The opinion of the court was delivered by: SUZANNE B. CONLON
MEMORANDUM OPINION AND ORDER
This court presided over the severed trial of an indictment relating to the El Rukn organization, a Chicago street gang. In 1989, an unwieldy 305-page, 175-count indictment was returned against 38 El Rukn "generals," "ambassadors," and "officers." The original indictment charged more than 250 factually separate criminal acts over a 23-year period. In a thoughtful and carefully considered opinion, Judge Marvin E. Aspen severed the case into five trials. United States v. Andrews, 754 F. Supp. 1161, modified, 754 F. Supp. 1197 (N.D. Ill. 1990). This court was reassigned severed charges against five defendants: Henry Andrews, George Carter, William Doyle, J. L. Houston and Derrick Porter. The El Rukn trial conducted by this court was designated as "Trial Two." Id. at 1203.
Trial Two involved charges against all five severed defendants for conspiracy to conduct the affairs of the El Rukn organization and its predecessor gangs through a pattern of racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) [Count One, consisting of 53 pages]; conducting the affairs of the El Rukn organization through a pattern of racketeering activity and committing 64 predicate acts, in violation of 18 U.S.C. § 1962(c) [Count Two]; and engaging in a narcotics conspiracy, in violation of 21 U.S.C. § 846 [Count Three]. In addition, Derrick Porter was charged with obstruction of justice by planning the murder of an El Rukn who was a government informant, in violation of 18 U.S.C. § 1503 [Count Sixteen], and George Carter was charged with distribution of .36 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) [Count Eighteen].
The core RICO conspiracy and substantive RICO charges against the Trial Two defendants pertained to their alleged direct participation in murder conspiracies, and in related murders and attempted murders of rival gang members and witnesses who were to testify against El Rukn members in several state prosecutions. The RICO charges also incorporated drug activities repeated in the drug conspiracy count. The government's case essentially rested on the testimony of former El Rukn leaders who themselves were admitted murderers and drug dealers implicated in the same charges.
The critical government witnesses were Earl Hawkins, Harry Evans, Jackie Clay, Eugene Hunter, Ervin Lee, Henry Harris and Derrick Kees (collectively, "the El Rukn inmate witnesses"). There was little independent evidence corroborating the testimony of the El Rukn inmate witnesses. Recorded telephone conversations in which William Doyle participated were received in evidence. The conversations were in code; the code was "translated" by El Rukn inmate witnesses.
Each El Rukn inmate witness admitted to an extensive history of violent criminal activity and drug trafficking. Each also testified that all benefits and promises he had received from the government in exchange for his cooperation were embodied in a written plea agreement described in some detail to the jury. Before and during trial, the prosecution never disclosed that any El Rukn inmate witness received benefits or special favors other than those specified in the plea agreement.
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.
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.
THE COURT: This is a trial subpoena.
5. Just before lunch the same morning, the court raised the issue again with government counsel:
THE COURT: I've been thinking about that, I'm really surprised that somebody over at the MCC just ignored a subpoena. What I would suggest is you call [Ms. Christmas] and explain I'm going to issue a rule to show cause. I hate to do that on the MCC. I can't imagine that they'd just ignore a subpoena from the Court, but that's where [sic] I'll be left to do if she doesn't appear this afternoon. In fact, why don't you ask her to be here at about 1:25. I would like to talk to her.
6. In addition, the court's clerk called Ms. Christmas directly and asked her to come to court with the records that afternoon; Ms. Christmas informed the clerk that she had not responded to the subpoenas because the United States Attorney had not authorized her to do so. Tr. 5610-11.
7. Ms. Christmas appeared in court later that afternoon accompanied by AUSA Linda Wawzenski. Ms. Christmas did not produce any documents. She represented to the court that a manual check of monthly logs would be required to locate drug testing dates and results and that authorization "from Washington" was needed before information about the El Rukn witnesses could be released. Tr. 5626-27. Ms. Christmas also represented that disciplinary files for the El Rukn witnesses could not be disclosed without authorization and that the records would not be at the MCC; she stated that records for the El Rukn witnesses would be maintained at the institutions where the witnesses were designated. Tr. 5627.
8. AUSA Wawzenski stated that she thought authorization for disclosure could be obtained by the following morning (August 15), but she reiterated that she doubted there would be any disciplinary records for the El Rukn witnesses located at the MCC; however, Ms. Wawzenski stated that MCC drug testing records could be produced within several days. Tr. 5628. Defense counsel offered to narrow the time frame covered by the subpoenas to expedite the search. Tr. 5630.
9. The court instructed Ms. Christmas to return the following morning with whatever records she was able to find. Tr. 5629. Ms. Christmas responded that she would look for drug testing records, but that ". . . as far as the disciplinary is concerned, that information is not going to be at the Metropolitan Correctional Center." Tr. 5631. Nevertheless, the court then directed Ms. Christmas twice to conduct a search for disciplinary records. Id.
11. Ms. Christmas produced a memorandum dated that day, August 15, 1991, from MCC Special Investigation Supervisor Charles Mildner regarding drug tests on El Rukn witnesses. DX Christmas 1. The memorandum reflected that Harry Evans tested positive twice for codeine and morphine and Henry Harris tested positive once for morphine during April and May 1989. Id. No other records relating to drug testing were produced; no records whatsoever pertaining to discipline were produced.
12. The court admitted DX Christmas 1 (identified at trial as DX MCC-2) into evidence, over the government's objection that this document, prepared and produced by the MCC's designated custodian of records and an Assistant United States Attorney in response to defendants' trial subpoena, lacked an adequate foundation. Tr. 5702.
13. The government also objected on the ground that admission of the drug test results would create a "frolicking detour" because MCC representatives purportedly advised the prosecutors that the positive drug tests were just the result of medication. Tr. 5696-99.
14. The drug test results received in evidence as DX MCC-2, prepared by Mildner on August 15, 1991 in response to defendants' trial subpoenas, did not include any information as to whether Harris' and Evans' positive tests were authorized by medication. DX Christmas 1; C. 461-62. However, two years earlier Mildner had prepared a memorandum for the MCC warden that included the same drug test results reflected in DX MCC-2. DX 21. In his 1989 memorandum, Mildner specified whether or not positive drug tests were medically authorized. Id. Mildner reported that Harris' positive test for morphine on May 11, 1989 was not medically authorized; Evans' positive test for morphine on April 12, 1989 was not medically authorized, but his positive test for morphine on May 10, 1989 was authorized. Id.9
15. In December 1988, MCC Warden Art Beeler gave Associate Warden Max Nuss a written directive instituting a policy of informing Assistant United States Attorneys about all positive drug tests on pretrial inmates; Beeler expected his policy directive to be obeyed. C. 366-67, 374-76.
16. In July 1989, MCC executive personnel were concerned how the El Rukn witnesses on the sixth floor (where Evans and Harris were housed) were obtaining drugs. C. 391, 398.
17. Under Warden Beeler's policy directive, AUSA Hogan would have been informed of drug use by the El Rukn inmate witnesses. C. 376-77, 390, 403.
18. MCC Warden Beeler delivered a copy of Mildner's memorandum (DX 21) showing that Evans and Harris had tested positive for unauthorized drugs to Acting United States Attorney Ira Raphaelson's office in October 1989. C. 370, 415-16, 419-20, 704-05. Ira Raphaelson testified that based on his routine practices, he would have directed DX 21 to AUSAs Hogan and Larry Rosenthal who were supervising cases involving El Rukn inmate witnesses. H. 1142.
19. On October 17, 1989, Warden Beeler and Special Investigation Supervisor Mildner met with Acting United States Attorney Raphaelson concerning the drug problem on the sixth floor and the need for a non-contact visiting room. C. 415-16, 418-19, 420-21.
20. Contact visits are considered by the MCC as a breach of security because of the opportunity afforded to pass drugs or other contraband. C. 492-93.
22. In addition, there was widespread knowledge of drug use by the El Rukn witnesses at the MCC from 1989 through 1991. Other inmates housed on the sixth floor -- all cooperating with the government in various cases -- personally observed El Rukn witnesses use drugs, brag about using drugs, or appear to be under the influence of drugs. C. 933-38 (Evans); C. 939 (Harris); C. 941-42 (Kees); C. 745-48 (Harris); C. 743-44 (Evans); C. 1180 (Harris "and other El Rukns"); C. 955-68 (Harris and Evans); C. 893 (Harris); C. 1093-96 (Evans); DX 75 (Harris). The foregoing testimony was given by seven cooperating witnesses whose credibility the government vouched for in this and other trials.
23. In the spring of 1991, Jerry Lyda of the Department of Justice's Witness Security Program told ATF Special Agent Tom O'Brien, who was assigned to this case, that he had received information that El Rukn inmate witnesses were bragging about having sex and taking illegal drugs. H. 4688, 4769. Agent O'Brien told AUSA Hogan about his conversation with Lyda. H. 4770-71.
24. Paralegal Tanya Van Blake observed Evans under the influence of drugs a number of times in late summer of 1991, often after having a contact visit with his mother or girlfriend in the United States Attorney's office. C. 1032, 1034-36.
Van Blake told her supervisor, paralegal Corinda Luchetta, about Evans appearing to be under the influence of drugs. C. 1032.
25. Luchetta told AUSA Hogan "possibly as early as July 1991" about Van Blake's concerns. C. 810. While awaiting the jury's verdict in Trial Two, Luchetta told Van Blake that Hogan wanted Van Blake to "leave it alone" ...