U.S. v. Gray

• Decision Date: 05 October 2001
• Docket Number: No. CR. 00-157(RCL).,CR. 00-157(RCL).
• Citation: 173 F.Supp.2d 1
• Parties: UNITED STATES of America, v. Kevin GRAY Rodney L. Moore John Raynor Frank Howard Bryan Bostick Derrick Moore Roy Johnson Kenneth Simmons Wilford Oliver Calvin Smith Larry Wilkerson Timothy Handy Lionel Nunn Ronald Alfred James Alfred Franklin Seegers and Deon Oliver Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

173 F.Supp.2d 1

UNITED STATES of America, v. Kevin GRAY Rodney L. Moore John Raynor Frank Howard Bryan Bostick Derrick Moore Roy Johnson Kenneth Simmons Wilford Oliver Calvin Smith Larry Wilkerson Timothy Handy Lionel Nunn Ronald Alfred James Alfred Franklin Seegers and Deon Oliver Defendants.

No. CR. 00-157(RCL).

United States District Court, District of Columbia.

October 5, 2001.

COPYRIGHT MATERIAL OMITTED

Timothy J. Heaphy, Assistant United States Attorney, Matthew G. Olsen, Assistant United States Attorney, Washington, DC, for Government.

Francis D. Carter, Washington, DC (counsel for Kevin Gray), Barry Coburn, Washington, DC (counsel for Rodney Moore), Steve McCool, Mallon and McCool, LLC, Baltimore, MD (counsel for Rodney Moore), Cary Clennon, Washington, DC (counsel for Bryan Bostick), Diane M.B. Savage, Research Triangle Park, NC (counsel for Bryan Bostick), Frederick J. Sullivan, McCarthy and Sullivan, Bowie, MD (counsel for Roy Johnson), Alan b. Soschin, Washington, DC (counsel for Roy Johnson), G. Godwin Oyewole, Washington, DC (counsel for John Raynor), Tom Saunders, Baltimore, MD (counsel for John Raynor), Patrick Donahue, Annapolis, MD (counsel for Frank Howard), Joe McCarthy, Alexandria, VA (counsel for Frank Howard), Fred Jones, Washington, DC (counsel for Derrick Moore), Mitchell Baer, Washington, DC (counsel for Kenneth Simmons), Jonathan Rubens, Washington, DC (counsel for Calvin Smith), Michael Lasley, Washington, DC (counsel for Timothy Handy), John Carney, Carney and Carney, Washington, DC (counsel for Calvin Smith), Sebastian Graber, Wolftown, VA (counsel for Larry Wilkerson), Steven D. Rosenfield, Charlottesville, VA (counsel for Larry Wilkerson), Veronice A. Holt, Washington, DC (counsel for Lionel Nunn), David Carey Woll, Wheaton, MD (counsel for James Alfred), Mary Elizabeth Davis, Washington, DC (counsel for James Alfred), Adgis O'Bryant, Washington, DC (counsel for Timothy Handy), Frank Salvato, Alexandria, VA (counsel for Ronald Alfred), Idus Daniel, Daniel and Jamison, LLP, Washington, DC (counsel for Ronald Alfred), Manuel Retureta, Washington, DC (counsel for Franklin Seegers), Jon Norris, Washington, DC (counsel for Franklin Seegers), Kenneth D. Auerback, Silver Spring, MD (counsel for Deon Oliver), for Defendants.

MEMORANDUM OPINION AND ORDER

LAMBERTH, District Judge.

Now before the Court is the Government's Proposed Order of Trial, defendant Nunn's Objections to Joinder and Motion for Severance, defendant Calvin Smith's Motions for Severance and Mis-joinder of Offenses, defendant Timothy Handy's Motion to Sever Defendants and Counts, defendant Gray's Response to the Government's Severance Motion, defendant Franklin Seegers' Motion for Relief from Prejudicial Joinder, defendant Frank Howard's Motion for Severance, defendant Larry Wilkerson's Objection to Joinder and Motion for Severance, defendant John Raynor's Motion for Severance of Defendants, defendant James Alfred's Motion for Severance, defendant Rodney Moore's Motion for Severance of Defendants, defendant Rodney Moore's Supplemental Memorandum Concerning Severance of Defendants, the Government's Response to Defendants' Motions for Relief from Improper Joinder and for Severance, defendant Gray's Reply to Government's Response to Defendants, and defendant Timothy Handy's Reply to Government's Response to Defendants' Motions for Relief from Improper Joinder and for Severance. Upon consideration of the motions, the hearing before this Court on September 21, 2001, the relevant analysis of the decisions of state and federal courts, and the record of this case, the Court hereby DENIES the defendants' motions for severance of defendants, DENIES the defendants' motions for relief from improper joinder, DENIES the defendants' motions for misjoinder of offenses, DENIES the defendants' motions for severance of counts, GRANTS the Government's Proposed Order of Trial, and ORDERS that the trial of defendants Kevin L. Gray, Rodney L. Moore, John Raynor, Frank Howard, Calvin A. Smith, Timothy Handy, and Lionel Nunn shall be severed from the trial of defendants Bryan Bostick, Derrick Moore, Roy Johnson, Kenneth Simmons, Larry Wilkerson, Ronald Alfred, James Alfred, Franklin Seegers, Wilford Oliver¹, and Deon Oliver.

I Background

The defendants in this case are charged in a 158-count Superseding Indictment. All seventeen defendants are charged in count one, Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms of More of Cocaine, Fifty Grams or More of Cocaine Base and One Kilogram or More of Heroin, and Marijuana, and count three, Conspiracy to Participate in a Racketeer Influenced Corrupt Organization. At least one but not all defendants are also charged with the following: continuing criminal enterprise; first degree murder while armed and aiding and abetting; continuing criminal enterprise murder and aiding and abetting; first degree felony murder while armed and aiding and abetting; assault with intent to murder while armed and aiding and abetting; tampering with a witness or informant by killing; violent crime in aid of racketeering activity and aiding and abetting; use of interstate commerce facilities in the commission of murder-for-hire; distribution of cocaine base and heroin and aiding and abetting; unlawful possession with intent to distribute cocaine base, cocaine, and heroin, and aiding and abetting; illegal use of a firearm; and unlawful use of a communication facility. The defendants are alleged to have caused the deaths of thirty-one individuals: Alvin Henson, Anthony Dent, Darrell Henson, Marvin Goodman, Christopher Burton, Scott Downing, Henry Lloyd, Aaron Jackson, Eric Moore, Corey Royster, Andrew Robinson, Ronald Powell, Dwayne Valentine, Joseph Thomas, Marco Smith, Ricardo Bailey, Garlan Baskerville, Joseph Jones, Diane Luther, Ervon Clyburn, Richard Simmons, Demetrius Green, Rodney Faison, Roy Cobb, Jaime Pereira, Ricky Fletcher, Carlos Cardoza, William Floyd, Thomas Walker, Anthony Watkins, and Derrick Edwards. In addition, the defendants are alleged to have committed eleven attempted murders.

The Attorney General has authorized seeking the death penalty against two defendants, Kevin Gray and Rodney Moore. Although there are other defendants who are death-eligible, the Government is seeking the death penalty against only two of the seventeen defendants.

Virtually all parties recognize that the seventeen defendants must be severed in some fashion; the configuration of the severance, however, is in dispute. On July 26, 2001, the Government filed a Proposed Order of Trial with the Government's suggested configuration. Defendants thereafter filed responses to the Government's Proposal, the Government filed a reply to the responses, and several defendants filed responses to the reply. In the Government's original proposal, the Government suggests a first trial of the two death-penalty defendants, Gray and Moore, and five non-death penalty defendants-Raynor, Howard, Smith, Handy, and Nunn. The Government suggests a second trial for the nine remaining defendants-Bostick, Johnson, Wilford Oliver, Deon Oliver, Wilkerson, Ronald Alfred, James Alfred, and Seegers.

II Joinder of Defendants

1. Proper Joinder of Defendants Under Rule 8(b)

Joinder of defendants in this case is governed by Rule 8(b) of the Federal Rules of Criminal Procedure, which reads:

(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Charges against defendants are properly joined under Rule 8(b) when they are based on a "series of acts or transactions" that are part of a common scheme or plan. United States v. Brown, 823 F.2d 591, 598 (D.C.Cir.1987) (quoting United States v. Perry, 731 F.2d 985, 990 (D.C.Cir. 1984)). Furthermore, joint trials are the preferred method when multiple defendants are connected by a single alleged conspiracy. See, e.g., United States v. Richardson, 167 F.3d 621, 624 (D.C.Cir. 1999) ("Joint trials are favored in RICO cases ... `where ... the respective charges require presentation of much the same evidence, testimony of the same witnesses, and involve two defendants who are charged, inter alia, with participating in the same illegal acts."' (quoting United States v. Ford, 870 F.2d 729, 731 (D.C.Cir. 1989)); United States v. Walker, 720 F.2d 1527, 1533 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984) ("The general rule is that defendants who are jointly indicted should be tried together, and this rule applies with particular force to conspiracy cases."); United States v. Edelin, 118 F.Supp.2d 36, 40 (D.D.C.2000) ("Joinder of conspiracy charges and defendants is preferred in this Circuit and in other Circuits."). Joint trials are generally preferred in order to, among other reasons, preserve judicial resources, produce consistent verdicts and minimize the burden on jurors, witnesses, defendants, and attorneys. See Buchanan v. Kentucky, 483 U.S. 402, 418, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987); Edelin, 118 F.Supp.2d at 40.

2. Severance of Defendants Under Rule 14

Joinder will not, however, always be proper. Rule 14 of the Federal Rules of Criminal Procedure governs when a trial judge has discretion to sever defendants:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendant or provide whatever other relief justice requires.

The Supreme Court has defined "prejudice" in this context to be a "serious...