US v. Andrews, No. 89 CR 908-1-5-12.

• Citation: 824 F. Supp. 1273
• Decision Date: 14 June 1993
• Docket Number: No. 89 CR 908-1-5-12.
• Parties: UNITED STATES of America, Plaintiff, v. Henry ANDREWS, George Carter and William Doyle, Defendants.
• Court: U.S. District Court — Northern District of Illinois

824 F. Supp. 1273

UNITED STATES of America, Plaintiff, v. Henry ANDREWS, George Carter and William Doyle, Defendants.

No. 89 CR 908-1-5-12.

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

June 14, 1993.

Barry Rand Elden, Asst. U.S. Atty., Chicago, IL, for plaintiff.

Gary Ravitz, Chicago, IL, for Henry Andrews.

Peter J. Schmiedel, Chicago, IL, for George Carter.

Marianne Jackson, Chicago, IL, for William Doyle.

MEMORANDUM OPINION AND ORDER

CONLON, District Judge.

INTRODUCTION

This court presided over the severed trial of an indictment relating to the El Rukn organization, a Chicago street gang. In 1989, an unwieldy 305-page, 175-count indictment was returned against 38 El Rukn "generals," "ambassadors," and "officers." The original indictment charged more than 250 factually separate criminal acts over a 23-year period. In a thoughtful and carefully considered opinion, Judge Marvin E. Aspen severed the case into five trials. United States v. Andrews, 754 F.Supp. 1161, modified, 754 F.Supp. 1197 (N.D.Ill.1990). This court was reassigned severed charges against five defendants: Henry Andrews, George Carter, William Doyle, J.L. Houston and Derrick Porter. The El Rukn trial conducted by this court was designated as "Trial Two." Id. at 1203.

Trial Two involved charges against all five severed defendants for conspiracy to conduct the affairs of the El Rukn organization and its predecessor gangs through a pattern of racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) Count One, consisting of 53 pages; conducting the affairs of the El Rukn organization through a pattern of racketeering activity and committing 64 predicate acts, in violation of 18 U.S.C. § 1962(c) Count Two; and engaging in a narcotics conspiracy, in violation of 21 U.S.C. § 846 Count Three. In addition, Derrick Porter was charged with obstruction of justice by planning the murder of an El Rukn who was a government informant, in violation of 18 U.S.C. § 1503 Count Sixteen, and George Carter was charged with distribution of .36 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) Count Eighteen.¹

The core RICO conspiracy and substantive RICO charges against the Trial Two defendants pertained to their alleged direct participation in murder conspiracies, and in related murders and attempted murders of rival gang members and witnesses who were to testify against El Rukn members in several state prosecutions. The RICO charges also incorporated drug activities repeated in the drug conspiracy count. The government's case essentially rested on the testimony of former El Rukn leaders who themselves were admitted murderers and drug dealers implicated in the same charges.² The critical government witnesses were Earl Hawkins, Harry Evans, Jackie Clay, Eugene Hunter, Ervin Lee, Henry Harris and Derrick Kees (collectively, "the El Rukn inmate witnesses"). There was little independent evidence corroborating the testimony of the El Rukn inmate witnesses. Recorded telephone conversations in which William Doyle participated were received in evidence. The conversations were in code; the code was "translated" by El Rukn inmate witnesses.

Each El Rukn inmate witness admitted to an extensive history of violent criminal activity and drug trafficking. Each also testified that all benefits and promises he had received from the government in exchange for his cooperation were embodied in a written plea agreement described in some detail to the jury. Before and during trial, the prosecution never disclosed that any El Rukn inmate witness received benefits or special favors other than those specified in the plea agreement.

The El Rukn inmate witnesses testified implicitly that their criminal activities ended when they started cooperating with the government. E.g., Tr. 5263, C. 595 (Harris); Tr. 3732 (Evans); Tr. 4528 (Kees).³ Before and during trial, the prosecution never disclosed that its witnesses had engaged in any misconduct or had been disciplined during confinement in protective custody as cooperating government witnesses.

The El Rukn inmate witnesses testified that they had not discussed their testimony with each other; several of the El Rukn inmate witnesses affirmatively denied that they had any contact or opportunity to communicate with other El Rukn witnesses. Before and during trial, the prosecution never disclosed that the El Rukn inmate witnesses had access to documents (including internal prosecution memoranda) relating to the testimony of other El Rukns, as well as extensive opportunities for contact with one another at the Chicago Metropolitan Correctional Center ("the MCC") and in the offices of the United States Attorney and the Bureau of Alcohol, Tobacco and Firearms ("ATF").

Just as the prosecution's case was built on the testimony of the El Rukn inmate witnesses, the defense strategy hinged on attacking the credibility and reliability of that testimony. Each of the El Rukn witnesses was cross-examined extensively concerning his criminal record, his own exposure in this case, and his self-interest in fabricating or exaggerating the conduct of the defendants on trial. These were central themes in the closing arguments. The prosecution emphasized that the El Rukn inmate witnesses corroborated each others' testimony, that they started cooperating at different times and under different circumstances, and that their information was not subject to mutual influence or collusion. Defense counsel responded that the testimony of the El Rukn witnesses was not reliable or worthy of belief.

After deliberating several days, on August 29, 1991 the jury returned their verdicts: William Doyle was found guilty on Counts One, Two (Racketeering Acts 5, 6, 9, 13, 15, 16, 31, 32, 33), and Three; George Carter was found guilty on Counts One, Two (Racketeering Acts 5, 31, 34), Three and Eighteen; and Henry Andrews was found guilty on Counts One, Two (Racketeering Acts 5, 31) and Three.⁴

Sentencing was substantially delayed due to the government's failure to submit its version of the offense to the probation office for preparation of the presentence investigation report ("the PSI"). Without the benefit of the government's version, the original PSI did not apply the sentencing guidelines, effective November 1, 1987, to this case. However, after conferring with prosecutors several days before the scheduled sentencing hearing, the probation office issued a substantially different "corrected" PSI applying the sentencing guidelines. The probation office did not afford the defense an opportunity to address the complex issues of fact and law raised by the prosecution on the eve of sentencing. See Memorandum Opinion and Order issued May 5, 1992, 1992 WL 100928. After striking the "corrected" PSI, the court gave the parties a full opportunity to brief the new sentencing issues.

Following the court's resolution of the threshold sentencing issues in the government's favor, on May 18, 1992 the defendants filed this joint motion to vacate their judgments of conviction and to dismiss or, in the alternative, for a new trial ("defendants' post-trial motion") based on allegations of newly discovered government misconduct. The defendants' motion was predicated on information received from a defense attorney in a related case involving other El Rukn members, United States v. Burnside, 89 CR 909 (Judge James F. Holderman, presiding). The motion alleged that Henry Harris, a key El Rukn witness, had been disciplined for a drug infraction at the MCC several months before Trial Two. Defendants' motion further alleged that Harris had made a statement to MCC officials, that "he used heroin to conceal his role as an informant in a secret drug investigation of other MCC inmates." Defendants' Post-Trial Motion at 5. Defendants requested a hearing and "that the prosecution be directed to tender to the defense all Giglio, Brady, and § 3500 material not heretofore produced." Id. at 9.⁵ The prosecutors responded by denying they had failed to turn over Brady and Giglio material, that they were unaware of Harris' heroin use at the MCC or a resulting disciplinary hearing, that defense counsel failed to exercise reasonable diligence in obtaining this information earlier, and that defendants' motion "must" be denied without a hearing. Government's Response at 1, 27. Nevertheless, this court ordered a hearing to resolve serious factual issues raised by the defendants' post-trial motion and the government's response, as did Judge Holderman in the Burnside case.⁶

This court's hearing on defendants' post-trial motions did not begin until October 15, 1992, due to continual delays at the government's behest. A number of sessions were held over the following two months because of the piecemeal disclosure of information responsive to the defendants' Trial Two subpoenas served on August 9, 1991, and to defendants' post-trial hearing subpoenas returnable on September 19, 1992, as well as basic Brady and Giglio material.⁷

At the United States Attorney's request, the Department of Justice provided funds for the lead El Rukn prosecutor, Assistant United States Attorney ("AUSA") William Hogan to retain his own attorney for these proceedings. In addition, two of AUSA Hogan's paralegal assistants, Corinda Luchetta (a licensed Illinois attorney) and Tanya Van Blake, were granted immunity from prosecution, as well as Department of Justice funds for retaining their own private attorneys.

During the protracted hearing, remarkable credibility issues were raised when present and former employees of the United States Attorney's office and various cooperating government witnesses gave conflicting testimony. The hearing revealed that substantial evidence reflecting adversely on the reliability and biases of the El Rukn inmate witnesses was not disclosed to defense counsel before or during Trial Two: drug use while in custody as protected government...