during trial, the prosecution never disclosed that its witnesses had engaged in any misconduct or had been disciplined during confinement in protective custody as cooperating government witnesses.
The El Rukn inmate witnesses testified that they had not discussed their testimony with each other; several of the El Rukn inmate witnesses affirmatively denied that they had any contact or opportunity to communicate with other El Rukn witnesses. Before and during trial, the prosecution never disclosed that the El Rukn inmate witnesses had access to documents (including internal prosecution memoranda) relating to the testimony of other El Rukns, as well as extensive opportunities for contact with one another at the Chicago Metropolitan Correctional Center ("the MCC") and in the offices of the United States Attorney and the Bureau of Alcohol, Tobacco and Firearms ("ATF").
Just as the prosecution's case was built on the testimony of the El Rukn inmate witnesses, the defense strategy hinged on attacking the credibility and reliability of that testimony. Each of the El Rukn witnesses was cross-examined extensively concerning his criminal record, his own exposure in this case, and his self-interest in fabricating or exaggerating the conduct of the defendants on trial. These were central themes in the closing arguments. The prosecution emphasized that the El Rukn inmate witnesses corroborated each others' testimony, that they started cooperating at different times and under different circumstances, and that their information was not subject to mutual influence or collusion. Defense counsel responded that the testimony of the El Rukn witnesses was not reliable or worthy of belief.
After deliberating several days, on August 29, 1991 the jury returned their verdicts: William Doyle was found guilty on Counts One, Two (Racketeering Acts 5, 6, 9, 13, 15, 16, 31, 32, 33), and Three; George Carter was found guilty on Counts One, Two (Racketeering Acts 5, 31, 34), Three and Eighteen; and Henry Andrews was found guilty on Counts One, Two (Racketeering Acts 5, 31) and Three.
Sentencing was substantially delayed due to the government's failure to submit its version of the offense to the probation office for preparation of the presentence investigation report ("the PSI"). Without the benefit of the government's version, the original PSI did not apply the sentencing guidelines, effective November 1, 1987, to this case. However, after conferring with prosecutors several days before the scheduled sentencing hearing, the probation office issued a substantially different "corrected" PSI applying the sentencing guidelines. The probation office did not afford the defense an opportunity to address the complex issues of fact and law raised by the prosecution on the eve of sentencing. See Memorandum Opinion and Order issued May 5, 1992. After striking the "corrected" PSI, the court gave the parties a full opportunity to brief the new sentencing issues.
Following the court's resolution of the threshold sentencing issues in the government's favor, on May 18, 1992 the defendants filed this joint motion to vacate their judgments of conviction and to dismiss or, in the alternative, for a new trial ("defendants' post-trial motion") based on allegations of newly discovered government misconduct. The defendants' motion was predicated on information received from a defense attorney in a related case involving other El Rukn members, United States v. Burnside, 89 CR 909 (Judge James R. Holderman, presiding). The motion alleged that Henry Harris, a key El Rukn witness, had been disciplined for a drug infraction at the MCC several months before Trial Two. Defendants' motion further alleged that Harris had made a statement to MCC officials, that "he used heroin to conceal his role as an informant in a secret drug investigation of [other MCC] inmates." Defendants' Post-Trial Motion at 5. Defendants requested a hearing and "that the prosecution be directed to tender to the defense all Giglio, Brady, and § 3500 material not heretofore produced." Id. at 9.
The prosecutors responded by denying they had failed to turn over Brady and Giglio material, that they were unaware of Harris' heroin use at the MCC or a resulting disciplinary hearing, that defense counsel failed to exercise reasonable diligence in obtaining this information earlier, and that defendants' motion "must" be denied without a hearing. Government's Response at 1, 27. Nevertheless, this court ordered a hearing to resolve serious factual issues raised by the defendants' post-trial motion and the government's response, as did Judge Holderman in the Burnside case.
This court's hearing on defendants' post-trial motions did not begin until October 15, 1992, due to continual delays at the government's behest. A number of sessions were held over the following two months because of the piecemeal disclosure of information responsive to the defendants' Trial Two subpoenas served on August 9, 1991, and to defendants' post-trial hearing subpoenas returnable on September 19, 1992, as well as basic Brady and Giglio material.
At the United States Attorney's request, the Department of Justice provided funds for the lead El Rukn prosecutor, Assistant United States Attorney ("AUSA") William Hogan to retain his own attorney for these proceedings. In addition, two of AUSA Hogan's paralegal assistants, Corinda Luchetta (a licensed Illinois attorney) and Tanya Van Blake, were granted immunity from prosecution, as well as Department of Justice funds for retaining their own private attorneys.
During the protracted hearing, remarkable credibility issues were raised when present and former employees of the United States Attorney's office and various cooperating government witnesses gave conflicting testimony. The hearing revealed that substantial evidence reflecting adversely on the reliability and biases of the El Rukn inmate witnesses was not disclosed to defense counsel before or during Trial Two: drug use while in custody as protected government witnesses; disciplinary actions and non-enforcement of disciplinary measures; failure to conduct routine drug testing after October 1989; permissive and lax security measures, giving El Rukn inmate witnesses access to internal prosecution memoranda, drugs, sex and unlimited free telephone calls; and various gifts, including cash, clothing, "walkman" radios, food, cigarettes and beer. Some of the evidence presented went beyond the fundamental issues raised by the defendants' post-trial motions. The court enters the following findings of fact and conclusions of law on the issues deemed necessary to resolve the defendants' motion.
FINDINGS OF FACT
I. Noncompliance With The Defense Trial Subpoenas For Drug Testing And Disciplinary Records
1. On August 9, 1991, defendants served two trial subpoenas on the MCC for drug testing dates and results regarding the El Rukn inmate witnesses, and for all records pertaining to disciplinary matters for the El Rukn witnesses during the period they were in protective custody cooperating with the government; the subpoenas specifically included drug testing and disciplinary records pertaining to Harry Evans and Henry Harris. DX Subpoena 1.
2. When served with the subpoenas, Charvella Christmas, the MCC paralegal designated by the warden to respond to subpoenas, informed defense counsel that she had no intention of complying and that the subpoenas should be discussed with the United States Attorney. Tr. 5535.
3. The MCC trial subpoenas were returnable on August 13, 1991 at 9:00 a.m.; no one from the MCC appeared nor were any MCC records produced that day. Defense counsel brought this situation to the court's attention early on August 14, 1991. Id.
4. The following exchange then occurred between the court and AUSA Hogan:
MR. HOGAN: I talked to Miss Christmas. . . . She says that all those records are protected by the Freedom of Information Act, which the defendants have not complied with the requirements, and many of them are privileged.