824 F.Supp. 1215 (N.D.Ill. 1993), 89 CR 909, United States v. Burnside

Docket Nº:89 CR 909.
Citation:824 F.Supp. 1215
Party Name:UNITED STATES of America, Plaintiff, v. Thomas BURNSIDE, et al., Defendants.
Case Date:June 04, 1993
Court:United States District Courts, 7th Circuit, Northern District of Illinois

Page 1215

824 F.Supp. 1215 (N.D.Ill. 1993)

UNITED STATES of America, Plaintiff,


Thomas BURNSIDE, et al., Defendants.

No. 89 CR 909.

United States District Court, N.D. Illinois, Eastern Division.

June 4, 1993

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John A. Smietanka, Acting U.S. Atty., Barry Rand Elden, Asst. U.S. Atty., Chicago, IL, for U.S.

Donald V. Young, Donald V. Young & Assoc., P.C., Chicago, IL, for Thomas Burnside.

Richard S. Kling, Clinical Professor, Chicago Kent School of Law, Chicago, IL, for Codell Griffin.

Brian M. Collins, Chicago, IL, for C.D. Jackson.


HOLDERMAN, District Judge.

This multi-defendant criminal case is among several filed in this federal district during the period 1986 through 19891 in which persons alleged to have been associated with the Chicago street gang known as the "El Rukns" were charged.2 Each of these cases stemmed from a multi-year, multi-jurisdictional criminal investigation of the El Rukn street gang. Among the law enforcement personnel who worked as part of the joint "El Rukn" task force were prosecuting attorneys, law enforcement agents and police officers from local, state and federal governmental entities. These law enforcement personnel utilized numerous investigatory tools, including court-authorized wiretaps on several phones over extended periods of time. Several high-ranking members in the El Rukn gang cooperated with the government and testified for the government at the trials of the "El Rukn" cases.

The three defendants whose post-trial motions are before the court, Thomas Burnside, Codell Griffin and C.D. Jackson, were not alleged to be El Rukn gang members, but were alleged to have supplied illegal drugs to the El Rukns. At the five-week jury trial of

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these three defendants, four high-ranking El Rukn gang members, Henry Harris, Harry Evans, Earl Hawkins and Ervin Lee, testified for the government pursuant to plea agreements. All three defendants were found guilty. In their post-trial motions, the defendants contend that their convictions should be overturned because of prosecutorial misconduct by government personnel relating to the government's cooperating witnesses in the "El Rukn" cases.

For the reasons stated in this opinion, the motions of defendants Burnside, Griffin and Jackson for a new trial are granted.


I. The Government's Cooperating "El Rukn" Witnesses 1225
II. The Government's Witnesses' Illegal Drug Use 1225
A. Positive Drug Test Results 1225
B. Eyewitnesses to the Illegal Drug Use 1226
1. Nicholas Ahrens 1226
2. Raymond Bonnema 1227
3. "John Doe" 1227
4. Jackie Clay 1229
5. Harry Martin 1229
6. Evaluation of Eyewitnesses' Credibility 1230
C. Admissions of Illegal Drug Use 1230
1. Henry Harris' Admissions of Illegal Drug Use: 1230
(a) at 1989 Disciplinary Hearing 1230
(b) to Ervin Lee 1231
(c) to Tanya Van Blake 1231
(d) to Mustag Malik 1231
(e) to Harry Martin 1231
2. Harry Evans' Admissions of Illegal Drug Use: 1231
(a) to Nicholas Ahrens 1231
(b) to "John Doe" 1232
(c) overheard by Lenell Smith 1232
(d) to Harry Martin 1232
(e) in Monitored 1992 Phone Conversation 1232
D. Circumstantial Evidence of Illegal Drug Use 1232
1. Evans Appeared to be Using Illegal Drugs 1232
2. Henry Harris' Refusal to Take Drug Test 1233
III. The Government's Awareness of its "El Rukn" Witnesses' Illegal Drug Use 1233
A. MCC's Warden Told U.S. Attorney Personnel of Illegal Drug Use 1234
B. MCC's Warden Provided a Memorandum to the U.S. Attorney's Office Showing Positive Drug Test Results 1234
C. AUSA Rosenthal Spoke with AUSA Hogan About the Positive Drug Test Results 1234
D. Witnesses told AUSA Hogan of the Illegal Drug Use 1236
E. Agents told AUSA Hogan of Drug Use "Rumors" 1237
F. Second Drug Test Memorandum Provided to AUSA Hogan 1237
G. Evans Appeared to be Using Illegal Drugs 1237
H. Harris Told U.S. Attorney Paralegal of His Refusal to Take Drug Test 1238
IV. Government's Failure to Disclose or Investigate Evidence of its Witnesses' Illegal Drug Use 1238
A. Positive Drug Test Results 1238
B. Reports of Illegal Drug Use 1239
C. "Rumors" of the Drug Use 1240
D. Henry Harris' Refusal to Take Drug Test 1240
E. Harry Evans' Appearance 1241
V. Undisclosed Benefits Given to the "El Rukn" Witnesses 1241
A. "Contact" Visits and Lax Security for the "El Rukn" Witnesses 1241
1. "Contact" Visits at the U.S. Attorney's Office 1241
2. Lax Security 1243
(b) "El Rukn" Witnesses Smuggled Contraband Items Undetected 1244
3. Contact Visits and Lax Security Contributed to Drug Acquisition, Possession and Use 1245
B. Telephone Services for the "El Rukn" Witnesses Through the U.S. Attorney's Office 1246
C. AUSA Hogan's Intercession with MCC Officials for the Rukn" Witnesses" El 1246
D. Other Undisclosed "Benefits" 1247
1. Sundry Items Provided to the Witnesses 1247
2. U.S. Attorney's Office Paralegal Corinda Luchetta 1248
I. United States Attorney's Responsibility to Justice 1249
II. Supreme Court's Articulation of the Government's Constitutional Obligations 1250
III. Proof of a Constitutional Violation 1251
A. The Prosecution Suppressed the Evidence 1251
1. Government Personnel had Knowledge of the Undisclosed Brady Material 1251
(a) AUSA Hogan had Personal Knowledge of the Undisclosed Brady Material 1252
(b) Other U.S. Attorney Personnel had Knowledge of Undisclosed Brady Material 1253
(c) Other Government Personnel had Knowledge of Undisclosed Brady Material 1253
(d) Brady Evidence was "Readily Available" to the Prosecution Which Imputes Knowledge for Brady Purposes 1254
(e) Government Required by Brady to Inquire Further into Facts 1254
(f) The Government had an Obligation Under Brady to Disclose Facts Which Constituted the "Tip of the Iceberg" 1258
2. No Other Facts Excuse the Government's Non "Disclosure of the Brady" Giglio Material 1259
(a) Government Counsel Resisted and Did Not Comply with Defense Trial Subpoenas 1259
(b) The Brady Material was not Available from the "Public Record" 1261
B. The Suppressed Evidence was Favorable to the Defense 1264
1. The Illegal Drug Use Was Relevant to the Witnesses' Abilities to Recollect and Relate 1264
2. Government Benefits Facilitating Drug Use were Relevant to the Witnesses' Credibility 1265
3. Defendants were Deprived of Their Constitutional Confrontation Rights by Failure to Disclose Drug Use 1266
C. The Suppressed Evidence was Material 1267
1. The Suppressed Evidence was Admissible as to Government Witnesses' Bias 1268
2. The Credibility of Government Witnesses was Essential to Government's Obtaining Defendants' Convictions 1268
3. The Suppressed Evidence was not Cumulative as to Government Witnesses' Credibility 1269
4. Government Counsel's Admissions and Conduct Point Toward a Finding of Materiality 1270
D. Knowing Use of Perjured Testimony 1271
E. The Proper Remedy 1272

Page 1222 PROCEDURAL HISTORY OF THE CASE Two indictments were filed on October 26, 1989 against a total of 65 alleged El Rukn gang members and associates. The first indictment filed was entitled United States v. Henry Andrews, et al., 89 CR 908 (N.D.Ill.). It charged 38 defendants with various crimes and was assigned initially to Judge Marvin E. Aspen's calendar. The second indictment, which was assigned to this court, was United States v. Michael Anderson, et al., 89 CR 909 (N.D.Ill.). It alleged similar offenses and named 27 defendants. The defendants charged in one indictment were named as unindicted co-conspirators in the other indictment. The allegations of criminal conduct in each indictment spanned a period of over twenty years. Among the criminal violations alleged were offenses involving the Racketeer Influenced and Corrupt Organizations ("RICO") statute, 18 U.S.C. § 1961 et seq., including RICO conspiracy (18 U.S.C. 1962(d)); narcotics conspiracy (21 U.S.C. § 846); and narcotics distribution (21 U.S.C. 841(a)(1)); as well as substantive RICO charges (18 U.S.C. 1962(c)), which alleged numerous racketeering acts and offenses including allegations of multiple murders, kidnapping (18 U.S.C. § 1952B(a)(1)), witness intimidation (18 U.S.C. § 1512(b)(3)), and witness retaliation (18 U.S.C. § 1513(a)(1)). In Case No. 89 CR 908, Judge Aspen entered pretrial orders severing the trials of various defendants. See United States v. Andrews, 754 F.Supp. 1161 (N.D.Ill.1990); United States v. Andrews, 754 F.Supp. 1197 (N.D.Ill.1990). Thereafter, several federal district judges, including district judges from outside the Northern District of Illinois, presided over the trials of the various severed defendants indicted in Case No. 89 CR 908.3 This court presided over the proceedings in Case No. 89 CR 909, including all pretrial matters and the two trials which have taken place. In the course of presiding over the pretrial matters in Case No. 89 CR 909, this court ruled on numerous pretrial motions, including motions for severance. Among the pretrial motions filed or adopted by the defendants were motions for disclosure of material pursuant to the constitutional doctrines espoused in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150...

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