United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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
Government's Motion for a Protective Order
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).
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.
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
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
(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
(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
(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 ...