US v. Andrews, 89 CR 908.

• Decision Date: 28 December 1990
• Docket Number: No. 89 CR 908.,89 CR 908.
• Citation: 754 F. Supp. 1206
• Parties: UNITED STATES of America, Plaintiff, v. Henry ANDREWS, Thomas Bates, Roger Bowman, Jeff Boyd, George Carter, Jackie Clay, Edgar Cooksey, Andrew Craig, Jerome Crowder, Lawrence Crowder, Floyd Davis, William Doyle, Harry Evans, Eddie Franklin, Bernard Green, Charles Green, Henry Leon Harris, Earl Hawkins, Louis Hoover, J.L. Houston, Eugene Hunter, Derrick Kees, Isiah Kitchen, Alan Knox, Sammy Knox, Roland Lewis, Felix Mayes, Melvin Mayes, Walter Pollard, Derrick Porter, Noah Robinson, Michael Sardin, James Speights, Anthony Sumner, Freddie Elwood Sweeney, Melvin Tillman, Edward Williams and Ricky Dean Williams, Defendants.
• Court: U.S. District Court — Northern District of Illinois

754 F. Supp. 1206

UNITED STATES of America, Plaintiff, v. Henry ANDREWS, Thomas Bates, Roger Bowman, Jeff Boyd, George Carter, Jackie Clay, Edgar Cooksey, Andrew Craig, Jerome Crowder, Lawrence Crowder, Floyd Davis, William Doyle, Harry Evans, Eddie Franklin, Bernard Green, Charles Green, Henry Leon Harris, Earl Hawkins, Louis Hoover, J.L. Houston, Eugene Hunter, Derrick Kees, Isiah Kitchen, Alan Knox, Sammy Knox, Roland Lewis, Felix Mayes, Melvin Mayes, Walter Pollard, Derrick Porter, Noah Robinson, Michael Sardin, James Speights, Anthony Sumner, Freddie Elwood Sweeney, Melvin Tillman, Edward Williams and Ricky Dean Williams, Defendants.

No. 89 CR 908.

United States District Court, N.D. Illinois, E.D.

December 28, 1990.

William Hogan, Ted Poulous, Asst. U.S. Attys., Chicago, Ill., for U.S.

Gary Ravitz, Chicago, Ill., for Henry Andrews.

Robert Clarke, Chicago, Ill., for Thomas Bates.

Kenneth Hanson, Chicago, Ill., for Jeff Boyd.

Peter Schmiedel, Chicago, Ill., for George Carter.

Victor Pilolla, Oak Park, Ill., for Edgar Cooksey.

Eugene O'Malley, Chicago, Ill., for Andrew Craig.

Carl Clavelli, Chicago, Ill., for Jerome Crowder.

Standish Willis, Chicago, Ill., for Lawrence Crowder.

Marianne Jackson, Chicago, Ill., for William Doyle.

Joshua Sachs, Chicago, Ill., for Charles Green.

Donald Paull, Chicago, Ill., for Louis Hoover.

Chris Averkiou, Chicago, Ill., for J.L. Houston.

Robert Raab, Chicago, Ill., for Isiah Kitchen.

Marc Kadish, Chicago, Ill., for Alan Knox.

Michael Falconer, Chicago, Ill., for Sammy Knox.

Keith Spielfogel, Chicago, Ill., for Roland Lewis.

Ron Clark, Chicago, Ill., for Felix Mayes.

Marty Agran, Chicago, Ill., for Derrick Porter.

Adam Bourgeois, Chicago, Ill., Robert F. Simone, Philadelphia, Pa., for Noah Robinson.

James Graham, Chicago, Ill., for Michael Sardin.

Ron Bredemann, Park Ridge, Ill., for James Speights.

Rick Jalovec, Chicago, Ill., for Freddie Elwood Sweeney.

June Fournier, RFD Long Grove, Ill., for Melvin Tillman.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The United States has moved for reconsideration of our Andrews II order of December 4, 1990, 754 F.Supp. 1197 (N.D.Ill. 1990) which adopted, with certain revisions, the bulk of the government's proposed changes to the severance plan outlined in our Andrews I order of November 6, 1990, 754 F.Supp. 1161 (N.D.Ill.1990). The government's concerns stem from its new claim that Andrews II, insofar as it does not wholly adopt the government's proposed changes, constitutes an impermissible amendment to the original indictment.¹ For the following reasons, we grant the motion in part and vacate a portion of our Andrews II order.

The government contests our preclusion of certain counts and evidence from the initial trials of this action. In particular, it challenges our: (1) holding in abeyance at Trial One the Count Three narcotics conspiracy, also alleged as predicate act 31 of the RICO counts that will be tried in Trial One; (2) holding in abeyance at Trial One the prosecution of Edgar Cooksey for the predicate act of murdering Charmaine Nathan, which will be tried against other defendants in Trial Two; (3) limiting the government's proof of murders in each of the trials only to those murders that may be proved as predicate acts against the defendants at each trial, so long as the defendants do not intend to cross-examine the government's witnesses concerning other murders alleged as part of the general conspiracy; and (4) ordering the separate trial of Alan Knox in light of the fifty-four year sentence he is currently serving.

I.

With respect to points 1-3, the government claims that by refusing to allow it to try certain counts and racketeering acts charged in the indictment, and by precluding evidence of violent acts allegedly committed in furtherance of the RICO conspiracy at each trial, we have impermissibly amended or modified the indictment in violation of the Fifth Amendment.² In support of this claim, the government relies on a series of cases discussing the Fifth Amendment ramifications of indictment modification or amendment. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); United States v. Cina, 699 F.2d 853 (7th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); United States v. Nicosia, 638 F.2d 970 (7th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981); see also United States v. Ford, 872 F.2d 1231 (6th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990); United States v. Beeler, 587 F.2d 340 (6th Cir.1978), cert. denied, 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir.1971); Gaither v. United States, 413 F.2d 1061 (D.C.Cir.1969). These cases suggest that an amendment or modification of the indictment is impermissible under the Fifth Amendment when it changes the basic theory of the offense, alters the crime charged, unfairly surprises the defendants, or creates an opportunity for the government to prosecute the defendants a second time for substantially the same offense. Cina, 699 F.2d at 858. The government purports to rely on all four of these harms, but its discussion exclusively focuses on the last — the double jeopardy concern.³ The government maintains that subsequent trials of counts held in abeyance, in particular any subsequent RICO trial based on predicate acts originally indicted but held in abeyance, would violate double jeopardy and effectively preclude it from ever trying the defendants on these charges. In other words, the government claims that we have usurped the charging function of the grand jury in violation of the Fifth Amendment. See Stirone, 361 U.S. at 218, 80 S.Ct. at 273-74.

There is a fundamental problem with the government's "amended indictment" argument — it has no standing to raise the particular challenges asserted here. In considering a claim that an indictment has been impermissibly modified, we are constitutionally concerned only with changes to an indictment that materially "affect the substantial rights" of the accused. Cf. Berger, 295 U.S. at 82, 55 S.Ct. at 630. The right to invoke the Fifth Amendment protections at issue here belongs to the accused, not the government. Each of the many cases upon which the government relies involved the invocation of Fifth Amendment protection by the accused against allegedly prejudicial modifications. The government has failed to point to any case in which the prosecution was allowed or even attempted to serve as an accused's Fifth Amendment guardian. We see no reason to let the government step in on behalf of the defendants in this case, particularly in light of the fact that the government's end aim is not to ensure vindication of the defendants' Fifth Amendment rights, but rather to bolster its own interest, for whatever reason, in seeing as much of its original, unsevered indictment as possible tried in each of the now severed trials.

In fact, the government's surrogacy would appear to be unwelcome. Our discussion in both Andrews I and Andrews II makes clear that in order to effectuate the severance sought by defendants it would be necessary to hold many counts in abeyance and to limit the number of predicate acts proved with respect to the RICO counts at the initial trials. Other than a possible RICO double jeopardy concern, the government has failed to identify any other double jeopardy problem posed by our plan. With respect to the RICO contention, the government cites no authority upon which its fear is based. We found one case that might apply. See United States v. Ciancaglini, 858 F.2d 923 (3d Cir.1988). To the extent that this concern is legitimate, however, it is one that has always been plainly evident to the defendants.⁴ Yet, not a single defendant has objected to the plan after having had a clear opportunity to do so. See, e.g., Andrews I, mem. op. at 1189 ("we will accept proposals from any of the parties regarding suggested improvements to our severance plan ..."). Further, none of the defendants has attempted to respond to or join in the government's instant motion for reconsideration. The defendants are apparently willing to accept the potential but remote double jeopardy risk created by our plan in return for the comparative advantage of the trials as severed. Cf. United States v. Shea, No. 90-10204-K, 1990 WL 264541 (D.Mass. Dec. 13, 1990) (two of twenty-three defendants responding to severance order raise double jeopardy objections).

Indeed, even when viewed from the government's perspective, the indictment may be deemed "modified" only to the extent that double jeopardy would bar prosecution of all of the counts and predicate acts held in abeyance. Yet, by electing not to object to the plan's provision for holding in abeyance certain counts and predicate acts for subsequent trial, the defendants have effectively waived any double jeopardy problems. See, e.g., United States v. Goodstein, 883 F.2d 1362, 1367 n. 3 (7th Cir.1989) (failure to challenge vagueness of indictment), cert. denied, ___ U.S. ___, 110 S.Ct. 1305, 108 L.Ed.2d 481 (1990); United States v. Monzon, 869 F.2d 338 (7th Cir.) (failure to properly raise Fifth Amendment Miranda challenge), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). Thus, there is no barrier to prosecution for the government to complain about.⁵

We need not address the merits of the double jeopardy issue in light of the government's lack of standing to assert the defendants' Fifth Amendment rights and the defendants' waiver of any Fifth Amendment problems. And the government has offered no other grounds or theory upon that would otherwise justify its intervention based on the Fifth Amendment. Accordingly, the matters held in...