United States v. Darden, 3:17-cr-00124

• Decision Date: 02 November 2018
• Docket Number: No. 3:17-cr-00124,3:17-cr-00124
• Court: U.S. District Court — Middle District of Tennessee
• Parties: UNITED STATES of America v. [1] Marcus Termaine DARDEN, [2] Maurice Duncan Burks, [3] Brandon Durell Hardison, [5] Derrick Lamar Kilgore, [6] Elance Justin Lucas, [7] DeCarlos Titington, [8] Lawrence Mitchell, [9] Lorenzo Cortez Brown, [10] Xavier Raphael Jenkins, [11] Rex Andrew Whitlock, [12] James Anderson Luke

346 F.Supp.3d 1096

UNITED STATES of America

v.[1] Marcus Termaine DARDEN, [2] Maurice Duncan Burks, [3] Brandon Durell Hardison, [5] Derrick Lamar Kilgore, [6] Elance Justin Lucas, [7] DeCarlos Titington, [8] Lawrence Mitchell, [9] Lorenzo Cortez Brown, [10] Xavier Raphael Jenkins, [11] Rex Andrew Whitlock, [12] James Anderson Luke

No. 3:17-cr-00124

United States District Court, M.D. Tennessee, Nashville Division.

Filed November 2, 2018

John Benjamin Schrader, U.S. Attorney's Office (Nashville Office) Middle District of Tennessee, Nashville, TN, Ivana Nizich, Department of Justice-Organized Crime & Gang Section, Washington, DC, for United States of America.

MEMORANDUM OPINION AND OMNIBUS ORDER

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

In this criminal case, the Government alleges that the 12 named Defendants are or were members of the Gangster Disciples who operated in and around Clarksville, Tennessee.¹ Count One is a conspiracy count brought under the Racketeer Influence Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(a), and alleges that the Gangster Disciples is a criminal organization whose members and associates engaged in wide-ranging criminal behavior. Forty-four other Counts fill out the controlling Second Superseding Indictment (Doc. No. 380), and charge assorted crimes, including narcotics distribution, firearms trafficking, unlawful possession of firearms and ammunition, intimidation of witnesses, and acts of violence involving murder, attempted murder, and assault.

The case set is for a two month trial beginning March 1, 2019, and the parties have filed dozens of substantive Motions in anticipation thereof. By Order entered January 29, 2018 (Doc. No. 344), the Court set aside the week of November 26-30, 2018 for hearings on pending motions. Upon review of the Motions that have been filed, however, it is clear that a hearing is unnecessary for many of them and they are resolved in this Memorandum Opinion and Omnibus Order. The remaining Motions will be scheduled for hearing at a precise date and time during the week previously set aside.

I. Motions to Join

Several Defendants have filed Motions to Join in Motions filed by other Defendants. These include: (a) Decarlos Titington's "Motion to Join in and Adopt CoDefendant Burk's Motion for Daily Transcripts" (Doc. No. 572); Marcus Darden's "Motion to Join Co-Defendant Burks' Motion [to] Compel Notice of Intent to Offer Evidence of Other Crimes, Wrong or Acts" (Doc. No. 645); and (c) James Anderson Luke's "Motion to Adopt and Join CoDefendants Pretrial Motions" (Doc. No. 701).² Those Motions are GRANTED.

II. Motions for Daily Transcripts

Some Defendants have filed Motions for Daily Trial Transcripts or variants thereof. In response, the Government "take[s] no position as to defendants' requests and submits defendants' motions to the discretion of the Court," (Doc. No. 670 at 1), but then cites a number of cases suggesting that the right to daily transcripts is not of a constitutional dimension.

"[T]he decision to supply daily transcripts to indigent defendants is a matter within the discretion of the trial judge." United States v. Bari, 750 F.2d 1169, 1181 (2d Cir. 1984). Indeed, while the Guide to Judicial Policy states that "[t]he furnishing of accelerated transcript services in criminal proceedings should be discouraged," it also "recogniz[es] that there are some circumstances in which such transcript services are necessary and required by either the prosecution or the defense." Guide to Judiciary Policy, Vol. 7, Ch. 3, § 320.30.20.

Though not addressing daily transcripts, the Supreme Court in Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) stated that " Griffin v. Illinois, [351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ] and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." The Court in Britt also observed that "[w]hile the outer limits of that principle are not clear," it "has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript." Id.

Given the anticipated length of the trial, the nature, scope and breadth of the charges, the number of witnesses likely to be called including cooperating witnesses, the voluminous discovery that has been provided, and the fact that many of Defendants are represented by one lawyer, the Court finds that daily transcripts will be invaluable and that there is no appropriate substitution for such transcripts.³ It may be that not all Defendants need transcripts for each witness who testifies because the evidence does not pertain to them, or is not of great significance. However, rather than adopting an ad hoc approach whereby some Defendants receive some transcripts, while others receive transcripts for different witnesses, daily transcripts will be made available for all witnesses who testify.

That said, the Court expects counsel to exercise discretion in ordering transcripts, so as to keep the transcription costs and/or copy costs down by requesting transcripts only where truly necessary to provide "an adequate defense."

The previously-mentioned Guide to Judicial Policy also quotes a Resolution adopted by the Judicial Conference in March 1980 and modified in September 1986 that provides:

That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate.

That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned.

Id. Thus, if the Government requests daily transcripts, the costs shall be born by it, with CJA counsel responsible for paying the copy rate and thereafter seeking reimbursement from CJA funds.

Based on the foregoing, the Motions for Daily Transcripts filed by Maurice Burks (Doc. No. 563), and Derrick Kilgore (Doc. No. 637) are GRANTED , as is Brandon Hardison's "Motion for ‘Real Time’ Transcription" (Doc. No. 640) to the extent he seeks daily transcripts. To the extent Hardison's request for "real time" relates to following the testimony during the questioning of a witness, the Court simply notes that screens are provided on counsel's table and, absent technical glitches, counsel can read along as the testimony is being transcribed.

III. Motions to Increase Peremptory Challenges

Hardison and Burks have both filed Motions for Additional Peremptory Challenges. Hardison requests that Defendants be allowed to exercise twenty (20) challenges jointly with the other defendants, with the Government being allowed to exercise twelve (12) challenges. Similarly, Burks "requests an adequate number of peremptory strikes to eliminate biased or questionable jurors and select a fair and impartial jury," and "moves the Court to increase the number of peremptory challenges to twenty (20), or to such an extent as the Court deems proper, to assure a fair trial." (Doc. No. 643 at 2).

Rule 24(b) of the Federal Rules of Criminal Procedure provides that in a non-capital felony case,⁴ "the government is entitled to 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year." Fed. R. Crim. P. 24(b). The rule goes on to provide that "the court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly." Id. A district court's decision regarding peremptory challenges is reviewed for an abuse of discretion, so long as it "[c]omplies with the minimum requirements of Rule 24 [.]" United States v. Gibbs, 182 F.3d 408, 435 (6th Cir. 1999).

If this case goes to trial in its present posture, the Court is inclined to grant Defendants' request to increase the number of peremptory challenges while at the same time correspondingly raising the number of Government peremptory challenges, so as to preserve the same ratio as that set forth in Rule 24.⁵ However, and as the Government points out in its response (Doc. No. 697), the trial in this case is months away, and the Court at this point in time has no way of knowing which Defendants may go to trial and on what counts. Accordingly, a ruling on the Motions to Increase Peremptory Challenges (Doc. Nos. 639 & 643) is DENIED. Said denial is WITHOUT PREJUDICE to raising the issue again at the Final Pretrial Conference scheduled for February 14 and 15, 2019.

IV. Motion to Pay for Childcare Costs

Burks has filed a "Motion for the Court to Pay For Care of Dependent Children and Family Members of Single Parents Who Are Selected as Jurors" (Doc. No. 564). In it, he writes:

2. Mr. Burks is entitled to a trial by a fair and impartial jury composed from a fair cross-section of the community pursuant to his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

3. In major cases generally, and particularly in cases which last as long as Maurice Burks' trial is expected to last, a large percentage of single parents, especially single African-American parents and women, are struck for cause by the Court due to the fact that they have no money to pay for alternative child care arrangements during a trial the length of Mr. Burks', or no money to pay for alternative care of dependent (usually elderly) family members during such a lengthy trial.

4. The

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