USA v. Wilkerson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
LARRY WILKERSON,
Defendant.
b\é\é\é\é€%%l€
MEMORANDUM OPINION
F|LE
SEP 2 2 2909
NANCY MAYER WHITTINGTON. CLERK
U.S. D|STH|CT COURT
Cr. No. 00-0157-15 (TFH)
During the l990s, a group of men led by Kevin Gray and Larry Moore distributed large
quantities of narcotics across Washington, D.C., using violence to promote their operations. An
associate of Gray and Moore during this period was the defendant, Larry Wilkerson. He, Gray,
Moore, and eighteen others were eventually prosecuted on charges stemming from this drug ring.
Wilkerson was tried separately from the other defendants. Following a two-month trial, on
September 22, 2004, a jury found him guilty of nine counts related to narcotics conspiracy, RICO
conspiracy, and the murders of Marvin Goodman, Christopher Burton, and Scott Downing.'
Since the verdict, Wilkerson has filed numerous motions attacking the validity of his trial.
Pending resolution of those motions, he has not yet been sentenced. The Court now addresses
seven of Wilkerson’s motions, specifically his (l) Motion for Judgment Notwithstanding the
Verdicts and to Vacate the Verdicts as Being Against the Weight of the Evidence (Docket No.
2203); (2) Motion for a New Trial Based on the Govemment’s Failure to Disclose Brady
Evidence Regarding Rodman Lee and for Asserting Inconsistent Prosecution Theories (Docket
1 The jury found Wilkerson not guilty of two counts related to the murder of a fourth
person, Darrell Henson.
No. 2201); (3) Motion to Compel the Govemment to Disclose the Complete Grand Jury
Testimony of Rodman Lee (Docket No. 2269); (4) Motion for a New Trial Based on Court’s
Rulings Denying an Opportunity to Present Exculpatory Evidence Regarding the Christopher
Burton Homicide (Docket No. 2196); (5) Motion to Compel the Release of Govemment Notes
Relating to Devin Ebron (Docket No. 2l92); (6) Motion for a New Trial Based on Newly
Discovered Evidence (Docket No. 2342); and (7) Motion for Dismissal or a New Trial Based on
Prosecutorial Misconduct Regarding Govemment Witness Donney Alston (Docket No. 2198).
For the reasons set forth below, the Court will deny each of these motions,
ANALYSIS
The Court’s discussion breaks down the above-listed seven motions into four groups.
Part I focuses solely on the Motion for judgment Notwithstanding the Verdicts and to Vacate the
Verdicts as Being Against the Weight of the Evidence. Part ll addresses the second and third
motions related to the impact on this case of Rodman Lee, another drug dealer associated with
Kevin Gray, Part III deals with the fourth, fifth, and sixth motions, all of which relate to the
murder of Christopher Burton, Part IV examines the seventh motion relating to alleged
prosecutorial misconduct as to government witness Donney Alston.
I. Motion for Judgment Notwithstanding the Verdicts and to Vacate the Verdicts as
Being Against the Weight of the Evidence
In this motion, Wilkerson asks the Court either to enter a judgment of acquittal or to
vacate the verdicts and convene a new trial. The Court must undertake two distinct, but related,
evaluations: (l) whether the evidence was sufficient to support the verdicts, and, in the
alternative, (2) whether the evidence weighs against the verdicts strongly enough that the
interests of justice warrant a new trial. See Tibbs v. Florida, 457 U.S. 3l, 37-38 & n.ll (1982)
(explaining "the difference between a reversal stemming from insufficient evidence and one
prompted by the weight of the evidence"). Wilkerson offers two reasons why the govemment’s
evidence is inadequate to sustain the verdicts. With respect to the murder counts, he claims that
the government’s case was fatally undermined by witnesses’ contradictory testimony. With
respect to the conspiracy counts, he contends that the evidence shows that the Gray-Moore
operation terminated outside the relevant statute of limitations. Because neither of these
arguments satisfies the high threshold required to override a jury’s finding, the Court will neither
enter a judgment of acquittal nor vacate the verdicts.
A. Legal Standards
FED. R. CRIM. P. 29(c)(2) provides that "the court on the defendant’s motion must enter a
judgment of acquittal on any offense for which the evidence is insufficient to sustain a
conviction." This rule governs Wilkerson’s Motion for Judgment Notwithstanding the Verdicts.
"[T]he standard for overturning a guilty verdict on the grounds of insufficiency of evidence is a
demanding one." Unilea' States v. Monroe, 990 F.2d 1370, l373 (D.C. Cir. 1993) (citation and
intemal punctuation omitted). The court’s inquiry is limited to "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginz``a, 443 U.S.
307, 319 (l979) (emphasis in original). "[T]his inquiry does not require a court to ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Ia’.
at 3 l 8-19 (internal quotation omitted) (emphasis in original). In other words, the reviewing court
is "not a second jury weighing the evidence anew." Unitea' States v. Post0n, 902 F.2d 90, 94
(D.C. Cir. 1990). "This familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. To prevail on this
claim, Wilkerson must show that the jury’s verdicts objectively lack any foundation.
The Court takes a less deferential approach in reviewing Wilkerson’s Motion to Vacate
the Verdicts as Being Against the Weight of the Evidence. This motion is governed by FED. R.
CRIM. P. 33(a), which provides that, "[u]pon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so requires." On this motion, the Court
has greater discretion to make its own judgment about whether the verdict is just in light of the
evidence adduced at trial:
When a motion for new trial is made on the ground that the verdict is contrary to the
weight of the evidence, the issues are far different . . . . The district court need not
view the evidence in the light most favorable to the verdict; it may weigh the
evidence and in so doing evaluate for itself the credibility of the witnesses. If the
court concludes that, despite the abstract sufficiency of the evidence to sustain the
verdict, the evidence preponderates sufficiently heavily against the verdict that a
serious miscarriage of justice may have occurred, it may set aside the verdict, grant
a new trial, and submit the issues for determination by another jury.
Tibbs, 457 U.S. at 38 n.1 1 (quotation omitted). "A reversal on this ground, unlike a reversal
based on insufficient evidence, does not mean that acquittal was the only proper verdict, Instead,
the [reviewing] court sits as a ‘thirteenth juror’ and disagrees with the jury’s resolution of the
conflicting testimony." Id. at 42. This second-guessing "discretion should be exercised
sparingly," Unitea' States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992), however, limited to
situations presenting "a serious danger that a miscarriage of justice has occurred-that is, that an
innocent person has been convicted." United States v. Morales, 902 F.2d 604, 606 (7th Cir.
1990); see also Um``ted States v. Ruiz, 105 F.3d 1492, 1501 (lst Cir. 1997) ("Where a new trial
motion is based upon the weight of the evidence, the court may not order a new trial unless it is
quite clear that the jury has reached a seriously erroneous result." (intemal quotation omitted)).
B. Inconsistency of Witness Statements
Wilkerson challenges each of the jury’s verdicts with respect to the Scott Downing,
Christopher Burton, and Marvin Goodman murders. According to Wilkerson, the govemment’s
case for each murder depended on witness testimony that no reasonable jury would have believed
and that the Court should not accept. lllustrative of Wilkerson’s general strategy is his treatment
of the Marvin Goodman counts, Goodman, a sometime acquaintance of Gray, Moore, and
Wilkerson, was killed by multiple gunshots in 1992. The government and Wilkerson concur that
Goodman, a heroin user, was murdered in retaliation for stealing drugs. The two sides agree on
little else, however. For its part, the government argues that Goodman stole heroin from the
Gray-Moore crew and was later killed by Wilkerson, Gray, and others. Wilkerson, on the other
hand, posits that Goodman was murdered by two men known as "Cat Man" and Kenny Hill. At
trial, each side offered witness testimony to support its respective narrative, and the jury
ultimately found Wilkerson guilty on all of the Goodman counts,
Wilkerson does not argue that the govemment’s proffered testimony, if taken at face
value, provides insufficient evidence that Wilkerson helped to murder Goodman, Instead,
Wilkerson claims that the government’s witnesses had perhaps colluded and were not believable,
so that the government offered an insufficient amount of credible testimony to support the jury’s
verdicts. In support of his claim, Wilkerson observes that government witnesses contradicted
each other on subjects including whether Goodman obtained some of his stolen drugs from a
safe; who discovered the theft; whether Goodman facilitated his theft by breaking and entering
through a kitchen or a closet; whether Kevin Gray ever used the alias "Cat Man"; and whether
Goodman was inside a car when killed. Wilkerson claims that these discrepancies so discredit
the govemment’s witnesses that the jury’s verdicts were beyond all reason and constitute an
affront to justice.
The Court finds that these testimonial disagreements are insufficient to displace the fact-
finding role of the jury. See United States v. Greenstez``n, 153 F.2d 550 (2d Cir. 1946) ("Any
doubts which might arise from this uncertainty and this contradiction were for the jury alone;
they were not a ground for withdrawing the testimony from their consideration."). The jury has
wide latitude to determine for itself the credibility of a witness. J0hns0n v. Unz``ted States, 426
F.2d 651, 655 (D.C. Cir. 1970) ("Of all the issues which are in the highest order for a jury one is
hard pressed to suggest one more firmly intended and more plainly suited for jury determination
than that of credibility."). The jury is instructed that such is not only its right, but indeed its
responsibility as trier of fact: "You are the sole judge of the credibility of the witnesses. In other
words, you alone are to determine whether to believe any witness and the extent to which any
witness should be believed." CRnmNAL JURY INSTRUCTIoNS FoR THE DISTRICT oF CoLUi\/IBIA,
instruction 2.11. This rule holds true even when there is serious reason to doubt the witness,
such as mental retardation, see United States. v. Benn, 476 F.2d 1127 (D.C. Cir. 1973), or drug
addiction, see Unitea' States v. Hickey, 917 F.2d 901 (6th Cir. 1990). Here, by contrast, there are
no exceptional circumstances; the witnesses were competent and their testimony was not bald-
faced fantasy.
Judgment notwithstanding the verdicts is inappropriate because a rational trier of fact
could have believed the government’s witnesses in spite of their contradictions. Where the
govemment witnesses differed in respect to the Goodman murder, they did so in ways the jury
might reasonably have dismissed as trivial or harmless, especially considering that the events at
issue occurred roughly a decade before trial:
lnconsistencies or discrepancies in the testimony of a witness, or between the
testimony of different witnesses, may or may not cause you to discredit such
testimony. . . . In weighing the effect of the inconsistency or discrepancy, always
consider whether it pertains to a matter of important or unimportant detail, and
whether the inconsistency or discrepancy results from innocent error or intentional
falsehood.
CRMINAL JURY INSTRUCTIoNS FoR THE Dlsriucr oF CQLUMBIA, Instruction 2.11. lt is unclear,
for instance, why disagreements over Goodman’s manner of theft-through a kitchen or through
a closet _should obviate all belief in the govemment’s case. This is particularly so because the
govemment’s witnesses agreed on a great deal, most centrally the intention of Gray and his
colleagues to hunt down and kill Goodman, The jury could rationally have credited that common
line of testimony over any number of minor inconsistencies and hence concluded that Wilkerson
was guilty.
Similarly, the jury did not reach an unreasonable conclusion with respect to the charges
related to the Scott Downing and Christopher Burton murders, since Wilkerson protests the
verdicts on those counts using the same flawed argument. As with the Goodman murder,
witnesses who testified about the Downing and Burton murders were inconsistent on several
points. Also as with the Goodman murder, however, those inconsistencies were not nearly so
critical as to render the jury’s verdicts irrational. As to each of the three murders, then,
Wilkerson fails to show a pattern of witness testimony so incompatible that it entirely precludes
rational belief in the government’s evidence. Though the government’s proffered testimony may
have been less than airtight, the verdicts were not beyond the pale of reason.
For the same reasons, upon its own review the Court does not find these testimonial
inconsistencies so unsettling that the interests of justice require vacating the verdicts and holding
a new trial.z The collective evidence of Wilkerson’s guilt is strong enough to satisfy the Court
that the verdicts do not represent a miscarriage of justice.
C. Statute of Lin1itations Defense
Wilkerson next challenges the jury’s finding that the Gray-Moore conspiracy existed as of
November 17, 1995-the operative date for the statute of limitations.i’ The jury’s finding was
unreasonable and against the weight of the evidence, Wilkerson claims, for two reasons: first, a
variety of govemment and defense witnesses testified that Gray and Moore had squabbled in
1995 and 1996. Second, this squabble coincided with Gray’s decision to purchase drugs from
two men not well-connected with Moore: Rodman Lee and Ronald Alf``red. Wilkerson claims
2 ln determining what the interests of justice require, the Court heeds the Second
Circuit’s guidance:
Manifest injustice cannot be found simply on the basis of the trial judge’s
determination that certain testimony is untruthful, unless the judge is prepared to
answer "no" to the following question: "Am l satisfied that competent, satisfactory
and sufficient evidence in this record supports the jury’s finding that this defendant
is guilty beyond a reasonable doubt‘?" In making this assessment, the judge must
examine the totality of the case. All the facts and circumstances must be taken into
account. An objective evaluation is required. There must be a real concern that an
innocent person may have been convicted. lt is only when it appears that an injustice
has been done that there is a need for a new trial "in the interest of justice."
Sanchez, 969 F.2d at 1414.
3 Except where otherwise expressly provided by law, the statute of limitations for non-
capital offenses-such as Wilkerson’s narcotics and RICO conspiracy counts_is five years. See
18 U.S.C. § 3282. Wilkerson was indicted on November 17, 2000.
8
that the diversification of Gray’s cocaine supply confirms his intention to break with Moore,
The record contains ample reason to reject Wilkerson’s theory. The government
presented several witnesses who testified that Gray and Moore frequently quarreled before
reuniting and resuming their normal course of business. One of Wilkerson’s former colleagues
testified that the Gray-Moore operation itself regarded death as the only valid means of
withdrawing from the conspiracy. 0ther government witnesses testified not only that Gray and
Moore consistently reconciled their differences but indeed that the pair continued orchestrating
crimes into the late 1990s.
ln light of this evidence, the Court will not disturb the verdicts on the conspiracy counts,
lt was within the province of a reasonable jury to accept the government’s evidence over
Wilkerson’s That evidence persuades the Court, too, that no miscarriage of justice would result
from letting the jury’s verdicts stand.
II. Motions Relating to Rodman Lee Evidence
As already noted, Wilkerson maintains that the Gray-Moore operation terminated outside
the relevant statute of limitations. Key to this claim is the one-time relationship between Gray
and Rodman Lee, a cocaine dealer who in 1996 pled guilty to narcotics charges According to
Wilkerson, Gray’s decision to acquire drugs from Lee_as opposed to Moore_constituted a
separate conspiracy that displaced the Gray-Moore operation. After trial, Wilkerson obtained
what he contends is key evidence in support of his theory: the proffer of evidence accompanying
Rodman Lee’s plea agreement ("the Lee proffer"). The proffer contains the following passages
describing the Lee enterprise:
From in or about sometime in 1992, to on or about May 31, 1996 . . . Rodman David
Lee . . . was a principal administrator, organizer, supervisor and leader with respect
to a group of individuals who, collectively, were responsible for the distribution of
more than 150 kilograms of cocaine and more than 1.5 kilograms of cocaine base in
the District of Columbia, the State of Maryland and elsewhere. . . .
An investigation has determined that in addition to [Lee], the conspiracy has
included, but has not been limited to, the following members who have participated
as co-conspirators, either continuously, or at various times during the existence of the
ongoing enterprise: [the proffer lists 20 names, including Kevin Gray].
Sometime in late 1994, the exact date of which is unknown, Rodman David Lee
began to receive shipments of cocaine base, and later cocaine hydrochloride . . . .
This continued up until May 31, 1996. Throughout this period of time, Rodman
David Lee supplied [Gray and others] with multiple kilogram quantities of cocaine
hydrochloride and cocaine base.
Def.’s Mot. for a New Trial (Docket No. 2201), Ex. 3 (copy of factual proffer). In sum, the
proffer depicts Lee as a ringleader of a large conspiracy in which Kevin Gray was involved.
Wilkerson reads the Lee proffer as further proof-endorsed by the government-that
Gray joined a separate conspiracy with Lee rather than remain part of a conspiracy with Moore.
On the basis of this reading, Wilkerson’s Motion for a New Trial (Docket No. 2201) presents two
arguments First, Wilkerson asserts that the govemment’s failure to disclose the Lee proffer
violated the prosecutorial duties set forth in Brady v. Maryland, 373 U.S. 83 (1963). Second,
Wilkerson maintains that the govemment has deprived him of due process of law under the Fifth
Amendment by prosecuting Lee under one theory (that Gray joined a conspiracy run by Lee) and
Wilkerson on another (that Lee was part of the Gray-Moore conspiracy). ln an additional Motion
to Compel (Docket No. 2269), Wilkerson requests the complete transcript of Rodman Lee’s
grand jury testimony taken in the Kevin Gray case because he believes it may help substantiate
his theory. As explained below, all of these claims lack merit.
10
A. Brady Claim
Brady requires the prosecution to disclose evidence to the accused only where (l) the
evidence is favorable to the accused because it is either exculpatory or impeaching; (2) the
evidence has been suppressed by the govemment, either willfully or inadvertently; and (3) the
accused is prejudiced as a result of the govemment’s suppression. See United States v. Andrews,
532 F.3d 900, 905 (D.C. Cir. 2008) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
The proper remedy for a Brady violation is a new trial. See United States. v. Broa'ie, 524 F.3d
259, 268 (D.C. Cir. 2008).
The Court resolves Wilkerson’s claim with reference only to the third Braa’y prong,
finding that Wilkerson has not shown that he suffered prejudice from the govemment’s failure to
disclose the Lee proffer. Under Braa'y and its pro geny, withheld evidence is prejudicial only
where it is material, i.e., where there is a reasonable probability that the evidence would have
given rise to a different outcome at trial. Unitea' States v. Bagley, 473 U.S. 667, 682 (1985)
(explaining that a "reasonable probability" is one "sufficient to undermine confidence in the
outcome"). Wilkerson has the burden of proving materiality, Strz``ckler, 527 U.S. at 289, meaning
he must show that the Lee proffer was material with respect to the statute of limitations question.
Wilkerson fails to carry his burden of demonstrating materiality because his argument
rests on the faulty premise that the Gray-Lee conspiracy outlined in the Lee proffer could not
have simultaneously coexisted with a Gray-Moore conspiracy. The proffer itself lacks discrete
facts that would show this type of incompatibility, listing no dates, times, people, places, or
events indicating that Gray broke with Moore. Wilkerson is left to rely chiefly on the proffer’s
characterization of the Gray-Lee relationship as one in which Lee was a "principal administrator,
11
organizer, supervisor and leader" of a "conspiracy" involving Gray." Yet this proposition does
nothing to explain why a Gray-Lee conspiracy could not overlap with a Gray-Moore conspiracy.
As a starting point, the proffer offers little insight into the precise relationship between
Gray and Lee. The applicable portions of the proffer are written in expansive language designed
to describe broad swaths of Lee’s operations That this grammatical dragnet swept up Gray (in
two long lists of co-conspirators) says little about how, precisely, Gray figured into Lee’s
conspiracy. Indeed, the proffer gives no indication that Gray and Lee were anything beyond
customer and supplier. The lack of any further role for Gray, while not settling the issue, cuts
against the inference that Gray took up a conspiracy with Lee at the expense of a leadership
position in a conspiracy with Moore.
Yet even assuming that Lee’s conspiracy frequently and critically involved Gray, that
relationship would prove nothing about Gray’s relationship with Moore. Wilkerson reaches his
conclusion only by assuming that where one person leads a conspiracy, that person and his co-
conspirators are incapable of operating in a second conspiracy. While one can certainly imagine
a factual scenario in which that rule would hold true as applied-in rival gangs, for instance-the
proffer and other evidence in the record offer no facts that demand such an inference in the case
4 Wilkerson also relies on certain other documents he obtained, mainly records of law
enforcement interviews of Lee. See Def.’s Notice of Filing of Additional Undisclosed Brady
Docs. (Docket No. 2254). According to Wilkerson, those documents demonstrate that Lee was
part of a continuing criminal enterprise run by the Zebowski brothers in which Gray was also
involved. Noting that these documents nowhere mention Rodney Moore, Wilkerson concludes
that Gray must have been conspiring with the Zebowskis and Lee to the exclusion of Moore, and
that Lee could not have been part of any Gray-Moore conspiracy. This conclusion is riddled with
leaps of logic. F or one thing, Wilkerson ignores that the Zebowskis Lee, Gray, and Moore could
all have been running overlapping conspiracies Secondly, Wilkerson overlooks that Lee did not
need to deal with or even know of Moore to be part of a Gray-Moore conspiracy; the link could
be through Gray alone.
12
of Kevin Gray,
The possibility of overlapping conspiracies is well-recognized in the law. At the heart of
a legal conspiracy is an agreement between two or more people to commit a crime. See United
States v. Wils0n, 160 F.3d 732, 737 (D.C. Cir. 1998) ("The existence of an agreement is the sine
qua non of the statutory crime of conspiracy."). Because an individual may have multiple
agreements with multiple people, there is nothing inherently impossible about several
conspiracies existing simultaneously. See, e.g., United States v. Townsena', 924 F.2d 1385,
1395-1402 (7th Cir. 1991) (finding three separate conspiracies between three different suppliers
and a common purchaser). And because only the substance of the agreement is important for a
conspiracy charge, the rank, status, or relationship of the conspirators is hardly dispositive; a
criminal masterrnind may organize one complex conspiracy but play a bit part in several others.
As both a factual and a legal proposition, therefore, it is possible for the conspiracy
described in the Lee proffer to have coexisted with the Gray-Moore conspiracy. Given the
informal complexity of narcotics operations, Lee, Gray, and Moore could conceivably have
formed several overlapping conspiracies throughout the years. Gray, for instance, could have
simultaneously made multiple, independent cocaine purchases as part of the Rodman Lee
conspiracy, as part of the Gray-Moore conspiracy, or as part of any number of other conspiracies
For his part, Lee could have led one conspiracy-at times employing Kevin Gray-while at other
times merely "serving" in separate conspiracies lt is also possible to understand the Gray-Lee
conspiracy as a sub-conspiracy of the Gray-Moore operations
Given the potential range of these conspiratorial agreements, the Lee proffer can shed no
light on the relationship between Gray and Moore. The proffer describes only the factual
13
circumstances surrounding a single conspiratorial agreement, saying nothing about the possibility
of other agreements or their termination. Consequently, the proffer has limited bearing on
Wilkerson’s statute of limitations argument and does not undermine confidence in the outcome
of the trial. A new trial is thus unwarranted under Brady.
B. Claim for Inconsistent Theories of Prosecution
Leaving aside all the possible ways that the operations of Lee, Gray, and Moore could
have been related, Wilkerson’s second claim focuses on the theories that the govemment has
actually advanced. He argues that the govemment has impermissibly offered two mutually
exclusive portraits of Rodman Lee. Specifically, Wilkerson contends that it was inconsistent for
the govemment first to prosecute Rodman Lee under the theory of a "Rodman Lee conspiracy
including Kevin Gray," and then to later prosecute Larry Wilkerson under the theory of a "Kevin
Gray and Rodney Moore conspiracy including Rodman Lee." Wilkerson notes that while the Lee
proffer describes Lee as a ringleader of his own conspiracy under whom Gray worked, during
Wilkerson’s trial the government portrayed Lee as having joined the Gray-Moore conspiracy.
The D.C. Circuit has not yet addressed whether the govemment is constitutionally
estopped from prosecuting defendants under mutually inconsistent theories. More broadly,
"[t]here is no clear consensus in the federal courts on whether a prosecutor may be precluded
from raising an argument at a criminal trial because the government has asserted a factually
incompatible argument in pursuing a conviction against another defendant at another trial."
Unitea' States v. Urso, 369 F. Supp. 2d 254, 263-264 (E.D.N.Y. 2005) (collecting and comparing
cases addressing application of judicial estoppel to govemment prosecutors).
This question of law can be saved for another day, however, because the Court rejects
14
Wilkerson’s allegation that the government prosecuted Rodman Lee and Kevin Gray using
mutually inconsistent theories Consistent with the Court’s discussion above, see supra Part ll.A,
the Lee proffer is entirely compatible with the government’s representation at Wilkerson’s trial.
To wit, Wilkerson does not explain why a Lee conspiracy involving Gray could not have
coexisted simultaneously with a Gray-Moore conspiracy involving Lee. The inconsistency that
Wilkerson perceives is a result of his own assumptions not any factual impossibility. Because
the allegation of inconsistency does not withstand scrutiny, Wilkerson’s claim lacks merit.
C. Motion to Compel Disclosure of Rodman Lee’s Grand Jury Testimony
ln a final claim relating to Rodman Lee, Wilkerson petitions the Court to compel the
disclosure of Lee’s grand jury testimony ("the Lee testimony"). Citing already available excerpts
of that testimony,5 Wilkerson claims that it_like the Lee proffer-shows that Gray and Moore
terminated their conspiracy outside the statute of limitations.
There exist only a few exceptions to the "ancient" rule that "the proceedings of . . . grand
juries [are] subject to near absolute secrecy." Unitea' Staies v. E-Gold, Lta’., 521 F.3d 411, 420
(D.C. Cir. 2008). For one, grand jury testimony is subject to the rule laid down in Brady. See
Tierney v. Unitea' States, 410 U.S. 914, 916 n.2 (1973) (noting that "grand jury testimony is
regularly disclosed to criminal defendants without court order pursuant to Brady"). ln addition,
FED R. CRIM. P. 6(e)(3)(E)(i) allows district courts to authorize disclosure of grand jury matters
"in connection with a judicial proceeding" if the party requesting disclosure demonstrates a
"particularized need" or "compelling necessity" for the testimony. See Smith v. Unitea’ States,
5 Prior to the trial of other defendants in this case, the govemment released portions of
Lee’s grand jury testimony as part of its Jencks/Giglio disclosures
15
423 U.S. 1303, 1304 (1975). In other words "disclosure is appropriate only in those cases where
the need for it outweighs the public interest in secrecy, and . . . the burden of demonstrating this
balance rests upon the private party seeking disclosure." D0uglas Oil Co. of California v. Petrol
Stops Northwest, 441 U.S. 211, 223 (l979).
lt is unclear whether Wilkerson seeks the Lee testimony as Braa’y material itself, or only
because it relates to the Lee proffer. Either way, Wilkerson not has properly linked the Lee
testimony to his statute of limitations defense. An initial problem is that Wilkerson overstates
what the available grand jury testimony demonstrates about the relationship between Lee and
Gray. Wilkerson cites Lee’s testimony as to how Gray wanted to deal with two associates who
were thought to be cooperating with the police. First, Lee testified that when Gray heard that Lee
had placed a bounty on one suspected cooperator’s head, Gray responded "Oh, fuck that shit.
Oh, don’t worry about it. Don’t worry about a thing." Def.’s Mot. to Compel, Ex. 3. Second,
Lee testified that Gray said that another suspected cooperator "was going to have to go," and that
Gray particularly did not like this person because they were both dating the same woman. Ia'.
From this testimony, Wilkerson tenuously concludes that Gray was willing to act as an enforcer
for Lee and that Gray may have become a member of a separate conspiracy of which Lee was a
captain. Yet, Gray’s response to Lee’s bounty is ambiguous on its face, nowhere expressing a
clear intent to eliminate the cooperator. As to the second cooperator, Lee’s testimony itself
suggests that Gray’s motive may have been romantic competition as much as any service to Lee.
Ultimately, the Lee testimony that Wilkerson cites is unclear about the nature of Gray’s
relationship with Lee.
The more important problem is that, even if Wilkerson’s view was more than mere
16
conjecture, he has not articulated a means by which the Lee testimony would indicate that Gray
broke with Moore_the critical consideration for his statute of limitations defense. As discussed
above, see supra Part ll.A, it is not enough that Gray worked with or even for Lee; rather,
Wilkerson must show that Gray conspired with Lee to the exclusion of Moore. The excerpted
portions of Lee’s testimony offer no such evidence, and Wilkerson can only guess at what the
remainder of that testimony contains Whether Wilkerson seeks the grand jury records as Braa’y
material or as evidence attendant to Brady material, such general speculation cannot yield
disclosure. Cf United States v. Sh0rt, 671 F.2d 178, 187 (6th Cir. 1982) ("A general claim . . .
that disclosure of grand jury transcripts would reveal exculpatory evidence is not sufficient to
satisfy the requirement of a showing of particularized need."); United States v. Edelson, 581 F.2d
1290, 1291 (7th Cir. 1978) (per curiam) (finding speculative assertions inadequate to constitute a
"particularized need" under FED R. CRIM. P. 6). Accordingly, the motion to compel fails
III. Motions Relating to the Murder of Christopher Burton
In January of 1993, Christopher Burton was killed by several shots from a 9mm handgun.
According to the government, Burton’s brother Shawn had a series of disputes with Wilkerson,
culminating with Shawn shooting Wilkerson in the face. The government claims that Gray set
out to kill Shawn in retaliation for Wilkerson’s injury, but upon a chance encounter settled for
killing Christopher. ln the government’s account, Gray was riding in a car driven by Wilkerson
when they spotted Christopher Burton sitting in a car parked in the driveway of a relative’s
house. The govemment alleges that Gray took the opportunity to ambush and kill Christopher
Burton, then escaped in the car that Wilkerson was driving.
Wilkerson asks for a new trial on the Burton murder counts based upon a number of
17
rulings made at trial. First, in his Motion for a New Trial Based on Court’s Rulings Denying an
Opportunity to Present Exculpatory Evidence (Docket No. 2196), Wilkerson protests the Court’s
refusal to admit into evidence the accounts of Officer Edward Torrence and Thomas Carthens.
Second, in that motion (Docket No. 2196), his Motion to Compel the Release of Government
Notes Relating to Devin Ebron (Docket No. 2192), and his Motion for a New Trial Based on
Newly Discovered Evidence (Docket No. 2342), Wilkerson disputes several rulings relating to
Devin Ebron, a potential defense witness who invoked his Fifth Amendment privilege and did
not testify.
As explained below, these motions are unpersuasive. Evaluating the motions for a new
trial under the FED. R. CRIM. P. 33 standard discussed above, see supra Part l.A, the Court
concludes that, both individually and in the aggregate, these claims do not establish that any
miscarriage of justice has occurred. Additionally, the Motion to Compel is unfounded.
A. Testimony of Officer Edward Torrence°
On his way to respond to the Burton crime scene, Officer Edward Torrence observed a
white Honda Acura speeding away from an area near the shooting. Roughly two hours later, the
car (or one strikingly similar to it) retumed, again going fast. Officer Torrence stopped the Acura
and recovered a .3 80 caliber pistol from within. The two men in the car had, and still have, no
known connections to Burton, Gray, or Wilkerson.
Wilkerson sought to have Officer Torrence testify to these facts at trial, with the defense
theory of course being that the two men in the Acura were responsible for Burton’s murder. The
6 At trial, the Govemment stipulated to the essential facts to which Officer Torrence
would testify, if the Court determined that the testimony was admissible. See Govt.’s Omnibus
Opp’n (Docket No. 2274) at 42 n.8.
18
Court found the proposed testimony too speculative, noting that Burton’s death and the car were
connected only by their relative proximity. In refusing to admit Officer Torrence’s testimony, the
Court cited two grounds: (l) the Acura incident was irrelevant under FED. R. EVID. 401 and
therefore inadmissible under FED. R. EVID. 402, and (2) even if it were relevant, any probative
value would be substantially outweighed by the danger of unfair prejudice, confusion of the
issues or misleading the jury under FED. R. EVID. 403. Wilkerson asks the Court to revisit its
ruling.
Keeping in mind that "courts of appeals afford broad discretion to a district court’s
evidentiary rulings" Sprint/Unitea' Mgmt. Co. v. Mena'elsohn, 128 S. Ct. 1140, 1145 (2008), the
Court affirms its earlier decision. At most, Officer Torrence’s testimony would have established
that around the time Burton was murdered with one type of gun, two men nearby happened to be
driving fast and possessed a different gun. Without further evidence, the murder and the Acura
incident are an unconnected coincidence. Wilkerson’s observation that the two men in the car
had criminal records and one was carrying a knife does not bridge the gap. There is simply no
colorable basis to conclude that the Acura, the .3 80 pistol, and the two men are linked in any way
to Burton, Gray, or Wilkerson. Wilkerson’s speculation that the Acura’s passengers might have
owned a 9mm, used it to kill Burton, and then discarded the weapon while hanging on to their
"clean" .380 is just that: a completely uncorroborated guess The evidence is accordingly
irrelevant under Rule 401 and therefore inadmissible under Rule 402, and even if it were found
relevant, under Rule 403 its probative value is minimal in comparison to the potential for
confusing and misleading the jury. The Court therefore stands by its exclusion of Officer
Torrence’s testimony and declines to grant a new trial.
19
B. Statement of Thomas Carthens
On the night that Christopher Burton was murdered, the police interviewed a man named
Thomas Carthens. As recounted in the police report of that interview, Carthens asserted that he
witnessed the murder and gave a detailed physical description of the gunman. Wilkerson argues
that this physical description does not match Gray, contradicting the govemment’s account of the
shooting and thereby helping to exculpate Wilkerson. As Wilkerson emphasizes the reliability
of Carthens’ statement is supported by various factual details he gave_the location of the
incident, the color and type of Burton’s car, the number of shots fired, and so on_that match
other evidence in the record. The govemment represents however, that Carthens’ reliability was
critically undermined when, two months after the murder, he was interviewed again and partially
recanted, stating that he had not seen the shooter’s face.7
No doubt wary of this glaring inconsistency, Wilkerson chose not to call Carthens at trial,
even though he was available to testify. lnstead, Wilkerson sought to admit into evidence the
police record of Carthens’ initial interview. The Court, citing Carthens’ contradictory statements
and his history of drug use, found the interview inadmissible under FED. R. EVlD. 803(8),8 which
7 Wilkerson argues that the Court should not accept this representation because the
govemment has never submitted the recantation as proof. Yet, the Court observes that when the
govemment first raised the recantation at trial while arguing this evidentiary issue, Wilkerson did
not question the veracity of the govemment’s representation. Even now, in his current motion,
he still does not do so; rather, he only asks that the government be required to back up its
representation with evidence. That is not required in this situation, however, where the truth of
the representation was implicitly conceded at the time it was made and remains uncontested.
8 Wilkerson had initially sought to admit the statement under FED. R. EVlD. 807. This
"residual" hearsay exception allows admission of hearsay evidence where "the statement [in
question] is more probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts." Ia’. Although Wilkerson later shifted his
(cont’d)
20
allows admission of certain public records "unless the sources of information or other
circumstances indicate lack of trustworthiness" Wilkerson contends that the Court erred.
As with Officer Torrence, the Court stands by this evidentiary ruling. Carthens’
statement as recorded in the police report is classic hearsay: an out-of-court statement offered for
the truth of the matter asserted. FED. R. EVID. 801 (c). Admission at trial of this statement via the
police report thus depended on satisfying an exception to the hearsay rule. As the Court found at
trial, the initial Carthens interview did not meet the trustworthiness requirement of Rule 803 (8).
ln addition to the general reliability issues stemming from Carthens’ history of substance abuse,
his blatant self-contradiction made the initial interview unreliable on the particular point that
Wilkerson wanted to highlight-the gunman’s physical characteristics When this issue was
argued at trial, defense counsel himself reported that even up to then Carthens was still changing
his story: "With respect to Mr. Carthens and his credibility, we spoke to Mr. Carthens a couple of
times and including the other day in the hallway. . . . And frankly . . . we got a few different
versions from Mr. Carthens." Trial Tr. (Aug. 25, 2004 A.M. Session) at 31. Wilkerson offers no
new facts or arguments to spur a different conclusion about this issue now. The Court thus
determines that its ruling was not improper and presents no occasion for a new trial.
C. Devin Ebron
Pursuant to its Bracly obligations the govemment in late 2001 notified Wilkerson of an
off-the-record interview it had conducted with Devin Ebron, Ebron, who was not immediately
affiliated with the Gray-Moore operation, had participated in the interview in advance of entering
rationale to FED. R. EVID. 803(8), the Court nonetheless addressed the statement’s admissibility
under Rule 807 and rejected it, since live testimony by Carthens himself was readily available
and clearly more probative than his recorded statements
21
into a plea agreement as a cooperator. During the interview, Ebron reported that a man named
Reginald Diggs had in 1993 confessed to murdering Christopher Burton. According to Ebron,
Diggs claimed to have killed Burton at the behest of Gray before hiding the murder weapon with
Ebron. Ebron further recalled that he hid the weapon_which he said was a .3 80 caliber pistol,
rather than a 9mm_in the trunk of a car before Gray came to retrieve it from him. This narrative
obviously contradicts the govemment’s account of the Burton murder.
Neither Diggs nor Ebron testified at trial; Diggs was murdered in early 2000, and Ebron,
worried about exposure to future prosecution, invoked his Fifth Amendment privilege. With
those avenues blocked, Wilkerson attempted to admit Ebron’s interview statements via
testimony by a govemment agent, under the "statement against penal interest" exception to the
hearsay rule. See FED. R. EVID. 804@))(3). Rule 804(b)(3) allows admission of hearsay evidence
where the statement in question is "so far tended to subject the declarant to . . . criminal liability .
. . that a reasonable person in the declarant’s position would not have made the statement unless
believing it to be true." Id. Where such a statement is offered to exculpate the accused,
however, this exception is narrowed by adding a condition that "corroborating circumstances
[must] clearly indicate the trustworthiness of the statement." Ia’. (emphasis added). Apart from
this trustworthiness requirement, a further hurdle for admissibility is that Diggs’ confession is
hearsay within hearsay, or "double-hearsay,” since the proposed testimony incorporates not only
Diggs’ statement to Ebron, but also Ebron’s statement to the authorities Each of these out-of-
court statements must independently satisfy some exception to the hearsay rule. See FED. R.
EVID. 805.
At trial, after extensive consideration, the Court refused to admit the proposed testimony
22
into evidence, finding that there were not corroborating circumstances clearly indicating the
trustworthiness of the statements from Diggs to Ebron and from Ebron to the authorities Now,
Wilkerson asks the Court to reexamine its exclusion of this testimony, overtum its ruling, and
grant a new trial.
Keeping in mind that "findings of trustworthiness [under Rule 804(b)(3)] are reviewed
for clear error," Unitea' States v. Wilson, 160 F.3d 732, 739 (D.C. Cir. 1998), the Court is
satisfied that its ruling was sound. Simply put, this Court knows virtually nothing of Reginald
Diggs or his conversation with Ebron. Little is known about Diggs’ background; his relationship
with Ebron, Gray, Moore, or Wilkerson; his relationship to Christopher Burton; or the
circumstances under which Diggs confessed to Ebron.° Save for the words of Ebron, there is no
real evidence that such a confession ever occurred.'° Moreover, the weapon that Ebron claims he
9 ln his Motion to Compel the Release of Govemment Notes Relating to Devin Ebron,
Wilkerson speculates that additional corroborative information about Diggs’ relationship with
Ebron and Gray and the context of the Diggs confession might be available in the govemment’s
notes including FBI 302 reports Wilkerson sought these notes from the govemment prior to
trial, and at trial when the Ebron issue was argued, he asked the Court to order them tumed over
either to Wilkerson or for in camera review. The Court denied Wilkerson’s request. Wilkerson
now renews his request, and the Court again rejects it. However confident Wilkerson is that
potentially corroborative information exists in these notes he offers nothing to demonstrate as
such and cites no helpful legal authority_only equitable considerations-for the Court to grant
his request. To the degree that these notes contain exculpatory information, the govemment had
a duty to turn them over under Braa’y. By not tuming them over, the govemment represented that
the notes were not exculpatory. The Court relies on that representation.
‘° The hardest evidence Wilkerson offers to corroborate the confession is Diggs’ facial
features Working from Diggs’ autopsy photographs Wilkerson argues that Diggs’ eyebrows
and mustache resemble Thomas Carthens’ recanted description of the shooter as having "thick
eyebrows" and a "thick mustache." See Def.’s Mot. for a New Trial Based on Court’s Rulings
Denying an Opportunity to Present Exculpatory Evidence, at 35, 44. As already discussed, see
supra Part lll.B, Carthens’ recanted statements were properly excluded from evidence as
untrustworthy and are thus no basis for corroboration. Even if that were not the case, a set of
(cont’d)
23
hid on behalf of Diggs is a different type than the 9mm used to kill Burton.'° There is thus scant,
and certainly not clear, indication of the trustworthiness of Diggs’ statement to Ebron.
Regarding the trustworthiness of Ebron’s statement to the authorities the Court based its
ruling in substantial part on the government’s representation at trial that Ebron was not a reliable
as a cooperator. Wilkerson takes great umbrage at the govemment’s representation, arguing that
when using Ebron as a witness and cooperator in other cases the govemment has had no such
qualms about his usefulness The govemment maintains that its representations in the separate
cases are in good faith, reflecting an evolving view of Ebron’s reliability over time after he
performed poorly as a witness and did not pass a polygraph test. Ultimately, this tangled dispute
about Ebron is irrelevant: his trustworthiness would become germane only if the initial hearsay
(Diggs’ statement to Ebron) was independently corroborated. The Court thus declines any re-
evaluation of whether Ebron’s statement was trustworthy under Rule 804(b)(3), for the
underlying Diggs confession certainly was not.
D. First Motion Concerning J udicial Immunity
Even if Ebron had testified at trial, he would have been unable to offer his hearsay
evidence regarding Diggs’ confession. Wilkerson nonetheless attempted to call Ebron, who
promptly exercised his Fifth Amendment privilege. ln response, Wilkerson asked the Court to
matching eyebrows and mustache are not sufficiently corroborative to overcome the dearth of
substantive information regarding Diggs and his confession.
l° Wilkerson contends that a .3 80 caliber gun is so similar to a 9mm that Ebron and/or
Diggs may have mistaken one for the other. He attaches to his motion an affidavit from a gun
expert attesting to the resemblance. Putting aside the fact that Wilkerson did not present this
evidence of similarity when this issue was first argued, even if the Court were to assume the truth
of Wilkerson’s speculation that Ebron’s statement reflects a mistake about the caliber of the gun,
there is still far too little corroborating evidence to clearly indicate trustworthiness
24
grant Ebron use immunity, which would prohibit the government from prosecuting Ebron based
on any self-incriminating information he might reveal. The Court refused, disclaiming any
authority to immunize Ebron. Although the value of Ebron to Wilkerson’s defense was and
remains questionable, Wilkerson now asks this Court to reconsider its ruling on immunity and
order a new trial.
Per an explicit grant from Congress, the authority to grant use immunity flows from the
govemment in the first instance, not the courts See 18 U.S.C. § 6003 (mandating that the district
court grant use immunity when so requested by the United States Attorney). The D.C. Circuit
has firmly declined to interfere with the govemment’s discretion under §6003, finding that to do
so would unduly intrude upon the Executive branch:
The cases are legion and uniform that only the Executive can grant statutory
immunity, not a court. We are not an exception to this universal rule and have
previously approved the view that it is not the proper business of the trial judge to
inquire into the propriety of the prosecution’s refusal to grant use immunity to a
prospective witness
United States v. Lugg, 892 F.2d 101, 104 (D.C. Cir. 1989) (intemal citations and quotation
omitted); see also United States v. Doe, 465 U.S. 605, 616 (1984) ("We decline to extend the
jurisdiction of courts to include prospective grants of use immunity in the absence of the formal
request that the statute requires").
Notwithstanding this framework, Wilkerson suggests that the Court could have_and
should have-immunized Ebron in one of two ways No judge in this Circuit has ever ordered
immunity under the theories that Wilkerson advances First, Wilkerson embraces the D.C.
Circuit’s observation that some circuits have recognized a court’s power to order immunity in
"extraordinary circumstances" involving prosecutorial misconduct that distorts the judicial fact-
25
finding process Lugg, 892 F.2d at 104 (recognizing case law outside D.C. Circuit allowing court
to compel use immunity, but declining to follow under facts of case); United States v. Perkins,
138 F.3d 421, 424 n.2 (D.C. Cir. 1998) (same). Unsurprisingly, Wilkerson alleges that the
govemment distorted the fact-finding process at his trial, and argues that the Court should
compel use immunity on this basis As discussed above, see supra Part III.C, the core of the
allegation is this: in the years following Ebron’s arrest, the government represented in other
proceedings that Ebron was a helpful witness and infonnant. At Wilkerson’s trial, however,
govemment attorneys discredited Ebron for purposes of Rule 804(b)(3)’s "trustworthiness"
requirement, Wilkerson claims that the government improperly changed its stated view of Ebron
in an attempt to exclude the Diggs confession.
Even if Wilkerson were right that the govemment improperly shifted its characterization
of Ebron, it would not matter in the Rule 804(b)(3) calculus. As explained above, see supra Part
lll.C, the Court’s decision to exclude the Diggs confession rests most centrally on the reliability
not of Ebron’s statement to the government, but of Diggs’ statement to Ebron. The critical
inquiry thus concerned Diggs’ background, not Ebron’s Thus whatever their propriety, the
govemment’s representations about Ebron’s trustworthiness were ultimately immaterial.
Accordingly, the Court does not here decide whether there was any prosecutorial misconduct as
to Ebron’s trustworthiness because such misconduct, even if proven, would not be practically
germane and therefore would not justify the Court compelling use immunity."
“ As a side note, Wilkerson suggests that immunity should be compelled because the
government unfairly discouraged Ebron from testifying and thereby provoked his invocation of
the Fifth Amendment privilege. This allegation is overblown. As a starting point, Ebron
invoked the Fifth Amendment after consultation with his own counsel, who naturally buffers any
(cont’d)
26
As a second approach, Wilkerson also argues that the Court possesses an "inherent"
authority to immunize Ebron, one that exists independently of any prosecutorial misconduct.
Wilkerson’s extensive discussion of case law overlooks the inconvenient detail that the D.C.
Circuit has rejected this theory. See Perkins, 138 F.3d at 424 & n.2 (denying request to recognize
"inherent" authority, collecting D.C. Circuit opinions rejecting judicial authority to compel use
immunity, and noting open issue whether "extraordinary circumstances" involving prosecutorial
misconduct could justify compelling immunity). That precedent binds this Court,
Even were the Court not so bound, it would not be persuaded by Wilkerson’s resort to a
Third Circuit case in which such authority has been recognized, Gov ’t of the Virgin Islana's v.
Smith, 615 F.2d 964 (3d Cir. 1980). Virgin Islands held that, "in order to vindicate the
defendant’s constitutional right to a fair trial," a court possesses inherent authority to grant
immunity where "a potential defense witness can offer testimony which is clearly exculpatory
and essential to a defense case." Id. at 974. Putting aside the fact that this Circuit has not
recognized such a principle, the facts of Virgin Islana’s differ crucially from those of Wilkerson’s
case. ln Virgin Islana's, the witness testimony was not only exculpatory, but also prima facie
reliable; the desired witness could identify other attackers because he admitted to participating in
the attack himself. See ia’. at 966-67. ln Wilkerson’s case, by contrast, even if Ebron were to
kind of undue pressure the govemment might exert. Second, Wilkerson believes the govemment
exaggerated to the Court the extent of future prosecution that Ebron was left exposed to under the
terms of his plea agreement. Yet, what the govemment told the Court is irrelevant. The decision
to invoke the Fifth Amendment was Ebron’s not the Court’s Even if Wilkerson were correct
that the government gave the Court poor guidance, he does not show (or even allege) that either
Ebron or Ebron’s counsel shared the govemment’s allegedly mistaken understanding. lt was for
Ebron alone_not Wilkerson, the govemment, or the Court_to weigh his potential liability if he
testified, and he could review the terms of his plea agreement for himself.
27
testify, the underlying Diggs confession would itself remain unverifiable and untrustworthy
hearsay. See supra Part1lI.C. Thus, D.C. Circuit precedent precludes accepting the "inherent
authority" principle articulated in Virgin Islands, and that principle anyhow does not encompass
testimony as unreliable as what Wilkerson proposes Accordingly, the Court was correct in
refusing to compel a grant of use immunity for Ebron.
E. Second Motion Concerning Judicial Immunity
ln his Motion for a New Trial Based on Newly Discovered Evidence, Wilkerson offers a
second argument for the Court to exercise its supposed authority to immunize Ebron. Some two
years after filing the initial new trial motion concerning Ebron, defense counsel was able to
interview Ebron directly with the permission of Ebron’s attomey. Ebron not only reiterated the
story of Diggs’ confession, but also alleged personal knowledge of widespread govemment
misconduct during its prosecution of the Gray case. Wilkerson reports that, according to Ebron,
the government’s witnesses were using drugs including marijuana and heroin at the jail and
frequently had new, expensive shoes when they retumed from meeting with govemment. In
addition, Ebron claims that he saw and heard govemment witnesses in the Gray case
collaborating with each other to review their testimony and get their stories straight. Further,
Ebron implies that the government had some awareness of this misconduct, but did nothing to
prevent it. Some of these witnesses gave grand jury or trial testimony against Wilkerson.
According to Wilkerson, Ebron will not confirm these stories on the record without immunity,
Wilkerson’s theory is that Ebron’s new evidence, once put before the Court, would likely
be sufficient to prompt a new trial under Thomps0n v. United States, 188 F.2d 652 (D.C. Cir.
1951). Therefore, Wilkerson claims, the Court should immunize Ebron, hear his testimony, and
28
evaluate whether a new trial is warranted under Thompson.
lt is worth repeating that the D.C. Circuit has never approved a court’s authority to grant a
witness use immunity where the govemment has not moved for it. See supra Part lll.D. There is
no good reason here to depart from that precedent. lnsofar as the D.C. Circuit has left the door
open to judicially compelled grants of immunity, it has done so contingent on the existence of
exceptional circumstances such as prosecutorial misconduct. Presumably, as in Virgin Islands,
the grant of immunity would be appropriate only when it would likely yield trustworthy,
exculpatory, and essential testimony.
Ebron’s new allegations are not nearly this compelling in their prospective impact on
Wilkerson’s case. Starting with the broad consideration of whether any miscarriage of justice
has occurred, it must be observed that Ebron’s new allegations though concerning, do not touch
on the ultimate issue of Wilkerson’s guilt or innocence.
More doctrinally, too, the Ebron allegations do not hold up against well-established
markers of importance. Wilkerson’s premise is that the Ebron testimony, once presented, would
likely satisfy the requirements for a new trial as laid forth in Thomps0n. To obtain a new trial
based on newly discovered evidence under Th0mpson, Wilkerson must satisfy the following
conditions:
(1) the evidence must have been discovered since the trial; (2) the party seeking the
new trial must show diligence in the attempt to produce the newly discovered
evidence; (3) the evidence relied on must not be merely cumulative or impeaching;
(4) it must be material to the issues involved; and (5) of such nature that in a new
trial it would probably produce an acquittal.
Thompson, 188 F.2d at 653. Even assuming that immunization is proper where it is the only way
to admit Thompson-type evidence, Wilkerson’s proposal does not satisfy several elements of the
29
Thompson standard. First, the evidence in question is precisely the type of impeachment
evidence that Thompson excludes from consideration. Tales of drug use and induced or
rehearsed testimony go not directly to Wilkerson’s culpability, but to the credibility of the
government’s witnesses
Second, much of the evidence is not material. A good deal of it does not relate to
witnesses who testified against Wilkerson. Even where it does the evidence is largely of only
collateral importance, casting aspersions on the govemment’s integrity in prosecuting this and
related cases As far as witnesses colluding to develop consistent testimony, it is left unspecified
whether any of that testimony actually entered into Wilkerson’s case and on what issues
Third, it is not clear that, in a new trial, the evidence would probably produce an
acquittal. For one thing, Ebron’s testimony (if he were granted immunity) would still be subject
to the Rules of Evidence, particularly concerning hearsay. Many of his new allegations-in
particular any information he might have about what, if any, specific testimony against
Wilkerson was improperly manufactured through collusion of witnesses-could very well be
inadmissible. And as stated above, none of Ebron’s new allegations go directly to Wilkerson’s
guilt or innocence. Ebron’s new evidence serves as nothing more than a convenient hook;
Wilkerson seeks use immunity based on it primarily because that immunity would free Ebron to
discuss the Diggs confession (itself subject to hearsay limitations), which is what touches directly
on Wilkerson’s culpability.
ln sum, Wilkerson’s argument has three critical weaknesses: (1) it relies on accepting a
novel rule of law that the Court can grant immunity in exceptional circumstances; (2) it assumes
that such exceptional circumstances exist here; and (3) it fails to satisfy the Thompson standard
30
for granting a new trial on the grounds of newly discovered evidence. ln view of these problems
the newly discovered evidence of Ebron’s allegations does not warrant compelling use immunity
or granting a new trial.
IV. Motion Alleging Prosecutorial Conduct as to Government Witness Donney Alston
In l993, Donney Alston pled guilty to murdering Scott Downing_a murder he
committed with Wilkerson and other members of the Gray organization. After initially refusing
to cooperate with the govemment, he testified before a grand jury in 2000. He later testified
against other members of the organization at a trial in 2002 and against Wilkerson at his trial in
2004. Wilkerson now reasserts previously rejected claims that the government committed
improprieties in its use of Alston. Specifically, Wilkerson maintains that the government has (1)
asserted inconsistent legal positions regarding the effect of incarceration on withdrawal from a
conspiracy, and (2) misrepresented its knowledge about Alston’s post-incarceration conduct.
Wilkerson seeks a host of alternative remedies: dismissal of the indictment, a new trial, an
evidentiary hearing on the govemment’s state of knowledge regarding Alston, or disclosure by
the government of all notes of its interviews with Alston.
Wilkerson argues that, in securing Alston’s grand jury testimony, the government
wrongfully advised Alston and argued in court that he did not have a valid Fifth Amendment
privilege to assert because the statute of limitations had expired on his potential liability. The
govemment’s rationale was that Alston’s arrest had created a presumption that he withdrew from
the conspiracy, and since he had been arrested over five years previously, the statute of
limitations on any conspiracy charges had expired. Wilkerson also alleges that by asserting in
court that Alston had no Fifth Amendment privilege because he had withdrawn from the
31
conspiracy, the govemment made intentional factual misrepresentations because it must have
known that, post-incarceration, Alston and Wilkerson were allegedly dealing drugs in jail,
meaning that the conspiracy had continued. Alston would later testify to that jailhouse drug
operation at Wilkerson’s trial. To Wilkerson’s mind, this "grand jury abuse" by the govemment
prejudiced him because, had the govemment not misstated the law and the facts Alston would
have asserted his Fif``th Amendment privilege and not testified against Wilkerson and others.
Wilkerson elaborates on these events at length, yet never explains why he has standing to
challenge an alleged abuse of somebody else’s Fifth Amendment privilege. Moreover, he can
only speculate as to Alston’s intentions; even if Alston could properly have invoked the Fifth
Amendment privilege, there is no way for Wilkerson or the Court to know whether Alston would
have actually done so or nonetheless chosen to testify. In light of these fatal weaknesses in the
logic of Wilkerson’s argument, the Court sees no need to address his allegations that the
government’s factual misrepresentations were intentional, which the govemment hotly disputes.
Wilkerson is also irked that later in this litigation, the govemment argued successfully
that Wilkerson’s arrest did not constitute his withdrawal from the conspiracy. The consequence
was that the statute of limitations on Wilkerson’s liability for the conspiracy kept r'unning,
exposing him to charges Although acknowledging that the law actually states that incarceration
by itself is not an affirmative act of withdrawal and creates no presumption of withdrawal,
Wilkerson contends that, under the principle of judicial estoppel, the government should be
precluded from the benefit of that reading of the law (though it is correct) because it previously
asserted an inconsistent (and wrong) interpretation of the law as to Alston. The Court finds not
only that Wilkerson goes too far in apprehending an intentional misdeed here by the govemment,
32
but also that it would hardly serve justice to apply to Wilkerson a legal theory that all parties and
the Court recognize plainly is wrong See, e.g., United States v. Melton, 131 F.3d 1400, 1405
(10th Cir. 1997) ("Although a conspirator’s arrest or incarceration by itself is insufficient to
constitute his withdrawal from the conspiracy, an arrest may under certain circumstances amount
to a withdrawal." (intemal quotation omitted)); United States v. Harris, 542 F.2d 1283, 1301 (7th
Cir. 1976) ("The arrest or incarceration of a conspirator may constitute a withdrawal for a
conspirator, but it does not as a matter of law."). From an equitable standpoint, the Court sees no
reason why Wilkerson should be "compensated" for a supposed injury suffered by Alston.
Accordingly, the Court will deny Wilkerson’s requested relief.
CONCLUSION
The Court finds that Wilkerson’s motions are without merit. As a corollary matter, the
Court is uncomfortable with the amount of resources expended in this litigation, Surely due
process entitles Wilkerson to a fair opportunity to present a defense, and just as surely it is
counsel’s ethical duty to represent Wilkerson zealously. Particularly where the stakes are this
high~Wilkerson was charged with counts related to four murders and originally this was a death
penalty-eligible case-an extensive and costly defense is warranted. Here, it verges on
understatement to say that no stone has been left unturned. This defense has become not so
much thorough as all-consuming. The resulting burden on the public purse and the Court is
difficult to justify.
An order actWp_a_nies this Memorandum Opinion.
/
september @&24009
Thomas F.Ho n
U.S.Distric u e
33