United States v. Burks

542 F.Supp.3d 737

UNITED STATES of America

v.Maurice Duncan BURKS

No. 3:17-cr-00124-2

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

Filed June 1, 2021

John Benjamin Schrader, Assistant US Attorney, Debra Teufel Phillips, U.S. Attorney's Office, Nashville, TN, Ivana Nizich, Assistant US Attorney, Shauna S. Hale, Assistant US Attorney, Department of Justice-Organized Crime & Gang Section, Washington, DC, for United States of America.

John M. Bailey, IV, Brentwood, TN, Eileen M. Parrish, Nashville, TN, for Maurice Duncan Burks.

MEMORANDUM OPINION

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

Who killed Malcolm Wright with a .45 caliber pistol at C-Ray's on November 3, 2012? A jury found that Maurice Burks did. Their verdict–finding Burks guilty on counts Ten, Eleven, Thirteen, and Fourteen of the Third Superseding Indictment–was rendered after a 25-day trial, during which more than 85 witnesses testified and more than 1,200 documents were introduced into evidence.

I.

Impressive as the number of witnesses and document are, very little of it had to do with Burks’ supposed murder of Wright. Rather, evidence was introduced against five Defendants charged in 34-counts. Those counts ran the gamut from a RICO conspiracy alleging that the Gangster Disciples was a criminal organization, to a multi-narcotic drug conspiracy, to individual drug distribution counts, to assault, and to the murder of Wright.

As it pertained to Wright's murder and Burks’ alleged involvement therein, the Government relied almost exclusively on the testimony of three informants – Danyon Dowlen, a/k/a "Danger Dan" (as he liked to call himself), Dezorick Ford, and Ronnie Daniels. Kristine Gaskin, Wright's girlfriend, testified that three people were in the room when the fatal shot was fired: her, Wright, and an African-American male of medium height who was standing over Wright's body. Burks is African American, but stands 6’4" tall.

In a lengthy Memorandum Opinion and Order involving motions for judgment of acquittals by all Defendants and a motion for a new trial by Burks, the Court found there was sufficient evidence to support Burks’ convictions on the Wright murder counts for purposes of Rule 29 of the Federal Rules of Criminal Procedure. United States v. Darden, No. 3:17-CR-00124, 2019 WL 3946133 (M.D. Tenn. Aug. 20, 2019).¹ However, acting as the thirteenth juror in accordance with Rule 33, the Court also found that it would be manifestly unjust to let Burks’ convictions on the murder counts stand based on the credibility of the witness and the weight of the evidence, or lack thereof. In the penultimate paragraph, the Court observed:

The Court does not know whether Burks killed Wright[.] What the Court does know, however, is that proof beyond a reasonable doubt is a standard not to be trifled with. "When the government has presented enough evidence for a conviction but the judge disagrees with the jury's resolution of conflicting evidence, a reversal is appropriate on the ground that the verdict is against the manifest weight of the evidence." United States v. Lyimo, 574 F. App'x 667, 671 (6th Cir. 2014) (citing United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998) ). That is the case with respect to Burks’ convictions on the counts relating to the murder of Wright and those convictions will be vacated pending a new trial.

Id. at *25.

The Government appealed the grant of a new trial. In a 2-1 decision, the United States Court of Appeals reversed, finding that this Court abused its discretion because "[t]he evidence ... did not weigh heavily against the verdict," but rather "set out a straightforward narrative that the jury could reasonably believe." United States v. Burks, 974 F.3d 622, 625 (6th Cir. 2020) ( Burks I ). In a lengthy dissent, Judge Helene N. White disagreed because "the majority employ[ed] an inappropriate standard of review, incompletely consider[ed] the record, and reject[ed] the district court's credibility and factual determinations in favor of its own." Id. at 628. Judge White went on to observe:

Although the majority engages in its own reweighing of the evidence and disagrees with how the district court assessed the credibility of the witnesses, the majority fails to explain how the district court's factual and credibility determinations are clearly erroneous or how the district court abused its discretion. The district court appropriately acted as a thirteenth juror and its conclusions are fully supported by the record. The majority, on the other hand, inappropriately enters "the forbidden territory of re-weighing the evidence." ... Even under the majority's flawed standard of review, however, it insufficiently engages with the district court's order and the record.

Id. at 629 (quoting United States v. Dimora, 750 F.3d 619, 627 (6th Cir. 2020) ).

Burks filed a petition for rehearing en banc and for a writ of certiorari , see Burks v. United States, ––– U.S. ––––, 141 S.Ct. 1722, 209 L.Ed.2d 484 (Mar. 22, 2021), but both were denied. This meant that the majority opinion became the law of the case and would have ended matters, but for one thing.

While the case was in the briefing stages before the Sixth Circuit, the Government allegedly discovered that it had "inadvertently" failed to disclose to Burks that, during pretrial preparation, Dowlen told the ATF and two members of the prosecution team (including the lead prosecutor) that the gun Burks used to shoot Wright "may have been a .40 caliber or a .45 caliber." (Doc. No. 1685-2 at 3). Upon receipt of the undisclosed material – memorialized in a Report of Investigation ("ROI")² – Burks filing a "Second Motion for New Trial Based on Newly Discovered Evidence." (Doc. No. 1685).

Notwithstanding the pendency of appeal, the Court found that it retained jurisdiction to consider the motion and denied the same. The motion was directed at Counts One and Two (the RICO and drug conspiracy counts), and what Dowlen said about the firearm had no bearing on those counts. The Court observed:

"The decision of whether to grant a new trial is committed to the ‘sound discretion of the trial judge’, [and] this discretion should be exercised ‘only in extraordinary circumstance[s]." United States v. Canal Barge Co., 631 F.3d 347, 357 (6th Cir. 2011) (citation omitted). Such extraordinary circumstances existed as to the counts relating to Wright's murder because, not only was the witness's testimony that Burks confessed to them inherently incredible, their testimony did not match other witness's accounts or align with the physical evidence (scant though it was) presented at trial. The new evidence that the gun Burks "maybe used" was a .40 caliber instead of a .45 caliber pistol certainly bolsters this Court's conclusion that Burks’ convictions on Counts Ten, Eleven, Thirteen an Fourteen cannot stand. After all, a .45 caliber casing was found at the scene at C-Rays. This was in keeping with the Government's theory that a "twin .45" was used. However, none of this alters the Court's conclusion that it was not "against the manifest weight of the evidence," United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007), for the jury to conclude that Burks was a member of the RICO conspiracy as alleged in Count One, and that he was also a member of the drug conspiracy alleged in Count Two.

United States v. Burks, No. 3:17-CR-00124, 2020 WL 2307338, at *2 (M.D. Tenn. May 8, 2020) ( Burks II ). Acknowledging that ruling, the Sixth Circuit explicitly chose not to address the matter in the appeal that was then pending. Burks I, 974 F.3d at 625.

II.

Now before the Court is Burks’ Third Motion for a New Trial (Doc. No. 1796), which is based upon the Government's failure to turn over the ROI and is directed at the counts related to Wright's murder, i.e. , Counts Ten, Eleven, Thirteen and Fourteen. That Motion, as with the prior motions for a new trial, has been exhaustively briefed by the parties (Doc. Nos. 1796, 1804, 1810).

"A motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure may be premised upon the argument that the jury's verdict was against the manifest weight of the evidence." Hughes, 505 F.3d at 592. "Generally, such motions are granted only ... ‘where the evidence preponderates heavily against the verdict.’ " Id. at 592-93.

"In deciding Rule 33 motions based on the manifest weight of the evidence, ... a district judge ‘may sit as a thirteenth juror’ and consider the evidence to ensure that there is no miscarriage of justice.’ " United States v. Munoz, 605 F.3d 359, 373 n.9 (6th Cir. 2010) (citation omitted). In this regard, the trial judge may assess the credibility of witnesses and the weight of the evidence. United States v. Reeves, 636 F. App'x 350, 353 (6th Cir. 2016) ; Lutz, 154 F.3d at 589 (6th Cir. 1998). Still, and as previously noted, while "[t]he decision of whether to grant a new trial is committed to the ‘sound discretion of the trial judge,’ ... this discretion should be exercised ‘only in extraordinary circumstance[s].’ " Canal Barge, 631 F.3d at 357 (internal citations omitted).

Based on these exact same standards, the Court granted Burks’ first Motion for a New Trial, but the Sixth Circuit has already determined that to be erroneous. Therefore, it would be a simple matter to deny Burks’ present motion. After all, even if Dowlen on one occasion stated that the pistol may have been a .40 caliber instead of a .45 caliber, this misstatement might not, in the words of the majority opinion, change the fact that the Government "set out a straightforward narrative that the jury could reasonably believe," or its belief that "[t]he evidence ... did not weigh heavily against the verdict." Burks I, 974 F.3d at 625. The Court does not find the issue that simple, however.

A.

As this Court pointed out in its prior opinion, Dowlin was far from a credible witness as it pertained to Wright's murder, yet he was the Government's star witness on this...