US v. Willock

696 F. Supp.2d 536

UNITED STATES of America v. Steve WILLOCK, et al.

Criminal No. WDQ-08-0086.

United States District Court, D. Maryland, Northern Division.

March 23, 2010.

Andrew C. White, Silverman Thompson Slutkin and White LLC, Baltimore, MD, for Van Sneed.

Thomas J. Saunders, Law Office of Thomas J. Saunders, Baltimore, MD, for Troy Smith.

Harry D. McKnett, Columbia, MD, for Sherman Pride.

Manuel J. Retureta, Retureta and Wassem PLLC, Washington, DC, for Diane Kline.

Jensen Egerton Barber, Law Offices of J.E. Barber PC, Washington, DC, Richard B. Bardos, Schulman Treem Kaminkow and Gilden PA, Baltimore, MD, for Michelle Hebron.

Anthony Douglas Martin, Anthony D. Martin PC, Greenbelt, MD, Steven R. Kiersh, Law Office of Steven Kiersh, Washington, DC, for Anthony Fleming.

Harry J. Trainor, Jr., Trainor Billman Bennett Milko and McCabe LLP, Annapolis, MD, for Clyde Millner.

Marc Gregory Hall, Law Office of Marc G. Hall, Rockville, MD, for Roland McClain.

MEMORANDUM OPINION

WILLIAM D. QUARLES, Jr., District Judge.

On February 21, 2008, the grand jury indicted Anthony Fleming, Michelle Hebron, Tavon Mouzone and others¹ for Conspiracy to Participate in a Racketeering Enterprise. Fleming was also charged with Conspiracy to Distribute and Possess with the Intent to Distribute Controlled Substances and Distribution of and Possession with the Intent to Distribute Controlled Substances. Pending are pretrial motions. A hearing was held on November 5, 2009.

I. Motions to Sever (Paper Nos. 829, 835)

Fleming and Mouzone seek severance from Hebron under Fed.R.Crim.P. 14.² They argue that evidence about Hebron's alleged murder of David Moore is irrelevant to the allegations against them—and thus inadmissible—because there is insufficient evidence connecting them to a conspiracy that involved Moore's murder.

Under Fed.R.Crim.P. 8(b), defendants may be charged in the same indictment "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions constituting an offense or offenses." "Barring special circumstances, individuals indicted together should be tried together." United States v. Singh, 518 F.3d 236, 255 (4th Cir.2008). Indeed, unless a "miscarriage of justice" will result, there is a presumption that co-defendants should and will be tried together. Richardson v. Marsh, 481 U.S. 200, 206-11, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). This presumption is especially strong in conspiracy cases. United States v. Harris, 498 F.3d 278, 291 (4th Cir.2007).

Fed.R.Crim.P. 14 permits severance if "joinder of . . . defendants . . . appears to prejudice a defendant." Severance is only required when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).³

Fleming, Mouzone and Hebron were properly joined in the Indictment because they "are alleged to have participated in . . . the same series of acts or transactions constituting an offense"—i.e., the racketeering conspiracy alleged in Count One. Fleming and Mouzone have not overcome the strong presumption that they should be tried together. Harris, 498 F.3d at 291. Their motions allege that there is insufficient evidence that the acts with which they and Hebron are charged are part of the same conspiracy; accordingly, they assert that Hebron's alleged murder of Moore is irrelevant to the charges against them and thus inadmissible against them. They contend that requiring trial with Hebron would "compromise a specific trial right" by allowing the jury to hear evidence that is only admissible against Hebron.

The Indictment alleges that Fleming, Mouzone and Hebron conspired to participate in a racketeering enterprise and did overt acts—including the murder of Moore—in furtherance of the conspiracy. Under Pinkerton v. United States, 328 U.S. 640, 645, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), "a conspirator may be convicted of substantive offenses committed by co-conspirators in the course of and in furtherance of the conspiracy." The grand jury found that Moore's murder and the overt acts with which Mouzone and Fleming are charged were in furtherance of a single conspiracy. Thus, evidence of any of these overt acts is relevant to all co-conspirators. Accordingly, Mouzone's and Fleming's motions to sever will be denied.

II. Anthony Fleming⁴

A. Motion for a Bill of Particulars (Paper No. 593)

Fleming seeks a bill of particulars under Fed.R.Crim.P. 7(f). A bill of particulars is appropriate when an indictment fails (1) to provide adequate information to allow a defendant to understand the charges and (2) to avoid unfair surprise. See United States v. American Waste Fibers Co., 809 F.2d 1044, 1047 (4th Cir. 1987). A bill of particulars is not a discovery device. United States v. Automated Med. Labs., Inc., 770 F.2d 399, 405 (4th Cir.1985) ("A bill of particulars is not to be used to provide detailed disclosure of the Government's evidence in advance of trial.").

The 49-page Indictment allows the defendants to understand the charges. Each count states the controlling statutes, relevant dates, and facts supporting the charge. Count One, conspiracy to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d), describes the history, purpose, and operations of the Tree Top Pirus ("TTP") (a subset of the Bloods gang), the criminal "enterprise" with which Fleming was allegedly associated. Count One alleges 117 "overt acts" in furtherance of the conspiracy. The overt acts allege dates, details, and each defendant's connection to the enterprise. The other counts in which Fleming is charged also allege the elements of the charges and the dates on which they occurred.

The Government has provided the defendants with thousands of pages of documents, video and audio surveillance, lists of witnesses, expert reports, and defendant statements. Govt. Opp. to Mot. for Bill of Particulars 3-4. Fleming understands the charges against him, and there is little risk of surprise at trial. Accordingly, his motion for a bill of particulars will be denied.

B. Motion to Dismiss Count One of the Indictment (Paper No. 568)

Fleming has moved to dismiss Count One, Conspiracy to Participate in a Racketeering Enterprise in violation of 18 U.S.C. § 1962(d) ("RICO").⁵ Mouzone has adopted this motion. Paper No. 691.

Count One alleges that the TTP is a RICO enterprise. Its 117 "overt acts" demonstrate a pattern of racketeering activity. Fleming moves to dismiss Count One on the grounds that (1) the Government has no evidence of an identifiable structure that could constitute an "enterprise" and (2) even if there is evidence of an enterprise, there is no evidence that Fleming had a role in it. Specifically, Fleming argues that (1) there is "no reliable evidence to suggest" his involvement with the November 17, 2006 murder of Lamont Jackson, which is alleged as Overt Act 3 of Count One, and (2) the other Overt Acts in which he is named are "purely local and/or individual acts," unconnected to the alleged enterprise.

"The longstanding rule of law that courts may not `look behind' grand jury indictments if `returned by a legally constituted and unbiased grand jury' is the touchstone for any inquiry into the legality of indictments."⁶ "If the indictment is valid on its face, it is enough to call for trial of the charges on the merits." Id.⁷ "The Supreme Court has clearly indicated its unwillingness to second guess the decision of a grand jury to formally accuse an individual brought before it based upon some incriminating evidence." Id.

Fleming does not challenge the facial validity of the indictment or the legality of the grand jury proceedings. The grand jury found sufficient evidence of an enterprise and overt acts connected to that enterprise to indict. As the Court may not "look behind" a valid indictment to assess the sufficiency of the evidence against a defendant, Fleming's motion must be denied.⁸

C. Motion to Exclude Evidence of Pretrial Identification (Paper No. 567)

Fleming has moved to exclude two pretrial photo-array identifications in connection with the November 17, 2006 murder of Lamont Jackson, an overt act in Count One. Indictment ¶ 25(3); Hr'g Tr. 88, Nov. 5, 2009. Davon Lindsay and Kowan Brice identified Fleming in photo arrays.⁹ Brice also identified Mouzone shortly after the Fleming array. Hr'g Tr. 70.¹⁰

Fleming challenges the April 12, 2007 identification. Hr'g Tr. 75; Gov't Ex. 5. Baltimore Police Detective John Riddick showed Lindsay an array with six pictures of young African American men, including Fleming, whose picture was in the top right corner.¹¹ Hr'g Tr. 76; Gov't Ex. 5. Riddick informed Lindsay that the array "may or may not contain a picture of the person who committed the crime being investigated." Id. He then placed the array face-down and instructed Lindsay to turn it over when ready. Hr'g Tr. 76. Lindsay turned the array over, identified Fleming, and signed above Fleming's picture. Id. 76-77. On the reverse of the array, Lindsay wrote, "This is the person shoot Lamont." Id. 78; Gov't Ex. 5. Riddick testified that he did not say or do anything to influence Lindsay's identification or statement. Id. 78.

On April 25, 2007, Riddick and a Baltimore County Police detective met with Brice at the Baltimore County Detention Center, where he was incarcerated, and showed him two arrays. Id. 78.¹² The first array contained six pictures of young African American men, including Fleming, whose picture was in the center of the bottom row. Id. 83; Gov't Ex. 7. Riddick read Brice the same statement he had read to Lindsay and placed the array face-down in front of Brice. Id. 80. Brice turned the array over and identified Fleming. Id. 80. He signed above Fleming's photo and wrote, "I gave Mo a...