U.S. v. Green
| Decision Date | 07 July 2004 |
| Docket Number | No. CRIM.02-10301-NG.,CRIM.02-10301-NG. |
| Citation | 324 F.Supp.2d 311 |
| Parties | UNITED STATES of America, v. Darryl GREEN, Jonathan Hart, Edward Washington, Branden Morris, and Torrance Green, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
William C. Brennan, Jr., Brennan, Trainor, Billman & Bennett, LLP, Marlboro, MD, for Darryl Green (1), Defendant.
Christie M. Charles, George F. Gormley, P.C., Boston, MA, for Jonathan Hart (2), Defendant.
John H. Cunha, Jr., Cunha & Holcomb, PC, Boston, MA, for Edward Washington (3), Defendant.
Patricia Garin, Stern, Shapiro, Weissberg & Garin, Boston, MA, for Branden Morris (4), Defendant.
Randolph M. Gioia, Law Office Of Randolph Gioia, Boston, MA, for Darryl Green (1), Defendant.
George F. Gormley, Boston, MA, for Jonathan Hart (2), Defendant.
Theodore B. Heinrich, United States Attorney's Office, Boston, MA, for USA Plaintiff.
David P. Hoose, Katz, Sasson, Hoose & Turnbull, Springfield, MA, for Branden Morris (4), Defendant.
Sarah Jennings Hunt, Sarah Jennings Hunt, Attorney at Law, Cambridge, MA, for Darryl Green (1), Defendant.
David J. Huss, Rapid City, SD, for Branden Morris (4), Defendant.
Wayne R Murphy, Murphy & Flaherty, Boston, MA, for Torrance Green (5), Defendant.
Melvin Norris, Mel Norris, Wayland, MA, for Branden Morris (4), Defendant.
Jeffrey B. O'Toole, Washington, DC, for Darryl Green (1), Defendant.
Max D. Stern, Stern, Shapiro, Weissberg & Garin, Boston, MA, for Branden Morris (4), Defendant.
MEMORANDUM AND ORDER RE: SEVERANCE/BIFURCATION OF GUILT AND PUNISHMENT
I. INTRODUCTION .................................................. 314
II. BACKGROUND .................................................... 316
A. Prior Indictments .......................................... 317
B. Severance Motions .......................................... 318
1. The Government's Position ............................... 318
2. Branden Morris' Position ................................ 318
3. Darryl Green's Position ................................. 318
4. Hart and Washington's Position .......................... 318
III. LEGAL ANALYSIS ................................................ 318
A. Standards .................................................. 318
B. The Significance of Modlin ................................. 320
C. Severance of Darryl Green and Morris from Each Other ....... 323
1. Bruton Issue ............................................ 323
2. Antagonistic Defenses ................................... 324
3. Joint Penalty Phase ..................................... 325
4. Conclusion .............................................. 326
D. Severance Of The Non-Capital Defendants From The Capital
Defendants ............................................... 326
IV. DEATH-QUALIFIED JURY .......................................... 328
V. CONCLUSION .................................................... 333
Virtually all of the parties in the instant case — including the government — have argued that severance is appropriate as to either specific defendants or specific counts. The grounds vary: There are the claims one might find in any case with multiple defendants, for example, that severance is required by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because of admissions by one or more defendants, or that it is warranted under Fed. R.Crim. Pro. 14 because of mutually antagonistic defenses. But there are also claims unique to the facts of this case and to the severe penalty the government seeks: This is a racketeering case and one of the racketeering acts alleged is a murder, which carries a potential death penalty as to two of the defendants.
The Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, which dates to 1970 was enacted in order to fight organized crime, and specifically, to dilute its power by crippling its financial base. See Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 922-923 (Statement of Findings and Purpose). Within the past decade, however, RICO has been used to prosecute urban street gangs, whose financial base was allegedly the distribution of drugs. The choice of charge is significant: A RICO prosecution enables the government to introduce the "bad acts" of codefendants, which would arguably not be admissible otherwise, and in this case also provides the basis for the government to seek the federal death penalty.
The government alleges that the five defendants were members of the "Esmond Street Posse" (hereinafter "Esmond Street") racketeering enterprise, an enterprise whose goal was to engage in the sale of crack cocaine and marijuana, to seek to prevent others from interfering with their sales, and specifically, to carry on a violent dispute with a rival gang, the Franklin Hill Giants. That dispute allegedly led to a number of murders and attempted murders during a one year period in 2000 and 2001.
The defendants claim that there is no basis for a RICO indictment, and that the government has inappropriately strung together a series of acts committed at different times, by different persons, for different motives, all to the detriment of the defendants. Moreover, they argue that the government has no reasonable expectation that the several acts alleged in the indictment comprise acts in furtherance of an Esmond Street racketeering enterprise, because of Judge Wolf's findings in United States v. Modlin, 01-cr-10314-MLW. In Modlin, a drug distribution indictment in which three of the defendants here were named (along with others), the Court at sentencing rejected the allegation that anything like an Esmond Street conspiracy existed. Esmond Street, the Court concluded, involved nothing more than a group of people who hung out together in the same geographical area, and dealt drugs independently of one another.1
RICO also provides the basis for the government to seek the federal death penalty, which complicates the case still further: Count Sixteen alleges that Branden Morris ("Morris") and Darryl Green2 killed Terrell Gethers ("Gethers") "for the purpose of maintaining and increasing position in the Enterprise, which was an Enterprise engaged in racketeering activity." The defendants will first be tried before a jury to determine their guilt or innocence, and if convicted, tried in a separate proceeding to determine the punishment. The punishment jury will have to be "death-qualified" — that is questioned at voir dire regarding attitudes toward the death penalty. The government is permitted in a capital case to strike for cause any potential juror whose views about the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 520, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Defendants Branden Morris and Darryl Green claim that they cannot be tried together in either the guilt or the punishment phase because, among other things, each claims the other is responsible for the shooting. The non-death penalty defendants, Jonathan Hart ("Hart") and Edward Washington ("Washington") seek severance from the death penalty defendants for a number of reasons, including that they will be prejudiced if their jury is death-qualified, and that joinder with the death-qualified defendants will needlessly slow the trial of their cases.
If I were to adopt the government's position, I would try at least four of the defendants together (all but Torrance Green, whose statements all parties agree raise Bruton problems) and then, if the capital defendants are convicted, hold individual penalty phase proceedings for Darryl Green and Morris before the same jury that decided guilt. If I were to adopt certain defendants' positions, I would sever nearly everyone and conduct as many as seven separate trials.3
I adopt neither side. I have serious doubts as to whether a joint trial of the sort the government envisions will in fact promote judicial economy let alone be remotely fair or constitutional. At the same time, the defendants' proposal is needlessly complicated, and, as I describe below, may well be unfair to some of the defendants. As per my June 2, 2004, order,4 Darryl Green and Jonathan Hart will be tried on January 10, 2005. My inclination at this point is that Branden Morris and Edward Washington be tried together on April 11, 2005, but as is discussed below, I will revisit their joinder following the completion of the Darryl Green/Hart trial. Torrance Green will be tried on July 11, 2005.
On September 17, 2003, a superceding indictment was returned against Hart, Darryl Green and Morris, along with Edward Washington and Torrance Green (hereinafter "Pending Indictment"). The government filed a Notice of Intent to Seek the Death Penalty pursuant to 18 U.S.C. § 3591-2 as to Darryl Green and Morris. Counts One through Three of the indictment in the above case charge defendants Darryl Green, Morris, Hart, Washington and Torrance Green with racketeering (18 U.S.C. § 1962(c)), racketeering conspiracy (18 U.S.C. § 1962(d)), conspiracy to murder, and murder in aid of racketeering (18 U.S.C. § 1959(a)(5)) during the period between June 2000 and September 2001. The manner and means of the enterprise included selling crack cocaine and marijuana in and around Esmond Street, Dorchester, notifying one another about a dispute with another gang, the "Franklin Hill Giants," and stashing and using firearms. Counts Four through Seventeen charge specific individuals with various assaults and firearms offenses.5 As described above, the glue connecting these counts and these defendants is their common membership, so...
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