United States v. Flowers

• Decision Date: 30 June 2022
• Docket Number: 5:21-cr-584
• Parties: UNITED STATES OF AMERICA, PLAINTIFF, v. LAMUEL FLOWERS, et al., DEFENDANTS.
• Court: U.S. District Court — Northern District of Ohio

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LAMUEL FLOWERS, et al., DEFENDANTS.

No. 5:21-cr-584

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

June 30, 2022

MEMORANDUM OPINION AND ORDER

HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE.

On August 11, 2021, an indictment issued charging sixteen individuals with participation in a criminal organization known as “Shorb Blocc” and located principally in the area of Northwest Canton, Ohio. (Doc. No. 1 (Indictment).) According to the indictment, members and associates of Shorb Blocc “engaged in drug distribution, and acts of violence involving murder, assault, robbery, and witness intimidation[.]” (Id. ¶ 1.) All defendants are charged with conspiracy to violate the Racketeer Influenced Corrupt Organization Act (“RICO”), 18 U.S.C. § 1962(d). Various defendants are also charged with one or more counts of the following: being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession with intent to distribute a controlled substance, as well as distribution of a controlled substance, both in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and possession of firearms in furtherance of a drug trafficking crime, under 18 U.S.C. § 924(c)(1)(A)(i).

Defendants have filed a series of pretrial motions, and the government has filed responses. The Court finds that these motions may be resolved on the briefing without a hearing. The trial in this matter is currently set for July 11, 2022.

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I. Motions to Join

Several defendants have filed motions to join in the pretrial motions filed by defendant Lamuel Flowers (“Flowers”). These motions include: motion of defendant Corey Sullivan (“Sullivan”) to join (Doc. No. 231), motion of Jessie Lee (“Lee”) to join (Doc. No. 232), and motion of defendant Tyvion Hall (“Hall”) to join (Doc. No. 234). These motions to join are GRANTED, and any rulings on the pretrial motions filed by Flowers will also, where appropriate, be applicable to defendants Sullivan, Lee, and Hall.

II. Discovery Motions

A. Motion for Disclosure of Rule 404(b) Evidence (Doc. No. 208)

Flowers requests that the government provide written notice of any and all other crimes, wrongs, or acts covered by Rule 404(b) of the Federal Rules of Evidence that it intends to introduce in its case-in-chief or in any reasonably foreseeable rebuttal. (Doc. No. 208.) It is well-settled that, “[u]nder Rule 404(b), when the defendant requests notification of the government's intent to introduce other-act evidence, the government must provide such notice in a reasonable form and manner.” United States v. Gonzalez, 501 F.3d 630, 637 (6th Cir. 2007). The rule does not specifically define “reasonable” although it does state that the notice should be before trial, unless “good cause[] excuses lack of pretrial notice.” Fed.R.Evid. 404(b)(3)(C).

Flowers insists that early notice of Rule 404(b) evidence, well in advance of trial, is necessary to allow counsel to adequately prepare effective cross-examination of government witnesses and properly advise him on the advisability of going to trial and/or what defense to

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present “in the face of possibly devastating evidence of uncharged misconduct.” (Id. at 4.^[1]) He also requests notice sufficiently in advance of trial to afford counsel an adequate opportunity to litigate the admissibility of such other acts. (Id. at 5.) In his motion, he requested written notice of any Rule 404(b) by April 18, 2022, which at the time the motion was filed, represented a date three months before trial.^[2] (Id. at 6.)

The government responds by advising that, at this time, it does not intend to offer evidence that fits under Rule 404(b), electing to limit its evidence to those acts identified in the indictment and other such acts that either represent background evidence or evidence that is otherwise intrinsic to the criminal activity charged in the indictment. (Doc. No. 249 at 2.) See United States v. Wardle, 842 Fed.Appx. 993, 996 (6th Cir. 2021) (Background evidence, which is evidence of “acts that have a causal, temporal or spatial connection with the charged offense,” does not fall under Rule 404(b).) (quotation marks and citation omitted); see also United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000) (Res gestae, or background evidence, “consists of those acts that are inextricably intertwined with the charged offense or those other acts, the telling of which is necessary to complete the story of the charged offense.”)

The government also takes issue with Flowers' belief that he requires notice of any such qualifying Rule 404(b) evidence three months in advance of trial. It requests that the Court order it to provide notice of any potentially qualifying Rule 404(b) evidence no more than three weeks prior to trial. (Doc. No. 249 at 4.) It further requests that the Court take into consideration the

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fact that this case is evolving in nature and that it might not be possible to provide notice as to all qualifying evidence in advance of trial. (Id.)

Courts have held that time periods less than one month, and often no more than one week, prior to trial fall within the realm of what constitutes “reasonable notice” under Rule 404(b). See, e.g., United States v. Paul, 57 Fed.Appx. 597, 607 (6th Cir. 2003) (notice of intent to use Rule 404(b) evidence one week before trial reasonable); United States v. French, 974 F.2d 687, 694 (6th Cir. 1992) (trial court did not abuse its discretion in allowing the United States to disclose 404(b) evidence seven days before trial); United States v. Pelini, 896 F.Supp. 795, 797 (N.D. Ill. 1995) (“Regarding Rule 404(b), the government has agreed to provide said notice three weeks before trial, which satisfies the Rule 404(b) reasonableness requirement.”)

While the Court believes that Flowers' requested time-frame of three months is both unnecessary and infeasible, the Court finds that the complexity of the case requires advance notice at least four weeks prior to trial. Such an allowance will afford defense counsel adequate time to investigate any identified Rule 404(b) acts, as well as to engage in any necessary motion practice relative to these acts. Accordingly, Flowers' motion is GRANTED IN PART, and the government is directed to provide formal notice of its intent to introduce any potentially qualifying Rule 404(b) evidence no later than four weeks prior to trial. Further, the government will be required to demonstrate good cause before offering any Rule 404(b) evidence that was not disclosed during that time period.

B. Motion for Additional Peremptory Challenges (Doc. No. 209)

Flowers has also filed a motion seeking additional peremptory challenges. He requests that he be permitted to exercise 20 challenges jointly with other defendants, and that the

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government be allowed a total of 12 challenges. (Doc. No. 209 at 2.) The government believes that the number of challenges permitted by rule is sufficient, but requests that any additional allotment to defendants be followed by an increase to the government in a manner that preserves the ratio set forth in Rule 24(b)(2) of the Federal Rules of Criminal Procedure. (Doc. No. 247 at 2.)

Rule 24(b) provides that in non-capital felony cases, “the government has 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)(2). The rule further provides that “[t]he court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly.” Fed. R. Crim. P. 24(b). A district court's decision regarding peremptory challenges is reviewed for abuse of discretion and will be upheld so long as it “[complies with the minimum requirements of Rule 24[.]” United States v. Gibbs, 182 F.3d 408, 435 (6th Cir. 1999) (collecting cases).

If this case goes to trial in its present posture, the Court is inclined to grant Flowers' request to increase the number of peremptory challenges for defendants while at the same time proportionately increasing the number of government peremptory challenges. But the trial in this case is still months away, and the Court has no way of knowing which defendants may go to trial and on what counts.^[3] Accordingly, a ruling on this motion is DENIED as premature. Said denial is WITHOUT PREJUDICE to raising the issue again at the final pretrial hearing.

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C. Motion for Disclosure of All Grand Jury Testimony (Doc. No. 210)

Flowers moves for the production of transcripts of all grand jury testimony. (Doc. No. 210.) Citing the “breadth of the allegations] contained in the [i]ndictment, the 10 years it encompasses, the sheer volume [of] discovery and the innumerable number of witnesses that undoubtedly testified in front of the Grand Jury[,]” Flowers insists that “th[is] is a case in which there exists a ‘particularized need' for the pretrial disclosure of grand jury testimony.” (Id. at 3.) He requests that the government produce these transcripts three months prior to trial. (Id. at 4.) The government opposes the request in its entirety. (See Doc. No. 248.)

A party seeking disclosure of grand jury material under Rule 6(e) of the Federal Rules of Criminal Procedure must demonstrate a particularized need. See Douglas Oil Co. v. Petrol Stops NW, 441 U.S. 221, 222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). To meet the particularized need standard, a party must establish that: (1) the material sought is necessary to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure outweighs the need for continued secrecy; and (3) the request is structured narrowly to cover only the material needed. See Id. at 223; In re Antitrust Grand Jury, 805 F.2d 155, 161 (6th Cir. 1986) (same). “It is clear that [the]...