United States v. Arms

• Decision Date: 03 June 2015
• Docket Number: Case No. 14-CR-78
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KEVIN R. ARMS, et al., Defendants.

UNITED STATES OF AMERICA, Plaintiff, v. KEVIN R. ARMS, et al., Defendants.

Case No. 14-CR-78

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

June 3, 2015

RECOMMENDATIONS AND ORDERS REGARDING THE DEFENDANTS' PRETRIAL MOTIONS

Procedural History ...................................................................................................................... 2

Motions to Dismiss ..................................................................................................................... 4

Count Five ................................................................................................................................. 4

Count Twenty-seven ............................................................................................................... 5

Notice of Penalties ............................................................................................................... 5

Enterprise ............................................................................................................................ 10

Pattern of Racketeering Activity Element ..................................................................... 13

Lack of Temporal Specificity .......................................................................................... 15

Count Twenty-Eight ............................................................................................................. 16

Motions for Bill of Particulars ................................................................................................ 18

Motions Regarding the Grand Jury ....................................................................................... 29

Motion to Strike Surplusage ................................................................................................... 32

Misjoinder and Severance ....................................................................................................... 33Motion for Santiago Hearing .................................................................................................. 37

Motions under FRE 404(b) ....................................................................................................... 39

Motion to Exclude Witness Testimony ................................................................................. 42

Expert Witnesses ....................................................................................................................... 43

Rule 1006 ..................................................................................................................................... 45

Motion to Preserve Agent Notes ............................................................................................ 47

Motion to Disclose Confidential Informants and Unnamed Members of the Arms Enterprise .................................................................................................................................... 47

Motions Adopted by Moffett .................................................................................................. 48

Bailey's Motion to Suppress Identification and Request for an Evidentiary Hearing 50

Conclusion .................................................................................................................................. 55

I. Procedural History

The grand jury in this district on April 1, 2014, returned a 25 count indictment charging 27 individuals with various violations of federal law. (ECF No. 1.) Most notably, Count One alleged a drug distribution conspiracy dating back to "at least 2007" and involving 13 of the defendants; and Count Five charged three defendants with homicide in furtherance of a drug trafficking conspiracy, an offense for which the death penalty was a possibility. (ECF No. 1.) The government has since filed notice that it does not intend to seek the death penalty. (ECF No. 348.) On August 19, 2014, the grand jury returned a superseding indictment that among other things added two defendants to the indictment and two defendants to the conspiracy charge in Count One. (ECF No. 285.) A second superseding indictment was returned on January 20, 2015, which added a defendant to Count One, added additional detail to Count Five, and added a RICO(Racketeer Influenced and Corrupt Organizations) charge against six defendants (Count Twenty-Seven) and a VICAR (Violent Crime in Aid of Racketeering) charge against three defendants (Count Twenty-Eight). (ECF No. 501.)

Due to the complexity of this case, the court excluded significant periods of time under the Speedy Trial Act to afford the defendants adequate time to prepare. After multiple scheduling conferences (ECF No. 200, 241, 358, 394) and requests for additional time from various defendants (ECF Nos. 379, 382, 383, 384, 385, 390, 392, 416), November 21, 2014 was the latest any pretrial motion was to be filed with respect to the first superseding indictment (ECF No. 395; text only order of November 14, 2014). Over two-dozen motions were filed. The government responded to those motions, and January 13, 2015 was the latest any defendant was permitted to submit a reply.

Following the return of the second superseding indictment, the court afforded affected defendants additional time to file motions precipitated by the second superseding indictment. Nine additional motions were filed. (ECF Nos. 557, 563, 564, 565, 566, 567, 568, 569, 570.) Briefing on these additional motions closed on April 17, 2015.

The court previously resolved a first batch of pretrial motions that defendants requested be decided on an expedited basis. United States v. Arms, 2014 U.S. Dist. LEXIS 169380 (E.D. Wis. Dec. 8, 2014) (ECF No. 452).

Finally, after repeated adjournments at the request of the defendant (ECF Nos. 474, 477, 505, 511, Notice of Feb. 27, 2015) an evidentiary hearing regarding Glenn Wilder's motion to suppress (ECF No. 418) is scheduled for June 16, 2015. That motion will be addressed following the evidentiary hearing.

II. Motions to Dismiss

A. Count Five

Defendant Kevin R. Arms filed a motion seeking to dismiss Count Five on the ground that the first superseding indictment referred to a penalty rather than an offense for which a person may be prosecuted. (ECF Nos. 446; 447.) Count Five was amended in the second superseding indictment to address many of the issues raised the defendant. It now explicitly charges Kevin R. Arms, along with defendants Bailey and Phillip Moffett, with "murder, as defined in 18 U.S.C. § 1111, in that the defendants, with malice aforethought, did unlawfully kill P.J. by shooting her with firearms." (ECF No. 501 at 6.) At the arraignment on the second superseding indictment, counsel for Kevin R. Arms stated that, in light of the changes made to Count Five in the second superseding indictment, his motion was now moot. Accordingly, the court will recommend that the motion be denied as moot.

In a motion to dismiss and second motion for a bill of particulars (ECF No. 371) defendant John Bailey also requested that the court dismiss Count Five. He then also asked that the court order the government to provide certain information, includinggrand jury minutes and instructions--relief that would be unnecessary if Count Five were dismissed. (ECF Nos. 371; 372 at 1, 5-6.) In any event, as discussed above, the second superseding indictment seems to have mooted the basis for Bailey's motion to dismiss. Moreover, the second superseding indictment having removed any uncertainty as to the form of criminal homicide with which Bailey is charged, the court finds no reason to further consider his request for grand jury minutes or instructions. The court will recommend that Bailey's motion (ECF No. 371) be denied as moot.

B. Count Twenty-Seven

Defendants Cecil Arms, Patricia Arms, Shenese Arms, Shenita Arms, and Tremell Nicholas collectively filed three separate motions to dismiss Count Twenty-Seven. (ECF Nos. 565, 566, 569.) Kevin R. Arms joined in one of those motions (ECF No. 566).

1. Notice of Penalties

In the first motion to dismiss, Cecil Arms, Patricia Arms, Shenese Arms, Shenita Arms, and Tremell Nicholas contend that Count Twenty-Seven fails to provide them with adequate notice of the potential penalties they face. (ECF No. 565.) They move under Fed. R. Crim. P. 7(c) to either dismiss Count Twenty-Seven or for the court to order that the government make the indictment "more definite and certain."

However, the defendants do not point to any defect in Count Twenty-Seven that warrants dismissal of that count under Rule 7(c). "An indictment is legally sufficient if it (1) states all the elements of the crime charged; (2) adequately informs the defendant ofthe nature of the charges so that he may prepare a defense; and (3) allows the defendant to plead the judgment as a bar to any future prosecutions." United States v. White, 610 F.3d 956, 958 (7th Cir. 2010) (citing Fed. R. Crim. P. 7(c)(1); United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000)). Potential penalties are not elements of the crime and thus need not be contained in the indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998); see also Bellavia v. United States, 1999 U.S. Dist. LEXIS 9820, 19-20 (N.D. Ill. June 17, 1999) ("[The defendant] cites no authority for his novel argument that an indictment charging a RICO offense is insufficient unless it also informs the defendant of the potential criminal penalties. Apparently, [the defendant] mistakenly assumes that courts derive jurisdiction to sentence defendants from indictments or pleadings, rather than the criminal code.").

Nor do the defendants provide any authority indicating that this court has the authority to order the government to make the indictment "more definite and certain," much less how, should the court so order, the government might accomplish that, cf. 21 U.S.C. § 851 (setting forth procedure by which government shall provide notice of intent to seek increased punishment...