United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING VARIOUS MOTIONS
Page Hood Chief Judge, United States District Court
I. Introduction and Factual Background
is one of 14 defendants charged in a nine-count Superseding
Indictment filed on July 27, 2016. Generally speaking, the
Superseding Indictment alleges that a street gang, the Rollin
60s Crips, through its members, engaged in criminal activity
that included multiple threats and acts of murder, robbery
and arson, as well as the distribution of controlled
substances, all in violation of multiple Michigan laws
(M.C.L. §§ 750.316(1), 750.317, 750.157a(a),
750.92, 767.39, 750.529, 750.529a, 750.530, 750.89, 750.73),
as well as 18 U.S.C. § 1951 (interference with commerce
by robbery) and 21 U.S.C. §§ 841 and 846
(distribution of controlled substances). Defendant has been
charged in five counts: (a) Count I, Racketeering Conspiracy
(“RICO”), in violation of 18 U.S.C. §
1962(d), for his alleged activities as part of a national
street gang called the “Rollin 60s Crips, ” (b)
Count IV - Murder in Aid of Racketeering Conspiracy, in
violation of 18 U.S.C. § 1959(a)(1); (c) Count V - Using
and Carrying a Firearm During and in Relation to a Crime of
Violence, in violation of 18 U.S.C. § 1924(j); (d) Count
VIII - Assault with a Dangerous Weapon in Aid of
Racketeering, in violation of 18 U.S.C. § 1959(a)(3);
and (e) Count IX - Using and Carrying a Firearm During and in
Relation to a Crime of Violence, in violation of 18 U.S.C.
conduct alleged in the Superseding Indictment covers a period
from 2007 to July 2016, and the conduct related to Defendant
appears to extend from 2009 through at least November 2013.
As noted below, the Government also alleges it has evidence
that Defendant was still trafficking drugs in January through
July 2016. The Government alleges Defendant participated in
at least two murders, an attempted armed robbery and threats
of violence, and the sale of drugs (including marijuana and
prescription drugs) and made Facebook postings regarding his
has filed, and the Court addresses in this Order, seven
motions and one request. Defendant's motions have been
fully briefed, and the Court held a hearing on
Defendant's motions March 7, 2017.
Motion for a Written Proffer and Hearing on Admissibility of
Co-Conspirators Statements Under FRE 801(d) [#311]
moves the Court to hold a hearing to determine the
admissibility of co-conspirators statements the Government
intends to introduce at trial and order the Government to
provide a written proffer in advance of that hearing. Rule
801(d)(2)(E) provides that the statement of a co-conspirator
during the course and in furtherance of a conspiracy is not
hearsay if offered against a party. Under Rule 104, a trial
court must find that the co-conspirator's statements meet
the requirements of Rule 801(d)(2)(E) “[b]efore
admitting the out-of-court statements of
co-conspirators[.]” United States v. Childs,
539 F.3d 552, 559 (6th Cir. 2008). Defendant seeks a written
proffer by the Government at least 30 days prior to trial as
to why any co-conspirator statement sought to be admitted is
relies on two Sixth Circuit cases regarding whether the
Government has met its burden of having co-conspirator
statements admitted at trial-and when the Court should make
that determination. A trial court must find by a
preponderance of the evidence that: (1) a conspiracy existed
in which Defendant was a participant; (2) the declarant and
Defendant participated in the conspiracy when the hearsay
statement was made; and (3) the statement was made in
furtherance of the conspiracy. United States v.
Enright, 579 F.2d 980, 985-86 (6th Cir. 1978). In
United States v. Vinson, 606 F.2d 149, 152 (6th Cir.
1979), the Court held that one method for determining the
admissibility of co-conspirator hearsay statements is to hold
a “mini-hearing, ” at which the Court hears the
Government's proof of conspiracy and makes a preliminary
Enright finding. Alternatively, the Court could
order the Government to produce the non-hearsay evidence
prior to making a finding concerning admissibility of the
hearsay or admit the hearsay statements subject to a later
demonstration of their admissibility. Id. at 152-53.
Government responds that Defendant is not entitled to the
information he seeks at this stage in the proceedings (30
days before trial). Citing 18 U.S.C. § 3500 and Rule
16(a)(2). The Government asserts that it has complied with
its disclosure requirements pursuant to Rule 16, as each
defendant in this case has a copy of his own statements and
criminal history, and the Government has given Defendant some
of the statements made by his co-conspirators, even though it
was not obligated to do so pursuant to Rule 16 or case law.
Citing United States v. Preser, 844 F.2d 1275, 1285
(6th Cir. 1988) (citation omitted) (Rule 16 does not require
discovery of co-conspirator's statement).
Government notes that the Jencks Act does not require that a
co-conspirator's statements be produced to Defendant
until after the co-conspirator testifies on direct
examination. 18 U.S.C. § 3500(a). One reason for that
timing is to protect potential witnesses. United States
v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (en
banc) (“the disclosure of co-conspirator statements may
expose not only the declarant to threats and intimidation,
but also those expected to testify at trial concerning the
declarant's statements. This approach endangers
government witnesses by circumventing the protections of the
Jencks Act.”). The Sixth Circuit has held that
“the government may not be compelled to disclose Jencks
Act material before trial.” Presser, 844 F.2d
Government next asserts that the “vast majority”
of co-conspirator statements offered at trial will be verbal
acts that are part of the conspiracy or have other
non-hearsay bases. Specifically, the Government represents
that “[m]ost of the statements in recorded
conversations [audio recordings, text messages, and Facebook
messages] will not be offered for the truth of any matter
asserted, but as verbal acts-or other non-hearsay
evidence-constituting direct evidence of the charged
crimes.” Citing United States v. Faulkner, 439
F.3d 1221, 1226 (10th Cir. 2006) (“[s]tatements by
co-conspirators are commonly introduced at trial simply
because the statements themselves are part of the plotting to
commit a crime”); United States v.
Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009).
Government suggests that, for the co-conspirator statements
it intends to offer pursuant to Rule 801(d)(2)(E), the
Vinson mini-hearing to establish the requisite
Enright elements would be a “burdensome,
time-consuming and uneconomic” means of establishing
the foundational requirements. Citing United States v.
Barrett, 933 F.2d 355, 358 (6th Cir. 1991). The
Government proposes admitting the statements conditionally,
which it asserts is the customary practice. The Court then
would evaluate at the end of the Government's
case-in-chief whether the Government had proven by a
preponderance of evidence that there was a conspiracy and
that such statements were made by co-conspirators in
furtherance of it. United States v. Holloway, 740
F.2d 1373, 1375 n.2 (6th Cir. 1984) (conditional admission of
co-conspirator statements offered under Rule 801(d)(2)(E) is
“firmly entrenched in this circuit's
practice”). See also United States v.
Montgomery, 358 F. App'x 622, 626 (6th Cir. 2009);
Barrett, 933 F.2d at 358; United States v.
Estrada, 829 F.2d 1127 (Table), 1987 WL 44857, at *4
(6th Cir. 1987) (citations omitted) (“[t]his procedure
allows trial courts to rely on hearsay statements themselves
to determine whether the statements are admissible under
Government asserts that, notwithstanding the above, it will
agree to provide Defendant with any statements of
co-conspirators 14 days prior to trial.
replies that it is not seeking discovery, especially as the
Government has represented that it has complied with Rule 16.
Defendant argues the Government's proposed introduction
of “verbal acts” is not widely recognized, and
that not all of the statements proposed by the Government
constitute verbal acts. Defendant challenges the absence of
any process by which the Government notifies Defendant and
the Court of the purpose of admitting certain statements.
Defendant contends that could require a ruling by the Court
and a cautionary instruction to the jury that the statement
is only being offered because it was said, not that it was
acknowledges that the Court can choose the method for
determining admissibility of co-conspirator's statements
pursuant to Rule 801(d)(2)(E). But, Defendant cautions, if
the Government does not meet its burden of admissibility, the
Court would have to grant a mistrial if a cautionary
instruction would not “shield the defendant from
prejudice.” The Court concludes that a
“mini-hearing” is not necessary or appropriate in
this case. The Government will have to satisfy its burden
under Enright at trial with respect to Rule
801(d)(2)(E) statements and the admissibility of any hearsay
statements it seeks to introduce. If the Government fails to
do so with respect to statements offered against Defendant,
the Court shall address those issues as appropriate.
Defendant's Motion for a Written Proffer and Hearing on
Admissibility of Co-Conspirators' Statements under FRE
801(d) is denied. As the Government has represented that it
will provide Defendant with any statements of co-conspirators
14 days prior to trial, the Court orders the Government to do
Motion to Produce All Non-Cooperating, Post-Arrest
Co-Defendants' Statements that the Government Intends
Offering into Evidence [#312]
moves the Court to order the Government to provide any
post-arrest statement made by a non-cooperating co-Defendant
that the Government intends to offer into evidence during its
case-in-chief. The Government responded that it “has
already complied with this request.” Dkt. No. 324, PgID
1649. Defendant has not filed a reply to the Government's
response or otherwise suggested that the Government has not
provided Defendant with the information requested in Docket
Number 312. The Court denies as moot, but without prejudice,
Defendant's Motion to Produce All Non-Cooperating,
Post-Arrest Co-Defendants' Statements that the Government
Intends Offering in Evidence.
IV. Motion to Strike Surplusage [#313]
contends that all of the allegations in Count I of the
Superseding Indictment under the headnote “Overt
Acts” (paragraph 13.a.-c. on pages 11-25) and all the
allegations under the headnote “Notice of Acts with
Enhanced Sentencing” (paragraphs (1) - (5) on pages
25-26) should be stricken because they are immaterial and
irrelevant to the charges against him and prejudicial to him.
undisputed that the Court has discretion to strike surplusage
from the Superseding Indictment. Fed.R.Cr.P. 7(d) and the
Advisory Committee Notes thereto (“this rule introduces
a means of protecting the defendant against immaterial or
irrelevant allegations in an indictment or information, which
may, however, be prejudicial”); United States v.
Emuegbunam, 268 F.3d 377, 394-95 (6th Cir. 2001);
United States v. Neller, 229 F.3d 1154 (Table), 2000
WL 1234330, at *2 (6th Cir. 2000) (citations omitted)
(“We review only for an abuse of [the court's
sound] discretion. A motion to strike surplusage should be
granted only where it is clear that the language is
irrelevant and prejudicial”); United States v.
Kemper, 503 F.2d 327, 329 (6th Cir. 1974) (striking
“non-essential allegations that could prejudicially
impress the jurors”).
contends, and the Government acknowledges, that a RICO charge
under 18 U.S.C. § 1962(d) does not require proof of an
overt act. Salinas v. United States, 522 U.S. 52, 63
(1997) (“there is no requirement of some overt act or
specific act in the statute (18 U.S.C. §1962(d)) before
us”); United States v. Corrado, 286 F.3d 934,
937 (6th Cir. 2002) (“Unlike the general conspiracy
statute, § 1962(d) requires no overt or specific act in
carrying the RICO enterprise forward.”). For that
reason, Defendant contends that the overt acts alleged in the
Superseding Indictment are not legally relevant, especially
as “the vast majority of overt acts alleged are not
even racketeering activities[.]” Dkt. No. 313, PgID
1462. Defendant further asserts that the language of the
overt acts alleged is “unduly prejudicial . . . (and) .
. . ‘serves only to inflame the jury, confuse the
issues, and blur the elements necessary for
conviction[.]'” Quoting United States v.
Prejean, 429 F.Supp.2d 782, 796 (E.D. La. 2006) (quoting
United States v. Bullock, 451 F.2d 884, 888 (5th
Government counters that Rule 7(d) has been strictly
construed against striking surplusage “no matter how
prejudicial it may be” if the disputed language is
legally relevant. Citing United States v. Moss, 9
F.3d 543, 550 (6th Cir. 1993) (quoting United States v.
Thomas, 875 F.2d 559, 562 n.2 (6th Cir.), cert.
denied, 493 U.S. 867 (1989) (internal citations
omitted)) (“[I]f the language in the indictment is
information which the government hopes to properly prove at
trial, it cannot be considered surplusage no matter how
prejudicial it may be (provided, of course, it is legally
relevant).”). The Government maintains the question for
the Court is whether the language at issue is legally
relevant to the crime charged. Id.; United
States v. Ledbetter, 2015 WL 5029249, at **1-2 (S.D.
Ohio Aug. 26, 2015) (explaining why the court declined to
strike overt act from the RICO conspiracy count).
Government asserts that the overt acts in Count I identify
the criminal activities and enterprise that Defendant and his
co-defendants conducted and constitute the basis for finding
Defendant (and his co-defendants) guilty of a RICO
conspiracy. The Government suggests that
Defendant's involvement in the conspiracy (as alleged in
the overt acts) is “vitally important for a jury trying
to parse through a mountain of evidence.”
Ledbetter, 2015 WL 5029249, at *2. The Government
further contends that courts have consistently rejected
motions to strike language that “serve[s] to identify
the enterprise and the means by which its members and
associates conduct various criminal activities.”
United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.
1990) (collecting cases). The Government states that the
disputed language is what the Government hopes to properly
prove at trial, which overcomes any prejudicial effect.
Citing Moss, 9 F.3d at 550.
the Government asserts that notices of enhanced sentencing
are relevant in this case because the overt acts thereunder
serve to increase the penalty for the crime beyond its
prescribed statutory maximum, such that those facts must be
submitted to a jury and proven beyond a reasonable doubt.
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000).
As the statutory maximum for RICO conspiracy is 20 years but
can increase to life if the racketeering activity involved
has a maximum penalty of life (as is the case for murder),
the inclusion of those activities is included to ensure that:
(1) the grand jury made such a finding, id. at 476;
and (b) a special verdict form must be submitted to the jury
at trial. Citing United States v. Nagi, 541 F.
App'x 556, 576 (6th Cir. 2013). The Government asserts
that such language is constitutionally necessary under
reply, Defendant argues that the test is not whether the
allegations will assist the jury in sorting through the case
the Government has brought, with all of its complexities.
Defendant also suggests that such language may include
allegations that the Government will not introduce as
evidence, which leaves the jury with the impression the
Government has “special knowledge” of
“additional” criminal activity. Defendant
contends his motion should be granted or that the Superseding
Indictment should not be read or introduced at trial.
Court holds that Defendant's Motion is governed by
Moss. See Moss, 9 F.3d at 550 (quoting
Thomas, 875 F.2d at 662 n.2 (“[I]f the
language in the indictment is information which the
government hopes to properly prove at trial, it cannot be
considered surplusage no matter how prejudical it may be
(provided, of course, it is legally relevant).”). In
this case, the Government has made allegations that are tied
to, and that the Government hopes will constitute a basis for
finding Defendant guilty of, a RICO conspiracy.
Defendant's Motion to Strike Surplusage is denied.
parties are advised that the Court may revisit this issue
prior to trial. Many of Defendant's co-defendants have
pled guilty - and other co-defendants still may plead guilty
rather than go to trial. The Court wants to be sure that any
defendants who go to trial are not tried for allegations
unrelated to their alleged conduct, recognizing that Count I
is a RICO conspiracy charge and that some relevant conduct
pertaining to that charge may not involve the defendants who
go to trial.
Motion for Pretrial Disclosure of All Rule 404(b) Evidence
the Government Intends to Offer [#314]
moves the Court to compel the Government to disclose, at
least 60 days prior to trial, all Rule 404(b) evidence it
intends to offer against him at trial. Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person's character
in order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This
evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
On request ...