The opinion of the court was delivered by: Garaufis, District Judge.
A jury has found Ronell Wilson ("Wilson") guilty of two counts of murder in aid of racketeering, two counts of robbery conspiracy, one count of attempted robbery, one count of carjacking, two counts of causing death through use of a firearm, and two counts of using a firearm in furtherance of crimes of violence. These charges were based on, inter alia, Wilson's execution of undercover New York City Police Department ("NYPD") Detectives Rodney Andrews ("Detective Andrews") and James Nemorin ("Detective Nemorin") (together, the "Detectives"), whom he was attempting to rob of the $1,200 they planned to use to purchase a firearm from Wilson and his fellow members of the Stapleton Crew*fn1 street gang. The Government will seek the death penalty against Wilson in a penalty phase that will begin on January 16, 2007.
Each side has filed motions in anticipation of the penalty phase. Wilson has moved the court (1) to preclude the Government from offering as an aggravating factor the victims' status as law enforcement officers; (2) to preclude the Government from offering evidence of Wilson's alleged membership in the Bloods street gang as proof of Wilson's future dangerousness; (3) to require the Government to disclose whether it will offer any evidence of Wilson's alleged continuing pattern of violence and low rehabilitative potential, which are aspects of the "future dangerousness" aggravating factor, other than (a) the crimes for which Wilson was found guilty in this case and (b) Wilson's juvenile criminal history; (4) to acquit Wilson under Fed. R. Crim. P. 29 of (a) the two counts of murder in aid of racketeering and (b) the one count of carjacking; (5) to require the Government to make an offer of proof regarding the testimony it intends to introduce to prove the "victim impact" aggravating factor, and to preclude the use of video footage of Detective Nemorin as proof of that factor; and (6) to order the Government to provide defense counsel with the written comments that peer reviewers sent Government expert Dr. Michael Welner regarding his expert report.
For the reasons set forth below, the motion to preclude the victim-status aggravating factor is DENIED; the motion to preclude evidence of Wilson's membership in the Bloods is DENIED, although such evidence will be limited in ways discussed herein; the motion for disclosure of evidence of future dangerousness is GRANTED to the extent described herein; the motions to acquit are DENIED; the motion for an offer of proof regarding the victim-impact aggravating factor is GRANTED to the extent described herein; and the motion for the written comments of Dr. Welner's peer reviewers is GRANTED.
The Government has moved the court to preclude Wilson from offering, during the penalty phase, the testimony of (1) Wilson's friends and family members regarding their affection for Wilson, (2) Professor Yasser Payne, whom Wilson intends to call as an expert in hip hop culture, (3) Dr. Mark Cunningham, whom Wilson intends to call as an expert in prison-inmate misconduct, and (4) Donald Romine, whom Wilson intends to call as an expert in corrections management. The Government has also moved the court to order Wilson to provide to the Government any notes Dr. Cunningham took during his interview of Wilson.
For the reasons set forth below, the motion to preclude the testimony of Wilson's friends and family members is DENIED; the motion to preclude the testimony of Professor Payne is DENIED; the motion to preclude the testimony of Dr. Cunningham is DENIED, although his testimony will be limited in ways discussed herein; the motion for Dr. Cunningham's notes is GRANTED; and the motion to preclude the testimony of Mr. Romine is DENIED, although his testimony will be limited in ways discussed herein.
Wilson, also known as "Rated R," is a member of the Stapleton Crew, a criminal enterprise that committed armed robberies, assaults, and drug sales in the area surrounding the Stapleton Houses housing project on Staten Island, New York in 2002 and 2003. (Tr. at 240-53, 260-64, 267-70, 281-88, 758-64, 766, 768, 785-86, 788-96.) Wilson was considered the Stapleton Crew's most violent member. (Id. at 275.)
On March 3, 2003, Stapleton Crew senior members Michael Whitten ("Whitten"), Paris Bullock ("Bullock"), and Omar Green ("Green") sold a firearm to Detective Nemorin. (Id. at 807-11.) At that time, Detective Nemorin was an undercover officer in the NYPD's Firearms Investigative Unit, which was dedicated to investigating and preventing illegal firearms dealing in New York City. (Id. at 54.) Whitten suspected, but did not know, that Detective Nemorin was a law enforcement officer. (Id. at 811.)
One week later, on March 10, 2003, those senior members of the Stapleton Crew discussed and executed a plan to commit an armed robbery of Detective Nemorin, who had agreed to purchase a semiautomatic TEC-9 firearm from them that evening for $1,200. (Id. at 290-96, 303-04, 811-17, 826-35.) Wilson and Jessie Jacobus ("Jacobus") were assigned to carry out the robbery. (Id. at 303-04, 817, 827, 831.) The Stapleton Crew members who gathered at Green's apartment to plan the robbery, including Wilson, considered the possibility that Detective Nemorin was an uncover law enforcement officer and agreed that Wilson might have to shoot Detective Nemorin in order to carry out the robbery. (Id. at 834, 839-40.)
Detectives Nemorin and Andrews arrived at the Stapleton Houses that evening in an unmarked Nissan Maxima driven by Detective Nemorin (the "Detectives' car"). (Id. at 64, 304, 308-09.) Wilson, who had expected Detective Nemorin to arrive alone, was surprised to find him accompanied by Detective Andrews. (Id. at 309.) After a brief period of hesitation, Wilson ordered Jacobus to enter the Detectives' car and to sit in the back passenger-side seat behind Detective Andrews. (Id. at 309-13, 328-30.) Wilson entered and sat in the back driver-side seat behind Detective Nemorin. (Id. at 311-13, 330.) Wilson ordered Jacobus to "pat down" the Detectives and told them that submitting to a pat-down was a pre-condition to transacting business. (Id. at 235, 328-29.) The Detectives refused to be patted down, and it is unclear whether Jacobus in fact patted them down. (Id. at 329.)
Although the Stapleton Crew did in fact own a TEC-9, Wilson and Jacobus did not have it in their possession when they met the Detectives. (Id. at 328, 331.) Wilson therefore instructed Detective Nemorin to drive to the intersection of Victory Boulevard and Corson Avenue, where, Wilson claimed, he would pick up the TEC-9.*fn2 (Id. at 330, et seq.) As they drove, Wilson commented that the neighborhood was "hot," by which he meant that it was full of undercover law enforcement officers. (Id. at 331.) When the car reached Victory and Corson, approximately one and one-half miles from the Stapleton Houses, Wilson instructed Detective Nemorin to pull over. (Id. at 335.) Wilson then exited the car alone. (Id. at 333-37.)
The intersection of Victory and Corson was chosen for its proximity to 92 Victory Boulevard, a small apartment building that was the home of Mitchell Diaz, a Stapleton Crew member who possessed the Crew's TEC-9 and 44-caliber revolver in March 2003. (Id. at 748, 798-805.) While Wilson, Jacobus, and the Detectives drove from the Stapleton Houses to Victory and Corson, Diaz and Bullock were in Diaz's home, loading the revolver so that Wilson could use it to rob the Detectives. (Id. at 845-48.)
When Wilson exited the Detectives' car, he met Diaz in a deli. (Id. at 856.) Diaz had the loaded revolver in his possession, but because he did not want to hand it to Wilson in public view, the two of them walked separately -- first Diaz, then Wilson -- to Diaz's home. (Id. at 856-57.) As they walked, each saw men he assumed were undercover law enforcement officers in a black Ford Expedition parked on Victory Boulevard. (Id. at 858-61.) When Wilson arrived at Diaz's home, he and Diaz discussed the possibility that the men in the black Expedition were undercover officers. (Id. at 860-61.) Although they agreed the men were in fact undercover officers, Diaz persuaded Wilson that the officers were probably in the neighborhood for reasons unrelated to the Stapleton Crew's planned robbery. (Id.) Diaz then handed Wilson the revolver and watched as Wilson walked back to the Detectives' car, entered it, and once again sat in the back driver-side seat. (Id. at 861-66.)
When Wilson re-entered the Detectives' car, he instructed Detective Nemorin to drive west along Corson. (Id. at 345-46.) Moments later, Wilson complained that the Detectives' car was being followed by the black Expedition. (Id.) In order to evade the black Expedition, Wilson directed Detective Nemorin to turn left on Fremont Street, which was the wrong way on that one-way street, and to then circle back to the intersection of Victory and Corson; Wilson then exited the Detectives' car, ostensibly in order to observe whether it was in fact being followed. (Id. at 346-50, 354.) Detective Nemorin followed Wilson's instructions. (Id.) Wilson re-entered the car when it was back on Victory and again sat in the back driver-side seat. (Id. at 350.)
Wilson next instructed Detective Nemorim to drive 1,000 feet north along Daniel Low Terrace, 100 to 200 feet east along Fort Place, 1,000 feet south along Montgomery Avenue, 1,000 feet south along St. Pauls Avenue, and to then turn east and park on Hannah Street. (Id. at 352-55.) It appears that Wilson chose this circuitous path in order to evade any law enforcement officers who may still have been following the Detectives' car.*fn3
Hannah Street was the planned robbery location. (Id. at 357.) When Detective Nemorin parked there, Wilson again exited the car alone and looked up and down the street in order to make sure that the car had not been followed. (Id. at 357-58.) When he re-entered the car moments later, he sat in the back driver-side seat, reached into his waistband, pulled out the revolver, and without warning or hesitation shot Detective Andrews in the head. (Id. at 358-60.) He then put the revolver to Detective Nemorin's head and demanded, "Where's the shit at? Where's the shit at? Where's the money? Where's the shit at?" (Id. at 360-61.) When Detective Nemorin responded by pleading for his life, Wilson pulled the trigger. (Id. at 361-62.)
Later that night, Jacobus asked Wilson why he had murdered the Detectives. Wilson answered, "I don't give a fuck about nobody." (Id. at 378.)
When a defendant is found guilty of a federal capital crime, his sentence is determined in a penalty phase by a jury that is ordinarily, as it is in this case, the same jury that determined the defendant's guilt. 18 U.S.C. § 3593(b). If the defendant was convicted of capital crimes such as those that Wilson committed, then the Government must prove beyond a reasonable doubt, in the penalty phase, that the defendant--
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;
(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act[.]
If the Government proves one or more of these threshold factors, then "information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under [18 U.S.C.] section 3592." 18 U.S.C. § 3593(c). Section 3592 lists seven mitigating factors ("statutory mitigating factors") and, for homicide cases, sixteen aggravating factors ("statutory aggravating factors"), each of which the jury must consider. See 18 U.S.C. § 3592(a)(1)-(7), (c)(1)-(16). Section 3592 also permits the defense to present evidence of unenumerated mitigating factors ("non-statutory mitigating factors"), which the jury must consider, and the Government, if it provides notice, to present evidence of unenumerated aggravating factors ("non-statutory aggravating factors"), which the jury is permitted, but not required, to consider. See 18 U.S.C. § 3592(a)(8), (c). A related provision explicitly authorizes the Government, if it provides notice, to present evidence of "factors concerning the effect of the offense on the victim and the victim's family[.]" 18 U.S.C. § 3593(a).
Information offered to prove a mitigating or aggravating factor "is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials[.]" 18 U.S.C. § 3593(c). This court may, however, exclude information from the penalty phase "if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id.
Wilson has moved the court to limit the Government's penalty-phase presentation in two ways and to require an offer of proof on one issue. First, Wilson moved the court to preclude the Government from offering as an aggravating factor the victims' status as law enforcement officers. (Wilson Br. dated Dec. 20, 2006 at 3-5.) Second, Wilson moved the court to preclude the Government from offering evidence of Wilson's alleged membership in the Bloods street gang in support of the non-statutory aggravating factor of Wilson's future dangerousness. (Id. at 7-11.) In addition, Wilson moved the court to require the Government to disclose whether it will offer any evidence of Wilson's (a) alleged continuing pattern of violence and (b) low rehabilitative potential -- each of which is a category of proof of future dangerousness -- other than (i) the crimes for which Wilson was found guilty in this case and (ii) Wilson's juvenile criminal history. (Id. at 11-14.) I address each motion in turn.
1. The Victims' Status as Law Enforcement Officers
The Government intends to prove as an aggravating factor the "status of the victims," i.e., that "[t]he defendant murdered two law enforcement officers during the course of their official duties." (Notice of Intent to Seek the Death Penalty, Docket No. 174 ("NOI") at 3.) Wilson argues that "in order to be validly weighed as a factor in favor of a death sentence, the government must prove that the defendant was aware of the victims' status" and that because such awareness was not ...