US v. Edmond, Cr. No. 89-0162 (CRR).

• Decision Date: 05 February 1990
• Docket Number: Cr. No. 89-0162 (CRR).
• Citation: US v. Edmond, 730 F. Supp. 1144 (D. D.C. 1990)
• Parties: UNITED STATES of America v. Rayful EDMOND, III, et al.
• Court: U.S. District Court — District of Columbia

730 F. Supp. 1144

UNITED STATES of America v. Rayful EDMOND, III, et al.

Cr. No. 89-0162 (CRR).

United States District Court, District of Columbia.

February 5, 1990.

Jay B. Stephens, U.S. Atty., for the District of Columbia, Betty Ann Soiefer, Robert Andary, Barry M. Tapp & Noel A. Brennan, for the U.S.

Ernest McIntosh, Washington, D.C., for Willie Childress.

Arthur M. Levin, Washington, D.C., for Columbus Daniels.

William Garber, Washington, D.C., for Rachelle Edmond.

Stuart F. Johnson, Washington, D.C., for Robert Hardy.

John Drury, Washington, D.C., for Deatria Lindsay.

Michele Roberts, Washington, D.C., for Patrick McDonald.

Dennis Hart, Washington, D.C., for Ronald Morgan.

Gary Kohlman, Washington, D.C., for Constance Perry.

Sol Rosen, Washington, D.C., for Melvin Stewart.

Retna Pullings, Washington, D.C., for Jeffrey Thompson.

Nina Kraut, Washington, D.C., for Raynice Thompson.

Idus Daniel, Washington, D.C., for Katrina Wade.

Carmen Daniels, Washington, D.C., for Troy Johnson.

CHARLES R. RICHEY, District Judge.

The second trial in the above-captioned drug conspiracy case is set to begin on February 26, 1990. The jurors in the recently completed trial of the "Group I" defendants were anonymous and sequestered. Their identities were concealed from the government, the defendants, counsel for both the prosecution and the defense, the Court, and even one another. The government has filed a motion requesting that the Court take the same measures in the second trial. On January 31, 1990, the Court held a hearing on the issue of jury anonymity. After considering the arguments advanced by counsel on both sides and engaging in a careful balancing of all the pertinent factors involved — the seriousness of the charges, the very real threat of violence, the extensive publicity, the importance of a meaningful voir dire process, and the defendants' presumption of innocence — the Court has determined that the use of an anonymous, sequestered jury in the second trial is particularly appropriate.¹

Although the Group I defendants' trial was the first time a court in this jurisdiction has utilized an anonymous jury, this procedure is not without precedent. Several cases from the Second Circuit and one from the Third Circuit have explicitly approved the use of an anonymous jury under certain circumstances. See, e.g., United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989); United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); United States v. Persico, 832 F.2d 705 (2d Cir.1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988); United States v. Ferguson, 758 F.2d 843 (2d Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 125, 88 L.Ed.2d 102 (1985); United States v. Thomas, 757 F.2d 1359 (2d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985); United States v. Barnes, 604 F.2d 121 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980).²

A review of these cases reveals that a court deciding whether to empanel an anonymous jury must balance, on the one hand, the interests of the criminal justice system —protecting the jurors and their families from violence, actual or threatened, and shielding the jurors from the potential taint of extensive trial-related publicity — and, on the other hand, the defendants' interests — conducting a meaningful voir dire to permit the intelligent exercise of their peremptory challenges and retaining their presumption of innocence. See Tutino, 883 F.2d at 1132-33; Scarfo, 850 F.2d at 1022-23; Thomas, 757 F.2d at 1362-65 & n. 1. Moreover, the Court agrees with the Third Circuit's approach to the anonymous jury issue:

The virtue of the jury system lies in the random summoning from the community of twelve "indifferent" persons — "not appointed until the hour of trial" — to decide a dispute, and in their subsequent, unencumbered return to their normal pursuits. See 3 W. Blackstone, Commentaries, * 378.... Because the system contemplates that jurors will inconspicuously fade back into the community once their tenure is completed, anonymity would seem entirely consistent with, rather than anathema to, the jury concept. In short, we believe that the probable merits of the anonymous jury procedure are worthy, not of a presumption of irregularity, but of disinterested appraisal by the courts.

Scarfo, 850 F.2d at 1023.

I. Factors Favoring Anonymity

One of the two main justifications for having an anonymous jury in the upcoming trial is to protect the jurors and their families from violence, threats of violence, or any other type of improper extra-judicial tampering. See Tutino, 883 F.2d at 1132-33; Scarfo, 850 F.2d at 1023. One way to evaluate the potential danger to jurors is to examine the seriousness of the crimes involved. See Tutino, 883 F.2d at 1132; Thomas, 757 F.2d at 1364. In this case the concerns about violence or threats of violence are justified and not based on mere speculation. The indictment charges the defendants in the upcoming trial with grave offenses, including conspiracy to violate federal narcotics laws and substantive violations of federal narcotics laws. If convicted, the defendants face substantial terms of imprisonment.

However, because the Court has severed the twenty-nine defendants — most of whom are relatives or close friends — and the charges against them into three separate trials, an analysis restricted to the upcoming trial does not convey a complete picture of the danger involved. The defendants in the second trial were allegedly part of a sophisticated criminal enterprise that imported millions of dollars worth of cocaine from as far away as California; systematically engaged in countless sales of large and small quantities of cocaine throughout the metropolitan Washington area; employed as many as fifty individuals; possessed semi-automatic weapons and submachine guns; and had no compunctions about using intimidation and violence to protect its business. Without prejudging the guilt or innocence of the defendants in the upcoming trial, the Court heard sufficient evidence in the first trial to be convinced that the above recitation accurately depicts the potential dangerousness of these defendants.

The Group I defendants were all convicted of conspiracy to violate federal narcotics laws, all but two of them were also convicted of various substantive federal narcotics law offenses; and Rayful Edmond, III was found guilty of conducting a continuing criminal enterprise, which carries a mandatory minimum term of life imprisonment without parole. Furthermore, although neither the first trial nor the upcoming trial directly involve any offenses of violence, murder charges are pending against several defendants, including one of the defendants in the upcoming trial.³ When one considers the charges against the defendants in the upcoming trial in the context of the other offenses charged in this case and against the backdrop of the tightly-controlled, well-organized major cocaine distribution enterprise depicted in the first trial, it is clear that the offenses involved in the second trial are sufficiently serious to warrant the use of an anonymous jury. Compare Tutino, 883 F.2d at 1128 (conspiracy to distribute heroin and substantive distribution violations); Barnes, 604 F.2d at 130 (conspiracy to distribute heroin and cocaine and substantive distribution violations as well as engaging in continuing criminal enterprise).

Moreover, it by no means follows that security concerns in the upcoming trial have decreased substantially now that Rayful Edmond, III, the leader of the criminal enterprise, has been convicted. The defendants in the upcoming trial include several of Rayful Edmond, III's siblings and his mother. Because Rayful Edmond, III has experienced first-hand the strength of the government's evidence on the conspiracy charge, it is not unreasonable to be concerned that Edmond, through someone acting on his behalf, may take desperate steps to thwart the prosecution of his mother and siblings. In addition, the Court is not so naive as to think that Edmond's being incarcerated would prevent him from communicating with his many accomplices and supporters who have not been apprehended and threatening the safety of the jurors or their families. In light of the above, the Court is as convinced as it was before the first trial that "to sit back and wait would `prove the adage of the futility of locking the barn door after the horse has escaped.'" Court's August 30, 1989 Memorandum Opinion at 1 (quoting Barnes, 604 F.2d at 137); see also Thomas, 757 F.2d at 1364 ("Justice requires that when a serious threat to juror safety reasonably is found to exist, precautionary measures must be taken.").

Another measure of the likelihood of the jury being influenced by violence or threats of violence is the presence of acts indicating an inclination to interfere with the judicial process. See Tutino, 883 F.2d at 1132-33; Thomas, 757 F.2d at 1364. The first trial was a veritable cornucopia of attempts to derail the prosecution and attack the integrity of the criminal justice system through improper extra-judicial conduct. A non-inclusive list of such activity follows.

After one of the government's main witnesses, Kathy Sellers, completed her direct testimony and while she was still subject to cross-examination, her mother's home was fire-bombed. Before trial, a potential government witness, Deborah Phillips, was found shot after the government mistakenly sent a letter explaining the terms of her expected cooperation to her house, where she resided with Emanuel Sutton, one of the defendants in the first trial. During the trial, the Court received a telephone call that there was a bomb in the courtroom. A member of the Court's staff was indirectly, if not directly, threatened by one of the defendants. At the close of the defense case, one of the...