United States v. Blackman

• Decision Date: 10 May 2023
• Docket Number: 18-CR-00728
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROMEO BLACKMAN, TERRANCE SMITH, JOLICIOUS TURMAN, and NATHANIEL MCELROY Defendants.
• Court: U.S. District Court — Northern District of Illinois

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UNITED STATES OF AMERICA, Plaintiff, v. ROMEO BLACKMAN, TERRANCE SMITH, JOLICIOUS TURMAN, and NATHANIEL MCELROY Defendants.

No. 18-CR-00728

United States District Court, N.D. Illinois, Eastern Division

May 10, 2023

MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge.

On January 24, 2018, the Special Grand Jury returned a superseding indictment against Defendants Romeo Blackman Terrance Smith, Jolicious Turman, and Nathaniel McElroy [56]. Count One of the indictment charges all four Defendants with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO); Counts Two through Eleven charge Defendants Blackman and Smith with numerous related crimes, including firearm violations, and murder and attempted murder in aid of racketeering; and Count Twelve charges Defendant Turman with murder in aid of racketeering.

This matter comes before the Court on Defendants Blackman's and Turman's motions to suppress. For the reasons explained below, this Court: (1) denies Defendant Turman's motion to suppress statements elicited by the Government's jailhouse informant, [284]; (2) denies Defendant Blackman's motion to suppress statements made to a cooperating individual, [248]; (3) denies Defendant Turman's motions to suppress all evidence relating to an August 3, 2016 traffic stop, [282]; (4) denies Defendant Turman's motions to suppress statements made to law enforcement on August 3, 2016, [286]; and (5) grants in part Defendant Turman's motion to suppress suggestive identifications, [289].

I. Defendant Turman's Motion to Suppress Statements Elicited by the Government's Jailhouse Informant, [284]

The superseding indictment charges Defendant Jolicious Turman with participating in the RICO conspiracy (Count One) and with one VICAR offense-the murder of Ramal Hicks (Count Twelve). [56]. As part of the RICO conspiracy charge, the Government alleges that Defendant Turman committed the murder of Kenneth Whittaker. In preparation for trial, Defendant Turman filed several motions to suppress. The Court first addresses Defendant Turman's motion to suppress statements elicited by the Government's jailhouse informant, [284]. The parties agreed that no evidentiary hearing was necessary to resolve this motion, and thus the Court relies upon the parties' stipulated facts and draws reasonable inferences therefrom, [323].

A. Findings of Fact

On August 3, 2016, law enforcement arrested Defendant Turman for possession of ammunition without a valid FOID card. Shortly thereafter, Turman was charged in Cook County with a Class A misdemeanor weapons offense and remanded to the custody of the Cook County Department of Corrections pursuant to both the weapons offense and an unrelated attempted burglary charge for which he was on electronic monitoring at the time of his arrest. [323] ¶ 3. Turman was represented by counsel in both pending cases.

On or about September 27, 2016, the state dismissed Turman's Class A misdemeanor charge; three days later, he was charged with the felony offense of unlawful possession of a weapon by a felon, also arising out of the August 3, 2016 incident. Id. ¶¶ 4-5. He remained in the custody of Cook County. Id. ¶ 5.

Several months later, on or about February 8, 2017, the Chicago Police Department (“CPD”) applied for and obtained an Order for Use of an Eavesdropping Device in the Circuit Court of Cook County. Id. ¶ 6. CPD did so as part of a joint state and federal investigation. Id. During this time, Turman also remained under investigation for the murder of Kenneth Whittaker. Id. ¶ 12. No charges had yet arisen. Id.

The affidavit submitted in support of the eavesdropping order relied, in part, upon information from a confidential source (“CS”) who had purportedly communicated with Defendant Turman several times through a vent between cells in the facility. The CS recounted that during one conversation, Defendant Turman stated that he “killed someone near a school on Morgan Street a few hours after Robert Vaughn was killed, in retaliation for Vaughn's murder.” Id. ¶ 7.

The eavesdropping application affidavit also contained information regarding Defendant Turman's arrest on August 3, 2016, and a subsequent interview of Defendant Turman by state and federal officers. Id. ¶ 8. During that interview, which took place at the Cook County Jail on September 9, 2016, Defendant Turman's attorney was not present.^[1]Id.

Based upon the affidavit, the Cook County Circuit Court judge issued the eavesdropping order, finding “reasonable cause” to believe that Defendant Turman and others committed murder and that conversations concerning the murder would be obtained through the eavesdropping device. See [285].^[2]

Pursuant to the court order, the CS recorded conversations with Defendant Turman on or about February 9, 2017. [323] ¶ 10. The recording is partially inaudible, see [325], but the Government seeks to introduce a part of the conversation-that it argues is sufficiently audible-about the murder of Kenneth Whittaker at trial.^[3]

B. Conclusion of Law

Defendant Turman seeks to suppress the recorded conversation about the Whittaker murder pursuant to the Sixth Amendment. [284]. The Government counters that its use of the confidential informant complied with the Sixth Amendment because the questioning did not relate to any currently pending charges against Defendant Turman. [310].

The Sixth Amendment protects the right to an attorney in all criminal prosecutions. U.S. Const. amend. VI. Once the Government initiates the adversarial process, the Sixth Amendment “guarantees a defendant the right to have counsel present at all ‘critical' stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing United States v. Wade, 388 U.S. 218, 227-28 (1967)). Conversely, Sixth Amendment rights do not attach regarding conduct for which adversarial proceedings have not yet commenced.

Interrogation of a charged defendant constitutes a critical stage. Massiah v. United States, 377 U.S. 201, 204-05 (1964). Absent a valid waiver of the right to counsel, law enforcement cannot question the charged defendant about the crime without his attorney present. See Montejo, 556 U.S. at 786. Law enforcement also cannot circumvent that right by deliberately eliciting incriminating statements through a confidential informant. See Massiah, 377 U.S. at 206 (“We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986).

The Sixth Amendment, however, does not prohibit all uncounseled communication with a charged defendant. See Texas v. Cobb, 532 U.S. 162, 173 (2001). As the Supreme Court has stated, “police have an interest... in investigating new or additional crimes” after an individual is formally charged with one crime, and to “exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities.” McNeil v. Wisconsin, 501 U.S. 171, 17576 (1991) (citing Maine v. Moulton, 474 U.S. 159, 179-80 (1985) (alterations in original)). Thus, the Sixth Amendment right to counsel is offense specific. McNeil, 501 U.S. at 175 (“The Sixth Amendment right. cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced.”). When the Sixth Amendment right to counsel attaches, it attaches to a charged offense and includes other offenses that, “even if not formally charged, would be considered the same offense under the Blockburger test.” See Cobb, 532 U.S. at 173, 178-79 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

The Blockburger test states that for an uncharged offense to qualify as the “same offense” as the charged offense, the offenses must arise from the same act or transaction and have the same elements. Id. at 173. Courts compare the elements of the two offenses in the abstract. The offense only qualifies as “the same” for the purposes of the Sixth Amendment if the elements are the same, or if one offense is a lesser-included offense of the other. 532 U.S. 162 (2001).

The Supreme Court elaborated upon this analytical process in Texas v. Cobb, wherein it explicitly rejected the practice some lower courts had employed of evaluating the factual relatedness of offenses and reiterated the role of the Blockburger elements test. Cobb, 532 U.S. at 173.

Here, the Government seeks to introduce portions of Turman's conversation with the CI about the murder of Kenneth Whittaker. At the time, Defendant Turman faced no charges regarding the murder, and so his Sixth Amendment right to counsel had not attached as to it. The pending ammunition charges and the uncharged murder of Whittaker (now charged as a RICO predicate objective in Count One) plainly constitute distinct offenses under Blockburger. Namely, they do not share the same elements nor is one a lesser included offense of the other. Given the offensespecific nature of the Sixth Amendment, the recorded conversation did not, then, violate Defendant Turman's Sixth Amendment right to counsel.

Nonetheless Defendant Turman asks the Court to abandon the requisite Blockburger test and consider instead the relationship between the ammunition offenses with which he had been charged and the other crimes about which the CI questioned him. He argues that ammunition offenses were part and...