United States v. Prado

• Decision Date: 05 August 2011
• Docket Number: NO 10-CR-74 (JFB),10-CR-74 (JFB)
• Parties: UNITED STATES OF AMERICA, v. GIOVANNI PRADO, ET AL., Defendants.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA, v. GIOVANNI PRADO, ET AL., Defendants.

NO 10-CR-74 (JFB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 5, 2011

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On March 3, 2011, defendants Giovanni Prado ("Prado"), Erick Alvarado ("Alvarado"), Elenilson Ortiz ("Ortiz"), Francisco Ramos ("Ramos"), and Wilber Ayala-Ardon ("Ayala-Ardon") (collectively, "defendants") were charged in a superseding indictment with a number of crimes, including: racketeering and racketeering conspiracy (including predicate acts of conspiracy to distribute cocaine, attempted murder, tampering with a witness and bribery of a witness), in violation of 18 U.S.C. §§ 1962(c) and 1962(d); conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; assault in aid of racketeering resulting in serious bodily injury, in violation of 18 U.S.C. § 1959(a)(3); conspiracy to commit assault in aid of racketeering with a dangerous weapon, in violation of 18 U.S.C. § 1959(a)(6); attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. 1959(a)(3); threatening to commit violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(4); witness tampering, in violation of 18 U.S.C. § 1512(b)(1)-(3); conspiracy to murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); conspiracy to commit obstruction of justice murders, in violation of 18 U.S.C. §§ 1512(k) and 1512(a)(3); and discharge of a firearm during a crime of violence, in viola1tion of 18 U.S.C. § 924(c)(1)(A)(ii)-(iii).¹ Several co-defendants with whomthese defendants originally were scheduled to go to trial pled guilty prior to the Court's oral decision on the government's and defendant Prado's motions.

Prior to trial, Ortiz and Alvarado each filed motions for severance. The Court denied Ortiz's motion in an oral ruling on January 10, 2011 and denied Alvarado's motion for substantially the same reasons in an oral ruling on March 17, 2011. Subsequently, the government filed a motion to empanel an anonymous and partially sequestered jury. Prado and Alvarado each filed a written opposition to the government's motion, and Ortiz, Ramos, and Ayala-Ardon orally joined in this opposition. In addition, Prado filed a motion to change venue pursuant to Federal Rule of Criminal Procedure 21(a). On May 26, 2011, after hearing oral argument, the Court granted the government's motion for an anonymous jury and denied Prado's motion for a change of venue, and stated that a written opinion would follow with a detailed analysis of the basis for these rulings. This Memorandum and Order contains the detailed analysis of the Court's decisions.

I. MOTION FOR ANONYMOUS AND PARTIALLY SEQUESTERED JURY

The government has moved for the empanelment of an anonymous and partially sequestered jury. In particular, the government requests: (1) that the names, addresses, and places of employment of the prospective jurors not be revealed to either the parties or their attorneys, and (2) that the jurors be directed to park in the employee parking lot and enter and exit the courthouse through the employee entrance for the duration of trial. Both Prado and Alvarado object to the empanelment of an anonymous jury on the grounds that jury anonymity is not necessary in this case and would unfairly prejudice the defendants and infringe upon their Fifth and Sixth Amendment rights. Prado also objects to partially sequestering the jury during trial.

For the reasons set forth herein, the Court grants the government's motion in its entirety. Specifically, the Court finds that maintaining jury anonymity and partially sequestering the jury as proposed by the government is warranted here in light of the defendants' and their associates' alleged history of witness tampering and related offenses, combined with their alleged membership in a large-scale, violent gang with numerous members still at liberty— who have both the means and a demonstrated willingness to obstruct justice—and given the seriousness of the pending charges against defendants in this case. Moreover, the Court concludes that it will be able to take reasonable precautions to minimize any prejudicial effects on defendants and to ensure that their fundamental rights are protected. Accordingly, the Court concludes that the use of an anonymous and partiallysequestered jury is appropriate here and will not infringe upon the defendants' constitutional rights.²

A. Legal Standard

The Second Circuit has explained that empaneling an anonymous jury "may be warranted when the jury needs protection, as when the government has demonstrated a defendant's willingness to tamper with the judicial process, or when there has been extensive pretrial publicity in cases involving allegations of violent conduct." United States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994) (internal quotation marks, citations, and alterations omitted). "In such circumstances, the use of an anonymous jury does not infringe a defendant's constitutional rights, so long as the court conducts a careful voir dire designed to uncover any bias as to the issues or the defendants and takes care to give the jurors a plausible and nonprejudicial reason for not disclosing their identities." United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995). In reviewing a challenge to the use of an anonymous jury, a court must "balance the defendant's interest in conducting meaningful voir dire and in maintaining the presumption of innocence, against the jury member's interest in remaining free from real or threatened violence and the public interest in having the jury render a fair and impartial verdict." United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994). Accordingly, "[a]s a general rule, a district court may order the empaneling of an anonymous jury upon '(a) concluding that there is strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.'" United States v. Stewart, 590 F.3d 93, 124 (2d Cir. 2009) (quoting United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991)).

As to the first factor, the mere invocation of words such as "organized crime" or "mob" is insufficient to warrant jury anonymity. United States v. Vario, 943 F.2d 236, 241 (2d Cir. 1991). Instead, "something more" must be shown, such as "a demonstrable history or likelihood of obstruction of justice on the part of the defendant or others acting on his behalf or a showing that trial evidence will depict a pattern of violence by the defendants and his associates such as would cause a juror to reasonably fear for his own safety." Id. Evidence that a defendant or his codefendants have engaged in obstruction of justice—which indicates a defendant's willingness to tamper with the judicial process—"has always been a crucial factor" in determining that a jury needs protection. Id. at 240; accord United States v. Quinones, 511 F.3d 289, 295 (2d Cir. 2007) ("We have identified strong reasons to believe that a jury needed protection in situations where the government demonstrated a defendant's willingness to tamper with the judicial process.").

Notably, to support a finding that an anonymous jury is warranted, obstruction of justice charges need not relate to prior jury tampering efforts, but instead may relate solely to efforts to tamper with witnesses or otherwise obstruct the judicial process. For example, in Quinones, defendants were charged with murdering a confidential informant in retaliation for his cooperation with law enforcement authorities. 511 F.3d at 295. Defendants argued that their conduct "did not actually threaten the judicialprocess," but the Second Circuit disagreed, noting that the murder of the witness "threatened the judicial process both by eliminating a witness who could have provided incriminating evidence against defendants and by sending a powerfully frightening message to others of the terrible consequences awaiting anyone who cooperated in defendants' prosecution." Id. at 295-96. Accordingly, the Court held that the district court acted "well within its discretion in concluding that the defendants posed a substantial risk to the integrity of the judicial process warranting empanelment of an anonymous jury." Id. at 296; see also Thai, 29 F.3d at 801 (upholding decision to empanel anonymous jury where government made motion "based in large part on evidence of defendants' acts of intimidation toward their crime victims, their attempts to kill certain of those victims, and the murder of [a victim] because of his refusal to retreat from his complaints to the police" and where the government "maintained that jurors whose identities were disclosed would be at risk because [the gang] had at least 100 members, many of whom were not in custody"); Aulicino, 44 F.3d at 1116 (anonymous jury warranted where, inter alia, co-conspirators allegedly sought to bribe a witness in their federal case, attempted to influence a witness in a prior state prosecution, and were caught on tape indicating that defendant's father would interfere with the judicial process on defendant's behalf).

Moreover, the fact that allegations of obstruction of justice may have been made only against certain co-defendants does not provide grounds for a severance motion for those defendants not alleged to be involved in such obstruction efforts. By way of example, in Aulicino, the defendant, who had been convicted on one count of conspiracy to kidnap, argued on appeal that the district court should have granted his motion for severance after it decided to empanel an anonymous jury because "there was no proffer of evidence linking [Aulicino] to any efforts to obstruct justice." 44 F.3d at 1116. In rejecting this argument, the Second Circuit explained that "[t]here is...