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United States v. Darden

United States District Court, M.D. Tennessee, Nashville Division

August 28, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
[1] MARCUS TERMAINE DARDEN [2] MAURICE DUNCAN BURKS [3] BRANDON DURELL HARDISON [4] LAMAR ANDRE WARFIELD [5] DERRICK LAMAR KTLGORE [6] ELANCE JUSTIN LUCAS [7] DECARLOS TITINGTON [8] LAWRENCE MITCHELL [9] LORENZO CORTEZ BROWN [10] XAVIER RAPHAEL JENKINS [11] REX ANDREW WHITLOCK Defendants.

          MEMORANDUM OPINION AND ORDER

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         Pending before the Court in this forty-Count, eleven Defendant case charging a host of crimes against alleged members of the Gangster Disciples is the Government's Motion for Protective Order (Doc. No. 129). Also pending are a number of Motions to Extend the Deadline for Filing Pretrial Motions (Doc. Nos. 146, 147, 148, 172), and the Government's Motion to Exclude Speedy Trial Time, to Designate the Matter as Complex and to Issue a Scheduling Order or Set a Status Hearing (Doc. No. 181). The Court considers the Motions in turn.

         I. Government's Motion for a Protective Order

         The Government has proposed a Protective Order that reads:

Copies of discovery materials in this case shall not be provided to the defendants, or anyone associated with the defendants other than members of the defendants' legal defense team, to retain for themselves. Nothing in this Order, however, prevents defense counsel from reviewing these materials with the defendants.

(Id. at 12). Though the request is remarkable in its brevity, Defendants Xavier Jenkins, Brandon Hardison, Maurice Burks, and Marcus Darden have filed separate responses (Doc. Nos. 143, 145, 151, 160) in opposition. Defendants Decarlos Titington, Lawrence Mitchell, and Derrick Kilgore have moved tojoin (Doc. No. 144, 153, 180) in Defendant Jenkins' response. The Government has filed a Reply (Doc. No. 173).

         So far as relevant, Rule 16 of the Federal Rules of Criminal Procedure provides that "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Fed. R. Crim. P. 16(d)(1). "The use of the word 'may' in this rule highlights the court's discretion." United States v. Griffin. 2014 WL 1767201, at *1 (S.D.Miss. May 2, 2014) (citing In re Terrorist Bombings of U.S. Embassies in E. Afir.. 552 F.3d 93, 122 (2d Cir. 2008)).

         "Although the Rule does not define 'good cause, ' the Advisory Committee expressly sanctions the imposition of a protective order 'where there is reason to believe that a witness would be subject to physical . . . harm[.]"' United States v. Mitchell 2016 WL 7076991, at *2 (D. Me. Dec. 5, 2016); see United States v. Fort. 472 F.3d 1106, 1131 (9th Cir. 2007) ("The Rules Advisory Committee specifically designed Rule 16(d)(1) to provide a mechanism to protect witness safety, and to grant considerable discretion to the district court in drafting orders under that rule."). "The Government, of course, has the burden of showing the requisite good cause." United States v. Yassine. 574 F.App'x 455, 461 (5th Cir. 2014) (citing United States v. Carriles. 654 F.Supp.2d 557, 565-66 (W.D. Tex. 2009)). "Defendants ha[ve] the burden of showing the protective order would cause prejudice." Id; see United States v. Davis. 809 F.2d 1194, 1210 (6th Cir. 1987) (rejecting defendant's argument that protective order was improper where he failed to show prejudice).

         Separate and apart from noting that one or more of the Defendants are charged with crimes ranging from possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) to murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1), the Government presents five grounds that it claims establish good cause for the issuance of the protective order. Summarized, those grounds are:

(1) "[O]ne of the tenets of the Gangster Disciples is 'silence and secrecy, ' meaning that members... who discuss matters related to the Gangster Disciples with persons who are not members ... are subject to retribution[.]"
(2) A witness has testified that "defendant Marcus Darden, the lead defendant in this case and the highest-ranking Gangster Disciple in Middle Tennessee between at least 2013 and 2014, ordered a physical assault, which other Gangster Disciples carried out, against the witness for having spoken with or otherwise cooperated with authorities[.]"
(3) Witnesses in this case have stated that those cooperating with law enforcement about Gangster Disciple activities are subject to retribution, and Gangster Disciples and their associates use social media to communicate about what happens to "snitches."
(4) "[I]t appears" that Defendant Kilgore "has in fact disseminated discovery materials" because, during the search of his mother's residence, agents found "reports of investigation and witness statements related to defendant Brandon Hardison's 2013 federal felon-in-possession case in the Middle District of Tennessee, which were prepared by the ATF agent investigating that case and which were provided to Hardison in discovery."
(5) Defendant Rex Whitlock used a smuggled cellphone to post "updates" on social media (including Facebook), solicited comments and friend requests from persons not in custody, and uploaded a video that appears to show him displaying and reviewing ...

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