We need not address the merits of the double jeopardy issue in light of the government's lack of standing to assert the defendants' Fifth Amendment rights and the defendants' waiver of any Fifth Amendment problems. And the government has offered no other grounds or theory upon that would otherwise justify its intervention based on the Fifth Amendment. Accordingly, the matters held in abeyance, including Edward Cooksey's involvement in the Charmaine Nathan murder, shall remain in abeyance.
Notwithstanding the Fifth Amendment claim, the government also contends that we have impermissibly suppressed evidence critical to its success on the charges that we have permitted it to prosecute in the initial trials. In particular, the government believes that it would be impossible to establish the requisite pattern and continuity under RICO unless, in addition to proof of the many violent acts and drug-related activities presently allowed under the severance plan, we also permit it to prove every alleged murder and violent act, and every isolated drug transaction alleged to have taken place as part of a narcotics conspiracy spanning the twenty-four year history of El Rukn activity.
Consistent with the views espoused in Andrews I and Andrews II, we continue to believe that the mass of proof that the government seeks to introduce would be unnecessarily cumulative, would waste a tremendous amount of time, and would tend to mislead and confuse the jury. These were among the specific reasons that justified severance in the first place. Rule 403 of the Federal Rules of Evidence clearly grants us the discretion to act as we have done to limit evidence that may be relevant, but unnecessary. In light of the government's vehement objections at this relatively early stage of the proceedings, however, we shall give it the benefit of the doubt and reconsider the scope of our evidentiary limitation. Though by no means are we convinced that "compelling reasons" exist that would require the presentation of all of this evidence, it may be that our order was in some limited respects unduly, perhaps prematurely, restrictive. Accordingly, we vacate our order in Andrews II as to the exclusion of certain evidence under Rule 403. We shall revisit these evidentiary issues at the time of trial, when we are afforded the opportunity to consider this evidence in its most pertinent context.
We vacate the Rule 403 exclusions reluctantly. We have attempted throughout the pretrial period to streamline both trial preparation and the actual trial itself. Our pretrial rulings under Rule 403 were designed, at least in part, to simplify preparation for all parties. Indeed, we purposefully issued these rulings in Andrews I and Andrews II to reduce the costs in time and money of trial preparation. We certainly were not required to make rulings of this nature as early as we did. Vacating these Rule 403 decisions grossly enlarges the body of evidence that must be digested prior to trial, and means that it will be more difficult both for the government to properly train additional prosecutors and for new defense attorneys to adequately prepare for trial.
Thus, as trial draws near, the government would be well-advised, before it fully commits both its own resources and those of court-appointed defense counsel, to carefully re-examine its evidentiary posture to ensure compliance with the overriding objectives of severance. Our goal in Andrews I and Andrews II was to provide a workable severance plan that would not only prevent overlapping proof as between the initial trials, but would also limit the extent, if any, of overlap with respect to the matters held in abeyance. By seeking to prosecute the entire realm of alleged El Rukn criminal activity at each and every individual trial, the government seeks to eviscerate the sine qua non of our severance obligations. Therefore, although we vacate the Rule 403 rulings at this juncture, at trial the government will have to present persuasive justification for admitting the morass of evidence we are otherwise inclined to exclude.
We deny the government's motion to reconsider our decision to place defendant Alan Knox as a single defendant in Trial Five. The government implies that our action somehow usurps the prosecutorial decisions "which the Constitution wholly commits to [its] discretion." Mem. at 10. Yet our severance plan in no way prevents the trial of Alan Knox, nor does it preclude the government from ultimately trying Knox for each of his alleged crimes. If the government wishes to try further a man already serving a virtual "life" sentence, it may of course do so. But that alone does not require us to either expedite or combine Knox's trial, particularly when more pressing matters -- the trial of other defendants in this indictment who have been incarcerated for more than a year under preventative detention -- deserve higher priority.
The government has pointed out in a footnote that we did not include the weapons charges (Counts 172 and 173) in Trial Four against defendants Sardin and Speights. Since these charges apparently stem from the same search warrant and seizure that led to narcotics charges already included in that trial, we shall amend our plan with respect to Trial Four and add these additional counts.
We grant the government's motion to reconsider only with respect to the Rule 403 determinations, which we now vacate subject to renewed consideration at the time of trial. We amend our severance plan to include Counts 172 and 173 in Trial Four. In all other respects the motion to reconsider is denied. It is so ordered.