the confession of a
non-testifying co-defendant that implicates another defendant in the
crime cannot be admitted into evidence without violating the
Confrontation Clause. Defendants acknowledge that the government used
statements that were redacted to shield the identities of the
non-declarant defendants, but they contend that the redactions were
inadequate to serve that function in light of the evidence ultimately
presented at trial. See Pierre's Mem., ECF #694, at 1-2; Nixon's Mem.,
ECF # 699, at 1-9; Clarke's Mem., ECF #701, at 28-29; Sealey's Mem.,
ECF # 706, at 2. In response, the government submits that the
introduction of a non-testifying co-defendant's confession does not
violate the Confrontation Clause where, as occurred here, the
statement is redacted to exclude explicit or obvious references to
other defendants and the jury is given a proper limiting
instruction. See Gov't Mem., ECF #712, at 104-110, 132-33.
The Court considered these same arguments in detail at a pretrial motions hearing held on April 24, 2009. In a ruling from the bench on May 1, 2009, the Court determined that properly redacted statements, coupled with appropriate limiting instructions, would provide the safeguards necessary to protect defendants' rights under the Confrontation Clause during a joint trial. See Order, ECF #462 (filed May 1, 2009) (summarizing bench rulings). Nothing that happened during trial has caused the Court to reach a different conclusion. A brief recitation of the history of the Court's approach to the Bruton issues and the limitations imposed on the redacted confessions admitted into evidence is in order before addressing the specific contentions made in defendants' post-trial briefs.
The Court earlier recognized that admitting the pretrial confessions into evidence would present Bruton problems if appropriate redactions were not made, taking into account the standards established by the Supreme Court in Bruton, Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998). Bruton held that "a defendant is deprived of his rights under the Confrontation Clause when his non-testifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant." Richardson, 481 U.S. at 201-02. The Supreme Court later clarified in Richardson that "Bruton can be complied with by redaction," and held that "the Confrontation Clause is not violated by admission of a non-testifying co-defendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 481 U.S. at 211. However, "[r]edactions that simply replace a name with an obvious blank space or a word such as 'deleted'. . . or other similarly obvious indications of alteration" are considered to "so closely resemble Bruton's unredacted statements" that they cannot be admitted. Gray, 523 U.S. at 192.
In reaching its decisions in Richardson and Gray, the Supreme Court drew an important distinction between confessions that are directly inculpatory of a co-defendant and those that are only indirectly so. In Richardson, it contrasted the inadmissible statement in Bruton, which "expressly implicated" the defendant, with the admissible statement in Richardson, which "was not incriminating on its face and became so only when linked with evidence introduced later at trial." Id. Hence, in Gray, the Supreme Court acknowledged that "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially." 523 U.S. at 195; accord United States v. Wilson, 160 F.3d 732, 740 n.5 (D.C. Cir. 1998). At the same time, the Supreme Court cautioned in Gray that statements that "obviously refer directly to [the defendant]" will still pose a Bruton problem if "a jury could ordinarily make [the inference] immediately." 523 U.S. at 195.
An abundance of case law has since developed on the types of redactions that will satisfy Bruton, Richardson, and Gray. The use of neutral pronouns or other general identifiers, such as "other guys," has been recognized by several circuits as a type of redaction that satisfies Bruton.*fn8
Prior to trial, the Court considered redactions of this nature, and many others, to ensure that the redacted confessions would not be directly accusatory, or contain obvious pointers to any specific co-defendant, or invite direct inferences of any particular co-defendant's involvement in the offense.
With those principles in mind, the Court held that the government may introduce out-of-court statements with redactions and substitutions as follows:
* "Whenever possible, the government shall omit references to the activities of non-declarant co-defendants."
* "The government shall substitute neutral pronouns for non-declarant co-defendant names, such that there is no obvious reference to them."
* "Substitutions shall not include aliases or nicknames, terms that identify the non-declarant co-defendant's alleged role in the crime, terms that identify the non-declarant co-defendant's relationship to the declarant defendant, terms that provide identifying information about the nondeclarant co-defendant, or terms that quantify the number of people involved in the specific conduct. Substitutions can include neutral pronouns or identifiers such as "someone," "guy(s)," "individual(s)," "person," "people," "another person," or "others."
See Order, ECF #462, at 2-3 (May 1, 2009). The Court also directed the government to ensure that the redacted statements did not create an "inevitable association" with a particular defendant when the statement is viewed with other evidence, recognizing that a redacted statement may, in some circumstances, give rise to an immediate and direct inference of a particular defendant's involvement. See United States v. Washington, 952 F.2d 1402, 1406-07 (D.C. Cir. 1991) (holding that when "all references to the defendant in a co-defendant's statement are replaced with indefinite pronouns or other general terms, the Confrontation Clause is not violated by the redacted statement's admission if, when viewed together with other evidence, the statement does not create an inevitable association with the defendant, and a proper limiting instruction is given") (emphasis added).*fn9 All of these rulings were designed to ensure that the pretrial out-of-court statements would be offered in evidence solely against the individuals who made them, without incriminating any co-defendant.
The Court also ordered other precautions to safeguard against prejudice to defendants. First, the Court prohibited the admission of the written statements themselves, noting that Gray cautioned that prejudice results when it is readily apparent to the jury from the "face" of the confession that it has been altered or redacted to mask the identity of a co-defendant. Instead, the Court allowed the introduction of the contents of the statements through live witness testimony so that the redactions would not be apparent to the jury. See United States v. Logan, 210 F.3d 820, 823 (8th Cir. 2000) (noting that introduction of a confession through live testimony is preferred to "the less ephemeral and potentially more damaging form of a writing"). The Court also required the government to provide defense counsel with Bruton statements complying with the Court's Order one week before trial, to ensure that any objections could be addressed before trial began.
The Court also fully considered whether introduction of the statements created a Confrontation Clause problem under Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held that an out-of-court "testimonial" statement offered against an accused is inadmissible if the witness is unavailable unless the defendant had a prior opportunity to cross-examine the witness. 541 U.S. at 68-69. Based on that proposition, defendants argued that the Confrontation Clause categorically barred the introduction of their co-defendants' pretrial out-of-court statements, based on the presumption that those statements are "testimonial" hearsay against the non-declarant defendants. The Court determined, however, that Crawford was not implicated with respect to the "Brutonized"statements. See Mot. Hr'g Tr. (May 1, 2009). Although Crawford was clear that "testimonial" statements include those given during police interrogations (541 U.S. at 68), which are precisely the types of statements at issue here, no Crawford problem was presented because the testimonial statements would not be offered against co-defendants -- they were offered solely against the declarants themselves. Indeed, the very purpose of the extensive redactions ordered by the Court was to ensure that the out-of-court statements would be offered in evidence solely against the individuals who made them. Where the out-of-court statements are redacted as required by Bruton, Richardson, and Gray, no Crawford problem arises because the statements do not constitute "testimonial" statements against the non-declarant defendants. See United States v. Lung Fong Chen, 393 F.3d 139, 150 (2d Cir. 2004) ("The same attenuation of [defendant's] statements from [his co-defendant's] guilt that prevents Bruton error also serves to prevent Crawford error.").
Consistent with the Bruton and Crawford pretrial rulings, the Court gave the following limiting instruction to the jury at trial: "Each statement of a defendant was admitted only with respect to that defendant himself, and it was not admitted against the other defendants. You may consider such evidence only with respect to the particular defendant who made the statement. You must not consider it in any way in your deliberations with respect to the other defendants." Jury Instructions at 42.
Against this backdrop, the Court now considers the specific arguments from Pierre, Nixon, Clarke, and Sealey that their Confrontation Clause rights were nonetheless violated.
Pierre and Sealey have provided no new arguments in support of their Bruton contention. They summarily assert that the redactions were insufficient to comply with Bruton because other evidence presented at trial -- evidence extrinsic to the out-of-court statements -- made it possible for the jury to identify the "other guy" or "other person" in the statements. See Pierre's Reply, ECF #714, at 6-10; Sealey's Mem., ECF #706, at 2. But as the Court explained in its pretrial rulings, Bruton is limited to statements that facially incriminate a co-defendant -- either because the statement is directly accusatory, contains an obvious pointer to the nondeclarant co-defendant, or invites a direct and immediate inference of a co-defendant's guilt. In other words, extrinsic evidence is only relevant to the extent the statement combined with extrinsic evidence creates an "inevitable association" with a particular defendant. Washington, 952 F.2d at 1406-07. Here, Pierre and Sealey have fallen well short of demonstrating that their co-defendants' redacted statements and other trial evidence resulted in an "inevitable association" with them, and having reviewed the trial record, the Court sees no such "inevitable association."
Clarke and Nixon have made a more detailed submission in support of their arguments. For his part, Clarke contends that witness testimony describing Demerieux's redacted statement violated Bruton because he and Demeriuex were accused of acting as the only two guards at the campsite during the hostage taking and, hence, replacing Clarke's name with the term "the other guy" was the equivalent of inserting his name in Demerieux's statement. See Clarke's Mem., ECF #701, at 29. The Court disagrees. Seven defendants were tried before the jury, and there were several unindicted co-conspirators. The participants had different, but often overlapping, roles. The evidence established that other persons were present at or near the campsite during the course of the hostage taking, including Russel Joseph, Jason Percival, and Anderson Straker.
See, e.g., Trial Tr. at 691-93 (May 29, 2009); Trial Tr. at 2051-52 (June 9, 2009). Hence, Demerieux's redacted statement, even when combined with the other trial evidence, did not create a direct and immediate link -- an "inevitable association" -- with Clarke.
Nixon contends that witness testimony describing three statements made by Sealey incriminated Nixon and hence violated Bruton: one statement to the Trinidad police on August 8, 2006, another to the FBI on the same date, and a third to Leon Nurse while awaiting trial in 2009. See Nixon's Mem., ECF #699, at 2-9. Nixon contends that the 2009 Sealey statement, introduced through Nurse's testimony, expressly names Nixon as a participant in the hostage taking, and that the 2006 statements were Bruton error because they created an "inevitable association" between Nixon and Sealey. Ultimately, the government concedes a Bruton violation with respect to Nurse's trial testimony about Sealey's statement, but denies that any other Bruton error occurred as a result of testimony concerning Sealey's other statements. The government contends that the Bruton violation stemming from Nurse's testimony was harmless error because the prejudicial impact was low and other evidence overwhelmingly established Nixon's guilt.
As a threshold matter, the Court must decide what Bruton errors, if any, occurred. The government effectively concedes a Bruton violation resulted from Nurse's testimony, acknowledging that Nurse momentarily let Nixon's name slip into his testimony about Sealey's statement. See Gov't Mem., ECF #712, at 64, 150-53 (citing Trial Tr. at 1572-77 (June 4, 2009)). Hence, the Court will first focus on whether there also was Bruton error from testimony concerning Sealey's 2006 confessions. Two witnesses -- Constable Mitchell-Gosyne and Marvin Freeman from the FBI -- testified that Sealey had confessed to the Trinidad police and the FBI in 2006 that he and "another man" went to the Samaan Tree Bar and abducted Maharaj. Trial Tr. at 4813 (June 29, 2009) (Mitchell-Gosyne); Trial Tr. at 4909 (June 29, 2009) (Freeman). In Nixon's view, introduction of those statements -- even though redacted to eliminate any reference to Nixon -- nonetheless made Sealey a witness against Nixon because the government's theory of the case was that only two gunmen abducted Maharaj from the Samaan Tree Bar and hence it was "patently obvious" to the jury that Sealey's redacted statement referring to "another man" was, in fact, referring to Nixon. He also contends that Nurse's testimony concerning the third Sealey confession in 2009 -- discussed in more detail below -- had already directly named Nixon as the "other man." The Court has reviewed the trial testimony and concludes that there is nothing in the testimony concerning Sealey's 2006 statements that incriminates Nixon. There were simply so many references to "other men" and other unidentified persons at or near the Samaan Tree Bar that there was no "inevitable association" with Nixon being the person described as "another man" who entered the bar with Sealey.*fn10
The next question is whether the Bruton error resulting from Nurse's testimony requires a new trial. It is well-settled that Bruton error is not ground for a new trial where "the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error." Schneble v. Florida, 405 U.S. 427, 428 (1972); accord United States v. Jass, 569 F.3d 47, 64 (2d Cir. 2009) (reviewing Bruton error for harmlessness beyond a reasonable doubt, citing Schneble); United States v. Lewis, 557 F.3d 601, 611 (8th Cir. 2009); United States v. Hardwick, 544 F.3d 565, 574 (3d Cir. 2008); United States v. Schwartz, 541 F.3d 1331, 1354 (11th Cir. 2008); United States v. Nash, 482 F.3d 1209, 1219 (10th Cir. 2007). In other words, whether the error was harmless depends on "whether the jury would have returned the same verdict absent the error." Nash, 482 F.3d at 1219. Factors to consider in this assessment are "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); accord Mason v. Allen, 605 F.3d 1114, 1123-24 (11th Cir. 2010) ("notwithstanding the Confrontation Clause violation, we cannot reverse a conviction or order a new sentencing hearing if the error is harmless").
The Bruton error at issue here occurred early in the trial, through the testimony of Leon Nurse. Nurse was permitted to testify about Sealey's statement to him in 2009 while they were incarcerated pending trial, in which Sealey admitted participating in the hostage taking at the Samaan Tree Bar. The Court cautioned Nurse, out of the presence of the jury, not to mention any other defendant's name when recounting Sealey's statement to him.*fn11 However, when Nurse testified, he nonetheless made a passing reference to Nixon as follows:
Q: While Mr. Sealey was one of your cell mates . . . did Mr. Sealey have a conversation with you about his role in the kidnapping of Balram Maharaj?
A. Well, he said at the scene -- at the scene of the kidnapping, sir,he said that Mr. Nixon didn't really want to come out of the --Trial Tr. at 1573 (June 4, 2009). At this point, Nixon's counsel moved to strike Nurse's testimony, and the Court instructed the jury to disregard that testimony. Id. Questioning then continued as follows:
Q. Mr. Nurse, what did Mr. Sealey tell you happened?
A. That someone who was with him at the point in time on the scene of the crime, sir, at the abduction, didn't -- was a bit hesitant in coming out of the car to approach the person and that he did have to, more or less, take the bull by the horn.
He ended up using initiative and made the moves then, sir.
Q. Did he indicate what he needed to do? . . . What, if anything, he needed to do as a result of the other person hesitating.
A. Yes, sir. He [Sealey] felt that he had to get ahold of the situation, sir, and take charge of the situation. So he proceeded into the bar, sir.
Id. Because Nurse testified that Sealey had identified Nixon as the other person in the car, it was apparent from Nurse's subsequent "Brutonized" testimony about Sealey's statement that the "someone" and "the other person hesitating" was Nixon.
The Court first assesses the prejudicial impact of Nurse's reference to Nixon, and concludes that the prejudicial impact was not substantial. The reference to Nixon was limited to a single passing oral statement in the second week of a ten-week trial. Nurse was not even permitted to finish his sentence when he uttered Nixon's name. The sentence, standing on its own, amounted to testimony that Nixon was present at the scene of the hostage taking without describing what Nixon did -- an incriminating reference, to be sure, but without any details as to Nixon's specific actions. Additionally, the Court immediately instructed the jury to disregard Nurse's testimony (Trial Tr. at 1573), and the next trial day again instructed the jury to disregard Nurse's reference to Nixon.*fn12 Furthermore, the government made no reference to Sealey's jailhouse confession to Nurse in either its closing or rebuttal arguments. Hence, it is clear that Nurse's testimony concerning Sealey's statement about Nixon did not form any part of the prosecution case.
The Court weighs this brief reference to Nixon in Nurse's testimony against the other evidence of Nixon's guilt -- that is, whether "the properly admitted evidence of guilt is so overwhelming . . . that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error." Schneble, 405 U.S. at 428. The evidence used to prove Nixon's role in the hostage taking came primarily from Russel Joseph and Jason Percival. Joseph provided detailed testimony establishing that he drove Nixon (along with Sealey) to the Samaan Tree Bar on the day of the abduction, that Nixon wore a Rasta hat and was armed with a gun, that Nixon entered the bar and then moments later opened the bar door while Sealey pulled the victim out, and that Nixon then helped Sealey force the victim into the back seat of the car, where Nixon sat next to him and instructed Joseph to drive to a cocoa field in Upper Santa Cruz. See Trial Tr. at 675-95 (May 29, 2009); Trial Tr. at 749-52 (June 2, 2009). Joseph further testified that Nixon and Sealey walked the blindfolded victim into the field and then drove back to the Mellow Moods bar to meet with the other co-conspirators where Percival and Pierre demanded that the victim be taken to a different location. Joseph testified that he and Nixon then returned to thecocoa field, that Nixon retrieved the victim while Joseph remained in the car, and that they together drove to the end of Gran Curacaye Road where Nixon handed the victim over to Demerieux and Clarke. Trial Tr. at 682-83 (May 29, 2009).
Percival's testimony corroborated Joseph's account of the abduction. He testified that the co-conspirators took three vehicles to the Samaan Tree Bar on the date of the abduction, that they obtained guns for Nixon and Sealey, that he saw Nixon in Joseph's car, and that he parked near the bar as the abduction took place so that he could see what was happening. Trial Tr. at 2080-83 (June 9, 2009). He testified that he saw Nixon exit Joseph's vehicle with Sealey, that he saw them walk towards the bar, observed Sealey grabbing the victim, and then saw Nixon and Sealey both forcing the victim into Joseph's car and driving away. Id. at 2083, 2086. Percival testified that later that night there was a meeting at the Mellow Moods bar with DeFour, Pierre and himself, at which Nixon and Joseph arrived late. Id. at 2096. At the meeting, Pierre demanded that the victim be taken to another location where Clarke was waiting, and Nixon, Joseph, and Percival then returned to the cocoa field to do so. Id. at 2097-98. He also corroborated the physical description of Nixon, noting, as Joseph did, that Nixon wore a Rasta hat on the date of the abduction. Trial Tr. at 2064-65, (June 9, 2009).
There was further corroboration of Nixon's involvement in the abduction from an array of other sources. Gittens testified that Wayne Pierre had informed him that the abductors on the day of the snatch would be "Shaka" (Nixon) and "Boyie" (Sealey), and that they would be provided weapons. See Trial Tr. at 3193 (June 16, 2009). An eyewitness at the Samaan Tree gave an account of the abduction that matched the accounts provided by Joseph and Percival: two men entered the bar with guns, one of them wearing a Rasta hat colored red, green, and yellow; they grabbed the victim and pulled him out; one of the men signaled a car, and then the two of them forced him into the back seat and sped away. Trial Tr. at 356-59 (May 28, 2009).
In short, there was overwhelming evidence of Nixon's guilt from the other evidence presented at trial. Nurse's stricken testimony -- a fleeting reference to Nixon early in the trial --was of no significance when compared with the substantial testimony concerning Nixon's participation in the abduction provided by Joseph and Percival. Assuming arguendo that the jury even considered Nurse's stricken testimony, it was cumulative to the detailed testimony presented by Joseph and Percival, each of whom was subject to extensive cross-examination. Accordingly, having considered "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case," Van Arsdall, 475 U.S. at 684, the Court concludes that it is clear beyond a reasonable doubt that the Bruton error arising from Nurse's testimony was harmless. For the same reason, the Court concludes that any Crawford error arising from Nurse's testimony -- that is, Nurse's recitation of Sealey's "testimonial" hearsay statement against Nixon -- was harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684 (Confrontation Clause errors are subject to harmless error analysis); United States v. Lee, 549 F.3d 84, 89-90 (2d Cir. 2008) (applying harmless error analysis to Crawford error).
II. Brady/Jencks Violations
A. The Alleged Brady and Jencks Violations
Defendants Demerieux, Clarke, Sealey, and DeFour each move for a new trial or dismissal of the case based on the government's failure to make timely disclosure of information favorable to the defense in violation of the government's obligations under the Due Process Clause and Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), United States v. Bagley, 473 U.S. 667 (1985), and Kyles v. Whitley, 514 U.S. 419 (1995). To be sure, the government's delayed disclosures of Brady material were significant and recurring throughout the trial, causing the Court repeatedly to caution the government that it should disclose those materials more expeditiously and to express concern that the many eleventh-hour disclosures of potential Brady material could potentially threaten the case. As the trial wound its way to conclusion, it became apparent that defendants' counsel were able to make use of most, if not all, of the materials that were belatedly disclosed, as witnesses were recalled and portions of the trial were delayed to give counsel time to review new materials that became available. The question remains whether any of those delayed disclosures resulted in Brady violations. Defendants now focus on four alleged violations:
* Evidence pertaining to an x-ray of the victim's skull. Demerieux contends that, weeks into the trial, the government belatedly disclosed two pieces of evidence that showed that the victim's skull was not fractured --evidence that allegedly would have impeached cooperator testimony indicating that Demerieux had dented the victim's head with a large stone. See Demerieux's Mem., ECF #698, at 2-11. The government did not disclose until June 29, 2009 (five weeks into trial), Clauss's grand jury testimony that he had learned from Trinidad police that an x-ray of the victim's skull had been taken in 2006 and indicated no fracture to the skull. The government also did not disclose until on or about July 2, 2009, the xray at issue (taken by Hughvon Des Vignes, the Trinidadian pathologist who examined the victim's remains). Demerieux contends that this evidence is significant for two reasons: (1) it would have undermined Percival's testimony that Demerieux struck the victim with a stone or that Demerieux was otherwise a willing participant in the conspiracy and hostage taking, by suggesting that Demerieux did not hit the victim's skull; and (2) it would have shown that the Trinidad police had doubts about Percival's credibility that were confirmed by the x-ray of the skull.
* Russel Joseph's January 17, 2006, Statement to Trinidad Police. DeFour and Sealey contend that the government failed timely to disclose Russel Joseph's January 17, 2006 statement to Trinidad police -- a statement that the government did not disclose to defendants until the end of the first week of trial, about May 29, 2009. In that statement, Joseph identified Ricardo Stevenson -- rather than DeFour -- as the driver of the second car (the "clearing car") used by the co-conspirators at the Samaan Tree Bar. See DeFour's Mem., ECF #707, at 20-21. DeFour contends that, if disclosure had been timely made, he could have used it to further investigate and bolster his third-party perpetrator defense.
The statement also identified the two abductors at the Samaan Tree Bar as Nixon and an individual nicknamed "T," without any mention of Sealey. See Sealey's Mem., ECF #706, at 8-9. Sealey contends that the statement has obvious exculpatory value in showing that he was not one of the abductors at the Samaan Tree Bar.
* Clauss's Grand Jury Testimony Concerning Ricardo Stevenson. DeFour also contends that the government's failure timely to disclose Clauss's grand jury testimony gave rise to a Brady violation in one other respect. See DeFour's Mem., ECF #707, at 21. Clauss testified before the grand jury on April 7, 2006, regarding his interview of Percival, and stated that Percival's cousin, Ricardo Stevenson, is "also known as DeFour." DeFour contends that the late disclosure prevented him from using that information as part of a third-party perpetrator defense -- that is, that it was Stevenson, rather than DeFour, who participated in the hostage taking.
* The False Campsite Testimony and Diagram. Clarke and Demerieux contend that the government failed timely to disclose evidence that reflected its belief that, when Clarke was arrested, Clarke had led Agent Clauss to a campsite where Clarke falsely claimed the victim was held -- the so-called "false campsite."*fn13 See Clarke's Mem., ECF # 701, at 15-16, 21; Clarke's Reply, ECF # 716, at 3-4, 12-22. The evidence at issue consists of (1) the government's longstanding belief that, on January 26, 2006 when Clarke led the police to the purported campsite where Maharaj was held, the government believed Clarke had led them to a false campsite; and (2) a diagram with the notation "believed to be Clauss diagram from false campsite." See Trial Tr. at 4353-4355 (June 23, 2009). For Clarke's part, he contends that this evidence is exculpatory because, during Clauss's testimony, the jury was left with the erroneous impression that Clarke had led the police to the true campsite. Clarke's Mem., ECF #701, at 21. In other words, the fact that Clarke led the police to a false campsite is, in his view, evidence that he did not know where the real campsite was. Clarke's Reply, ECF #716, at 14. For Demerieux's part, he contends that he was prejudiced by the delayed disclosure because, in his opening statement, his counsel promised the jury that it would hear that Trinidad police and the FBI scoured the campsite for evidence and found no link to Demerieux. See Demerieux's Mem., ECF #698, at 13.
B. Summary of Legal Standards
Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The Supreme Court held in Giglio v. United States that the prosecution's Brady obligation extends to evidence affecting the credibility of a witness. Giglio, 405 U.S. at 154. Disclosure is mandatory regardless of whether a defendant requests it. United States v. Agurs, 427 U.S. 97, 107 (1976).
There are, then, three elements to a Brady violation. "'The evidence at issue must  be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must  have been suppressed by the [government], either willfully or inadvertently; and  prejudice must have ensued." Wilson, 605 F.3d at 1005 (brackets in original; quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). To establish the prejudice element, a defendant must show a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler, 527 U.S. at 280 (internal quotation marks omitted). In other words, prejudice exists if "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435. As this Circuit noted in United States v. Oruche, 484 F. 3d 590, 597 (D.C. Cir. 2007), "the question is not whether the defendant would more likely than not have received a different verdict, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." In assessing whether the verdict is worthy of confidence, a court considers, among other things, the other evidence that supports the government's case. See Celis, 608 F.3d at 837 (considering the "overwhelming" evidence against defendants in finding no Brady violation).
All of the alleged Brady violations raised by defendants relate to evidence that was not technically "suppressed" -- the second element -- but rather was disclosed to defendants in the middle of trial. Hence, the Court must also consider whether the timing of the government's disclosures resulted in a Brady violation. As this Circuit recognized most recently in Celis, "the timing of the government's disclosure of Brady and Giglio evidence and information is important":
In United States v. Pollack, 534 F.2d 964 (D.C.Cir.1976), this court instructed that "[d]isclosure by the government must be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure." Id. at 973. Similarly, in Bagley, 473 U.S. at 678, the Supreme Court had observed that "[t]he constitutional error, if any, in this case was the Government's failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination."
Celis, 608 F.3d at 835. At the same time, the Circuit emphasized that delayed disclosure is not equated with suppression, for even mid-trial disclosures may be effectively used by defense counsel, especially if the court provides counsel additional time to address the late-disclosed evidence or makes some other accommodation such as reopening the examination of a witness. Id. at 835-37. "[T]he critical point is that disclosure must occur in sufficient time for defense counsel to be able to make effective use of the disclosed evidence." Id. at 836 (emphasis added); accord United States v. Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008) ("[A] new trial is rarely warranted based on a Brady claim where the defendant obtained the information in time to make use of it."). Furthermore, when a claim of delayed disclosure is at issue, the defendant "'must establish that had the information or evidence been disclosed earlier, there is a probability sufficient to undermine our confidence in the actual outcome that the jury would have acquitted.'" Celis, 608 F.3d at 835 (quoting United States v. Tarantino, 846 F.2d 1384, 1417 (D.C. Cir. 1988)). If defense counsel was able to make effective use of the tardily disclosed evidence at trial, then a Brady violation will not be found. See id. at 836-37 (holding that defense counsel had made effective use of the materials, and hence the tardy disclosure of cooperating witness's prior statements, on the eve of the witness's testimony, did not constitute a Brady violation).
In addition to the disclosure obligations under Brady, the prosecution has independent disclosure obligations under the Jencks Act, 18 U.S.C. § 3500 -- obligations that may overlap to some extent. See Oruche, 484 F.3d at 597. The Jencks Act requires disclosure of all statements of a prosecution witness relating to the witness's testimony after the witness has testified on direct examination, in a manner allowing the defense a reasonable opportunity to examine the material and prepare for its use in the trial. See 18 U.S.C. § 3500(b), (e); Celis, 608 F.3d at 835 (internal citations omitted).
C. Analysis of the Individual Brady Violations
1. Evidence Pertaining to X-ray of the Victim's Skull The Court first turns to Demerieux's contention that the evidence pertaining to the x-ray of the victim's skull was exculpatory and that the late disclosure requires a new trial. As noted earlier, this evidence consisted of, first, Clauss's grand jury testimony that Trinidad police had taken an x-ray of the skull in 2006 that showed no skull fracture and, second, the x-ray itself. Demerieux's theory is that the x-ray evidence was exculpatory because (1) it would have undermined Percival's testimony that Demerieux was a willing participant in the conspiracy and hostage taking, by negating Percival's testimony that Demerieux had struck the victim's head with a rock; and (2) it would have shown that the Trinidad police had doubts about Percival's credibility that were confirmed by the x-ray of the skull. The government does not dispute that the evidence was favorable to Demerieux, and the Court assumes without deciding that it was.
Demerieux's Brady argument cannot succeed, however, because the evidence was disclosed in time for his counsel to make effective use of it. Demerieux had Clauss's grand jury testimony about the existence of the x-ray by June 29, 2009, about the mid-point of the trial, and he was able to use that grand jury testimony to acquire the underlying x-ray. See Demerieux's Mem., ECF #698, at 7. The government obtained the x-ray from Trinidad police days later, and it was admitted into evidence on July 2, 2009. See Trial Tr. at 5621-22 (July 2, 2009) (admitting the x-ray as Demerieux's Ex. 11). Dr. Hughvon Des Vignes -- the government's expert in forensic pathology who testified about the physical state of the victim's body -- provided testimony about the x-ray on both cross-examination and re-cross. During the first cross-examination by Demerieux, counsel did not yet have the x-ray, but elicited testimony from Dr. Des Vignes based on his involvement in taking and examining the x-ray, which unequivocally established that the victim's skull was not fractured:
Q. Sir, did you have occasion in February of 2006 to order an X-ray of the skull that was recovered among the remains on January 8th, 2006?
Q. Sergeant or -- Corporal Lucas, Wendell Lucas, do you know who that is?
A. Yes, I know who that is. . . . .
Q. Did you have any conversation with Wendell Lucas at all about X-raying this skull?
Q. And in that conversation -- that was also in February of 2006?
Q. And in that conversation -- well, as a result of that conversation, did you do the X-ray or did you -- did that not play a part at all in your decision to do the X-ray?
A. Yes. As a result of my conversation with Officer Lucas, I did perform an X-ray after examining the skull.
Q. And you didn't perform the X-ray yourself? You had one of your technicians do it?
A. Yes, I had my technician perform the X-ray.
Q. And that X-ray showed, didn't it, that there was no damage to the skull?
A. Yes, the X-ray showed that there was no damage to the skull.
Q. And, in fact, an X-ray would have revealed a hairline fracture, wouldn't it have?
A. Yes, an X-ray would have revealed a hairline fracture. But I would have been able to diagnose that easily with a hand lens and the skull in front of me, an examination that would have been done previously.
Q. And when you looked at the skull, you saw no evidence of damage at all. Is that right?
A. No, there was no evidence of damage when I examined the cleaned-up skull with the naked eye and a hand lens.
Id. at 5608-10. Later that morning, the x-ray arrived and was provided to defense counsel. Id. at 5620. Demerieux's counsel was allowed to re-cross examine Dr. Des Vignes with the x-ray in hand, and elicited testimony supporting the defense position that Percival's statement concerning Demerieux striking the victim's head was not credible in light of the absence of a fracture:
Q. Doctor, could you look in that exhibit and tell us what's there, please.
A. . . . . These are X-rays of the skull of Balram Maharaj, looking from front to the back and ...