United States District Court, C.D. Illinois
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 ...