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UNITED STATES v. BATES

September 16, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS BATES, JEROME CROWDER, BERNARD GREEN, LOUIS HOOVER, ROLAND LEWIS, and EDWARD WILLIAMS, Defendants.



The opinion of the court was delivered by: MILLS

 RICHARD MILLS, District Judge:

 "El Rukn III" on remand.

 Limited remand.

 On April 23, 1996, the United States Court of Appeals for the Seventh Circuit vacated Defendants' convictions and remanded this cause for a limited purpose. Contrary to Defendants' assertions in post-appeal motions, there is but one issue which this Court needs to address on remand. This Court is directed to determine "whether exclusion of the evidence about the open unit, when added to the instances of prosecutorial misconduct (including eliciting testimony as to prior bad acts by two of the defendants) constituted a prejudicial error and so entitles the defendants to a new trial." United States v. Williams, 81 F.3d 1434, 1444 (7th Cir. 1996). *fn1"

 Therefore, there is no need to address matters, such as the prosecutorial misconduct, which have been addressed by both this Court and the Court of Appeals. This is not to say, however, that this Court should view the "open unit" evidence in a vacuum. On the contrary, this Court must view the open unit evidence in totality with the other irregularities which occurred at trial, including the testimony concerning the prior bad acts of two of the defendants. Id. This Court must determine, after "throwing the open unit evidence into the pot," whether there is now a reasonable likelihood that Defendants are entitled to a new trial due to prejudicial error.

 Defendants claim that when the open unit evidence is added to the other prosecutorial misconduct which occurred at trial, there is enough weight to shift the scales in favor of granting Defendants a new trial. Three arguments are made.

 I.

 First, Defendants argue that the Government's opening and closing arguments establish that even the prosecution believed that the jury would not have returned a verdict of guilty had it known of the open unit evidence. Defendants assert that the constant statements by the Government that the cooperating witnesses were kept separate from one another gave credibility to the otherwise non-credible witnesses.

 The reviewing court addressed this point by commenting that "lawyers are cautious people by and large, and even a lawyer who has a very strong case will want to make it stronger." 81 F.3d at 1441. It is clear that the prosecution engaged in grave misconduct in several aspects of the case. However, the Government's closing and opening arguments regarding the witnesses' lack of opportunity to collaborate do not raise a reasonable likelihood that the verdicts would have been different.

 The cooperating witnesses, although housed together, were debriefed separately. In addition, the cooperating witnesses were debriefed and/or testified before the grand jury prior to being housed at the Metropolitan Correctional Center (MCC) in Chicago. Therefore, even if Defendants had introduced evidence that the cooperating witnesses had the opportunity to collaborate their testimonies before trial, the Government could have offered the witnesses' prior statements to rebut Defendants' claim of recent fabrication. Federal Rule of Evidence 801(d)(1)(B)

 
specifically permits the introduction of a witness' prior consistent statements if the declarant testified at trial subject to cross-examination and his prior consistent statements are offered to rebut an express or implied charge of recent fabrication. In addition to those requirements the witness must also have made the statements before he had a motive to fabricate.

 United States v. Patterson, 23 F.3d 1239, 1247 (7th Cir. 1994), cert. denied 130 L. Ed. 2d 431, 115 S. Ct. 527 (1994).

 In the instant case, the cooperating witnesses testified at trial, were subject to cross-examination, and their statements could have been offered to rebut a charge of recent fabrication due to the alleged collaboration of the witnesses. Furthermore, the cooperating witnesses' statements were made prior to their opportunity or motive to collaborate since they were not housed together at the MCC until after they had made the statements. Accordingly, any gains which Defendants could have received as a result of the implication ...


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