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UNITED STATES v. BURNSIDE

June 4, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS BURNSIDE, et al., Defendants.


HOLDERMAN


The opinion of the court was delivered by: JAMES F. HOLDERMAN

JAMES F. HOLDERMAN, District Judge:

 This multi-defendant criminal case is among several filed in this federal district during the period 1986 through 1989 *fn1" in which persons alleged to have been associated with the Chicago street gang known as the "El Rukns" were charged. *fn2" Each of these cases stemmed from a multi-year, multi-jurisdictional criminal investigation of the El Rukn street gang. Among the law enforcement personnel who worked as part of the joint "El Rukn" task force were prosecuting attorneys, law enforcement agents and police officers from local, state and federal governmental entities. These law enforcement personnel utilized numerous investigatory tools, including court-authorized wiretaps on several phones over extended periods of time. Several high- ranking members in the El Rukn gang cooperated with the government and testified for the government at the trials of the "El Rukn" cases.

 For the reasons stated in this opinion, the motions of defendants Burnside, Griffin and Jackson for a new trial are granted.

 TABLE OF CONTENTS

 PROCEDURAL HISTORY OF THE CASE

 FACTUAL FINDINGS AS TO POST-TRIAL EVIDENCE

 I. The Government's Cooperating "El Rukn" Witnesses

 II. The Government's Witnesses' Illegal Drug Use

 
A. Positive Drug Test Results
 
B. Eyewitnesses to the Illegal Drug Use
 
1. Nicholas Ahrens
 
2. Raymond Bonnema
 
3. "John Doe"
 
4. Jackie Clay
 
5. Harry Martin
 
6. Evaluation of Eyewitnesses' Credibility
 
C. Admissions of Illegal Drug Use
 
1. Henry Harris' Admissions of Illegal Drug Use:
 
(a) at 1989 Disciplinary Hearing
 
(b) to Ervin Lee
 
(c) to Tanya Van Blake
 
(d) to Mustaq Malik
 
(e) to Harry Martin
 
2. Harry Evans' Admissions of Illegal Drug Use:
 
(a) to Nicholas Ahrens
 
(b) to "John Doe"
 
(c) overheard by Lenell Smith
 
(d) to Harry Martin
 
(e) in Monitored 1992 Phone Conversation
 
D.Circumstantial Evidence of Illegal Drug Use
 
1.Evans Appeared to be Using Illegal Drugs
 
2.Henry Harris' Refusal to Take Drug Test

 III. The Government's Awareness of its "El Rukn" Witnesses Illegal Drug Use

 
A. MCC's Warden Told U.S. Attorney Personnel of Illegal Drug Use
 
B. MCC's Warden Provided a Memorandum to the U.S. Attorney's Office Showing Positive Drug Test Results
 
C. AUSA Rosenthal Spoke with AUSA Hogan About the Positive Drug Test Results
 
D. Witnesses told AUSA Hogan of the Illegal Drug Use
 
E. Agents told AUSA Hogan of Drug Use "Rumors"
 
F. Second Drug Test Memorandum Provided to AUSA Hogan
 
G. Evans Appeared to be Using Illegal Drugs
 
H. Harris Told U.S. Attorney Paralegal of His Refusal to Take Drug Test

 IV. Government's Failure to Disclose or Investigate Evidence of its Witnesses' Illegal Drug Use

 
A. Positive Drug Test Results
 
B. Reports of Illegal Drug Use
 
C. "Rumors" of the Drug Use
 
D. Henry Harris' Refusal to Take Drug Test
 
E. Harry Evans' Appearance

 V. Undisclosed Benefits Given to the "El Rukn" Witnesses

 
A. "Contact" Visits and Lax Security for the "El Rukn" Witnesses
 
1. "Contact" Visits at the U.S. Attorney's Office
 
(a) The "EL RUKIN GUARD DUTY REPORT"
 
(b) "El Rukn" witnesses Smuggled Contraband Items Undetected
 
3. Contact Visits and Lax Security Contributed to Drug Acquisition, Possession and Use
 
B. Telephone Services for the "El Rukn" witnesses Through the U.S. Attorney's Office
 
C. AUSA Hogan's Intercession with MCC Officials for the "El Rukn" Witnesses
 
D. Other Undisclosed "Benefits"
 
1. Sundry Items Provided to the Witnesses
 
2. U.S. Attorney's Office Paralegal Corinda Luchetta

 DISCUSSION AND APPLICATION OF THE LAW

 I. United States Attorney's Responsibility to Justice

 II. Supreme Court's Articulation of the Government's Constitutional Obligations

 III. Proof of a Constitutional Violation

 
A. The Prosecution Suppressed the Evidence
 
1. Government Personnel had Knowledge of the Undisclosed Brady Material
 
(a) AUSA Hogan had Personal Knowledge of the Undisclosed Brady Material
 
(b) Other U.S. Attorney Personnel had Knowledge of Undisclosed Brady Material
 
(c) Other Government Personnel had Knowledge of Undisclosed Brady Material
 
(d) Brady Evidence was "Readily Available" to the Prosecution Which Imputes Knowledge for Brady Purposes
 
(e) Government Required by Brady to Inquire Further into Facts
 
(f) The Government had an Obligation Under Brady to Disclose Facts Which Constituted the "Tip of the Iceberg"
 
2. No Other Facts Excuse the Government's Non-Disclosure of the Brady-Giglio Material
 
(a) Government Counsel Resisted and Did Not Comply with Defense Trial Subpoenas
 
(b) The Brady Material was not Available from the "Public Record"
 
B. The Suppressed Evidence was Favorable to the Defense
 
1. The Illegal Drug Use Was Relevant to the Witnesses' Abilities to Recollect and Relate
 
2. Government Benefits Facilitatinq Drug Use were Relevant to the Witnesses' Credibility
 
3. Defendants were Deprived of Their Constitutional Confrontation Rights by Failure to Disclose Drug Use
 
C. The Suppressed Evidence was Material
 
1. The Suppressed Evidence was Admissible as to Government Witnesses' Bias
 
2. The Credibility of Government Witnesses was Essential to Government's Obtaininq Defendants' Convictions
 
3. The Suppressed Evidence was not Cumulative as to Government Witnesses' Credibility
 
4. Government Counsel's Admissions and Conduct Point Toward a Finding of Materiality
 
D. Knowing Use of Perjured Testimony
 
E. The Proper Remedy

 CONCLUSION

 Two indictments were filed on October 26, 1989 against a total of 65 alleged El Rukn gang members and associates. The first indictment filed was entitled United States v. Henry Andrews, et al., 89 CR 908 (N.D. Ill.). It charged 38 defendants with various crimes and was assigned initially to Judge Marvin E. Aspen's calendar. The second indictment, which was assigned to this court, was United States v. Michael Anderson, et al., 89 CR 909 (N.D. Ill.). It alleged similar offenses and named 27 defendants. The defendants charged in one indictment were named as unindicted co-conspirators in the other indictment. The allegations of criminal conduct in each indictment spanned a period of over twenty years. Among the criminal violations alleged were offenses involving the Racketeering Influenced Corrupt Organization ("RICO") statute, 18 U.S.C. § 1961 et. seq., including RICO conspiracy (18 U.S.C. 1962(d)); narcotics conspiracy (21 U.S.C. § 846); and narcotics distribution (21 U.S.C. 841(a)(1)); as well as substantive RICO charges (18 U.S.C. 1962(c)), which alleged numerous racketeering acts and offenses including allegations of multiple murders, kidnapping (18 U.S.C. § 1952B(a)(1)), witness intimidation (18 U.S.C. § 1512(b)(3)), and witness retaliation (18 U.S.C. § 1513(a)(1)).

 In Case No. 89 CR 908, Judge Aspen entered pretrial orders severing the trials of various defendants. See United States v. Andrews, 754 F. Supp. 1161 (N.D. Ill. 1990); United States v. Andrews, 754 F. Supp. 1197 (N.D. Ill. 1990). Thereafter, several federal district judges, including district judges from outside the Northern District of Illinois, presided over the trials of the various severed defendants indicted in Case No. 89 CR 908. *fn3"

 This court presided over the proceedings in Case No. 89 CR 909, including all pretrial matters and the two trials which have taken place. In the course of presiding over the pretrial matters in Case No. 89 CR 909, this court ruled on numerous pretrial motions, including motions for severance. Among the pretrial motions filed or adopted by the defendants were motions for disclosure of material pursuant to the constitutional doctrines espoused in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). The government in its pretrial response, which was consolidated to encompass all the defendants' Brady and Giglio motions, stated:

  
To be sure, the government is well aware of its obligations under Brady and will honor those obligations. At the present time, however, the government is not aware of any Brady material pertaining to any defendant. Should any exculpatory information come into the government's possession, it will be promptly disclosed to the appropriate defense counsels.
  
* * *
  
Regarding [Giglio] materials which relate to witnesses whom the government will call in its case-in-chief, the government will provide the defense with information that bears on these witnesses' credibility (such as plea agreements, promises, benefits, inducements, etc.) at time sufficient to allow the defendant to make use of such evidence.
  
* * *
  
Providing Giglio material in the manner proposed herein comports with the law and adequately protects the defendants' due process rights.

  (Government's Consolidated Response to Defendants' Motions for Discovery filed June 29, 1990, pp. 5-7.)

  The first trial in Case No. 89 CR 909, United States v. Bingham, et al., commenced on April 9, 1991. In that trial, fourteen alleged El Rukn gang members who allegedly held the rank of "ambassador" in the El Rukn gang faced charges of RICO conspiracy, narcotics conspiracy, racketeering, and various counts of narcotics distribution. The Bingham trial took four months. On August 9, 1991, the jury found ten of the defendants guilty of various criminal violations. Three defendants were found not guilty. A mistrial was declared as to one defendant who subsequently pleaded guilty.

  The first trial of defendants in Case No. 89 CR 908, over which Judge Aspen presided, United States v. Boyd, et al., commenced on May 6, 1991 and ended September 1, 1991. The trial before Judge Conlon, United States v. Andrews. et al., began on July 6, 1991 and ended August 25, 1991.

  On September 23, 1991 this court started the second trial in Case No. 89 CR 909 (the fourth trial in the series of trials arising from the two "El Rukn" indictments)--the jury trial of defendants Burnside, Griffin and Jackson. United States v. Burnside, et al., 89 CR 909 (N.D. Ill.) ("the Burnside trial").

  The government's lead prosecutor in the Burnside trial was Assistant U.S. Attorney ("AUSA") William Hogan. When the trial concluded on October 31, 1991, defendants Burnside and Griffin were each convicted of the RICO conspiracy (Count One), the RICO substantive offense (Count Two) and the narcotics conspiracy charge (Count Three). Defendant Jackson was only convicted of the narcotics conspiracy charge (Count Three). Defendant Burnside was additionally convicted of two specific narcotics distribution offenses (Counts Eleven and Twelve).

  The post-trial motions filed after the Burnside trial asserted, among other things, that the government had withheld information from the defendants' counsel which showed that two key government witnesses, Henry Harris and Harry Evans, had tested positive for illegal drugs while incarcerated at the Metropolitan Correctional Center ("MCC") in Chicago, the federal detention center serving this district court. *fn4" Similar post-trial allegations were filed by the defendants in the other "El Rukn" trials. Two visiting judges who presided over some of the severed trials in Case No. 89 CR 908, Judge Harold Baker and Judge Richard Mills, denied the post-trial motions in their respective "El Rukn" trials without a hearing or consideration of further post-trial evidence.

  Judge Conlon and this court both ordered evidentiary hearings, over the government's opposition, *fn5" into the defendants' post-trial allegations. Judge Aspen delayed the execution of the sentences he imposed as to the defendants convicted in the Boyd trial until further determinations could be made regarding the evidence adduced at post-trial hearings and the submission of further briefs.

  The evidentiary hearing before this court as to the Burnside trial was scheduled to begin October 13, 1992. *fn6" It was delayed at the request of the then United States Attorney for the Northern District of Illinois, Fred Foreman, *fn7" so an "internal investigation within the U.S. Attorney's Office" (Transcript of Proceedings of October 13, 1992, p. 5) could be conducted into information that had been received by the U.S. Attorney's Office from a former AUSA, Lawrence Rosenthal. Rosenthal had reported that he talked to AUSA Hogan in 1989 about a drug test report he, Rosenthal, had received regarding certain "El Rukn" witnesses. None of this had been disclosed by AUSA Hogan to the defense in the Burnside trial.

  Judge Conlon denied a similar request by then U.S. Attorney Foreman for a delay of the evidentiary hearing scheduled to commence before her. The post-trial evidentiary hearing before Judge Conlon in United States v. Andrews. et al., 89 CR 908, began as scheduled on October 15, 1992, *fn8" and former AUSA Rosenthal was called to testify on that day.

  On November 16, 1992, this court began the post-trial evidentiary hearing regarding the Burnside trial. That hearing proceeded on an intermittent basis over the following six weeks and ended on December 31, 1992. A total of 37 witnesses testified before this court at the post-trial hearing. The testimony of other witnesses was presented by stipulation of the parties (see November 18, 1992 stipulation). In one instance, the testimony of one witness, whose credibility the government does not contest, was presented as an admission by the government. (H. 4709-10.) The post-trial evidentiary hearing over which Judge Conlon presided also proceeded on an intermittent basis and concluded January 5, 1993.

  Following the conclusion of the post-trial hearings conducted by Judge Conlon and this court, the government disclosed a significant amount of additional Brady information which had not been previously revealed. This information included government documents, notes of witness interviews, and witness statements. (See e.g., Government's Filing of January 20, 1993; Government's Filing of February 10, 1993; Government's Filing of February 19, 1993; Government's Filing of March 12, 1993; Government's Filing of March 31, 1993; Government's (in camera) Filing of April 30, 1993; Government's (in camera) Filing of May 6, 1993; Transcript of Proceedings of May 14, 1993; and Government's Submissions of May 26, 1993.)

  On May 24, 1993 Judge Aspen conducted a further evidentiary hearing as a result of further Brady information revealed in late April 1993.

  FACTUAL FINDINGS AS TO POST-TRIAL EVIDENCE

  Having reviewed the evidence which was presented during and after the post-trial hearings, the court must conclude that key government cooperating "El Rukn" inmate witnesses, who had longstanding histories of drug usage, continued to use illegal drugs during the period of their incarceration and post-arrest, postplea cooperation with the government. The evidence indicated that the post-arrest illegal drug use commenced in 1988, and encompassed the period during which the government witnesses testified before the grand jury in 1989. It also included the time period during which the witnesses testified at the Burnside trial, September and October 1991, as well as the various other "El Rukn" trials.

  On the basis of the totality of the post-trial evidence, the court must also find that government personnel, including U.S. Attorney's Office personnel, were aware of the continuing drug use by these inmate government witnesses, but did not investigate it, did not stop it, and did not disclose it to defense counsel or the court before or during the Burnside trial. Further, substantial undisclosed benefits were provided to the government's cooperating "El Rukn" inmate witnesses by government personnel. These "benefits" included money, gifts, clothing, radios, beer, cigarettes, services and privileges, including the government providing means by which the witnesses' acquisition, possession and use of illegal drugs was facilitated. The evidence which underlies these conclusions is discussed below.

  I. THE GOVERNMENT'S COOPERATING "EL RUKN" WITNESSES

  Henry Leon Harris and Harry Evans, who formerly were high ranking "generals" of the El Rukn organization, were both government witnesses at the trial of defendants Burnside, Griffin and Jackson. Government cooperating "El Rukn" inmate witnesses Earl Hawkins and Ervin Lee also provided testimony at the Burnside trial.

  The jury's assessment that these government witnesses were credible was important to the success of the prosecution's case. (H. 74-75.) Harris provided the key testimony as to the defendants' alleged involvement as suppliers of illegal drugs to the El Rukn organization, which led to defendants' convictions. (H. 74.) Both Harris and Evans, along with Hawkins and Lee had pleaded guilty to felony charges and testified at the Burnside trial pursuant to plea agreements with the government. *fn9" Harris, Evans and Hawkins have yet to be sentenced. They are scheduled to appear before Judge Aspen on June 21, 1993 for further proceedings.

  Harris and Evans were incarcerated at the MCC in Chicago for most of the time between the date of their arrests in the summer of 1988 and their testimony on behalf of the government at the various "El Rukn" trials. Commencing in the summer of 1988 and throughout the fall of that year, Harris and Evans were housed, at the request of the U.S. Attorney's Office, in protective custody on the MCC's 6th floor. (H. 902.) Hawkins and Lee were housed there at various times as well.

  II. THE GOVERNMENT'S WITNESSES' ILLEGAL DRUG USE

  The proof which was presented post-trial leads the court to conclude that Harris and Evans, who had used illegal drugs extensively before their arrest in the summer of 1988, continued their illegal drug use while incarcerated and cooperating with the government before, during and after the trials in the "El Rukn" Cases. The evidence supporting this conclusion is abundant and comes in several forms: 1) drug test results, 2) eyewitness testimony, 3) admissions made by the witnesses themselves, and 4) other circumstantial proof. The court will detail these various categories of evidence.

  A. Positive Drug Test Results

  The MCC employs urinalysis testing in order to detect whether its inmates have ingested illegal drugs. In the spring of 1989, Evans and Harris each tested positive for the unauthorized presence of morphine in urine specimens they provided on April 12, 1989 (Evans) *fn10" and May 11, 1989 (Harris). (Defendants' Exhibit MCC Urine Surveillance Log.)

  According to the MCC's records, neither Evans (C. 251-53) nor Harris received any authorized medication which would have caused a positive test for morphine during the detectible period before providing their April 12, 1989 (Evans) and May 11, 1989 (Harris) specimens. *fn11" The only reasonable inference based on all the evidence is that Harris' and Evans' morphine positive tests were from heroin ingestion.

  The 1989 drug tests were the only positive drug tests of Harris and Evans put into evidence. The fact that Harris and Evans did not test positive after the spring of 1989 does not, however, demonstrate that they did not use drugs after that time. As is discussed below, Harris, Evans and other cooperating "El Rukn" inmate witnesses were not administered any urinalysis tests after October 1989 through the period of their testimony in the "El Rukn" trials. The only other drug test attempted on either Harris or Evans after October 1989 was a random test of Harris on May 30, 1991, at which Harris refused to be tested. Other post-trial evidence indicates that the Harris' and Evans' illegal drug use, as well as drug use by other government inmate witnesses in the "El Rukn" trials, such as Earl Hawkins and Derrick Kees, continued during and after their trial testimony.

  B. Eyewitnesses to the Illegal Drug Use

  At the post-trial hearing, five witnesses provided eyewitness testimony of Harris' and Evans' illegal drug usage during their incarceration at the MCC. *fn12" These eyewitnesses were primarily convicted felons who had themselves been incarcerated at the MCC and had cooperated with the government or were presently cooperating with the government in other federal criminal cases.

  1. Nicholas Ahrens

  Nicholas Ahrens, who is a convicted felon but is no longer in custody, was housed on the 6th floor of the MCC from September 1988 to October 1989. While housed at the MCC, Ahrens had cooperated as a government witness and testified for the government in the multi-defendant RICO and narcotics conspiracy case, United States v. John Cappas, et al., Case No. 88 CR 91 (N.D. Ill.) (Kocoras, J.), in which Ahrens had pleaded guilty. Ahrens observed Harris' and Evans' use of illegal drugs while incarcerated beginning in the fall of 1988.

  Ahrens testified that, in the fall of 1988, he and Harris were in one of the Dirksen Building's holding cells late one afternoon waiting to be returned to the MCC. *fn14" (H. 2807.) After Harris snorted the substance, he showed the substance to Ahrens and told Ahrens it was heroin. (H. 2805; C. 939.) Ahrens did not see from where Harris had obtained the heroin. (H. 2807.) After he completed snorting the heroin, Harris had some heroin left and offered it to Ahrens. (H. 2807; C. 939.) Ahrens declined Harris' offer and did not see where Harris put the excess heroin he possessed. *fn15" (H. 2807.)

  2. Raymond Bonnema

  Another eyewitness to Harris' illegal drug possession and use was Raymond Bonnema. Like Ahrens, Bonnema is a convicted felon and had also testified for the government in the Cappas case. Bonnema testified at the post-trial hearing that he was housed on the 6th floor of the MCC from approximately March 1989 until March 1990. (H. 1782.) Bonnema testified he observed Harris in approximately April 1989 snort white heroin in the holding cell on the fifth floor of the MCC on a morning when Bonnema and Harris were being transported together from the MCC to the Dirksen Building. *fn16" (H. 1786.)

  Bonnema saw the white substance Harris was snorting in a little baggy and asked Harris if the substance was cocaine. Harris told Bonnema "No, it was heroin" and offered some to Bonnema, who declined. (H. 1786.) Bonnema also saw Harris on another occasion "snorting something out of a little white piece of paper" while in the telephone room of the sixth floor of the MCC. (H. 1788; c. 748.)

  3. "John Doe"17

  
While at the MCC, John Doe had access to the 6th floor area in which government witnesses were located.
  
While on the 6th floor of the MCC, John Doe observed that witnesses Harris, Hunter, and other -- and others regularly received visits from African- American women whom John Doe is not able to identify by name. These visits took place in an area of the 6th floor in which prisoners and visitors were supposed to be separated from each other by a wall or partition with a glass window.
  
John Doe observed that Hunter, Harris, and other government witnesses, were able to obtain access to the visitors' side of this partition and make physical contact with the female visitors. On several occasions, John Doe observed the government's cooperating witnesses on the floor of the visitors' side of this partition engaging in sexual contact with the female visitors. John Doe describes these events as a regular occurrence, which he defines as occurrences of up to four times per week.
  
Following various of these visits to these witnesses, the government witnesses would state to John Doe that the female visitors had provided drugs to the government witnesses during the preceding visits. On one occasion, Harris produced a small container and identified its contents as cocaine, stating that he had obtained the cocaine during a recent visit from a female visitor. On other occasions, John Doe saw other cooperating government witnesses in possession of powdered substances which he believed to be drugs.
  
John Doe also saw [Eugene] Hunter in possession of an amount of cash, which John Doe identifies as approximately $ 2,000 to $ 3,000. Hunter maintained this cash in one of the gym shoes he wore while at the MCC.
  
John Doe was told by Hunter, Harris and other cooperating government witnesses that Assistant United States Attorney William Hogan had made efforts to intercede with the Warden of the MCC, at the request of the government witnesses, on topics involving the quality of food and other jail amenities. The cooperating witnesses stated that the Warden of the MCC was irritated by the efforts of AUSA Hogan to intercede on such topics, and that Hogan thereafter declined to contact the Warden at the request of the cooperating witnesses.

  (H. 470910.)

  Additionally, in a further interview with FBI agents on May 3, 1993, "John Doe" stated, among other things, that "he observed Harris and Evans snort cocaine and/or heroin in the MCC on a number of occasions." (Transcript of Proceedings of May 14, 1993, p. 46.)

  "John Doe" stated it was Evans who had money in the MCC not Hunter as "Doe" had previously stated. "John Doe" also stated that "Harris was high on drugs from almost the time he arrived" at the MCC and that illegal drugs such as "heroin, marijuana and cocaine" were "smuggled in for Harris and Evans via their wives and/or girlfriends." "John Doe" also stated "on a number of occasions, he witnessed Harris and Evans, as well as other El Rukn witnesses, obtain drugs and engage in sexual contact with many of these female visitors." "John Doe" further stated "he also witnessed these females provide Harris and Evans drugs in condoms or balloons, which they swallowed, and then request "Ex Lax" in order to quickly pass the condoms and/or balloons." "John Doe" also stated he observed Hawkins, Clay and Kees smoking marijuana on a number of occasions. "John Doe" further stated that "during conversations with Hawkins, Harris and Evans, he [John Doe] learned that they [Hawkins, Harris and Evans] were able to have sexual contact and obtain drugs from their visitors while at the United States Attorney's Office." (Transcript of Proceedings of May 14, 1993, pp. 44-49.)

  4. Jackie Clay

  Another government "El Rukn" inmate witness, Jackie Clay, testified under a grant of immunity that he saw Harry Evans and Henry Harris use narcotics at the MCC. (H. 4620-25.) The first time was in 1989. (H. 4621.) Clay observed Evans in the "rec room" of the 6th floor of the MCC with narcotics laid out on the ledge near the pay telephone. (H. 4621.) The substance Evans snorted was a brown powder and it was packaged in aluminum foil. (H. 4622.) Evans used the end of a matchbook to scoop up and inhale the drugs. After doing this three or four times in the "rec room" phone area, Evans folded the aluminum foil containing what was left of the brown substance and put it in the breast pocket of his prison uniform jumpsuit. (H. 4623.) On that same occasion, Clay observed Henry Harris also snort some of the brown substance which Evans had. (H. 4625.)

  On another occasion during that same period between the spring and fall of 1989, Clay observed Evans making a telephone call on the 6th floor of the MCC. While Evans was on the telephone, Clay observed Evans pull a folded aluminum foil packet out of his sock, open it up and snort drugs. (H. 4626-27.)

  Also during that same time period, but on another occasion when Clay was in the library of the 6th floor of the MCC with Harris and Evans, Evans took aluminum foil from his sock, and put it on the table in the library. Evans and Harris snorted the substance. (H. 4627-30.)

  5. Harry Martin

  Another witness, Harry Martin, who was housed in the 6th floor of the MCC during 1991 (H. 4316), testified at the post-trial hearings on December 30, 1992 that throughout the time he was at the MCC, drugs were accessible on the 6th floor of the MCC where the government's "El Rukn" cooperating witnesses were held. (H. 4325.) Martin also testified at the 1992 post-trial hearings that during the first week of December 1991 he picked a package of cocaine out of Harry Evans' pocket at the MCC. (H. 4322-24.) Martin also testified that he observed Harry Evans smoking cocaine on the 6th floor of the MCC during the third week of December 1991. (H. 4321-22.) Harry Martin was interviewed by FBI agents on April 22, 1993, and testified at the May 24, 1993 hearing before Judge Aspen. In his 1993 testimony, Martin stated he lied when he testified there was a conspiracy among certain witnesses to discredit AUSA Hogan at the December 1992 post-trial hearing.

  Martin testified that he, Martin, had personally told Hogan in early fall 1991 that Harry Evans was using drugs. Martin also testified that during the first "El Rukn" trial (Summer 1991), he told AUSA Kristina Anderson about Evans' drug usage. According to Martin, AUSA Anderson responded "Again?," and thereafter told Martin that she would tell AUSA Hogan about the drug use.

  Martin stated that Harris had told Martin that he, Harris, had used marijuana, karachi heroin and cocaine. Martin also stated that Harris had said that he had told Hogan in 1989 about failing the drug test. Martin also stated that Harris had said that Hogan's testimony at the 1992 post-trial hearings about never seeing the memo about Harris' positive drug test was a lie. According to Martin, Harris had said he was there when Hogan had received the memo. (See Testimony of May 24, 1993; FBI Interview of Martin of April 22, 1993; Defendants' Exhibit Rosenthal Memorandum.)

  Martin was subjected to an FBI polygraph examination by the government on May 5, 1993 as to facts he had told the FBI on April 22, 1993. The FBI polygrapher's report regarding that May 5, 1993 polygraph examination concludes as follows:

  
At the conclusion of this interview Mr. Martin was given a series of polygraph examinations by SA Murphy. It was determined after analyzing the polygraph charts that Mr. Martin was truthful when responding to the following relevant question asked during these tests:
  
2. Did you make up the story that there was a conspiracy to overturn the El Rukn cases? Answer-Yes
  
3. Did you personally tell Kristina Anderson during the El Rukn trials that Harry Evans was using drugs? Answer-Yes
  
4. During the El Rukn trials did you tell Bill Hogan that Harry Evans was using drugs? Answer-Yes
  
5. While at the MCC did you help Harris prepare for his testimony for the El Rukn trials as you've said? Answer-Yes
  
6. While at the MCC did Harris, Evans and Clay ever tell you the others were lying in the trials? Answer-Yes
  
7. Did you ever see Evans with drugs in his possession at the MCC during the El Rukn trials? Answer-Yes

  (FBI Polygraph Report of Harry Martin, May 5, 1993.)

  AUSA Kristina Anderson testified at the May 24, 1993 hearing before Judge Aspen that Harry Martin did not tell her about Harry Evans' drug use. Hogan continued to deny any knowledge of illegal drug use by any of the government's "El Rukn" inmate witnesses at the May 24, 1993 hearing before Judge Aspen.

  This court did not see the demeanor of Martin, Anderson or Hogan as they testified at the May 24, 1993 hearing before Judge Aspen, so the court cannot make a complete evaluation of the credibility of their testimony at that hearing. The court, however, will evaluate in the next section the testimony of the eyewitnesses whose demeanor the court did observe while they were testifying at the 1992 post-trial hearing.

  6. Evaluation of the Evewitnesses' Credibility The eyewitness testimony at the 1992 post-trial hearing regarding Harris' and Evans' illegal drug use came from five convicted felons, Ahrens, Bonnema, Clay, "Doe" and Martin. The court need not make a further credibility assessment as to one of the eyewitnesses, "John Doe," because the government has conceded the truthfulness of his statements. (H. 4803.) The testimony of the other eyewitnesses whose demeanor the court did observe was consistent with "Doe's" statements. The eyewitnesses' accounts were consistent with one another, and were corroborated by other evidence of illegal drug use, such as the positive drug test results, the admissions by Harris and Evans, and the circumstantial evidence of their drug use. In light of all the facts presented post-trial, both at the hearings and following the hearings, the court finds the eyewitness accounts of the government's cooperating "El Rukn" inmate witnesses' illegal drug use to be credible.

  C. Government's Witnesses' Admissions of Illegal Drug Use

  At the post-trial hearings both Harris (H. 1506; 4196-97) and Evans (H. 2170) denied their own continued illegal drug use and denied having access to drugs while housed on the 6th floor of the MCC. (H. 1532; 2176-77.) Their denials were contradicted not only by the testimony of the eyewitnesses who personally observed the drug use by Harris and Evans, but also by several witnesses to whom Harris and Evans admitted their continued drug use while they were incarcerated and cooperating with government counsel. Among the several people to whom Harris and Evans admitted their illegal conduct were personnel of the U.S. Attorney's Office and other federal agencies.

  1. Henry Harris' Admissions of Illegal Drug Use

  Henry Harris admitted his illegal drug use to a number of people over a substantial span of time, before, during and after the "El Rukn" trials in which he testified.

  
(a) Harris' Admission at 1989 Disciplinary Hearing

  The first documented admission Harris made of his illegal drug use was on June 27, 1989 during the disciplinary hearing which resulted from Harris having tested positive for morphine at the MCC on May 11, 1989. Harris, at the disciplinary hearing, asserted that he, Harris, was "trying to sniff out narcotics on the 6th floor." (Defense Exhibit Harris Incident Report 6-5-89.) Harris stated at his June 27, 1989 disciplinary hearing "I had to indulge in narcotics to keep the heat off me and gain the confidence of other inmates in the unit." *fn18" (Id.)

  
(b) Harris' Admissions To Ervin Lee

  On another occasion, Harris told Ervin Lee, another "El Rukn" inmate who was also a government witness in the Burnside trial, that he, Harris, was "high" during his testimony before the grand jury in May 1989, and that he had told "a pack of lies" to the grand jury. (H. 3213.) Harris' admission that he was "high" in the grand jury was corroborated by the testimony of Raymond Bonnema, who saw Harris snorting heroin while being taken to the Dirksen Building where the grand jury sessions were held. (H. 1786. ) *fn19"

  
(c) Harris' Admissions To Tanya Van Blake

  In August 1991, Harris told U.S. Attorney's Office paralegal Tanya Van Blake that he, Harris, drank a heroin-spiked soda pop given him by Harry Evans. (H. 3838-39). When Van Blake told fellow paralegal Corinda Luchetta, Luchetta said "she had heard that version of the story, among others." (H. 3839.)

  
(d) Harris' Admissions To Mustaq Malik

  Harris told his post-trial prison roommate, Mustaq Malik, that he, Harris, used cocaine and heroin while he was at the MCC. (H. 3003.) Harris also told Malik that he, Harris, received drugs during visits with his girlfriend in the U.S. Attorney's Office. (H. 3002-05.)

  
(e) Harris' Admissions To Harry Martin

  Harris, according to the April 23, 1993 FBI interview and the May 24, 1993 testimony of Harry Martin, admitted that he, Harris, had used marijuana, karachi heroin and cocaine and that Harris got his drugs from his visitors. Harris admitted to Martin that he, Harris, had lied when he denied having sex or using drugs while a cooperator. Harris also told Martin that he, Harris, had told AUSA Hogan in 1989 "when he failed the drug test" and that Hogan just passed over it and went on.

  Harris also told Martin, according to Martin's FBI interview statements and testimony, that he, Harris, was there when Hogan had received the MCC memorandum (Defendants' Exhibit Rosenthal Memorandum) which reflected Harris' and Evans' positive drug tests for morphine. The memorandum is dated October 18, 1989 and was delivered to the U.S. Attorney's Office on or near that date. It was distributed in the routine practice to AUSA Hogan that same day or the next by the secretary to then First AUSA Ira Raphaelson, Cynthia Ward. Defendants' Exhibit Hogan (Harris) Visitation Memo shows Harris was visiting Hogan at the Dirksen Building on October 19, 1989.

  
2. Harry Evans' Admissions of Illegal Drug Use

  Harry Evans also made multiple admissions of drug use to various people over a substantial span of time before, during and after his testimony at the "El Rukn" trials.

  
(a) Evans' Admissions to Nicholas Ahrens

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