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

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtJOHN D. BATES, District Judge.
Citation84 Fed. R. Evid. Serv. 1114,767 F.Supp.2d 12
PartiesUNITED STATES of America,v.Zion CLARKE, Ricardo DeFour, Kevon Demerieux, Anderson Straker, Wayne Pierre, Christopher Sealey, and Kevin Nixon, Defendants.
Docket NumberCriminal No. 06–102 (JDB).
Decision Date02 March 2011

767 F.Supp.2d 12
84 Fed.
R. Evid. Serv. 1114

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, District of Columbia.

March 2, 2011.


[767 F.Supp.2d 17]

Bruce R. Hegyi, Jeanne Marie Hauch, Emily A. Miller, U.S. Attorney's Office, Washington, DC, for Plaintiff.Christopher Michael Davis, Davis & Davis, A.J. Kramer, Office of the Federal Public Defender, Jeffrey Brian O'Toole, O'Toole, Rothwell, Nassau & Steinbach, Thomas Abbenante, Thomas Abbenante, Esq., John James Carney, Carney & Carney, Pleasant S. Brodnax, III, Washington, DC, Allen Howard Orenberg, The Orenberg Law Firm, PC, North Bethesda, MD, Michael Edward Lawlor, Lawlor & Englert, LLC, Greenbelt, MD, Reita Pendry, Charlotte, NC, Patrick M. Donahue, Donahue Law Firm, Annapolis, MD, for Defendants.

MEMORANDUM OPINION
JOHN D. BATES, District Judge.
+-------------------+
                ¦TABLE OF CONTENTS ¦
                +-------------------¦
                ¦ ¦
                +-------------------+
                
Introduction 18
                Background 19
                Standard of Review 24
                Discussion 24
                
I. Severance 24
                
 A. General Severance Issues 24
                 B. Sixth Amendment Confrontation Clause Issues 29
                
II. Brady /Jencks Violations 37
                
 A. The Alleged Brady /Jencks Violations 37
                 B. Summary of Legal Standards 39
                 C. Analysis of the Individual Brady Violations 41
                
 1. Evidence Pertaining to the X-ray of the Victim's Skull 41
                 Russel Joseph's January 17, 2006 Statement to Trinidad
                 2. Police 43
                 3. Clauss's Grand Jury Testimony Concerning Ricardo Stevenson 50
                 4. The False Campsite Testimony and Diagram 52
                 5. Cumulative Impact of Late Disclosures 56
                
III. Other Due Process Issues 59
                
 A. Limitations on Challenging the Citizenship of Balram Maharaj 59
                 Napue Violations Arising from the False Testimony of
                 B. Cooperating Witnesses 65
                 C. Trial in U.S. Court for Crimes Occurring in Trinidad 70
                
IV. Other Evidentiary Issues 72
                
 A. Government Fingerprint Expert Dawn Schilens 72
                 B. Dismemberment Evidence 74
                
V. DeFour's Alibi Defense 74
                
 A. Denial of DeFour's Motion to Continue the Trial; New Evidence 74
                 B. Denial of Alibi Instruction 81
                
VI. Closing Arguments 84
                
 A. Vouching 84
                 B. Prejudicial Reference to Criminal Organization 87
                 C. Alternative Theory of Guilt Offered by the Government With 91
                 Respect to Sealey and Nixon
                
VII. Sufficiency of the Evidence 95
                
 A. Sufficiency of the Evidence—Issues Common to All Defendants 95
                 B. Sufficiency of the Evidence—Evidence Supporting Each 96
                 Defendant's Convictions
                
 1. Anderson Straker 97
                 2. Ricardo DeFour 98
                 3. Wayne Pierre 99
                 4. Christopher Sealey 101
                 5. Kevin Nixon 101
                 6. Zion Clarke 102
                 7. Kevon Demerieux 103
                
CONCLUSION 105
                

[767 F.Supp.2d 18]

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 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

[767 F.Supp.2d 19]

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 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

[767 F.Supp.2d 20]

presented at trial showed that the conspirators' 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 defendants: Clarke, Demerieux, Straker, DeFour, and Sealey.4 During that period,

[767 F.Supp.2d 21]

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 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 cause of death was deprivation of his diabetes medications while being held in captivity.

Based largely on the defendants' confessions and the testimony of the cooperators, the evidence presented at trial established the co-conspirators' roles as follows. Anderson Straker was one of the originators and leaders of the conspiracy. He had a close relationship with Doreen Alexander—Dinesh's mother and Maharaj's former lover—who originally came up with the kidnapping for ransom plan. Straker enlisted the assistance of Leon Nurse—a longtime friend and member of the Trinidad military—in carrying out the plan, and he participated in virtually all of the planning meetings. Straker relied on Nurse to bring in others, including Percival and DeFour, both of whom had military experience and experience with other hostage takings. Straker also made or assisted in several ransom calls and visited the victim during the period of captivity to obtain proof of life recordings.

Percival and Pierre also had leadership roles in the conspiracy. They assigned roles to the various co-conspirators including the “snatchers,” the drivers, the guards, the ransom negotiator, and the recorder of proof of life; they led planning meetings at Pierre's home and the Mellow Moods Bar; and they made the significant decisions, such as the date for executing the abduction (Percival and Pierre), the site for holding the victim hostage (Pierre), the strategy for conducting ransom negotiations (Percival and Pierre), and disposal of the victim's body (Pierre). Their leadership roles were similar to the roles they played in three other hostage takings that occurred close in time to the Maharaj hostage taking.

As the hostage taking plan developed, all of the charged defendants participated in one or more planning meetings at Wayne Pierre's house, his...

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  • United States v. Johnson, CRIMINAL ACTION NO. 2:13-cr-00091-7
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 9, 2017
    ...States, 520 U.S. 461, 466-67 (1997); United States v. Cotton, 535 U.S. 625, 631-32 (2002)). See also United States v. Page 77Clarke, 767 F. Supp. 2d 12, 24 (D.D.C. 2011) ("The defendant bears the burden of proving each element of the plain error standard."). "As the Supreme Court has repeat......
  • United States v. Straker, Nos. 11–3054
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 1, 2015
    ...acquittal, or alternatively a new trial. Relying on its prior reasoning, the district court denied the motion. United States v. Clarke, 767 F.Supp.2d 12, 65 (D.D.C.2011).The criminal trial was not the only forum in which defendants challenged Maharaj's citizenship. Prior to trial, defendant......
  • United States v. Al-Imam, Case No. 17-cr-213 (CRC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 14, 2019
    ...as a U.S. national] is an element of the offense that the government ha[s] to prove beyond a reasonable doubt." United States v. Clarke, 767 F.Supp.2d 12, 64 (D.D.C. 2011), 373 F.Supp.3d 270 aff'd sub nom. United States v. Straker, 800 F.3d 570 (D.C. Cir. 2015). The offender's knowledge of ......
  • United States v. DiMora, Case No. 1:10CR387.
    • United States
    • U.S. District Court — Northern District of Ohio
    • January 4, 2012
    ...trial, however, is likely to be understood by the jury to mean “the leader of an organized crime syndicate.” United States v. Clarke, 767 F.Supp.2d 12, 89–90 (D.D.C.2011) (quoting Merriam—Webster's Collegiate Dictionary 500 (10th ed. 1993) (“godfather”)). Here, any characterization of Dimor......
  • Request a trial to view additional results
21 cases
  • United States v. Johnson, CRIMINAL ACTION NO. 2:13-cr-00091-7
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 9, 2017
    ...States, 520 U.S. 461, 466-67 (1997); United States v. Cotton, 535 U.S. 625, 631-32 (2002)). See also United States v. Page 77Clarke, 767 F. Supp. 2d 12, 24 (D.D.C. 2011) ("The defendant bears the burden of proving each element of the plain error standard."). "As the Supreme Court has repeat......
  • United States v. Straker, Nos. 11–3054
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 1, 2015
    ...acquittal, or alternatively a new trial. Relying on its prior reasoning, the district court denied the motion. United States v. Clarke, 767 F.Supp.2d 12, 65 (D.D.C.2011).The criminal trial was not the only forum in which defendants challenged Maharaj's citizenship. Prior to trial, defendant......
  • United States v. Al-Imam, Case No. 17-cr-213 (CRC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 14, 2019
    ...as a U.S. national] is an element of the offense that the government ha[s] to prove beyond a reasonable doubt." United States v. Clarke, 767 F.Supp.2d 12, 64 (D.D.C. 2011), 373 F.Supp.3d 270 aff'd sub nom. United States v. Straker, 800 F.3d 570 (D.C. Cir. 2015). The offender's knowledge of ......
  • United States v. DiMora, Case No. 1:10CR387.
    • United States
    • U.S. District Court — Northern District of Ohio
    • January 4, 2012
    ...trial, however, is likely to be understood by the jury to mean “the leader of an organized crime syndicate.” United States v. Clarke, 767 F.Supp.2d 12, 89–90 (D.D.C.2011) (quoting Merriam—Webster's Collegiate Dictionary 500 (10th ed. 1993) (“godfather”)). Here, any characterization of Dimor......
  • Request a trial to view additional results

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