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United States v. Ashburn

United States District Court, E.D. New York

November 7, 2014




This Memorandum and Order addresses the Government's motion to empanel an anonymous jury for the upcoming trial in this case. Jury selection is scheduled to begin on January 26, 2015. The Government has requested that "the names, precise addresses and workplaces of members of both the venire and petit juries not be revealed, but that jury selection and empanelment otherwise proceed normally, without a questionnaire or partial or full sequestration." (Gov't Mem. in Supp. of Mot. for Anon. Jury ("Gov't Mot.") (Dkt. 168) at 2.)

In sum, the Government argues that the use of an anonymous jury is warranted because this case involves charges of violent gang activity, the Defendants have an alleged history of interference with the judicial process, and this case has attracted and will likely continue to attract significant publicity. Defendants[1] oppose the use of an anonymous jury, arguing that it would unfairly prejudice the Defendants and that it is not justified by the facts in this case. (See Defs.' Joint Mem. in Opp'n to Gov't Mot. for Anon. Jury ("Defs.' Opp'n") (Dkt. 185).) In the alternative, Defendants insist that if the court decides to empanel an anonymous jury, it should employ a questionnaire in the jury selection process. ( Id. at 1.)

In determining whether to empanel an anonymous jury, the court must strike a balance "between the integrity of the criminal justice system and the jurors' concern for their own wellbeing[, ] and the preservation and meaningful efficacy of the presumption of innocence." United States v. Bellomo, 263 F.Supp.2d 557, 559 (E.D.N.Y. 2003). For the reasons that follow, the court has determined that this balance weighs in favor of empaneling an anonymous and semi-sequestered jury. To assist it in conducting voir dire of potential jurors, however, the court has also decided to utilize a questionnaire. Accordingly, the Government's motion is GRANTED in part and DENIED in part.


A. Charged Criminal Conduct

Defendants are charged by a twenty-one count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation ("Six Tre Folk Nation" or "Six Tre"), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and commercial robberies in Brooklyn and elsewhere beginning in 2007 through 2011. (Third Superseding Indictment (the "Indictment") (Dkt. 71); Gov't Mot. at 3.) According to the Government, Six Tre is part of the Folk Nation, a nationwide gang founded in Chicago, Illinois in the early 1990s. (Gov't Mot. at 2.) The Government alleges that Six Tre has approximately 20 to 25 identified members and has been operating in and around the Ebbets Field housing projects in the Flatbush section of Brooklyn for several years. ( Id. at 3.) Specifically, Defendants are charged with being directly responsible for three murders and two attempted murders (id.), as well as several "smash-and-grab" robberies of high-end jewelry stores, and robberies of individuals solicited via the Craigslist website (id. at 5), between April 2008 and October 2011. The Government also alleges that the Six Tre Folk Nation was led by Defendant Ashburn from the time of its inception through late 2009. ( Id. at 3.)

The Indictment, dated November 15, 2012, charges each Defendant with multiple counts of criminal conduct. In particular, each Defendant is charged with one count of racketeering (Count 1), and one count of racketeering conspiracy (Count 2), on the basis of sixteen predicate Racketeering Acts ("RAs"), [2] which include, among others: conspiracy to murder members of a rival Crips gang (RA 1) as well as an associate of a rival gang known as "Specs" (RA 5); the murders of Courtney Robinson on or about April 20, 2008, Anthony Thomas on or about August 9, 2008, and Brent Duncan on or about June 19, 2010 (RAs 2, 3, 9); the attempted murder of an individual known as "Wrinkles" on or about September 13, 2008, John Doe #1 on or about May 15, 2009, and John Doe #3 on or about June 30, 2010 (RAs 4, 6, 12); Hobbs Act robbery and a robbery conspiracy targeting employees of various jewelry stores (RAs 7, 8); Hobbs Act robberies and a robbery conspiracy concerning individuals targeted through Craigslist (RAs 10, 11, 13, 14, 15); and robbery resulting in the murder of Dasta James on or about January 28, 2011 (RA 16). (Indictment ¶¶ 6-28.)

In addition, these Defendants are charged in Counts 3 through 5, Counts 8 through 11, and Counts 16 through 21 with various federal crimes predicated on the same or similar conduct at issue in the Racketeering Acts, including: murder in-aid-of racketeering; assault with a dangerous weapon in-aid-of racketeering; robbery and robbery conspiracy in violation of the Hobbs Act; unlawful use of a firearm; and causing death through use of a firearm. ( Id. at ¶¶ 29-33, 37-42, 49-54.)

B. Procedural History

On August 14, 2014, the Government filed a Motion for an Anonymous Jury, arguing that "[b]ecause this case involves charges of violent gang and organized crime activity, including multiple murders and attempted murders, there is a substantial risk that jurors' judgment and impartiality may be compromised by fear if their names and addresses are revealed." (Gov't Mot. at 2.) As a result, the Government seeks to have the court withhold the names, precise addresses, and workplaces of members of both the venire and petit juries, but does not seek any form of sequestration, and argues that the use of a questionnaire would be unnecessary. (Id.) On September 19, 2014, Defendants filed their Response in Opposition to the Government's Motion, arguing that the Government's concerns "do not rise to the level necessary" to infringe on Defendants' rights to the presumption of innocence and to a fair trial under the Sixth Amendment. (Defs.' Opp'n at 2.) Defendants further argue that if an anonymous jury is empaneled, they will be unable to obtain the "permissible and necessary information for them to exercise their peremptory challenges and to be assured of juror impartiality" unless the court employs a questionnaire in the jury selection procedure. (Id.) The Government filed a letter in reply to Defendant's Opposition on October 3, 2014. (Gov't Reply (Dkt. 196).)


"Anonymous juries are empaneled in order to protect jurors from harm, to address concerns of jurors regarding their safety, and to prevent potential jury tampering." United States v. Khan, 591 F.Supp.2d 166, 169 (E.D.N.Y. 2008) (quoting United States v. Gammarano, No. 06-CR-72 (CPS), 2007 WL 2077735, at *4 (E.D.N.Y. July 18, 2007)). Yet empaneling an anonymous jury also presents "the possibility of unfair prejudice to the defendant and the danger of encroaching on the presumption of innocence." United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir. 1989). Thus, in resolving a motion for an anonymous jury, "courts must balance the defendant's interest in conducting meaningful voir dire and in maintaining the presumption of innocence, against the jury's interest in remaining free from real or threatened violence and the public interest in having the jury render a fair and impartial verdict.'" United States v. Taylor, No. 10-CR-268 (DLI), ___ F.Supp.2d ___, 2014 WL 1653194, at *16 (E.D.N.Y. Apr. 24, 2014) (quoting United States v. Quinones, 511 F.3d 289, 295 (2d Cir. 2007)).

The Second Circuit has consistently "made clear that when genuinely called for and when properly used, anonymous juries do not infringe a defendant's constitutional rights.'" United States v. Kadir, 718 F.3d 115, 120 (2d Cir.), cert. denied, 134 S.Ct. 160 (2013) (quoting United States v. Pica, 692 F.3d 79, 88 (2d Cir. 2012)). It has also explained, however, that the "analysis of the potential constitutional impact of an anonymous jury on a defendant must receive close judicial scrutiny and be evaluated in the light of reason, principle and common sense.'" Taylor, 2014 WL 1653194, at *16 (quoting United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991)). After conducting this analysis, "a court may order the empaneling of an anonymous jury upon (a) concluding that there is strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected." Pica, 692 F.3d at 88 (quoting United States v. Gotti, 459 F.3d 296, 345 (2d Cir. 2006)). "Within these parameters, the decision whether or not to empanel an anonymous jury is left to the district court's discretion." Id. (quoting Gotti, 459 F.3d at 345).

In determining whether there is strong reason to believe the jury needs protection, courts in this circuit have considered various factors, including: (1) the dangerousness of the defendants, demonstrated by the seriousness of the crimes charged and whether defendants are charged with participating in a large-scale criminal enterprise; (2) whether the defendants or their associates have engaged in past attempts to interfere with the judicial process; (3) whether the defendants have the ability to interfere with or intimidate the jury; and (4) whether the trial is likely to attract media attention and publicity. See United States v. Wilson, 493 F.Supp.2d 397, 398 (E.D.N.Y. 2006) (citing United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991); Vario, 943 F.2d at 240; Tutino, 883 F.2d at 1132-33). While "it is unclear whether any of these factors individually justif[ies] [e]mpaneling an anonymous jury, " "there are numerous cases indicating that anonymity is appropriate when some combination of these factors is present." Khan, 591 F.Supp.2d at 169 (citing Quinones, 511 F.3d at 296). As the Second Circuit has pointed out:

Sufficient reason for empaneling an anonymous jury has been found to exist where, for example, the defendants "were alleged to be very dangerous individuals engaged in large-scale organized crime who had participated in several mob-style' killings, " and there was "strong evidence of defendants' past attempts to interfere with the judicial process, and defendants were alleged to be part of a group that possessed the means to harm jurors, " United States v. Thomas, 757 F.2d [1359, ] 1364-65 [(2d Cir. 1985)]; or where the defendants have been charged with grand jury tampering and the trial is expected to attract publicity, ... Vario, 943 F.2d [at] 240...; United States v. Persico, 832 F.2d [705, ] 717 [(2d Cir. 1987)] (warranted by history of violence and willingness to corrupt and obstruct justice, together with expectation of extensive publicity); or where the defendant has a history of attempted jury tampering and a serious criminal record, ... Tutino, 883 F.2d at 1132-33; or where there had been extensive pretrial publicity and there were abundant allegations of dangerous and unscrupulous conduct, United States v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979).

Paccione, 949 F.2d at 1192.

"If a district court determines that an anonymous jury is appropriate, the court must take reasonable precautions to minimize any prejudicial effects on the defendant and to ensure protection of his fundamental rights.'" Kadir, 718 F.3d at 120 (quoting United States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994)). Indeed, a defendant's fundamental rights "must be protected by the court's conduct of a voir dire designed to uncover bias as to issues in the cases [sic] and as to the defendant, ' and by taking care to give the jurors a plausible and nonprejudicial reason for not disclosing their identities.'" Thai, 29 F.3d at 801 (quoting Paccione, 949 F.2d at 1192); see also United States v. Herron, 2 F.Supp. 3d 391, 396-97 (E.D.N.Y. 2014).


After considering each of the relevant factors, the court concludes that the balance of the interests ultimately weighs in favor of empanelling an anonymous jury. In fact, the need to protect the jury is so strong that-despite the limited nature of the Government's request (see Gov't Mot. at 2)-the court determines that semi-sequestration is also warranted in this case. Nevertheless, the voir dire to be conducted by the court will include the use of a questionnaire. Furthermore, both the written and oral questioning will be designed to sufficiently address Defendants' concerns with respect to their ability to uncover any bias on the part of prospective jurors, who will be provided with a plausible and nonprejudicial explanation for these adjustments to the process.

A. Need for Protection

With respect to the first prong of the analysis, the Government argues that each of the four factors counsels in favor of protecting jurors' identities. (Gov't Mot. at 9-13.) In maintaining that there is "strong reason" the jury needs protection in this case, the Government further asserts that "[m]ost importantly, the defendants are dangerous and, based on the evidence to be presented at trial, they are likely to be perceived by the jurors as dangerous." ( Id. at 9.) Defendants, however, contend that evaluating each factor militates against finding an anonymous jury is warranted. (Defs.' Opp'n at 14-19.) Most significantly, Defendants insist that "there are no allegations that the Defendants have engaged in any acts of witness intimidation or that they would have the means to tamper with the jury." ( Id. at 2.) Ultimately, Defendants argue that the "assumption of dangerousness" generated by the instruction to withhold certain information "will prejudice the entire venire against the Defendants, " and could cause them to "voluntarily withhold additional information" during voir dire, including "questions about whether they could be fair and impartial." ( Id. at 6.) ...

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