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United States v. Johnson

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

March 19, 2018




         In 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.

         I. Brandon's “Motion to Not Designate the Alternate Jurors as ‘Alternate Jurors'” (Doc. No. 475)

         Brandon 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.

         In 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[1] “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”).

         Accordingly, 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.

         II. Brandon's “Motion to Prevent the Government From Referring to the Defendants Collectively Unless a Common Fact Applies to Every Defendant” (Doc. No. 480)

         In this Motion, Brandon

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).

         Without 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 appropriate.

         Brandon's “Motion to Prevent the Government From Referring to the Defendants Collectively Unless a Common Fact Applies to Every Defendant” (Doc. No. 480) is DENIED.

         III. Brandon's “Motion for Disclosure of Presentence Reports of Cooperating Witnesses” (Doc. No. 489)

         Brandon 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.

         “PSRs 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.

         “Neither 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).

         Nevertheless, 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.

         “This 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.'”).

         At this 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.

         IV. Braden's “Motion to Dismiss Third Superseding Indictment” (Doc. No. 491)

         Braden moves to dismiss the present indictment for prosecutorial vindictiveness. To place the Motion in context, a chronology of the case is necessary.

         On June 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).

         After 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.

         At a 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[2], and the second trial involving Johnson only[3] 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 that stated:

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).

         Despite 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 Superseding Indictments.

         The timing of the return of the Third Superseding Indictment is a bit suspect, [4] 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.

         “A 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)).

         Vindictiveness 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 ...

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