United States v. D-13 Roderek Perry
| Decision Date | 07 April 2017 |
| Docket Number | CASE NO. 16-20062 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. D-13 RODEREK PERRY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. DENISE PAGE HOOD
Defendant is one of 14 defendants charged in a nine-count Superseding Indictment filed on July 27, 2016. Generally speaking, the Superseding Indictment alleges that a street gang, the Rollin 60s Crips, through its members, engaged in criminal activity that included multiple threats and acts of murder, robbery and arson, as well as the distribution of controlled substances, all in violation of multiple Michigan laws (M.C.L. §§ 750.316(1), 750.317, 750.157a(a), 750.92, 767.39, 750.529, 750.529a, 750.530, 750.89, 750.73), as well as 18 U.S.C. § 1951 () and 21 U.S.C. §§ 841 and 846 (). Defendant has been charged in five counts: (a) Count I, Racketeering Conspiracy ("RICO"), in violation of 18 U.S.C. § 1962(d), for his alleged activities as part of a national street gang called the "Rollin 60s Crips," (b) Count IV - Murder in Aid of Racketeering Conspiracy, in violation of 18 U.S.C. § 1959(a)(1); (c) Count V - Using and Carrying a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 1924(j); (d) Count VIII - Assault with a Dangerous Weapon in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(3); and (e) Count IX - Using and Carrying a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(j).
The conduct alleged in the Superseding Indictment covers a period from 2007 to July 2016, and the conduct related to Defendant appears to extend from 2009 through at least November 2013. As noted below, the Government also alleges it has evidence that Defendant was still trafficking drugs in January through July 2016. The Government alleges Defendant participated in at least two murders, an attempted armed robbery and threats of violence, and the sale of drugs (including marijuana and prescription drugs) and made Facebook postings regarding his criminal conduct.
Defendant has filed, and the Court addresses in this Order, seven motions and one request. Defendant's motions have been fully briefed, and the Court held a hearing on Defendant's motions March 7, 2017.
Defendant moves the Court to hold a hearing to determine the admissibility of co-conspirators statements the Government intends to introduce at trial and order the Government to provide a written proffer in advance of that hearing. Rule 801(d)(2)(E) provides that the statement of a co-conspirator during the course and in furtherance of a conspiracy is not hearsay if offered against a party. Under Rule 104, a trial court must find that the co-conspirator's statements meet the requirements of Rule 801(d)(2)(E) "[b]efore admitting the out-of-court statements of co-conspirators[.]" United States v. Childs, 539 F.3d 552, 559 (6th Cir. 2008). Defendant seeks a written proffer by the Government at least 30 days prior to trial as to why any co-conspirator statement sought to be admitted is admissible.
Defendant relies on two Sixth Circuit cases regarding whether the Government has met its burden of having co-conspirator statements admitted at trial-and when the Court should make that determination. A trial court must find by a preponderance of the evidence that: (1) a conspiracy existed in which Defendant was a participant; (2) the declarant and Defendant participated in the conspiracy when the hearsay statement was made; and (3) the statement was made in furtherance of the conspiracy. United States v. Enright, 579 F.2d 980, 985-86 (6th Cir. 1978). In United States v. Vinson, 606 F.2d 149, 152 (6th Cir. 1979), the Court held that one method for determining the admissibility of co-conspirator hearsay statements is to hold a "mini-hearing," at which the Court hears the Government's proof of conspiracy and makes a preliminary Enright finding. Alternatively, the Court could order the Government to produce the non-hearsay evidence prior to making a finding concerning admissibility of the hearsay or admit the hearsay statements subject to a later demonstration of their admissibility. Id. at 152-53.
The Government responds that Defendant is not entitled to the information he seeks at this stage in the proceedings (30 days before trial). Citing 18 U.S.C. § 3500 and Rule 16(a)(2). The Government asserts that it has complied with its disclosure requirements pursuant to Rule 16, as each defendant in this case has a copy of his own statements and criminal history, and the Government has given Defendant some of the statements made by his co-conspirators, even though it was not obligated to do so pursuant to Rule 16 or case law. Citing United States v. Preser, 844 F.2d 1275, 1285 (6th Cir. 1988) (citation omitted) (Rule 16 does not require discovery of co-conspirator's statement).
The Government notes that the Jencks Act does not require that a co-conspirator's statements be produced to Defendant until after the co-conspirator testifies on direct examination. 18 U.S.C. § 3500(a). One reason for that timing is to protect potential witnesses. United States v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (en banc) ( ). The Sixth Circuit has held that "the government may not be compelled to disclose Jencks Act material before trial." Presser, 844 F.2d at 1283.
The Government next asserts that the "vast majority" of co-conspirator statements offered at trial will be verbal acts that are part of the conspiracy or have other non-hearsay bases. Specifically, the Government represents that "[m]ost of the statements in recorded conversations [audio recordings, text messages, and Facebook messages] will not be offered for the truth of any matter asserted, but as verbal acts-or other non-hearsay evidence-constituting direct evidence of the charged crimes." Citing United States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006) (); United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009).
The Government suggests that, for the co-conspirator statements it intends to offer pursuant to Rule 801(d)(2)(E), the Vinson mini-hearing to establish the requisite Enright elements would be a "burdensome, time-consuming and uneconomic" means of establishing the foundational requirements. Citing United States v. Barrett, 933 F.2d 355, 358 (6th Cir. 1991). The Government proposes admitting the statements conditionally, which it asserts is the customary practice. The Court then would evaluate at the end of the Government's case-in-chief whether the Government had proven by a preponderance of evidence that there was a conspiracy and that such statements were made by co-conspirators in furtherance of it. United States v. Holloway, 740 F.2d 1373, 1375 n.2 (6th Cir. 1984) (). See also United States v. Montgomery, 358 F. App'x 622, 626 (6th Cir. 2009); Barrett, 933 F.2d at 358; United States v. Estrada, 829 F.2d 1127 (Table), 1987 WL 44857, at *4 (6th Cir. 1987) (citations omitted) ("[t]his procedure allows trial courts to rely on hearsay statements themselves to determine whether the statements are admissible under Fed. R. Evid. 801(d)(2)(E).").
The Government asserts that, notwithstanding the above, it will agree to provide Defendant with any statements of co-conspirators 14 days prior to trial.
Defendant replies that it is not seeking discovery, especially as the Government has represented that it has complied with Rule 16. Defendant argues the Government's proposed introduction of "verbal acts" is not widely recognized, and that not all of the statements proposed by the Government constitute verbal acts. Defendant challenges the absence of any process by which the Government notifies Defendant and the Court of the purpose of admitting certain statements. Defendant contends that could require a ruling by the Court and a cautionary instruction to the jury that the statement is only being offered because it was said, not that it was true. Defendant acknowledges that the Court can choose the method for determining admissibility of co-conspirator's statements pursuant to Rule 801(d)(2)(E). But, Defendant cautions, if the Government does not meet its burden of admissibility, the Court would have to grant a mistrial if a cautionary instruction would not "shield the defendant from prejudice."
The Court concludes that a "mini-hearing" is not necessary or appropriate in this case. The Government will have to satisfy its burden under Enright at trial with respect to Rule 801(d)(2)(E) statements and the admissibility of any hearsay statements it seeks to introduce. If the Government fails to do so with respect to statements offered against Defendant, the Court shall address those issues as appropriate. Defendant's Motion for a Written Proffer and Hearing on Admissibility of Co-Conspirators' Statements under FRE 801(d) is denied. As the Government has represented that it will provide Defendant with any statements of co-conspirators 14 days prior to trial, the Court orders the Government to do so.
Defendant mov...
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