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UNITED STATES v. BOYD

September 20, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFF BOYD, EDGAR COOKSEY, ANDREW CRAIG, CHARLES GREEN, SAMMY KNOX, FELIX MAYES and NOAH ROBINSON, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 This is the most painful decision that this court has ever been obliged to render, making the crafting of this opinion a sad and difficult undertaking. Mindful of the consequences of our ruling, we would have preferred to have been able to reach a result other than what must be.

 Significant questions of prosecutorial misconduct bring "Trial I" defendants Jeff Boyd, Edgar Cooksey, Andrew Craig, Charles Green, Sammy Knox, Felix Mayes and Noah Robinson before this court seeking new trials. Initially, we retained jurisdiction to address the following issues: (1) whether the government withheld evidence of post-incarceration, positive drug tests of witnesses Harry Evans and Henry Harris in violation of the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny; and (2) to the extent that Evans and Harris testified that they had not used illicit narcotics while incarcerated, whether the government knowingly used perjured testimony during the course of trial. In light of the evidence adduced during these post-trial proceedings, however, we will expand our focus to consider the impact of other information within the possession of the government yet undisclosed to the defense, as well as additional instances of potentially perjured testimony. Finding that the government in fact (i) withheld information favorable to the defense in violation of Brady and its progeny, and (ii) suborned perjured testimony regarding such undisclosed evidence, we conclude that these defendants have been deprived of a fair trial and, consequently, grant their respective motions for new trial respecting all convictions, save Mayes' conviction for the intimidation of witness Henry Harris (Count 12) and Green's conviction for the unlawful possession of firearms as a convicted felon (Count 58).

 The consequences of our ruling today are tragic in many respects. It is a tragedy that the convictions of some of the most hardened and anti-social criminals in the history of this community must be overturned.

 It is tragic that the United States of America has squandered millions of taxpayer dollars and years of difficult labor by the courts, prosecutors and law enforcement officers in the investigation and trial of these botched prosecutions.

 It is tragic that the hard-earned and well-deserved reputations for professionalism of the United States Attorney's Office for the Northern District of Illinois and other federal law enforcement and penal agencies in this district have been so unfairly tainted by the actions of so few.

 It is a personal tragedy for the lead El Rukn prosecutor who, in seeking to attain the laudable goal of ridding society of an organization of predatory career criminals, was willing to abandon fundamental notions of due process of law and deviate from acceptable standards of prosecutorial conduct. The others who followed his lead or failed to supervise him properly, of course, share in this disgrace.

 TABLE OF CONTENTS

 I. Procedural Background

 II. Post-Incarceration Drug Use by Government Witnesses Henry Harris and Harry Evans

 
A. MCC Drug Test Results
 
B. Direct Observation by Other Inmates
 
1. Nicholas Ahrens
 
2. Raymond Bonnema
 
3. Jackie Clay
 
4. Michael Corbitt
 
5. Earl Hawkins
 
6. Derrick Kees
 
7. Ervin Lee
 
8. Harry Martin
 
9. Abdul Jabbar Muhammad
 
C. Admissions of Illegal Drug Use
 
1. Admissions of Henry Harris
 
2. Admissions of Harry Evans
 
D. Other Evidence of Post-Incarceration Drug Use
 
1. Henry Harris' Refusal to Provide a Urine Sample
 
2. Henry Harris' Physical Appearance
 
3. Harry Evans' Physical Appearance
 
4. Monitored Telephone Conversations
 
5. Harry Evans' Possession of Cash
 
6. Harry Evans' Requests for Laxatives

 III. Government Knowledge of Post-Incarceration Drug Use by Henry Harris and Harry Evans

 
A. Information Compiled by MCC Officials and Conveyed to Members of the United States Attorney's Office
 
1. General Information Relating to Drug Usage Problems on the Sixth Floor of the MCC
 
2. The October 18, 1989 Memorandum Documenting Henry Harris and Harry Evans' Positive Drug Test Results
 
3. AUSA Rosenthal's Conversation with William R. Hogan, Jr. Regarding the October 18, 1989 Memorandum
 
4. Lt. Charles Mildner's Conversation with William R. Hogan, Jr.
 
B. Information Compiled by ATF Agents and Other El Rukn Task Force Investigators and Conveyed to Members of the United States Attorney's Office
 
C. Suspicions of Post-Incarceration Drug Use Formulated by Members of the United States Attorney's Office and Conveyed to William R. Hogan, Jr.
 
1. Suspicions of Tanya Van Blake
 
2. AUSA Theodore Poulos' Discussion with William R. Hogan, Jr. Regarding Harry Evans' Physical Appearance During Trial III Conducted Before Judge Mills
 
3. Harry Evans and the "Shoe Incident"
 
D. Evidence Conveyed to Members of the United States Attorney's Office by El Rukn Cooperating Witnesses
 
1. Jackie Clay
 
(a) Conversations with William R. Hogan, Jr.
 
(b) Conversations with Corinda Luchetta
 
2. Henry Harris
 
(a) Conversations Regarding his Refusal on May 30, 1991 to Provide a Urine Sample
 
(b) Conversations Regarding his Positive Drug Test
 
(3) Eugene Hunter
 
(4) Derrick Kees
 
E. Evidence Conveyed to Members of the United States Attorney's Office by Other Incarcerated Individuals
 
1. Michael Corbitt
 
2. Harry Martin

 IV. Aberrant Treatment of and Undisclosed Benefits Provided to El Rukn Cooperating Witnesses by Members of the Prosecution Team

 
A. Contact Visits and Inadequate Security Measures at the United States Attorney's Office and ATF Offices
 
1. Security Measures at the MCC
 
2. Conjugal Visits at the Federal Buildings
 
3. Harry Evans' Visitation Privileges
 
B. Telephone Privileges Conferred upon El Rukn Cooperating Witnesses by Members of the Prosecution Team
 
C. Personal Relations Between El Rukn Cooperating Witnesses and Paralegal Corinda Luchetta
 
D. Personal Relations Between El Rukn Cooperating Witnesses and AUSA William R. Hogan, Jr.
 
E. Alcohol Use by El Rukn Cooperating Witnesses in the United States Attorney's Office and ATF Offices
 
F. Gifts, Clothing and Parties Conveyed to El Rukn Cooperating Witnesses by Members of the Prosecution Team

 V. Government Disregard to Post-Incarceration Drug Use

 
A. Failure to Disclose or Investigate
 
B. Deliberate Nature of the Failure to Disclose or Investigate

 VI. Knowing Use of Perjured Testimony

 
A. Identification of Perjured Testimony
 
1. Testimony Regarding Post-Incarceration Drug Use
 
2. Testimony Regarding Government Conferred Benefits
 
3. Allegations that William R. Hogan, Jr. Coached Henry Harris and Other Witnesses to Lie about their Opportunity to Collude with Each Other
 
4. Henry Harris' Testimony Regarding the Robinson-Fort-Cooper Heroin Investment Partnership
 
5. Henry Harris' Testimony that Noah Robinson Introduced El Rukn Buyers to Narcotics Suppliers to Raise Bond Money for Jeff Fort in 1983
 
6. Henry Harris' Testimony Regarding the Howard Johnson Motel Receipt
 
7. Jackie Clay's Testimony Regarding Robinson's Solicitation of Derrick Porter to Kill Henry Harris
 
8. Henry Harris' Account of the Ballistrieri Incident
 
9. Harry Evans' Testimony Regarding Louis Farrakhan
 
10. Derrick Kees' Testimony Regarding Edgar Cooksey's Role in the Charmane Nathan Murder
 
11. Allegations that William R. Hogan, Jr. Coached Henry Harris to Lie Regarding the Interpretation of Title III Tapes
 
12. Generalized Allegations of False Testimony
 
B. Defining "Perjury within the Prosecution's Case"--Government Knowledge and Use of Perjured Testimony
 
C. Materiality of Perjured Testimony
 
1. Perjured Testimony Regarding Post-Incarceration Drug Use
 
2. Perjured Testimony Regarding Witness Collaboration
 
3. Summary of Cooperating Witnesses' Testimony Relating to Each Count of Conviction

 VII. Government Obligations under Brady v. Maryland

 
A. Evidence within the Possession of the Government
 
1. Post-Incarceration Drug Use
 
2. Government Conferred Benefits
  
B. Evidence Possessed by the Government was Suppressed
  
1. Actual Knowledge of Post-Incarceration Drug Use
  
2. Waiver by Defendant Noah Robinson
  
3. The Power of Subpoena
  
4. Impact of Production in Trial II
  
C. Evidence Suppressed by the Government was Favorable to the Defense
  
1. Post-Incarceration Drug Use
  
2. Government Conferred Benefits
  
D. Evidence Suppressed by Government was Material
  
1. Suppressed Evidence was not Merely Cumulative Impeachment
  
2. Lead Prosecutor William R. Hogan, Jr.'s Conduct Respecting the Suppressed Evidence Compels a Finding of Materiality

  VIII. Conclusion

  Assembling the foundation of the government's celebrated effort to eradicate the notorious El Rukn street gang, on October 26, 1989, a special grand jury returned two indictments against a total of 65 El Rukn members or associates. The first indictment, numbered 89 CR 908, was assigned randomly to this court. This "labyrinthine" 305-page, 175-count indictment, nearly two inches thick and weighing almost four pounds, named 38 individuals as defendants, detailed a maze of well over 250 factual separate criminal acts committed from 1966 to 1989 in many different locations and, for each act, alleged the participation of varying combinations of defendants and countless unindicted co-conspirators. Finding ill-conceived the government's ambition to pursue these 175 diverse charges in a single mega-trial of unprecedented projected duration, in a series of orders pursuant to Federal Rule of Criminal Procedure 14, we severed the indictment into five separate trials. See United States v. Andrews, 754 F. Supp. 1161 (N.D. Ill. 1990) (Andrews I); United States v. Andrews, 754 F. Supp. 1197 (N.D. Ill. 1990) (Andrews II); United States v. Andrews, 754 F. Supp. 1206 (N.D. Ill. 1990) (Andrews III); United States v. Andrews, 764 F. Supp. 1248 (N.D. Ill. 1991) (Andrews IV); United States v. Andrews, 764 F. Supp. 1252 (N.D. Ill. 1991) (Andrews V). This court presided over the first of the severed trials, beginning on May 6, 1991, and including charges against defendants Jeff Boyd, Edgar Cooksey, Andrew Craig, Charles Green, Sammy Knox, Felix Mayes and Noah Robinson. n1 Assistant United States Attorney William R. Hogan, Jr. n2 served as lead prosecutor for the government and was supported by Assistants Ross Silverman and John Hartmann. On September 1, 1991, a jury rendered the following verdicts: Verdict as to Jeff Boyd Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilty n3 Three Narcotics Conspiracy Guilty Four Conspiracy to Murder and Attempted Guilty Murder of Members of the King Cobras Seven Triple Murder of Rico Chalmers, Guilty Vicki Nolden and Glendon McKinley Ten Kidnapping of Patricia McKinley Guilty Verdict as to Edgar Cooksey Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilty n4 Three Narcotics Conspiracy Guilty Four Conspiracy to Murder and Attempted Guilty Murder of Members of the King Cobras Five Assault of Theotis Clark Guilty Nine Interstate Murder-For-Hire of Not-Guilty Leroy "Hambone" Barber Verdict as to Andrew Craig Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilty n5 Three Narcotics Conspiracy Guilty Four Conspiracy to Murder and Attempted Guilty Murder of Members of the King Cobras Five Assault of Theotis Clark Guilty Six Murder of Robert Jackson Not Guilty Verdict as to Charles Green Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilt n6 Three Narcotics Conspiracy Guilty Four Conspiracy to Murder and Attempted Guilty Murder of Members of the King Cobras Five Assault of Theotis Clark Guilty Six Murder of Robert Jackson Guilty Fifty-Eight Unlawful Possession of Firearms Guilty Verdict as to Sammy Knox Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilty n7 Three Narcotics Conspiracy Guilty Four Conspiracy to Murder and Attempted Guilty Murder of Members of the King Cobras Ten Kidnapping of Patricia McKinley Guilty Verdict as to Felix Mayes Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilty n8 Three Narcotics Conspiracy Guilty Twelve Intimidation of Witness Henry Harris Guilty Verdict as to Noah Robinson Count Charge Verdict One Racketeering Conspiracy Guilty Two Racketeering Guilty n9 Three Narcotics Conspiracy Guilty Eight Interstate Attempted Murder-For-Hire Guilty of Robert Aulston Nine Interstate Murder-For-Hire of Guilty Leroy "Hambone" Barber Eleven Tampering with Witness Henry Harris Not Guilty Thirteen Interstate Attempted Murder-For-Hire Guilty of Janice Denise Rosemond Fourteen Retaliation Against Witness Janice Guilty Denise Rosemond Fifteen Tampering with Witness Janice Guilty Denise Rosemond Sixteen Retaliation Against Witness Henry Harris Not Guilty Seventeen Tampering with Witness Henry Harris Guilty

   On June 3, 1992, we sentenced Jeff Boyd, Andrew Craig and Edgar Cooksey as follows. Boyd received 20 years in the custody of the Attorney General on Count 1, 20 years on Count 2, 50 years on Count 3, 10 years on Count 4, 50 years on Count 7, and 50 years on Count 10, such terms of imprisonment to run concurrent to each other. Craig received terms of 600 months in the custody of the Attorney General on Counts 1, 2 and 3, to run concurrent to each other. Additionally, we sentenced Craig to 60 months on each of his non-guidelines convictions (Counts 4 and 5), to run concurrent to each other and concurrent with the 600 months. On Counts 1, 2, 3 and 4, we sentenced Cooksey to a term of mandatory life imprisonment pursuant to the United States Sentencing Guidelines. As to Count 5, a non-guideline count, we sentenced Cooksey to a term of 5 years, such imprisonment to run concurrent to his sentence of life imprisonment. Charles Green, Sammy Knox and Felix Mayes were sentenced by this court on June 24, 1992. Green received a term of life imprisonment under the United States Sentencing Guidelines on Counts 1, 2 and 3. Respecting his non-guidelines convictions, we sentenced Green to 10 years imprisonment on each of Counts 4, 5 and 6, and 5 years on Count 58, to run concurrent to each other and concurrent with his sentence of life imprisonment. Knox received a term of life imprisonment under the United States Sentencing Guidelines on Counts 1, 2 and 3. Further, we sentenced Knox to 10 years on each of Counts 4 and 10 (non-guidelines counts), to run concurrent to each other and concurrent with his sentence of life imprisonment. Mayes likewise received a term of life imprisonment under the United States Sentencing Guidelines on Counts 1, 2 and 3. As to Count 12, a non-guidelines count, we sentenced Mayes to 10 years imprisonment to run concurrent to his sentence of life imprisonment. Finally, on August 21, 1992, we sentenced Noah Robinson to a term of life imprisonment under the United States Sentencing Guidelines on Counts 1, 2 and 3. Respecting his non-guidelines convictions, we sentenced Robinson to 5 years on Count 8, life imprisonment on Count 9, 20 years on Count 13, 10 years on Count 14, 20 years on Count 15, and 10 years on Count 17, such terms of imprisonment to run concurrent to each other and concurrent to his sentence of life imprisonment imposed under the guidelines.

  Judge Suzanne Conlon presided over the second severed trial in Case No. 89 CR 908. That trial, which included charges against defendants Henry Andrews, George Carter, William Doyle, J.L. Houston and Derrick Porter, began on July 8, 1991 and ended with verdicts on August 30, 1991. Andrews, Carter and Doyle were found guilty of various criminal violations. The charges against Houston were severed upon his motion grounded in ineffective assistance of counsel, and the charges against Porter were dismissed at the close of all evidence pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Assistant United States Attorneys William R. Hogan, Jr., Theodore Poulos and Patrick J. King prosecuted the case on behalf of the government.

  Judge Harold A. Baker of the Central District of Illinois presided over the fourth trial in Case No. 89 CR 908. *fn11" That trial, which included charges against defendants Lawrence Crowder, Floyd Davis, Michael Sardin, James Speights and Melvin Tillman, began on October 17, 1991, and ended with verdicts on November 9, 1991. Each of the five defendants was found guilty of various criminal violations. Assistant United States Attorneys William R. Hogan, Jr., Patrick King and Michael Pace prosecuted the case on behalf of the government.

  The fifth severed trial initially included charges against Eddie Franklin, J.L. Houston (previously severed from Trial II before Judge Conlon) and Isiah Kitchen. The trial began on March 2, 1992, before Judge John Tinder of the Southern District of Indiana, *fn12" with Assistant United States Attorneys William R. Hogan, Jr. and Theodore Poulos prosecuting the case on behalf of the government. After two weeks of trial, Judge Tinder severed from the prosecution those charges against Isiah Kitchen. Respecting Franklin and Houston, the jury returned verdicts on April 22, 1992, finding each guilty of various criminal violations. Kitchen was tried separately before Judge Allen Sharpe of the Northern District of Indiana, *fn13" such trial beginning on December 1, 1992, and concluding with the return of verdict on December 10, 1992. The jury found Kitchen guilty of various criminal violations. Assistant United States Attorney William R. Hogan, Jr. served as lead prosecutor in the Kitchen trial.

  The second indictment returned on October 26, 1989, numbered 89 CR 909, was assigned to the calendar of Judge James Holderman. That indictment named 27 El Rukn members or associates, and alleged similar offenses to those charged in 89 CR 908. Judge Holderman has conducted two separate trials in Case No. 89 CR 909. The first began on April 9, 1991, and included charges against fourteen alleged El Rukn "ambassadors." On August 9, 1991, the jury found ten of the defendants guilty of various criminal offenses. Three defendants were acquitted of all charges, and a mistrial was declared as to one defendant who subsequently plead guilty. Assistant United States Attorneys Theodore Poulos, Victoria Peters and Michael Pace prosecuted the case on behalf of the government. Judge Holderman began the second trial in Case No. 89 CR 909 on September 23, 1991. On October 31, 1991, the jury found each of the defendants, Thomas Burnside, Codell Griffin and C.D. Jackson, guilty of various criminal violations. Assistant United States Attorney William R. Hogan, Jr. served as lead prosecutor, and was aided by Assistants Ross Silverman and Victoria Peters.

  In order to secure the above described convictions, the government relied extensively on the testimony of numerous El Rukn "cooperating witnesses." Charged in one of the October 26, 1989 indictments, these individuals all are, or were, members or associates of the El Rukn organization. Of the 38 defendants charged in Case No. 89 CR 908, the following nine negotiated deals with the government, forgoing the uncertainty of trial in exchange for a pledge of cooperation: Jackie Clay, Harry Evans, Henry Leon Harris, Earl Hawkins, Eugene Hunter, Derrick Kees, Freddie Sweeny, Anthony Sumner and Ricky Dean Williams. In the end, Jackie Clay, Harry Evans, Henry Harris, Earl Hawkins, Eugene Hunter, Derrick Kees and Freddie Sweeney testified at Trial I before this court.

  The instant motions for new trial stem from allegations of post-incarceration drug use on the part of government witnesses Henry Harris and Harry Evans, such information in the possession of the government prior to the commencement of Trial I, yet not disclosed to the defense. *fn14" Coinciding questions of prosecutorial misconduct were raised in post-trial motions by defendants in other El Rukn trials. *fn15" In conjunction with these motions. Judges Conlon and Holderman each conducted expansive evidentiary hearings. Judge Conlon began her evidentiary hearing on October 15, 1992, and, after hearing a total of 24 witnesses, concluded on January 5, 1993. The post-trial hearing before Judge Holderman began on November 16, 1992, and, after a total of 37 witnesses had testified, ended on December 31, 1992. Rather than duplicate our colleagues' evidence gathering efforts, with the concurrence of the parties, we have agreed to consider the testimony presented before Judges Conlon and Holderman to the limited extent that such testimony is relevant to the issues presently pending before this court. *fn16"

  Following the conclusion of the post-trial hearings before Judges Conlon and Holderman, the government disclosed a significant amount of additional information bearing on the post-incarceration drug use of witnesses Harris and Evans and related matters. As a result of the newly disclosed information, this court elected to undertake a supplemental evidentiary hearing limited in scope to such evidence not fully developed at the previous hearings before Judges Conlon and Holderman. To aid the court in an impartial and learned marshalling of evidence, over the government's initial objection, we appointed Thomas P. Sullivan, partner at Jenner & Block and former United States Attorney for the Northern District of Illinois, as amicus curiae.17 Sullivan's comprehensive knowledge of and experience with the workings of the Office of the United States Attorney for the Northern District of Illinois and other federal law enforcement and penal agencies in this district proved of invaluable assistance to the court. Sullivan brought forth new witnesses at the hearings, conducted examinations and filed a comprehensive post-trial analysis of the evidence. We are grateful for the many hours he devoted to this assignment and the excellent quality of his work. In a combined effort to expedite the proceeding and to avoid the logistical problems associated with bring each of the seven Trial I defendants back to Chicago from their respective institutions nationwide, we severed Felix Mayes, conducting the hearing on his behalf alone. To ensure that defendant Mayes would not be prejudiced by the absence of a collective effort, we appointed Harvey M. Silets, a distinguished former Assistant United States Attorney and partner at Katten Muchin & Zavis, as co-counsel to Mayes' talented trial attorney, Ronald Clark, who had served as lead counsel at Trial I. We are most appreciative of Silet's willingness to accept this assignment.

  The hearings began on May 24, 1993, and, after 29 witnesses had testified over seven full days, concluded on July 8, 1993. *fn18" Pursuant to petitions filed by the United States Attorney at the request of this court, *fn19" the following witnesses testified under a grant of immunity: Harry Martin, Eugene Hunter, Jackie Clay, Earl Hawkins, Derrick Kees, Michael Corbitt, Henry Harris, Harry Evans and Ervin Lee. *fn20" Given the thoroughness and exceptional nature of the effort by Sullivan, his assistant Thomas S. O'Neill, Clark, Silets and his associate Edwin E. Brooks, the remaining Trial I defendants each have elected to adopt as their own the post-trial testimony elicited on behalf of defendant Mayes, offering such testimony without addition or subtraction. *fn21"

  II. Post-Incarceration Drug Use by Government Witnesses Henry Harris and Harry Evans

  The evidence adduced during the post-trial hearings before this court and Judges Conlon and Holderman, coupled with the exhibits respectively admitted therein, overwhelmingly indicate that government witnesses Henry Harris and Harry Evans possessed and used illicit narcotics while confined on the sixth floor of the Metropolitan Correctional Center in Chicago ("MCC Chicago" or "MCC"), *fn22" such activity commencing in 1988 and continuing through and beyond the time period during which these witnesses testified at Trial I. *fn23" Notwithstanding Harris and Evans' persistent statements to the contrary, A847-48, C562, H1607-08 (testimony of Henry Harris), A1297, C294; H2165 (testimony of Harry Evans), the evidence supporting this conclusion is plentiful and stems from a variety of different sources, some, of course, more credible than others. This evidence is detailed below.

  A. MCC Drug Test Results

  Appreciating that inmate visitation privileges create the risk of a drug-infested environment, the MCC Chicago, at the direction of the Federal Bureau of Prisons, has developed a drug testing program designed and deter inmate drug usage. Under this urinalysis program, applicable at all times relevant to these post-trial proceedings, the target population for testing is divided into four categories: (1) high risk inmates, including those who have previously tested positive for drugs and those whose presentence investigation report or central file suggest a drug risk; (2) inmates selected pursuant to a random, computer-generated list; (3) inmates targeted under the saturation urine surveillance program; and (4) inmates returning from furlough or community activities. A1058-59 (testimony of Lt. Randall D. Simek); C202-03 (testimony of Edward M. Russell); CDE No. 33, at 1-3 (MCC's Urine Surveillance Program). From approximately August of 1988 until September of 1989, Edward M. Russell served as the Special Investigative Supervisor ("SIS") at the MCC Chicago and, as such, was responsible for the maintenance of the urine surveillance program. C193-195 (testimony of Edward M. Russell); CDE No. 33, at 3 ("The SIS is responsible for the maintenance of the [urine surveillance] program."). All staff assigned to take urine from a targeted inmate are required to first review and sign a written sheet delineating sampling instructions and regulations. CDE No. 33, at 3. Once the inmate provides the urine sample, he must verify that the number on the bottle corresponds with the number on the lab sheet, initialing the lab sheet beside his name and specimen number. Id. at 6. The sample is then shipped to PharmChem Laboratories, Inc. for analysis. See A1059-60 (testimony of Lt. Randall D. Simek); H357 (testimony of Charles H. Mildner III). In the event the laboratory identified traces of illicit narcotics in a sample, the SIS would contact the MCC medical department to determine if the inmate had received any prescribed medication which could explain he positive result. A1060 (testimony of Lt. Randall D. Simek); C195-96 (testimony of Edward M. Russell). To the extent that such medication could have explained the positive test result, an incident report would not be generated and no discipline would follow. C197 (testimony of Edward M. Russell). MCC officials use a "urinalysis logbook" to record relevant information surrounding the drug test, including the inmate's name and register number, the time the sample was requested and subsequently given, the name of the officer who took the sample, the sample identification number, the result of the test after it is received from the laboratory and, if the result is positive, whether such result is authorized on the basis of prescribed medication. C195-203 (testimony of Edward M. Russell).

  On October 18, 1989, the MCC prepared a memorandum documenting drug test results from all El Rukn government witnesses. AE No. 5 (Memorandum from Charles H. Mildner III to Warden A. F. Beeler of October 18, 1989). That memorandum notes the two positive tests for Evans and one positive test for Harris as described above. Regarding the propriety of the results, the memorandum indicates that the positive test result of May 10, 1989 (Evans) was authorized, while those of April 12 (Evans) and May 11, 1989 (Harris) were unauthorized. Id.

  The government does not dispute that Harris' drug use as reflected in the test of May 11, 1989, was unauthorized, i.e., not attributable to any prescribed medication. Government's Brief in Opposition to Defendants' Motions for Post-Trial Relief at 1, 5 (Feb. 24, 1993). Instead, that Harris tested positive for morphine is weighty evidence that a few days prior to May 11, 1989, Harris ingested an opiate, such as heroin. See C211-12 (testimony of Edward M. Russell) (Bureau of Prisons estimates that the maximum detection period after illicit drug use is approximately 72 hours). As a result of the positive test, SIS Technician William R. Fall generated an incident report on June 5, 1989, and, after a disciplinary hearing conducted on June 27, 1989, Harris was sanctioned with 15 days disciplinary segregation and loss of visiting privileges for six months. AE No. 21 (Harris Incident Report of May 11, 1989, and Report of Disciplinary Hearing). Notably, during the course of the June 27, 1989, disciplinary hearing, Harris claimed that he was working with MCC officials to identify illegal drug use on the sixth floor. According to Harris, in so doing, he "had to indulge in narcotics to keep the heat off [him] and gain the confidence of other inmates in the unit." Id. While the explanation is far-fetched and unsupported by credible evidence, it is nonetheless an admission that the positive test stemmed from the use of illicit narcotics. Harris has since retracted this statement, claiming that he lied during the disciplinary hearing at the direction of Lt. Russell, and that he did not use illegal drugs. A851-52; C595; H1487-88. Harris now attributes his positive test result to an MCC correctional officer who tainted his May 11, 1989 urine sample in retaliation for Harris' discovery of, and intent to disclose, organized corruption at the MCC. A850-51; C576-77, 592; H1476-82. This story, like his previous tale of using narcotics to gain the confidence of other inmates in connection with an investigation of drug use on the sixth floor, is improbable and unsupported by credible evidence. In the end, the positive drug test stands as a trustworthy indication that Harris in fact had indulged in illegal narcotics while incarcerated on the sixth floor of the MCC.

  Respecting Evans' positive tests for cocaine and morphine on April 12, 1989 and May 10, 1989, the government contends that both are attributable to his prescribed use of Tylenol with codeine, a drug which metabolizes into morphine. Although the October 18, 1989 memorandum from Mildner to Warden Beeler indicates that Evans' positive test of April 12, 1989 was unauthorized, the government has advanced evidence that, at the time Mildner wrote the memorandum, he was relying solely on the urinalysis logbook, which did not reflect whether the positive result was authorized by the medical department. C515-16 (testimony of Charles H. Mildner III). Unbeknown to Mildner, six days after the test results came back from PharmChem, on May 1, 1989, Physician's Assistants Margarette R. Russell and George F. Conrado sent a memorandum to Lt. Mayfield, stating that "on the date discussed (4/12/89) [Harry Evans] would have tested positive for Codeine. He was taking them for medical reasons via pill line." CGE No. 10; C514-16 (testimony of Charles H. Mildner III). According to Mildner, had he the benefit of this information, he would have indicated in the October 18, 1989 memorandum that Evans' positive test of April 12, 1989 was authorized by the medical department. C514-17. Concerning Evans' drug test on May 10, 1989, as noted above, both the urinalysis logbook and the October 18, 1989 memorandum indicate that the positive result was authorized, and defendants have not contended otherwise.

  A review of Evans' extensive medical records, however, does not readily indicate that Evans received any authorized medication that would have triggered either of the positive test results. In relation to the sample taken on April 12, 1989, it is undisputed that, pursuant to prescription, Evans ingested Tylenol 3 (with codeine) on March 30, 1989. According to MCC medical records, Evans' prescription for Tylenol 3 (with codeine) was discontinued on April 1, 1989. CDE No. 10, at 1 ("Inmate refused to take this morning dose pill line medication. Inmate refused to take his morning medication because Tylenol #3 was discontinued."); C249-50 (testimony of Dr. Cynthia Alston). Nothing in these records indicate that Evans was prescribed Tylenol with codeine, or any other medication that would have caused a positive test for codeine or morphine, at the MCC between April 1 and April 12, 1989. CDE No. 10, at 1-7; C252 (testimony of Dr. Cynthia Alston). To the contrary, Evans' medical records indicate that on April 3 and April 6, 1989, Evans had attempted unsuccessfully to obtain Tylenol 3 (with codeine). CDE No. 10, at 2-4; C251-52 (testimony of Dr. Cynthia Alston). In the absence of any indication that Evans received treatment in a facility other than the MCC between April 1 and April 12, 1989, *fn24" it is evidence that, for a period of thirteen days prior to the April 12, 1989 sampling, Evans was not prescribed any medication which would have prompted a positive test for codeine or morphine.

  On April 14, 1989, Evans was admitted to the Columbus-Cuneo-Cabrini Medical Center for chronic renal failure and, after considerable treatment, was discharged on May 1, 1989. CGE No. 2, at 1 (Evans Discharge Summary); C246 (testimony of Dr. Cynthia Alston). The discharge summary for Evans' stay at the Columbus Medical Center indicates that he was treated with Tylenol 3 (with codeine). CGE No. 2, at 2. The nurse's records indicate that his last dosage of Tylenol 3 came on April 30, 1989, at 7:30 p.m., ten days before the May 10, 1989 sampling. C244 (testimony of Dr. Cynthia Alston). His discharge medication, however, did not included Tylenol with codeine, see CGE No. 2, at 2, and Evans' MCC medical records from May 1 through May 10, 1989, are devoid of reference to any prescribed medication which would trigger a positive test for codeine or morphine for a sample drawn on May 10, 1989. CDE No. 10, at 12-18; C252-53 (testimony of Dr. Cynthia Alston).

  Drawing upon the Bureau of Prisons' estimate that urinalysis testing cannot detect in the average person drugs ingested at least 72 hours prior to sampling, it is apparent that Evans' positive tests of April 12 and May 10, 1989, cannot be explained on the basis of prescribed medication. From a medical perspective, however, Harry Evans was not an average person in the Spring of 1989. To be sure, he had been suffering from chronic renal failure at the time both samples were drawn. According to Dr. Alston, persons in renal failure excrete drugs much more slowly than the average person. C244-45. Thus, we are confronted with the following question: In light of his medical condition, is it possible that the codeine-based Tylenol remained in Evans' system for as long as ten and thirteen days? Although Dr. Alston supposes it possible, C244-45, we do not believe the question can be answered with a sufficient degree of scientific certainty. In other words, the two positive tests standing alone are not an unequivocal indication that Evans used illicit narcotics while housed on the sixth floor of the MCC. When coupled with the evidence described below, however, these tests become probative of post-incarceration, illegal drug use on the part of Harry Evans.

  B. Direct Observation by Other Inmates

  During the course of these post-trial proceedings, the following nine inmates, housed at various times on the sixth floor of the MCC with the El Rukn cooperating witnesses, testified that they observed Harry Evans and/or Henry Harris use or possess illicit narcotics: Nicholas Ahrens, Raymond Bonnema, Jackie Clay, Michael Corbitt, Earl Hawkins, Derrick Kees, Ervin Lee, Harry Martin and Abdul Jabbar Muhammad. Neither Nicholas Ahrens, Raymond Bonnema nor Abdul Jabbar Muhammad testified before this court and, as such, we cannot make a complete determination of the credibility of their testimony. The credibility of the remaining witnesses is certainly suspect. First and foremost, they are all convicted felons. Further, as noted below, some of their current stories deviate significantly from prior statements to federal agents and previous testimony given before Judges Conlon and Holderman. Indeed, Harry Martin has admitted that he lied under oath while testifying in the post-trial hearings before Judges Conlon and Holderman. A19-35, 72-74. Taken individually, the testimony offered by these individuals in connection with the instant post-trial proceeding is weightless. Taken together, however, to the extent that their accounts are consistent with each other and bolstered by independent evidence of illegal drug use, the testimony supports this court's finding that Harris and Evans indulged in illicit narcotics while housed on the sixth floor of the MCC.

  1. Nicholas Ahrens

  Nicholas Ahrens plead guilty in United States v. John Cappas, et al., No. 88 CR 91 (N.D. Ill.) (Kocoras, J.), rendered his services as a cooperating witness in connection with that case, and was housed on the sixth floor of the MCC from approximately September of 1988 to October, 1991. C932. Ahrens testified that, one day in the late afternoon in the fall of 1988, he had observed Henry Harris use an illicit narcotic. C938-40; H2805-07. Ahrens and Harris, along with a number of other inmates whom Ahrens could not remember, were in a holding cell at the Everett McKinley Dirksen Federal Building ("Dirksen Building") waiting to be returned to the MCC. C939; H2807. Standing at the toilet, located in the middle of the holding cell and partially encircled by three walls, Harris snorted a substance through his nose. C939; H2805. Harris identified the drug as heroin and, after showing it to Ahrens, offered to share it with him. C939-40; H2805. Ahrens had no idea where the heroin came from or what Harris did with the excess he possessed. H2807. Ahrens' account is corroborated by the United States Marshal's Service transportation records, which, although incomplete for the fall of 1988, indicate that Ahrens and Harris were transported together between the MCC and the Dirksen Building on at least one occasion in the fall of 1988. See CDE No. 20 (Harris Visitation Memorandum); HDE Ahrens Visitation Memorandum.

  2. Raymond Bonnema

  Raymond Bonnema, like Ahrens, plead guilty and testified for the government in the Cappas case. C738-39; H1798-99. As a cooperating witness, Bonnema was housed on the sixth floor of the MCC from about March of 1989 to March, 1990. C740-41; H1782. Bonnema testified that he twice observed Harris snort illegal drugs. *fn25" The first incident occurred in approximately May of 1989, i.e., the same month Harris furnished the urine specimen which caused the positive test for morphine. C746. While together in a holding cell on the fifth floor of the MCC waiting to be brought to the Dirksen Building, *fn26" Bonnema saw Harris snort a white substance from a small baggy. C746-47; H1786. Bonnema asked Harris if the white powder was cocaine. C747; H1786. Harris stated that the substance was heroin and offered some to Bonnema. C747; H1786.

  Approximately one month later, Bonnema once again observed Harris snorting a white powder. C747-49; H1788-89. Bonnema was performing his duties as an orderly on the sixth floor when he saw Harris by the telephone in the recreation room snort the substance from a folded-up piece of paper. C748; H1788. Bonnema did not speak to Harris on this occasion and, as such, could not positively identify the substance. H1789.

  3. Jackie Clay

  Jackie Clay, a former El Rukn and current cooperating witness, was housed on the sixth floor of the MCC from February 27, 1989 to December 12, 1989, April 26, 1991 to August 17, 1991, September 19, 1991 to November 26, 1991, and February 20, 1992 to April 1, 1992. AE No. 56, at 9 (Clay Inmate History Report). Clay testified that he observed Harry Evans and Henry Harris use karachi heroin at the MCC on three separate instances between the spring and fall of 1989. A442. The first episode took place in the recreation room on the 6th floor. C956; H4621. Clay and Earl Hawkins, another El Rukn cooperating witness, were sitting at a card table in the middle of the room, and Evans and Harris were standing by the two pay phones on the wall approximately three feet from the card table. C956; H4621, 4624-25. Evans and Harris had placed an aluminum foil package of karachi heroin on the ledge of one of the telephones. C957; H4621. Both Evans and Harris snorted the substance, using a match book to bring the brown powder from the aluminum foil to their noses. C957; H4622. After Evans and Harris had snorted the drug three or four times, Evans folded the excess powder in the aluminum foil and put it in the breast pocket of his jumpsuit. H4623.

  Approximately one week later, Clay and Evans were together again in the recreation room. No one else was present. C958; H4626. Evans made a telephone call and, while talking, retrieved an aluminum foil package from his sock. C958; H4626-27. Evans opened the package, revealing its contents as karachi heroin, and began snorting the substance. C958; H4626. Clay saw Evans lift the brown powder from the aluminum foil to his nose about four or five times over a fifteen minute period. C958.

  The final incident occurred roughly two weeks later in the library on the sixth floor. C959; H4627-28. Upon arriving at the library, Clay sat down with Evans and Harris to talk. H4630. After ten minutes, Evans fetched from his sock an aluminum foil package filled with karachi heroin. C960; H4630. Evans placed the package on the table, and he and Harris snorted the narcotic. C960; H4630.

  In addition to witnessing the above-described drug use, on a separate occasion in the summer of 1989, Clay observed Harris and Evans in possession of narcotics. Harris seemingly had obtained narcotics from a visitor at the MCC. As he returned to his cell with the package, Evans, who occupied the cell next door, began to bang on the wall demanding his part of the drugs. C967; H4698. Harris told Evans to wait until the change in shift, but Evans could not wait. C967; H4698. A few minutes later Evans yelled to Harris, "I'm going to wash up, send me some deodorant." C967; H4699. Harris called out for Officer Gray, now deceased, to pass the deodorant to Evans. C967; H4699. Gray took the deodorant but, instead of giving it to Evans, brought it to the washroom. C967; H4699. A couple of minutes later Gray returned with the deodorant in two pieces and a package of narcotics in his hand. C968; H4699. Gray stated "you guys knew you couldn't get anything past me, I'm an old-timer." C968; H4699. While Clay assumes that Officer Gray "wrote up" Evans and Harris, C968; H4699, we observe that the parties have not produced an incident report to substantiate the allegation.

  4. Michael Corbitt

  For a period of twenty years, Michael Corbitt was a corrupt police officer. A768. He is now a convicted felon. Corbitt testified that he was housed on the sixth floor of the MCC on two separate occasions enduring 20 and 10 months respectively, the first stay beginning on October 7, 1987, and the second commencing at some point in 1991. A737-38, 751. According to his inmate history report, however, Corbitt was housed at the MCC from October 8, 1987 to August 28, 1989, from December 7, 1989 to January 13, 1990, and again from May 26, 1990 to June 23, 1990. AE No. 53, at 1. Contrary to his testimony, it appears that Corbitt was neither incarcerated at the MCC on a second occasion for a period of roughly 10 months nor housed at that facility at any time between June 24, 1990 and June 28, 1993. While it is possible that his inmate history report is inaccurate, the discrepancy does nothing to bolster Corbitt's credibility. *fn27"

  Corbitt was able to ferret out three specific instances of drug use on the part of various El Rukn cooperating witnesses, including Harris and Evans. First, during his initial stay at the MCC, which according to him began in October of 1987 and lasted roughly 20 months, Corbitt witnessed Henry Harris and Derrick Kees snort a white powder, believed to be either cocaine or heroin. A740. The incident allegedly occurred in a holding cell on the fifth floor, specifically in room 524, while Kees and Harris were waiting to be brought from the MCC to the Dirksen Building. A789, 740. Second, Corbitt recounted an event, also transpiring during his first visit at the MCC, involving Evans, Harris and an Officer Gray, similar to that told by Clay. Corbitt described the incident as follows:

  
A. I believe it was mid-afternoon, around 2:00 o'clock in the afternoon, and I believe Harris had come back from a visit and had walked over to Evans' cell on the way back to his own, and there's a slot where they feed you in the front of the cell door and Evans--Harry Evans' cell door was open and the officer was bringing Evans--I mean, Harris back to his cell and he broke over towards Harry Evans' cell and passed something into the cell. Officer Gray immediately locked down Harris and went in and shook down Harry Evans' cell. At that time he found a large deodorant container--and I was out on the floor, you have to understand, doing my job--a deodorant container full of a white powdered substance--not full but half-full of a white-powdered substance. I then call the seg lieutenant and several other officers to the floor. There is a major discussion about the problem. I was then locked down and it was discussed by the generals that he had been caught with heroin.
  
Q. He?
  
A. Harry Evans, the stuff that was passed by Leon Harris to Harry Evans. I don't recall any--again, I don't recall any incident report being written, and that was the last time that we saw Officer Gray on the floor. He was no longer on that floor again after that day.

  Additionally, Corbitt generally alleged that, on each of the two occasions that he was housed on the sixth floor of the MCC, he personally observed various El Rukn cooperating witnesses using illegal drugs. During his first stay at the MCC, beginning in October of 1987 and lasting approximately 20 months, Corbitt claims he saw Evans, Harris, Hunter, Hawkins, Clay and Kees use narcotics. A739; 760-61. Corbitt specifically identified Clay and Hunter as using only marijuana, as opposed to heroin and cocaine, and stated that Kees had smoked marijuana and snorted some kind of powdered substance on numerous instances. A760-61. According to Corbitt, these incidents usually occurred on the sixth floor in the law library or in the recreation room by the telephones. A761. During his second visit at the MCC, which he believes began in 1991 and lasted roughly 10 months, Corbitt maintains that he observed all of the above cooperating witnesses, save Hawkins and Evans (who, according to Corbitt, was not at the MCC throughout this period of time), use illicit drugs. A742. At this time, Corbitt states that these cooperating witnesses (i.e., Harris, Hunter, Clay and Kees) were indulging in karachi heroin, cocaine and marijuana. A742. Corbitt described the environment on the sixth floor during his second visit as more permissive, stating that the El Rukn cooperating witnesses were using drugs openly at cafeteria-type tables in the middle of the floor and in their rooms. A761.

  Respecting the source of these drugs, Corbitt testified that, during his first stay at the MCC, prisoners on the sixth floor were allowed contact visits with their guests and that, on many occasions, he noticed visitors passing to El Rukn cooperating witnesses bags and balloons filled with either a white powder or marijuana. A745. Corbitt, who was an orderly on the sixth floor, found pieces of rubber gloves used to bring drugs into the institution on the floor of the visiting room. A744. Corbitt maintains that, on numerous occasions, he personally observed Harris, Evans and Kees swallow balloons filled with narcotics given to them by visitors. A766, 745. In conjunction with their visits, these cooperating witnesses often requested and received laxatives from physician's assistants, presumably to help excrete the balloons. A766. At sometime prior to his second visit, in an effort to eliminate contact visits, the MCC erected a wall in the sixth floor visiting room running from floor to ceiling. A746. Inmates were supposed to communicate with their guests over a telephone intercom system, as the divider was intended to physically separate the inmate from his visitor. A748. The partition, however, had a door which, if left unlocked, would enable inmates to cross over to the visitor's side. A743-44. According to Corbitt, on at least ten occasions the door in fact was not locked, and he observed El Rukn cooperating witnesses on the other side of the partition with their visitors. A744. In an outright disregard for the MCC prohibition of contact visits, these cooperating witnesses and their guests would smoke marijuana in the visiting room, passing it back and forth between each other. A744.

  5. Earl Hawkins

  Earl Hawkins, a former El Rukn and current cooperating witness, was housed on the sixth floor of the MCC from April 29, 1987 to April 30, 1987, September 11, 1987 to December 20, 1988, April 27, 1989 to December 12, 1989, April 26, 1991 to November 24, 1991, February 20, 1992 to March 31, 1992, January 25, 1993 to April 7, 1993, and June 21, 1993 to June 24, 1993. AE No. 56, at 7 (Hawkins Inmate History Report). Hawkins testified that, in both 1989 and 1991, he observed two other El Rukn cooperating witnesses use drugs at the MCC, the first on just one occasion and the second on two occasions. A640-41. Although Hawkins was reluctant to identify these individuals by name for fear of retribution, A622-23, 641, we gather he was referring to Evans and Harris.

  Derrick Kees, a former El Rukn and current cooperating witness, resided on the sixth floor of the MCC from May 19, 1989 to May 19, 1990, February 19, 1991 to May 12, 1992, and from January 25, 1993 to March 26, 1993. AE No. 56, at 1 (Kees Inmate History Report). Kees testified that, at some time between the spring of 1989 and the spring of 1990, he observed both Harry Evans and Henry Harris use drugs in the recreation room on the sixth floor of the MCC. On the first occasion, Kees was in the recreation room with Harris and Evans, when Harris retrieved from his sock a foil package containing karachi heroin, a brown-powdered substance. A683. Both men inhaled the powder through their noses. A682. On a second occasion between the spring of 1989 and the spring of 1990, Kees saw Harris snort karachi heroin off the ledge of a telephone in the recreation room. A682-83. Kees was able to identify the substance based on its color and because Harris told him it was karachi heroin. A682. On this occasion, Harris offered Kees some of the drug, but Kees declined. A683. Although not able to specifically identify Evans' source of drugs during this time period. Kees testified that, according to Harris, Harris received drugs from his girlfriend, Bodollar. A684

  In a interview with FBI agents on March 19, 1993, Kees told the agents that "EVANS and HARRIS were drug addicts and they used drugs consistently from 1989 through the trials in 1991." Whatever the basis for Kees' opinion that these individuals used drugs during the time they testified in Trial I, it is clear that Kees' personal observation of drug use is limited to the period between the spring of 1989 and the spring of 1990. Indeed, Kees testified that he did not personally observe either Evans or Harris use drugs in 1991. A684-85.

  7. Ervin Lee

  Ervin Lee, a former El Rukn and current cooperating witness, was housed on the sixth floor of the MCC from April 24, 1991, until February 25, 1993. AE No. 56, at 3 (Lee Inmate History Report). Lee testified that, at some point in 1992, *fn28" he shared a sixth floor cell with Evans for roughly two to three weeks. A1416. One evening during this living arrangement, Lee observed Evans, who was sitting on his bed at the time, snort a white-powdered substance. A1416. Evans told Lee that the powder was aspirin and that he, Evans, was snorting it because he could not swallow pills. A1416. In that Evans was swallowing 10-15 pills a day at that time, and because Evans was up all night after snorting the substance, Lee concluded that the powder was an illicit narcotic. A1416-17. Although not asked about Evans' drug use at the hearings before Judges Conlon and Holderman, see C882-904; H3201-3317, Lee recounted this same story to FBI agents in an interview dated March 23, 1993.

  8. Harry Martin

  Harry Martin, a career criminal unaffiliated with the El Rukn street gang, was housed on the sixth floor of the MCC from February of 1991 to June of 1992. A51. Martin began his testimony before this court by admitting that he had testified falsely before Judges Conlon and Holderman regarding when Evans had used drugs. A27. In an effort to make his overall story plausible, Martin decided to admit to Judges Conlon and Holderman that Evans had used drugs at the MCC. A78-83. Martin, however, attempted to limit his testimony concerning Evans' drug use to December of 1991. Martin testified that during the first week of December 1991 he picked a package of cocaine from Harry Evans' pocket at the MCC. C1096; H4322-24. Martin also told Judges Conlon and Holderman that shortly after this incident, he had observed Evans smoking cocaine on the sixth floor of the MCC. C1096-97; H4321-22. Martin further stated that he had no personal knowledge that Evans had used drugs in July and August of 1991, though he was willing to admit that he overheard a telephone conversation during this time period in which Evans told somebody that he wanted an ounce, and not a gram (presumably of narcotics). C1094-95.

  Given an opportunity to tell the truth before this court, under a grant of immunity, Martin testified that Evans had been using drugs "basically throughout . . . the trials, throughout the entire thing. He had been high, nodding, dropping money, dropping drugs on the floor . . . from the time that he got there until I left." A27-28. Martin explained that during his stay on the sixth floor, drugs were readily available. A51. Martin reiterated that his account concerning how he picked from Evans' pocket a package of cocaine in December of 1991, and subsequently saw him smoke it, was true. A26-28, 38, 51.

  At the government's request, Martin was subjected to an FBI polygraph examination on May 5, 1993, concerning his recently changed story. The FBI polygraph analyst concluded that Martin was truthful when responding to all relevant questions asked during the test. AE No. 1, at 5 (Martin Polygraph Results). Two of those questions, and Martin's responses thereto, were as follows:

  
1. Did you lie under oath during the El Rukn hearing about when Harry Evans used drugs? Answer--Yes.
  
7. Did you ever see Evans with drugs in his possession at the MCC during the El Rukn trials? Answer--Yes.

  AE No. 1, at 5-6 (Martin Polygraph Results). *fn29" Martin's assertion that he had observed Evans with drugs in his possession at the MCC "during the El Rukn trials" evidently included the time during which Evans testified at Trial I. See A27-28, 79-80.

  During his interview with the FBI on April 22, 1993, Martin recalled another incident involving Evans and narcotics which, for whatever reason, was not addressed during the post-trial hearing before this court nor those before Judges Conlon and Holderman. According to Martin, Evans had returned from the United States Attorney's Office when $ 20 and some drugs fell out of his pocket. AE No. 2, at 8. Although Evans did not notice that he had dropped these items, Martin, cognizant of the present correctional officer, stepped on the drugs and money so that they would not be detected. Id. When Martin was able to retrieve the articles, he gave them back to Evans. Id. During this interview, Martin also stated that both Harris and Evans would receive drugs from visitors at the United States Attorney's Office, and would smuggle them back to the MCC in either legal papers or in Evans' body. Id. Given his medical condition at the time, Evans had a number of sores on his body and, therefore, the guards did not search him upon return to the MCC. Id.

  9. Abdul Jabbar Muhammad

  On February 3, 1993, Allan Ackerman, who at the time served as Noah Robinson's attorney, received an affidavit from an individual named Abdul Jabbar Muhammad. Based on the contents of this affidavit, defendant Knox sought an opportunity to call Muhammad as a witness before this court. Defendant Knox's Submission Regarding Additional Evidentiary Hearing, at 2 (Mar. 9, 1993). At the suggestion of the government, rather than allow Muhammad to testify, we granted Knox leave to submit the Muhammad affidavit as an exhibit to his reply brief in support of his motion for new trial. United States v. Boyd, No. 89 CR 908, slip op. at 2 (N.D. Ill. Apr. 11, 1993).

  At the time of the affidavit, Muhammad was incarcerated in a federal institution in Memphis, Tennessee, serving 262 months for bank robbery. Muhammad Affidavit P 2, at 1 (attached to Government's Response to Defendant Knox's Submission filed on March 26, 1993). Muhammad states that, on April 19, 1989, he was returned to the MCC Chicago for resentencing. Id. P 3, at 1. Upon his return, Muhammad became friendly with Evans and Kees. Id. P 5-6, at 1. Respecting illegal drug use, Muhammad claims that "on several occaisions [sic] I was asked by Bro. Evans did I want any cocaine, and I have seen cocaine in his possession." Id. P 16, at 2. Although rejecting Evans' offer, Muhammad asked what size cocaine he had, to which Evans responded "8-balls." Id. P 17-18, at 2. Respecting the source of the drugs, Muhammad states "the conversation revealed that Bro. Evans was obtaining his drugs from members of the prosecutor's office." Id. P 11, at 2.

  C. Admissions of Illegal Drug Use

  Despite their current denials, A847-48, C562, H1607-08 (testimony of Henry Harris); A1297, C294; H2165 (testimony of Harry Evans), both Henry Harris and Harry Evans previously have admitted to the possession and use of illegal drugs while incarcerated and cooperating with the government. These admissions were made to a number of different persons, both before and after Harris and Evans' respective testimony in Trial I.

  1. Admissions by Henry Harris

  On no less than nine separate occasions, Henry Harris confessed to post-incarceration drug use or possession. We begin with a conversation between Harris and Ervin Lee that took place in the recreation room of the sixth floor at some time in May of 1991. After Lee had revealed his negotiated sentence, other inmates in the recreation room, possibly including Evans, Hunter, Kees and Martin, stated that he got a bad deal because none of the other cooperating witnesses testified about Lee in front of the grand jury. H3209-13 (testimony of Ervin Lee). In response, Harris stated, "Well, when I went in front of the grand jury, I was so high that, you know, I could have mentioned your name a few times." H3213. Harris also told Lee that he, Harris, had smoked cocaine while at the Kluczinski Federal Building. A1424.

  In August of 1991, during a conversation with Tanya Van Blake, a paralegal in the United States Attorney's Office, Harris again admitted to post-incarceration drug use. At the time, the fact that Harris had tested positive for morphine on May 11, 1989. had been recently disclosed to the public in proceedings before Judge Conlon. H3838-39 (testimony of Tanya Van Blake). Van Blake asked Harris how it was that he tested positive for drugs. H3838. In response, Harris told her that Evans had a bottle of soda which, unbeknown to Harris, also contained heroin. H3839. When Evans saw a guard approaching, he handed the bottle to Harris who consumed some of the beverage laced with heroin. H3839.

  In December of 1992, after testifying in one or both of the post-trial hearings before Judges Conlon and Holderman, Harris told Harry Martin that he had been using drugs at the MCC. A38, 61-62 (testimony of Harry Martin). Specifically, Harris claimed to have used marijuana, karachi heroin and cocaine. AE No. 2, at 9 (April 22, 1993 FBI Interview of Martin). According to Martin, Harris obtained his drugs from visitors and never told Martin that he, Harris, had received drugs from personnel at the United States Attorney's Office. Id. at 9-10.

  The remaining five episodes have been detailed in subsections II(A) and (B) of this opinion, but are worth repeating in the present context. First, during a MCC disciplinary hearing conducted on June 27, 1989, Harris admitted to using illegal drugs, explaining that, in an effort to "sniff out narcotics on the 6th floor, . . . I had to indulge in narcotics to keep the heat off me and gain the confidence of other inmates in the unit." AE No. 21 (MCC Incident Report and Report of Disciplinary Hearing regarding Harris' positive drug test of May 11, 1989). Second, while unselfishly attempting to share his drugs with Nicholas Ahrens in the fall of 1988. Harris identified the substance that he snorted in the holding cell at the Dirksen Building as heroin. C939; H2805. Third, while sharing a holding cell on the fifth floor of the MCC with Raymond Bonnema in May of 1989, Harris produced a baggy filled with a white substance, identified the substance as heroin and offered some to Bonnema. C747; H1786. Fourth, at some time between October 1987 and August 1989, Harris showed Michael Corbitt a container and identified its contents as cocaine. A759-60. Finally, Harris snorted in Derrick Kees' presence a brown-powdered substance off the ledge of a telephone in the sixth floor recreation room in the spring of 1989. Harris told Kees the substance was karachi heroin. A682-83.

  2. Admissions by Harry Evans

  As did Harris, Evans has admitted to various individuals that he has used and possessed illegal drugs while incarcerated on the sixth floor of the MCC. For instance, Evans told Nicholas Ahrens on several occasions in the fall of 1988 that he, Evans, had been using heroin at the MCC. C934; H2802 (testimony of Nicholas Ahrens). Evans had been complaining about having chest pains and told Ahrens that "all the heroin he had been doing" was the cause. C934; H2802-03. On at least one instance, Evans admitted to Ahrens that he, Evans, was presently under the influence of narcotics. C938. Respecting his source, Evans stated that he received the drugs from visitors, possibly his girlfriend. C935; H2803. Evans also told Ahrens that at times he, Evans, passed to Harris heroin concealed in the battery compartment of a portable radio C936-37; H2808.

  Likewise, Evans had a number of conversations with Derrick Kees regarding drug use and possession. In 1989, Evans told Kees that he, Evans, obtained drugs from his girlfriend, Beverly Wordlow, while at the ATF office on the 39th floor of the Kluczinski Building. A689-90 (testimony of Derrick Kees). During this same time period, Evans (who was in his cell at the time) asked Kees (who was in the recreation room on the sixth floor of the MCC) if he would have his girlfriend bring Evans drugs in exchange for money. A690-91. Kees declined. A691. During the spring of 1991, Kees and Evans once again discussed Evans' drug use. Evans told Kees that he, Evans, was using "dope." A726. Given his past experience with Evans, Kees interpreted the term "dope" to mean heroin. A726. Respecting his source of drugs from January of 1991 to the spring of 1992, Evans divulged to Kees that his girlfriend would leave drugs in certain locations at the dialysis centers where Evans received treatment. A687-88. Evans would then go sit in that spot and retrieve the drugs, using some at the center and bringing the remainder back to the MCC in the lining of his clothes. A688.

  Lenell Smith, who had been housed and worked as an orderly on the sixth floor of the MCC from February of 1992, testified that, on two occasions in May of 1992, Evans asked Smith to smuggle for Evans heroin from the sixth floor visitation room. H2688-90. Further, in April or May of 1992, Smith overheard a conversation between Evans (who was in the recreation room) and Harris (who was in a room across from the recreation room) during which both men stated that they had just snorted illegal drugs. H2691-92. Finally, a few days later, Smith, Martin, Evans and Harris were playing cards in the law library on the sixth floor. H2692-93. Harris accused Evans of almost botching his testimony in an ongoing trial. H2693. Evans replied, "man, it might have been the dope." H2693.

  Ervin Lee testified concerning an incident transpiring in William R. Hogan, Jr.'s office on the 14th floor of the Dirksen Building. Lee, Evans, Evans' mother, Evans' girlfriend and Ed Diamond were present. A1423. Evans' mother handed Evans some telephone bills and Evans' girlfriend some money. A1423. At the same time Evans' mother pulled something from her mouth and handed it to Evans. A1423. Evans continued to look at the telephone bills, stating "yeah, okay, I'll pay it." A1423. Later that day, Evans asked Lee to bring something back to the MCC for Evans. A1423. After Lee inquired what he wanted brought back, Evans responded money. A1423. Lee, however, believed Evans had obtained drugs from his mother and wanted Lee to smuggle the drugs into the MCC. A1423-24. Accordingly, Lee refused. A1423-24.

  Evans has made similar statements to Michael Corbitt, Jackie Clay, Harry Martin and Abdul Jabbar Muhammad concerning his possession and use of illegal drugs while incarcerated and cooperating with the government. See FBI Interview of Michael Corbitt, at 4 (May 5, 1993); C964-65 (testimony of Jackie Clay); AE No. 2, at 8 (Martin FBI Interview of April 22, 1993); Muhammad Affidavit P 11, 16-18.

  D. Other Evidence of Post-Incarceration Drug Use

  The following circumstantial evidence further bolsters this court's conclusion that Evans and Harris possessed and used drugs while incarcerated on the sixth floor of the MCC: (1) Harris' refusal to provide a urine sample on May 30, 1991; (2) Harris' physical appearance; (3) Evans' physical appearance; (4) Evans' statements during phone conversations monitored by MCC officials; (5) Evans' possession of cash at the MCC; and (6) Evans' repeated requests for laxatives. We address each piece of circumstantial evidence in seriatim.

  1. Henry Harris' Refusal to Provide a Urine Sample

  On May 30, 1991, a mere 42 days prior to testifying before this court in Trial I, Henry Harris refused to provide a urine sample, prompting MCC Lt. K. Goforth to file an incident report. AE No. 23, at 1 (Harris Incident Report of May 30, 1991, and Report of Disciplinary Hearing); A850 (testimony of Henry Harris). As a result of both this incident and an episode where Harris threatened Derrick Kees with bodily harm, Harris was subjected to a disciplinary hearing on June 27, 1991, 14 days prior to testifying before this court in Trial I. AE No. 23, at 2. Curiously, the hearing took place in a jury room at the Dirksen Building on a day during which Harris testified in the first trial before Judge Holderman. H1677-89 (testimony of Theodore Poulos); H1393-97 (testimony of Robert Hafer). Electing not to call any witnesses on his behalf, Harris admitted his guilt to the disciplinary hearing officer and received a sanction of 15 days disciplinary segregation. AE No. 23, at 2-3. Harris also promised that "if requested in the future, I will provide a urine sample." *fn30" Id. at 2.


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