United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND OMNIBUS ORDER
CRENSHAW D. CHIEF JUDGE
anticipation of the trial set to commence with jury selection
on April 2, 2018, Defendants have filed a number of Motions.
As a preliminary matter, all Motions to Join in the Motions
filed by Co-Defendants (Doc. Nos. 503, 509, 512) are
GRANTED. The remaining Motions are
considered roughly in the order in which they were filed.
Brandon's “Motion to Not Designate the Alternate
Jurors as ‘Alternate Jurors'” (Doc. No.
requests that the Court “not designate the alternate
jurors in this case as ‘alternate jurors' at the
onset of the trial.” (Doc. No. 475 at 1). Instead,
“he suggests that at the end of the Court's final
instructions to the jury the Court should randomly pick the
alternates, ” under the theory that “this step
will help ensure that all jurors remain attentive as they all
believe they will be required to deliberate and render
verdict.” (Id.). While “[t]here may well
be benefits to selecting a jury in this manner, ”
United States v. Mendoza, 510 F.3d 749, 753 (7th
Cir. 2007), it violates the federal rules for jury selection
in a criminal case.
pertinent part, Rule 24 of the Federal Rules of Criminal
Procedure provides that “[a]lternate jurors replace
jurors in the same sequence in which the alternates were
selected.” Fed. R. Crim. P. 24(c)(2)(B). As the Sixth
Circuit reads it, this rule “assumes that alternate
jurors will be designated separately-and sequentially- before
the trial begins.” United States v. Delgado,
350 F.3d 520, 524 (6th Cir. 2003). A “district
court's selection of alternates by random draw just prior
to jury deliberations [i]s inconsistent with the rule.”
Id.; see also, United States v.
Seifer, 800 F.3d 328, 330 (7th Cir. 2015) (“a
practice of empanelling more than 12 jurors and then randomly
selecting alternates from the group . . . cannot be
reconciled with Rule 24”); United States v.
Brewer, 199 F.3d 1283, 1286 (11th Cir. 2000) (observing
that the “district court violated the rule by using a
random draw to discharge the alternate jurors, rather than
simply discharging the last two jurors selected”).
Brandon's “Motion to Not Designate the Alternate
Jurors as ‘Alternate Jurors'” (Doc. No. 475)
is DENIED. Nevertheless, and as is this
Court's practice, the alternate jurors will not be
informed of their status until the evidence has been
presented, counsel have made closing arguments, and the jury
has been instructed on the law by the Court.
Brandon's “Motion to Prevent the Government From
Referring to the Defendants Collectively Unless a Common Fact
Applies to Every Defendant” (Doc. No. 480)
moves this honorable Court to enter an Order preventing the
Government, and/or its witnesses, from referring to the
defendants collectively unless a common fact applies to every
defendant. To allow such a reference would be misleading and
confusing to the jury and ultimately cause undue prejudice to
the accused. Therefore, the Government should be required to
refer to specific defendants when presenting the proof and/or
argument relevant to his case instead of being allowed to
make broad sweeping allegations against the collective.
(Doc. No. 480).
any further argument, the Court finds Brandon's request
to be overbroad and impossible to police, particularly given
the alleged relationships between Defendants. There may be
times when a collective reference to Defendants or a subset
of Defendants is appropriate, even before proof is presented
about certain events. To the extent generalization prove
problematic, Defendants can object, at which time the Court
will consider giving the jury a curative instruction, if
“Motion to Prevent the Government From Referring to the
Defendants Collectively Unless a Common Fact Applies to Every
Defendant” (Doc. No. 480) is DENIED.
Brandon's “Motion for Disclosure of Presentence
Reports of Cooperating Witnesses” (Doc. No.
asks that he be allowed “access to the Presentence
Investigation Reports (“PSR”) of any cooperating
witnesses at the trial in this case.” (Doc. No. 489).
No. such witness is identified by Brandon because witness
lists have yet to be exchanged.
are confidential reports created by an arm of the court and
designed for use by a judge in reaching a fair
sentence.” United States v. Pendleton, 832
F.3d 934, 940 (8th Cir. 2016). They “occupy a unique
position, ” In re Morning Song Bird Food
Litig., 831 F.3d 765, 773 (6th Cir. 2016), and
“ha[ve] always been jealously guarded by the drafters
of the federal rules and by the federal courts, ”
United States v. Trevino, 89 F.3d 187, 192 (4th Cir.
1996). “The commonly invoked reasons underlying
PSRs' special status are threefold: (1) the
defendant's interest in privacy and in preventing the
dissemination of inaccurate information, (2) law
enforcement's and cooperating informants' interest in
confidentiality, and (3) the sentencing court's interest
in encouraging the free flow of information during the
presentencing process.” In re Morning Song,
831 F.3d at 773.
Brady nor the Federal Rules of Criminal Procedure
mandate that a trial court produce a copy
of a presentence report concerning a government witness,
prepared for the court, to the defense upon request.”
United States v. Sherlin, 67 F.3d 1208, 1218 (6th
Cir. 1995) (emphasis added). Additionally, “presentence
reports are not statement of the defendant within the meaning
of Jencks, ” but are “reports prepared by
probation officers used primarily as an aid to district
courts at sentencing” and contain “the
government's version of the offense, ” to which
defendants rarely object. United States v. McGee,
408 F.3d 966, 973 (7th Cir. 2005).
the production of a PSR, being a discovery matter under Fed.
R. Crim. P. 16(d), is a matter of discretion for the trial
court. Sherlin, 67 F.3d at 1218. In exercising that
discretion, a court should first conduct an in camera
examination of the PSR to see if disclosure is warranted.
Pendleton, 832 F.3d at 940.
in camera review is not mandatory, however.” United
States v. Allen, 716 F.3d 98, 104 (4th Cir. 2013).
“The district court need only perform the in camera
examination once the defendant has ‘clearly specified
the information contained in the report that he expects will
reveal exculpatory or impeachment evidence.'”
Id. (quoting Trevino, 89 F.3d at 192).
“Thus, ‘as a prerequisite for an in camera
review, an accused must plainly articulate how the
information contained in the PSR will be both material and
favorable to his defense.”” Id. He must
also make “a threshold showing of a good faith belief
that a co-defendant's PSR contains exculpatory evidence
not available elsewhere.” United States v.
Molina, 356 F.3d 269, 275 (2d Cir. 2004); see United
States v. Jewell, 614 F.3d 911, 921 (8th Cir. 2010)
(citing Molina for the proposition that a defendant
must “make a showing of a special need” for
another's PSR); United States v. Happ, No.
CR2-06-129(8), 2008 WL 5101214, at *9 (S.D. Ohio Nov. 25,
2008) (“If a defendant can describe what exculpatory or
impeaching information he expects to find in the requested
PSR, the district court is obligated to undertake an in
camera review of the PSR to determine whether it does indeed
contain any such information and whether the defendant's
need for that information is ‘compelling.'”).
point, Brandon does not know who the Government will call as
a witness against him, and, as such, is not in a position to
make any showing of the need for a cooperating witness's
PSR. Nor does he know whether any such cooperating
witness's PSR is in the possession of the Government. His
“Motion for Disclosure of Presentence Reports of
Cooperating Witnesses” (Doc. No. 489) is therefore
DENIED WITHOUT PREJUDICE.
Braden's “Motion to Dismiss Third Superseding
Indictment” (Doc. No. 491)
moves to dismiss the present indictment for prosecutorial
vindictiveness. To place the Motion in context, a chronology
of the case is necessary.
18, 2015, a three count Indictment was returned against
Reginald Johnson, charging him with the distribution of a
controlled substance in or near a school or public housing,
and possession of a firearm and ammunition after having
previously been convicted of a felony. (Doc. No. 1). Ten
months later, on April 21, 2016, a Superseding Indictment was
returned adding Aweis Haji-Mohamed, Marquis Brandon, and Keno
Lane, and seven new counts, including possession of an
analogue substance, conspiracy to commit Hobbs Act robbery,
using a firearm to commit a crime of violence, possession of
a stolen firearm, false declarations before a grand jury, and
obstruction of justice. (Doc. No. 46). The charges were
amended two months later on June 27, 2016, with the return of
the Second Superseding Indictment, adding Charles Braden and
Santez Bradford as defendants, and twenty-one new counts,
that contained the charges already leveled, plus additional
counts including conspiracy, the unlawful transfer of a
firearm, theft of a firearm, and possession of a firearm in
furtherance of a drug trafficking crime. (Doc. No. 67).
the return of the Second Superseding Indictment, and given
“the complexity of the case, the numerous pending
motions, and the anticipated length of trial, ” the
case was reassigned from a visiting judge to the undersigned
on May 25, 2017. (Doc. No. 349). Shortly thereafter, on June
8, 2017, the Court entered a number of Orders and Memoranda
(Doc. Nos. 365-373), which resolved the vast majority of
pending motions. Among them was an Order that severed the
case into two trials. One trial would include Counts Sixteen,
and Eighteen through Twenty-Six that contained charges only
against Bradford and Johnson; the other trial would include
the remaining charges against all Defendants.
status conference on July 17, 2017, the Court set two trial
dates, with the trial involving all Defendants scheduled to
begin on April 3, 2018, and the second trial involving Johnson
set to start on May 1, 2018. (Doc. Nos. 400). The Court also
informed the parties that the trial dates were firm and would
not be changed absent the most extraordinary of
circumstances. The Court went on to advise the Government
that if it intended to file any additional charges, it should
do so at the earliest opportunity because the Court did not
intend to continue the trial based upon a late-filed
Indictment. This was confirmed in a contemporaneous Order
If the Government intends to secure yet another Superseding
Indictment from the grand jury it should do so as promptly as
possible. There is no reason for delay because the Middle
District presently has three grand juries impaneled. In the
interim, counsel for the Government and the Defendants shall
make themselves available to discuss any potential charges
that may be forthcoming. On or before September 1, 2017,
counsel shall meet and the Government shall provide to
defense counsel additional evidence relating to such possible
or anticipated charges, to the extent it can do so. If these
meetings do not occur before September 1, 2017, then counsel
for the respective Defendants shall notify the Court
immediately. Because the trial dates are firm settings, any
continuance will be granted only for good cause shown, and
the filing of a Superseding Indictment, unless it comes very
late, will not meet that standard.
(Doc. No. 399 at 1-2).
this Court's prompting and suggestion, the Government
waited many months before securing another Superseding
Indictment. In fact, the controlling Third Superseding
Indictment was not returned until February 28, 2018, just six
days before the pretrial motion deadline, and little over a
month before the first trial was set to begin. While that
Indictment adds no new Defendants, it adds eight new counts.
Specifically as it relates to Braden, the Third Superseding
Indictment adds four charges: two counts of possessing a
firearm while an unlawful user of a controlled substance;
armed home invasion, and using a firearm in relation to a
crime of violence. Those crimes are all alleged to have
occurred between January and March 2015, well within the time
frame of the charges set forth in the Superseding and Second
timing of the return of the Third Superseding Indictment is a
bit suspect,  and undoubtedly adds pressure to
Defendants and counsel who are preparing for trial. This
Court has expressed concerns in the past about the practice
of returning Superseding Indictments on the eve of trial,
obviously to no avail. The question presented by Braden's
Motion, however, is whether the Government's action in
seeking the Third Superseding Indictment warrants dismissal
on the grounds of prosecutorial vindictiveness.
showing of vindictive prosecution requires (1) an exercise of
a protected right; (2) a prosecutorial stake in the exercise
of that right; (3) unreasonableness of the prosecutor's
conduct; and (4) the intent to punish the defendant for
exercise of the protected right.” United States v.
Meda, 812 F.3d 502, 510 (6th Cir. 2015).
“Presumably, if the first three elements are present,
this may help establish grounds to believe the fourth is
present, that there is the required ‘realistic
likelihood of vindictiveness, ' which the government
would have to rebut.” United States v. Suarez,
263 F.3d 468, 479 (6th Cir.2001) (citing Bragan v.
Poindexter, 249 F.3d 476, 481-82 (6th Cir.2001)).
may be shown through “‘objective evidence that a
prosecutor acted in order to punish the defendant for
standing on his legal rights.'” United States
v. Young, 847 F.3d 328, 361-62 (6th Cir. 2017) (citation
omitted). Alternatively, it may be established “by
present[ing] sufficient evidence to create a
‘presumption of vindictiveness' by examining the
‘realistic likelihood of vindictiveness' and
focusing on the prosecutor's ‘stake' in
deterring the exercise of a protected ...