United States v. Haywood

Decision Date21 October 2019
Docket NumberCase No. 18-cr-10036-JES-JEH
Parties UNITED STATES of America, Plaintiff, v. Eugene HAYWOOD, et al., Defendants.
CourtU.S. District Court — Central District of Illinois

421 F.Supp.3d 576

UNITED STATES of America, Plaintiff,
v.
Eugene HAYWOOD, et al., Defendants.

Case No. 18-cr-10036-JES-JEH

United States District Court, C.D. Illinois.

Signed October 21, 2019


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Ronald Len Hanna, Adam W. Ghrist, Darilynn J. Knauss, Douglas F. McMeyer, US Atty., Peoria, IL, for Plaintiff.

Joel E. Brown, Peoria, IL 61602, for Defendant.

ORDER AND OPINION

James E. Shadid, United States District Judge

Now before the Court are Defendant Flora's Amended First Motion (Doc. 567) in Limine, Defendant Gregory's First Motion (Doc. 587) in Limine, the United States' First Motion (Doc. 595) in Limine, Defendant Haywood's Response (Doc. 617) to Motions in Limine Regarding Fifth Amendment Rights, and the United States' Reply (Doc. 637) thereto. This matter is fully briefed, and this Order follows.

BACKGROUND

(1) Defendant Flora's Motion (Doc. 567)

Paragraph 12(c) of the Third Superseding Indictment alleges:

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On July 15, 2013, Eugene Haywood, a.k.a. "Nunu," Mytrez Flora, a.k.a. "Trez," Lloyd Dotson, and deceased Bomb Squad leader, Raheem Wilson, a.k.a. "Boosie," conspired to shoot and murder Tyrann Chester, whom they believed to be supplying drugs to a dealer operating independently of Bomb Squad in Bomb Squad territory.

Doc. 443, at ¶ 12(c). In his Motion, Defendant Flora notes that on July 15, 2013, Peoria Police Department Detectives Curry and Sandoval read Flora his Miranda warning at the police department, after which Flora acknowledged he understood his rights and invoked his right to remain silent. Defendants Dotson and Haywood did make statements. Defendant Flora thus moves for an order prohibiting the United States or the codefendants from commenting on his invocation of his Fifth Amendment rights.

(2) Defendant Gregory's Motion (Doc. 587)

Paragraph 12(aa) of the Third Superseding Indictment alleges:

On May 9, 2017, Keith Gregory, a.k.a "Kilo," Ezra Johnson, a.k.a. "Lil Wody," Torieuanno White, a.k.a. "T.A.," and other Bomb Squad members conspired to shoot Victim R, an individual believed to be a rival gang member, who was present in a store in Bomb Squad territory.

Doc. 443, at ¶ 12(aa). In his Motion, Defendant Gregory notes that in the days following the alleged incident, Peoria Police Department Detectives Lagaspi and Brecklin read White his Miranda warnings at the Peoria Police Department, after which White confirmed he understood his rights and made a statement. Defendants Gregory and Johnson invoked their right to remain silent and did not make statements. Defendant Gregory thus moves for an order prohibiting the United States or the codefendants from commenting on his invocation of his Fifth Amendment rights.

(3) The United States' Motion (Doc. 595)

The United States, noting some Defendants intend to comment upon their codefendants' invocation of their constitutional rights, moves for an order prohibiting all parties from making comment, reference, argument, inference, or drawing attention to any Defendant's proper invocation of their rights, including: (1) the right to remain silent in the face of police questioning; (2) the right to an attorney at questioning or otherwise; (3) the right not to testify at trial; and (4) the right not to present evidence at trial. The United States argues Defendants' "assertion that silence or the proper invocation of rights is somehow ‘evidence’ is flawed for three reasons."

First, the United States argues there is no adverse inference that can be drawn from a defendant's silence following the proper invocation of their right to remain silent, not testify at trial, or not present evidence at trial because a defendant's post-Miranda silence is irrelevant—it has no tendency to make a fact more or less probable than it would be without the evidence. Id. at 3 (citing Fed. R. Evid. 401 ; Doyle v. Ohio , 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (stating post-Miranda silence is "insolubly ambiguous")). Second, the United States argues any evidentiary value to be gained from a defendant invoking his right to remain silent is substantially outweighed by the prejudicial effect admission of such evidence may have. Id. at 5 (citing Fed. R. Evid. 403 ).

Third, the United States argues defendants do not have an absolute right to comment on a codefendant's silence. The United States notes the case relied upon by Defendants, De Luna v. United States , 308 F.2d 140, 141 (5th Cir. 1962), was distinguished by the Seventh Circuit in

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United States v. Kahn , 381 F.2d 824, 840 (7th Cir. 1967). Further, in Kahn , the court remarked:

The procedural difficulties and the complication of joint trials arising from the rule suggested by dicta in De Luna are so great that we cannot say there is an absolute right, without reference to the circumstances of defense at trial, for a defendant to comment on the refusal of a co-defendant to testify. We think there must be more to justify the disintegration of a trial, such as a conspiracy trial, in which there is a cohesion of crime alleged, defendants charged, and proof adduced. There must be a showing that real prejudice will result from the defendant's inability to comment. Hayes v. United States , 8 Cir., 329 F.2d 209, 221 (1964) ; cert. den., 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964).

United States v. Kahn , 381 F.2d 824, 840 (7th Cir. 1967). Finally, the United States asserts Defendants have not attempted to establish that any Defendant will suffer any prejudice from an inability to comment on a codefendant's invocation of his rights.

(4) Defendant Haywood's Response (Doc. 617)

Defendant Haywood first argues the United States lacks standing to vicariously assert the Fifth Amendment rights of the Defendants in this case. Next, Haywood argues without citation, "multiple civil cases have held that post-arrest silence is indeed ‘evidence’ and an adverse inference can arise therefrom." Third, relying on De Luna , Haywood argues counsel is allowed to draw an adverse inference from a codefendant's silence where the defendants have mutually inconsistent theories of defense.

Finally, Haywood asserts he intends "to present the defense that another defendant charged jointly with the killing of Tyrann Chester, Defendant Mytrez Flora, shot and killed Chester, without the express or implied agreement of Haywood or any other, and that Flora was acting on his own." Id. at 3. Haywood believes he has "the absolute right to argue the adverse inference" of Defendant Flora's refusal to talk to police after the shooting.

(5) The United States' Reply (Doc. 637)

On October 18, 2019, the United States filed a Reply. First, the United States responds to Haywood's standing argument, asserting that as a party to the litigation, it has standing to object to the introduction of evidence offered by an opposing party. Id. at 3. Second, the United States argues that while it may be permissible to draw adverse inferences from a defendant's silence in a civil case, the Supreme Court has explicitly drawn a distinction between civil and criminal cases. Id. at 4 (citing Baxter v. Palmigiano , 425 U.S. 308, 317, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ). Next, the United States responds to the cases cited by Haywood in his Response. Id. at 4–7. Finally, the United States notes that even if adverse inference evidence or argument was not prohibited per se , such evidence or argument should nevertheless be excluded under Federal Rules of Evidence 401 and 403. Id. at 8–9.

DISCUSSION

(1) Standing

Defendant Haywood first claims the United States lacks standing to assert the Fifth Amendment rights of the codefendants. Doc. 617, at 2. While it is true "the Fifth Amendment privilege is a personal privilege," Couch v. United States , 409 U.S. 322, 328, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), here, Defendants Flora and Gregory have also filed Motions seeking to bar codefendants from commenting on their post-Miranda silence. Docs. 567, 587. Thus, while the Court believes the United States, as a party to this litigation, has a

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sufficiently concrete, particularized interest in preventing trial conduct it believes would result in reversable error, see generally Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016), the Court need not decide the question because Defendants Flora and Gregory undoubtedly have standing to raise the issue.

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