United States v. Haywood

          ORDER AND OPINION

          James E. Shadid United States District Judge

         Now before the Court are Defendant Flora's Amended First Motion (Doc. 567) in Limine, Defendant Gregory's First Motion (Doc. 587) in Limine, the United States' First Motion (Doc. 595) in Limine, Defendant Haywood's Response (Doc. 617) to Motions in Limine Regarding Fifth Amendment Rights, and the United States' Reply (Doc. 637) thereto. This matter is fully briefed, and this Order follows.

         Background

         (1) Defendant Flora's Motion (Doc. 567)

         Paragraph 12(c) of the Third Superseding Indictment alleges:

On July 15, 2013, Eugene Haywood, a.k.a. “Nunu, ” Mytrez Flora, a.k.a. “Trez, ” Lloyd Dotson, and deceased Bomb Squad leader, Raheem Wilson, a.k.a. “Boosie, ” conspired to shoot and murder Tyrann Chester, whom they believed to be supplying drugs to a dealer operating independently of Bomb Squad in Bomb Squad territory.

Doc. 443, at ¶ 12(c). In his Motion, Defendant Flora notes that on July 15, 2013, Peoria Police Department Detectives Curry and Sandoval read Flora his Miranda warning at the police department, after which Flora acknowledged he understood his rights and invoked his right to remain silent. Defendants Dotson and Haywood did make statements. Defendant Flora thus moves for an order prohibiting the United States or the codefendants from commenting on his invocation of his Fifth Amendment rights.

         (2) Defendant Gregory's Motion (Doc. 587)

         Paragraph 12(aa) of the Third Superseding Indictment alleges:

On May 9, 2017, Keith Gregory, a.k.a “Kilo, ” Ezra Johnson, a.k.a. “Lil Wody, ” Torieuanno White, a.k.a. “T.A., ” and other Bomb Squad members conspired to shoot Victim R, an individual believed to be a rival gang member, who was present in a store in Bomb Squad territory.

Doc. 443, at ¶ 12(aa). In his Motion, Defendant Gregory notes that in the days following the alleged incident, Peoria Police Department Detectives Lagaspi and Brecklin read White his Miranda warnings at the Peoria Police Department, after which White confirmed he understood his rights and made a statement. Defendants Gregory and Johnson invoked their right to remain silent and did not make statements. Defendant Gregory thus moves for an order prohibiting the United States or the codefendants from commenting on his invocation of his Fifth Amendment rights.

         (3) The United States' Motion (Doc. 595)

         The United States, noting some Defendants intend to comment upon their codefendants' invocation of their constitutional rights, moves for an order prohibiting all parties from making comment, reference, argument, inference, or drawing attention to any Defendant's proper invocation of their rights, including: (1) the right to remain silent in the face of police questioning; (2) the right to an attorney at questioning or otherwise; (3) the right not to testify at trial; and (4) the right not to present evidence at trial. The United States argues Defendants' “assertion that silence or the proper invocation of rights is somehow ‘evidence' is flawed for three reasons.”

         First, the United States argues there is no adverse inference that can be drawn from a defendant's silence following the proper invocation of their right to remain silent, not testify at trial, or not present evidence at trial because a defendant's post-Miranda silence is irrelevant-it has no tendency to make a fact more or less probable than it would be without the evidence. Id. at 3 (citing Fed.R.Evid. 401; Doyle v. Ohio, 426 U.S. 610, 617 (1976) (stating post-Miranda silence is “insolubly ambiguous”)). Second, the United States argues any evidentiary value to be gained from a defendant invoking his right to remain silent is substantially outweighed by the prejudicial effect admission of such evidence may have. Id. at 5 (citing Fed.R.Evid. 403). Third, the United States argues defendants do not have an absolute right to comment on a codefendant's silence. The United States notes the case relied upon by Defendants, De Luna v. United States, 308 F.2d 140, 141 (5th Cir. 1962), was distinguished by the Seventh Circuit in United States v. Kahn, 381 F.2d 824, 840 (7th Cir. 1967). Further, in Kahn, the court remarked:

The procedural difficulties and the complication of joint trials arising from the rule suggested by dicta in De Luna are so great that we cannot say there is an absolute right, without reference to the circumstances of defense at trial, for a defendant to comment on the refusal of a co-defendant to testify. We think there must be more to justify the disintegration of a trial, such as a conspiracy trial, in which there is a cohesion of crime alleged, defendants charged, and proof adduced. There must be a showing that real prejudice will result from the defendant's ...