hearing on out-of-court identifications. The question for the Court is when and how this hearing should be conducted.
The defendant requests a pre-trial hearing on the admissibility of the testimony of identifying witnesses. The government, citing issues of security, requests a bifurcated hearing, the first part occurring prior to the start of the trial, the second part prior to the testimony of each identifying witness.
The government asserts that the security concerns pertaining to this defendant and the witnesses against him would make it extremely risky to hold hearings on out-of-court identifications prior to trial. The government instead proposes a bifurcated process, in which an initial hearing is held prior to trial and a second hearing, if necessary, is held prior to each witness' testimony.
The first portion of the bifurcated hearing would be an opportunity for the defendant to prove that the out-of-court identification procedures were impermissibly suggestive. The defendant bears the initial burden of proving the impermissibility of the out-of-court identification procedures. See United States v. Jakobetz, 955 F.2d 786, 802-03 (2d Cir.), cert. denied, 121 L. Ed. 2d 63, 113 S. Ct. 104 (1992). Only if the Court determines that the procedures used for the out-of-court identifications were not impermissibly suggestive, does the Court undertake further analysis of the admissibility of the identifications.
The second step in the analysis, and the second portion of the hearing, would determine the reliability of each witness' identification. The factors to be considered in this step of analysis, as laid out by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), go to the individual witness's knowledge and certainty in the process of identifying the defendant.
The witnesses whose testimony would be the subject of a Wade hearing are inmates in various federal facilities. The security risks inherent in bringing the witnesses in for a hearing prior to the trial and again for testimony during trial are substantial. The bifurcation of the Wade hearing would allow the first step of the analysis, that is whether or not the procedures were permissible, to proceed without bringing in the witnesses. Only if the procedures were permissible would the witnesses be called to testify in a second hearing to determine the admissibility of their statements.
For issues of security and the related issues of expense, the defendant's motion is denied, and a bifurcated hearing will be held. The first part of the hearing will be held in advance of trial, the second part, if necessary, will be held prior to the proposed testimony of each witness.
MOTION FOR AN ANONYMOUS AND PARTIALLY SEQUESTERED JURY
The government seeks an anonymous and partially sequestered jury because the defendant is dangerous and Participated in such terrorist acts as bombing a civilian airliner. The defendant opposes such request, arguing that such measures would erode the defendant's presumption of innocence at trial.
It is settled that the Courts have a recognized duty to take whatever steps are necessary to protect juries from improper interference and to ensure an impartial verdict. United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964), cert. denied sub nom Cinquegrano v. United States, 379 U.S. 960, 13 L. Ed. 2d 555, 85 S. Ct. 647 (1965). Anonymous juries are often necessary to protect the integrity of trials and to ensure an impartial jury. United States v. Persico, 832 F.2d 705 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988); United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990)
A federal court may empanel an anonymous and sequestered jury under certain circumstances. The Court must consider, first, whether the defendant is dangerous based upon his history and the charges against him, United States v. Barnes, 604 F.2d 121, 141, (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980), and second, whether the defendant has the means to, or has previously attempted to, interfere with or cause interference with the jury. See United States v. Thomas, 757 F.2d 1359, 1365 (2d Cir.) cert. denied sub nom Fisher v. United States, 474 U.S. 819, 88 L. Ed. 2d 54, 106 S. Ct. 66, 106 S. Ct. 67 (1985).
Courts have recognized that where anonymity and sequestration are necessary, jurors receive instructions explaining the measures in a neutral way to prevent any negative inference from being drawn by the jury. Most commonly, courts have explained to jurors that their privacy and identities need protection from the media and the curious, which only anonymity can provide. United States v. Tutino, 883 F.2d 1125, 1133 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990). United States v. Ferguson, 758 F.2d 843, 854 (2d Cir.) cert. denied, 474 U.S. 1032, 88 L. Ed. 2d 572, 106 S. Ct. 592 (1985).
In support of its application for an anonymous and sequestered jury the government points to evidence of the defendant's dangerousness and ability to interfere with the jury. As evidence of the defendant's dangerousness the government directs the court to evidence introduced at a Fatico4 hearing held before Judge Weinstein. At that hearing, Columbian National Police Officials introduced certified court files from Columbia showing that the defendant had been convicted of armed bank robbery, had twice escaped from jail (once using a helicopter), was wanted for murder and had been arrested for possession of firearms that are only legally accessible to members of the Columbian military. Moreover, the government points to taped conversations of the defendant in which he indicates that he wished to kill United States district judges and other government officials.
In addition, it is anticipated that there will be extensive press coverage of this matter when it finally comes to trial. Though sequestration is an extreme measure, when the media attention paid a case is expected to be exceptional, sequestration may be proper. See United States of America v. Frank Locasio and John Gotti, 92-1382, 92-1384, 92-1671, 93-1181 (2d Cir. October 8, 1993).
Given the nature of the charges, the notoriety of the defendant and the physical layout of the courthouse, the Court grants the government's motion for an anonymous jury and orders that the jurors be picked up at some point away from the courthouse and transported to and from the courthouse by limousine. While in the courthouse, the jury should remain sequestered under the protection of the United States Marshals.
The government's motion for an anonymous and partially sequestered jury is granted.
The defendant's motions to exclude evidence of threats and of an escape plot by the defendant is GRANTED;
The defendant's alternative motions to recuse the Judges of the Eastern District of New York and the prosecutor are MOOT;
The defendant's motions to suppress statements taken in violation of his Fifth and Sixth Amendment and in violation of the Code of Professional Responsibility are DENIED;
The defendant's motion to suppress or exclude the statements of an alleged co-conspirator is GRANTED;
The Court will hold a hearing on the admissibility of statements made by the defendant to government agents on or about August 13, 1992, and thus reserves judgment on the defendant's motion to suppress these statements;
The defendant's motion for an Order requiring the government to turn over Brady material forty-five days in advance of trial is DENIED
The defendant's motion for an Order requiring the government to turn over government attorneys' and agents' notes of interviews with government witnesses is DENIED;
The defendant's motion for an Order requiring the government to turn over government agent-witnesses' personnel files is DENIED;
The defendant's motion for a Wade hearing prior to trial is DENIED;
The government's motion for a bifurcated Wade hearing is GRANTED;
The government's motion for an anonymous and partially sequestered jury is GRANTED.
Sterling Johnson, Jr.
DATED: January 18, 1994
Brooklyn, New York