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U.S. v. MELENDEZ

August 4, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RICARDO MELENDEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM DECISION AND ORDER

The delicate balance between a criminal defendant's presumption of innocence and sixth amendment right to an impartial jury on the one hand, and the prospective juror's potential fear of retaliation or of outside influence on the other, is at the center of the Court's concern in determining whether there is a need for the drastic remedy of an anonymous jury. Before the Court at this time is the Government's motion for the impaneling of an anonymous jury in this case, which involves a forty seven-count indictment alleging, inter alia, murder, kidnapping, assault, money laundering and illegal possession of weapons, all of which surround an alleged extensive organized cocaine and heroin distribution operation based in Brooklyn, New York. In particular, the Government requests that the Court withhold the names, addresses and places of employment of the prospective jurors during voir dire. Since the Court finds that the jurors to be selected in this case need some protection under the circumstances presented, but not to the extent requested by the Government, the motion is partially granted. Accordingly, during the voir dire of this trial, the prospective juror's first names and specific addresses and places of employment will not be revealed. Their surnames, general locations of residence and type of employment may be revealed. Also, the jurors will be in the custody of the United States Marshal from the time they enter the courthouse each day, until the time they leave.

BACKGROUND

In August and September of 1989, thirty six members of an alleged heroin and cocaine trafficking organization located in Brooklyn, New York, were arrested by the New York Drug Enforcement Task Force. An indictment was later handed down by a Grand Jury impanelled in the Eastern District of New York, charging each of the defendants with violations of the Controlled Substances Act, 21 U.S.C. § 801 et seq., and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968. The original indictment named 39 defendants, three of whom are fugitives. At the present time, twenty-one defendants remain to be tried.

In particular, the indictment alleges that the defendants engaged in numerous acts of kidnapping, murder, assault, money laundering, possession of illegal firearms (including unregistered "Uzi" .9mm submachine guns, semi-automatic pistols and sawed-off rifles), all which was in furtherance of the organization's extensive narcotics trafficking.

The Government alleges that the defendants were members of a highly organized drug distribution operation, which employed tactics of fear, violence and intimidation to gain control over a significant portion of the cocaine and heroin trade in the Williamsburg and East New York sections of Brooklyn. Brand names such as, "Unknown", "No Mercy" and "Critical", were allegedly used to identify the narcotics distributed by the defendants. The defendants allegedly distributed controlled substances on both the retail and wholesale level.

The organization allegedly reaped enormous profits between 1986 and 1989, which totaled, at one time, approximately $8 million per month. The Government further alleges that in order to protect this lucrative business, violence was used to discipline the organization's members and thwart rivals. Examples alleged include numerous murders and kidnappings, as well as assaults that involved bodily mutilation such as extracting teeth and chopping off fingers.

In support of its motion for an anonymous jury, the Government alleges that since their arrests, certain of the defendants, and their relatives and friends, have made threats of violence to law enforcement personnel, various witnesses and even prosecutors. The Government also argues that many of the defendants have previously been convicted of narcotics offenses and crimes of violence, and have received or could receive sentences that may result in life terms. Finally, the Government expects considerable pre-trial and trial media coverage of this case.

All of the defendants oppose the impaneling of an anonymous jury, primarily on three grounds. First, it is alleged that the use of an anonymous jury infringes upon the defendants' presumption of innocence by instilling the impression of guilt in the jurors' minds. Second, it is alleged that withholding the names, addresses and places of employment prevents meaningful voir dire of the jurors' racial, ethnic and socioeconomic backgrounds. Finally, it is alleged that even assuming the constitutionality of such a procedure, its application is not warranted here.

The Government initially submitted ex parte, an affirmation in support of its application for the Court's in camera inspection and sealing. The affirmation detailed the Government's allegations of threats of violence to witnesses, law enforcement personnel and prosecutors. By order dated May 23, 1990, the Court directed counsel for all parties to appear for oral argument. At that time, the Government's chief trial counsel did verbally advise the Court and counsel for the defendants of certain of these allegations. At oral argument, the Government was given the option to either provide copies of the affirmation to the defendants, or withdraw the affirmation. Receiving no response, on July 6, 1990, the Court returned the Government's affirmation, advising that it would not consider its contents in making a determination unless copies were served on all counsel.

DISCUSSION

The use of an anonymous jury for the purposes of voir dire was first upheld in this circuit in the celebrated case of 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), involving the trial of Leroy "Nicky" Barnes. The trial judge in Barnes determined, sua sponte, that a limited voir dire in which the names, addresses and neighborhoods of prospective jurors would not be disclosed, was appropriate (see 604 F.2d at pp. 134, 137), in light of the seriousness of the charges, extensive pretrial publicity and indications of the defendants' willingness to interfere with the judicial system (see 604 F.2d at p. 141). The trial judge, however, did conduct an extensive voir dire, and asked the jurors to disclose the counties in which they resided (see 604 F.2d at p. 135).

Since Barnes, "many trials involving multiple-defendants indicted on racketeering and narcotics charges have been tried to anonymous juries" (Hayden v. United States, 814 F.2d 888, 892 [2d Cir. 1987]). The Second Circuit has repeatedly upheld the use of the procedure under appropriate circumstances (see, e.g., United States v. Tutino, 883 F.2d 1125, 1132-33 [2d Cir. 1989], cert. denied, ___ U.S. ___, 110 S.Ct. 1139, 107 L.Ed.2d 1044 [1990]; United States Persico, 832 F.2d 705, 717-18 [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, 854 [2d Cir.], cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 [1985]; United States v. Thomas, 757 F.2d 1359, 1364-65 [2d Cir.], cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 [1985]).

Critics have attacked the procedure as an assault on the criminal defendant's entitlement to a presumption of innocence, as well as an infringement of the sixth amendment right to an impartial jury (see generally Abramovsky, Juror Safety: The Presumption of Innocence and Meaningful Voir Dire in Federal Criminal Prosecutions — Are They Endangered Species?, 50 Fordham L.Rev. 30 [1981] [criticizing procedure employed by Barnes court]). On the other hand, proponents contend that the procedure is necessary in those limited cases where jurors may reasonably fear retaliation or actually be exposed to intimidation (see generally Note, ...


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