United States v. Thurman, Criminal Action No. 3:10CR107–H.

• Decision Date: 07 January 2013
• Docket Number: Criminal Action No. 3:10CR107–H.
• Citation: 915 F.Supp.2d 836
• Parties: UNITED STATES of America, Plaintiff v. Shanion M. THURMAN, James L. Robinson, Defendants.
• Court: U.S. District Court — Western District of Kentucky

915 F.Supp.2d 836

UNITED STATES of America, Plaintiff

v.Shanion M. THURMAN, James L. Robinson, Defendants.

Criminal Action No. 3:10CR107–H.

United States District Court,

W.D. Kentucky,

at Louisville.

Jan. 7, 2013.

James Russell Lesousky, Jr., U.S. Attorney Office, Louisville, KY, for Plaintiff.

Scott T. Wendelsdorf, Western Kentucky Federal Community Defender, Inc., Elgin L. Crull, Crull & Crull, Louisville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN II, District Judge.

The Government has made pretrial motions for the admissibility of certain recorded jailhouse telephone conversations and for the testimony of a confidential source. All of which is to be used against Defendants in this case. The Court referred the matter to the Magistrate Judge who has produced a comprehensive seventy-four (74) page report and recommendation addressing each matter at issue.

The charges against Thurman and Robinson are that they conspired to use or attempt to use force and threats against a potential witness (“G.S.”) to prevent his testimony against Ricky Kelly in his murder trial. Thurman was an administrative assistant in the office of Kate Holmes, G.S.'s attorney. In that capacity she had access to many of his confidential attorney-client materials. Thurman resided with Robinson in a house at 525 Belgravia Court in Louisville. Moreover, Robinson was apparently a long-time friend of Kelly.

Two types of evidence are involved here: (1) sixteen (16) jailhouse phones between Kelly, an inmate at the Green River Correctional Complex and several other individuals on the outside, and (2) testimony of a cooperating witness (“C.S.”) regarding conversations with Robinson while he was incarcerated in the Franklin County jail.

The Government did not object to the rulings against it. Both Thurman and Robinson did file objections. Thurman focused upon the Magistrate Judge's admission of the recorded statements in Exhibits 8 (A and B) and 12 because she would be unable to confront Robinson, the witness whose statements would be used against her. Robinson argues that the rulings are premature, that all 16 recorded statements are testimonial in nature and also makes other specific objection to particular recorded calls and jailhouse conversation testimony from C.S.

The Court has carefully reviewed the Magistrate Judge's recommendations and the objections to it. It is fair to say that these are reasonably nuance issues, the resolution of which could depend upon the credibility of other testimony and which rely upon foundations established by other witnesses. Consequently, at best, these rulings must be considered provisional pending actual testimony at trial. The Court does not mean to suggest that the rulings are likely to change, only that the underpinning of them rest upon the assumption about certain trial testimony. Thus, the Court would retain the right to refine and revise any rulings here as the trial approaches and proceeds.

Having said all this, the Court concludes that it agrees substantially with the Magistrate Judge's analysis and that no further comment is necessary or helpful. Therefore, the Court will adopt the Magistrate Judge's recommendations in full at this time.

Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the Magistrate Judge's report and recommendation is ADOPTED in full and that that report will guide the Court's admission of evidence at trial.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

DAVE WHALIN, United States Magistrate Judge.

FINDINGS OF FACT

The District Court has referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), pre-trial motions (DN 59). All four involve a dispute over the admissibility of certain recorded jailhouse telephone conversations and the anticipated testimony of a confidential source (DN 36, 46, 48, 67). The conversations are part of the Government's prosecution against two Defendants, Shanion Thurman and James Robinson, who are charged by indictment with aiding one another to use and attempt to use physical force or threats of force against a potential witness, G.S., with the intent to delay or prevent his testimony against nondefendant Ricky Kelly.

Ricky Kelly and another individual, Dion Neal, are charged by a separate, prior federal indictment, United States v. Kelly, 3:11–CR–33–H, with the murder-for-hire of victim Lajuante Jackson. Proof for the Government at trial of the present case against Thurman and Robinson is expected to be that G.S. had arranged through his attorney, Kate Holmes of the Kentucky Dept. of Public Advocacy (DPA), to testify against Kelly concerning the Jackson murder and two other murders in which Kelly is allegedly involved in return for early release from state prison. This arrangement was set out in a written confidential cooperation agreement between G.S. and federal and state prosecutors in late March of 2010. The confidential agreement was mailed to the Oldham County DPA office of attorney Holmes on April 2, 2010. At that time, Defendant Shanion Thurman was employed as an administrative assistant to Holmes in the same office. The Government maintains that Thurman consequently had access to all of Holmes' client records including the confidential cooperation agreement of G.S.

The Government will offer proof that during this time in April of 2010, Thurman resided with co-defendant James L. Robinson in Louisville, Kentucky, at 525 Belgravia Ct., Apt. 4. James Robinson, as it turns out, is a lifelong friend of Ricky Kelly. The Government intends to prove this friendship by the introduction of various recorded jailhouse phone conversations involving Kelly and Robinson, as well as other recorded conversations involving Kelly and certain non-parties that include his brother, Terrell “Cam” Gray, and friends Latasha Downs, Tonya Masden, Tiffany Roberts and Kalila Brooks. This friendship in the Government's view explains much of what occurred next in April of 2010.

The Government asserts that within less than one week of the delivery of the written confidential cooperation agreement to attorney Holmes' office, G.S. was violently assaulted on April 7, 2010 at the Franklin County Jail where he had been relocated. Four days later, on April 11, Terrell Gray advised Kelly during a recorded jailhouse phone conversation that an individual referred to by Gray as “Little G” was cooperating with “the Feds” or the “homicide people about you.” (DN 67, Ex. 9). This recorded conversation is but one of 16 jailhouse calls that the Government seeks to introduce against Robinson and Thurman at trial.

Two more such recorded phone conversations occurred that evening between Kelly and non-party Tiffany Roberts (DN 67, Ex. 10, 11). During the first such call, at approximately 8 p.m., Kelly asked Roberts to use her computer to find out which state correctional facility housed G.S. (DN 67, Ex. 10). Later at approximately 11:30 p.m., Kelly again called Roberts in another recorded phone conversation during which Roberts provided Kelly with a physical description of G.S., his criminal record, inmate numbers and presumed location (DN 67, Ex. 11).

The very next day, on April 12, Kelly and Defendant Robinson had a lengthy conversation (DN 67, Ex. 13). During this exchange, Defendant Robinson, using guarded language, informed Kelly about the assault on G.S. several days earlier and about the written confidential cooperation agreement ( Id.). Robinson advised Kelly that G.S. had provided information about three alleged murders. ( Id. at 2). He further told Kelly that “she,” codefendant Thurman according to the Government's theory, had only given Robinson information about the cooperation of G. S., and not two other unnamed individuals who also allegedly were cooperating with law enforcement to testify about Kelly's involvement in seven other murders. ( Id.).

During the same recorded conversation, Robinson also referred to a signed statement by G.S. involving Kelly ( Id. at 3) and that Robinson had to get the information to Kelly through his brother ( Id. at 4). Robinson then promised during the recorded phone exchange that if he could get the paperwork on the other two cooperating informants, he would let Kelly know. ( Id. at 5). Robinson assured Kelly that he had seen the paperwork and that G.S., a persistent felony offender, was to be released in five months to home incarceration and was to have visitation with his daughter in return for his cooperation against Kelly. Robinson told Kelly that these terms were “in black and white” and “I wasn't supposed to see it, but I seen it....” (DN 67, p. 6).

Robinson repeated that G.S. had been beaten up a week earlier after Robinson found out. ( Id. at 7). Robinson assured Kelly that he would try to get “all the information” that he could about the other two suspected informants. ( Id. at 8). The Government now seeks to introduce into evidence these recorded phone conversations, along with a number of others, to establish that Defendant Thurman leaked the confidential cooperation agreement to Robinson, who in turn alerted Kelly and his brother, Terrell Gray, about the cooperationof G.S. in three homicide investigations involving Kelly, with the intent to prevent G.S. from testifying.

Because these recorded jailhouse phone calls caused law enforcement to become suspicious that Thurman had leaked the confidential cooperation agreement involving G.S., a sting operation was arranged using Louisville Metro Police Department (LMPD) homicide Sergeant Denny Butler. The Government will offer proof at trial that Sgt. Butler contacted Thurman by telephone at attorney Holmes' office on July 22, 2010. Butler advised Thurman during their conversation that he would be sending a letter to attorney Holmes by fax, and that the letter contained information about G.S. and his cooperation in the Kelly murder investigation. By prior arrangement, Thurman was the only employee in the office during their...