U.S.A v. Clarke, Criminal No. 06-102 (JDB)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtJOHN D. BATES
PartiesUNITED STATES OF AMERICA, v. ZION CLARKE, RICARDO DEFOUR, KEVON DEMERIEUX, ANDERSON STRAKER, WAYNE PIERRE, CHRISTOPHER SEALEY, and KEVIN NIXON, Defendants.
Decision Date02 March 2011
Docket NumberCriminal No. 06-102 (JDB)

UNITED STATES OF AMERICA,
v.
ZION CLARKE, RICARDO DEFOUR, KEVON DEMERIEUX, ANDERSON STRAKER,
WAYNE PIERRE, CHRISTOPHER SEALEY, and KEVIN NIXON, Defendants.

Criminal No. 06-102 (JDB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Dated: March 2, 2011


MEMORANDUM OPINION

TABLE OF CONTENTS

Introduction...................................................................2

Background...................................................................4

Standard of Review............................................................12

Discussion...................................................................13

I. Severance

A. General Severance Issues............................................13

B. Sixth Amendment Confrontation Clause Issues.......................... 22

II. Brady/Jencks Violations

A. The Alleged Brady/Jencks Violations..................................36

B. Summary of Legal Standards.........................................39

C. Analysis of the Individual Brady Violations

1. Evidence Pertaining to the X-ray of the Victim's Skull............... 42

2. Russel Joseph's January 17, 2006 Statement to Trinidad Police........45

3. Clauss's Grand Jury Testimony Concerning Ricardo Stevenson........59

4. The False Campsite Testimony and Diagram...................... 61

5. Cumulative Impact of Late Disclosures...........................69

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III Other Due Process Issues

A. Limitations on Challenging the Citizenship of Balram Maharaj..............74

B. Napue Violations Arising from the False Testimony of Cooperating Witnesses..............................................85

C. Trial in U.S. Court for Crimes Occurring in Trinidad......................93

IV. Other Evidentiary Issues

A. Government Fingerprint Expert Dawn Schilens..........................96

B. Dismemberment Evidence..................................................................... 99

V. DeFour's Alibi Defense

A. Denial of DeFour's Motion to Continue the Trial; New Evidence...........101

B. Denial of Alibi Instruction..........................................113

VI. Closing Arguments

A. Vouching.................................................................................117

B. Prejudicial Reference to Criminal Organization.........................123

C. Alternative Theory of Guilt Offered by the Government

With Respect to Sealey and Nixon............................................................. 129

VII. Sufficiency of the Evidence

A. Sufficiency of the Evidence-Issues Common to All Defendants............135

B. Sufficiency of the Evidence-Evidence Supporting Each Defendant's Convictions

1. Anderson Straker..................................................................... 138

2. Ricardo DeFour...................................................................... 141

3. Wayne Pierre........................................................................ 142

4. Christopher Sealey.................................................................... 146

5. Kevin Nixon.........................................................................147

6. Zion Clarke......................................................................... 149

7. Kevon Demerieux.................................................................... 150

CONCLUSION........................................................................................155

INTRODUCTION

This case arises from the abduction and death of a U.S. citizen, Balram Maharaj, in the Republic of Trinidad and Tobago ("Trinidad") in April 2005. Twelve defendants were extradited from Trinidad to the United States over the course of two years, to face charges of conspiracy to commit hostage taking resulting in death in violation of 18 U.S.C. § 1203 ("Hostage Taking

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Act"), and aiding and abetting hostage taking resulting in death. Seven defendants went to trial in May 2009: Zion Clarke, Ricardo DeFour, Kevon Demerieux, Anderson Straker, Wayne Pierre, Christopher Sealey, and Kevin Nixon.1

Several rounds of pretrial motions were briefed, including motions to dismiss the charges, motions to suppress statements, motions to exclude other crimes evidence, motions for severance, and motions concerning the matter of Maharaj's U.S. citizenship. The Court issued five written opinions and an oral opinion from the bench, and also entered a series of orders on other matters as they were presented at trial. See United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008) (decision on other crimes evidence, Rule 15 depositions, and discovery); United States v. Straker, 596 F. Supp. 2d 80 (D.D.C. 2009) (decision on legality of extradition and suppression motions filed by Straker and Sealey); United States v. Clarke, 611 F. Supp. 2d 12 (D.D.C. 2009) ("Clarke I") (decision on admissibility of out-of-court photographic identifications and suppression motions filed by Clarke, DeFour, and Demerieux); United States v. Clarke, 628 F. Supp. 2d 1 (D.D.C. 2009) ("Clarke II") (decision addressing issues related to the U.S. citizenship of the victim); United States v. Clarke, 628 F. Supp. 2d 15 (D.D.C. 2009) ("Clarke III") (second decision addressing issues related to the U.S. citizenship of the victim); Oral Opinion, Preliminary Tr. at 2-24 (May 1, 2009) (denying motions for severance). See also ECF #454, 509, 519, 568, 602, 603 (orders on issues arising during the course of trial).

Jury selection commenced on May 22, 2009, and the trial of the case began on May 27, 2009. The case was submitted to the jury on July 27, 2009. The jury returned a unanimous

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verdict of guilty as to all seven defendants on both counts of the indictment on July 31, 2009.

Defendants have submitted lengthy post-trial motions arguing that various legal errors require dismissal of the charges against them or, in the alternative, a new trial, and also renewing their earlier motions for judgment of acquittal based on the sufficiency of the evidence.2 A hearing on the motions was held on April 16, 2010.

BACKGROUND

The indictment charges the defendants with participating in a conspiracy--beginning on or about February 1, 2005, and ending on or about April 15, 2005--to seize and detain Balram Maharaj and his son Dinesh, in order to compel the payment of ransom money for their release, in violation of 18 U.S.C. § 1203.3 The evidence presented at trial showed that the conspirators'

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initial plan was to kidnap 5-year old Dinesh, but that the target instead became Balram Maharaj due to complications involved with kidnapping his child. After a series of planning meetings at the Mellow Moods Bar and other locations, the kidnapping took place on April 6, 2005, at the Samaan Tree Bar. Maharaj was taken at gunpoint, forced into a waiting vehicle, and driven to a cocoa field. From there, he was taken to a forested area where he was held for seven days under the watch of two guards. During that time a series of ransom calls was made to the victim's family, demanding $3 million Trinidad dollars approximately $500,000 U.S. dollars and the captors attempted to obtain "proof of life" from the victim to advance their ransom demands. During the period of captivity, Maharaj, a diabetic, did not have access to medication, and his health took a precipitous decline--he turned pale, had difficulty speaking and breathing, and began hallucinating. On April 13, 2005, Maharaj died. After his death, several co-conspirators dismembered the body with a machete, hid the body parts in two containers--a blue barrel and a white styrofoam cooler--and buried the containers.

Trinidad police and the FBI both were involved in the investigation. The case went cold after the victim's death on April 13, but by the fall of 2005, the Trinidad police had found sources of information, including Winston Gittens (a cooperating co-defendant), about those involved in the kidnapping. This led to a series of arrests in early 2006, and confessions from five

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defendants: Clarke, Demerieux, Straker, DeFour, and Sealey.4 During that period, there were also arrests of three other defendants--Russel Joseph, Jason Percival, and Leon Nurse--who, like Gittens, eventually pled guilty and entered into cooperation agreements with the U.S. government. Soon after Clarke's arrest, he led the Trinidad police and FBI to a place he identified as the camp site where Maharaj was held, and on January 6, 2006, he then led them to

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the burial site and showed them where the two containers holding the victim's remains were buried. The FBI recovered the remains, which were positively identified as Maharaj's through dental and other medical records. Although the state of Maharaj's body precluded a conclusive determination of a cause of death, the medical evidence indicated that the likely...

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