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United States v. Perry

United States District Court, E.D. Michigan, Southern Division

April 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
D-13 RODEREK PERRY, Defendant.

          ORDER REGARDING VARIOUS MOTIONS

          Denise Page Hood Chief Judge, United States District Court

          I. Introduction and Factual Background

         Defendant 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. § 924(j).

         The 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 criminal conduct.

         Defendant 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.

         II. Motion for a Written Proffer and Hearing on Admissibility of Co-Conspirators Statements Under FRE 801(d) [#311]

         Defendant 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 admissible.

         Defendant 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.

         The 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).

         The 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 at 1283.

         The 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).

         The 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 Fed.R.Evid. 801(d)(2)(E).”).

         The Government asserts that, notwithstanding the above, it will agree to provide Defendant with any statements of co-conspirators 14 days prior to trial.

         Defendant 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 true.

         Defendant 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 so.

         III. Motion to Produce All Non-Cooperating, Post-Arrest Co-Defendants' Statements that the Government Intends Offering into Evidence [#312]

         Defendant 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]

         Defendant 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.

         It is 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”).

         Defendant 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 Cir. 1971)).

         The 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).

         The 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.[1] 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.

         Finally, 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 Apprendi.

         In his 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.

         The 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.

         The 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.

         V. Motion for Pretrial Disclosure of All Rule 404(b) Evidence the Government Intends to Offer [#314]

         Defendant 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 ...

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