United States v. Burnside

MEMORANDUM OPINION AND ORDER

HOLDERMAN, District Judge.

This multi-defendant criminal case is among several filed in this federal district during the period 1986 through 1989

1

in which persons alleged to have been associated with the Chicago street gang known as the “El Rukns” were charged.

2

Each of these cases stemmed from a multi-year, multi-jurisdictional criminal investigation of the El Rukn street gang. Among the law enforcement personnel who worked as part of the joint “El Rukn” task force were prosecuting attorneys, law enforcement agents and police officers from local, state and federal governmental entities. These law enforcement personnel utilized numerous investigatory tools, including court-authorized wiretaps on several phones over extended periods of time. Several high-ranking members in the El Rukn gang cooperated with the government and testified for the government at the trials of the “El Rukn” cases.

The three defendants whose post-trial motions are before the court, Thomas Burnside, Codell. Griffin and C.D. Jackson, were not alleged to be El Rukn gang members, but were alleged to have supplied illegal drugs to the El Rukns. At the five-week jury trial of

*1220

these three defendants, four high-ranking El Rukn gang members, Henry Harris, Harry Evans, Earl Hawkins and Ervin Lee, testified for the government pursuant to plea agreements. All three defendants were found guilty. In their post-trial motions, the defendants contend that their convictions should be overturned because of prosecutorial misconduct by government personnel relating to the government’s coopérating witnesses in the “El Rukn” cases,

For the reasons stated in this opinion, the motions of defendants Burnside, Griffin and Jackson for a new trial are granted.

TABLE OF CONTENTS

Page

PROCEDURAL HISTORY OF THE CASE

' ' 1222

FACTUAL FINDINGS AS TO POST-TRIAL EVIDENCE

" ' 1224

I.

The Government’s Cooperating “El Rukn” Witnesses

1225

II.

The Government’s Witnesses’ Illegal Drug Use

1225

A.

Positive Drug Test Results

1225

B.

Eyewitnesses to the Illegal Drug Use

1226

1.

Nicholas Ahrens

1226

2.

Raymond Bonnema

1227

3.

“John Doe”

1227

4.

Jackie Clay

, i 1229

'

i 5.

Harry Martin '

1229

6.

Evaluation of Eyewitnésses’ Credibility

1230

C.

Admissions' of Illegal Drug Use

1230

1.

Henry Harris’ Admissions of Illegal Drug Use:

1230

(a)

at 1989 Disciplinary Hearing

1230

(b)

to Ervin Lee

1231

(c)

to Tanya Van Blake

1231

(d)

to Mustag Malik

1231

(e)

to Harry Martin

4

■

1231

2.

Harry Evans’ Admissions of Illegal Drug Use:

. 1231

(a)

to Nicholas Ahrens

1231

(b)

to “John Doe”

4

1232

(c)

overheard by Lenell Smith ■

1232

(d)

to Harry Martin

1232

(e)

in Monitored 1992 Phone Conversation ■

1232

D.

Circumstantial Evidence of Illegal Drug Use

1232

1.

Evans Appeared

to'

be Using Illegal Drugs

1232

2.

Henry Harris’ Refusal to Take Drug Test

1233

III.

The Government’s Awareness of its “El Rukn” Witnesses’ Illegal Drug Use

1233

A.

MCC’s Warden Told U.S. Attorney Personnel of Illegal Drug Use

1234

B.

MCC’s Warden Provided a Memorandum to the U.S. Attorney’s Office Showing Positive Drug Test Results

1234

C.

AUSA Rosenthal Spoke with AUSA Hogan About the Positive Drug Test Results

1234

D.

Witnesses told ÁUSA Hogan of the Illegal Drug Use

1236

E.

Agents told AUSA Hogan of Drug Use “Rumors”

1237

F.

Second Drug Test Memorandum Provided to AUSA Hogan

1237

G.

Evans Appeared to be Using Illegal Drugs

1237

H.

Harris Told U.S. Attorney Paralegal of His Refusal to Take Drug Test

1238

IV.

Government’s Failure to Disclose or Investigate Evidence of its Witnesses’ Illegal Drug Use

1238

A.

Positive Drug Test Results

1238

B.

Reports of Illegal Drug Use

1239

C.

“Rumors” of the Drug Use

1240

D.

Henry Harris’ Refusal to Take Drug Test

1240

E.

Harry Evans’ Appearance

1241

V.

Undisclosed Benefits Given to the “El Rukn” Witnesses

1241

A.

“Contact” Visits and Lax Security for the “El Rukn” Witnesses■

1241

1.

“Contact” Visits at the U.S. Attorney’s Office

1241

*1221

Page

2.

Lax Security

1243

(a)

The “EL RUKIN GUARD DUTY REPORT”

1243

(b)

“El Rukn” Witnesses Smuggled Contraband Items Undetected

1244

3.

Contact Visits and Lax Security Contributed to Drug Acquisition, Possession and Use

1245

B.

Telephone Services for the “El Rukn” Witnesses Through the U.S. Attorney’s Office

1246

C.

AUSA Hogan’s Intercession with MCC Officials for the “El Rukn”, Witnesses

1246

D.

Other Undisclosed “Benefits”

1247

1.

Sundry Items Provided to the Witnesses

1247

2.

U.S. Attorney’s Office Paralegal Corinda Luchetta

.. 1248

DISCUSSION AND APPLICATION OF THE LAW

1249

I.

United States Attorney’s Responsibility to Justice

1249

II.

Supreme Court’s Articulation of the Government’s Constitutional Obligations

1250

III.

Proof of a Constitutional Violation

1251

A.

The Prosecution Suppressed the Evidence

1251

1.

Government Personnel had Knowledge of the Undisclosed Brady Material

1251

(a)

AUSA Hogan had Personal Knowledge of the Undisclosed Brady Material

1252

(b)

Other U.S. Attorney Personnel had Knowledge of Undisclosed Brady Material

1253

(c)

Other Government Personnel had Knowledge of Undisclosed Brady Material

1253

(d)

Brady Evidence was “Readily Available” to the Prosecution Which Imputes Knowledge for Brady Purposes

1254

(e)

Government Required by Brady to Inquire Further into Facts

1254

(f)

The Government had an Obligation Under Brady to Disclose Facts Which Constituted the “Tip of the Iceberg”

1258

2.

No Other Facts Excuse the Government’s Non-Disclosure of the Brady-Giglio Material

1259

(a)

Government Counsel Resisted and Did Not Comply with Defense Trial Subpoenas

1259

(b)

The Brady Material was not Available from the “Public Record”

1261

B.

The Suppressed Evidence was Favorable to the Defense

1264

1.

The Illegal Drug Use

Was

Relevant to the Witnesses’ Abilities to Recollect and Relate

1264

2.

Government Benefits Facilitating Drug Use were Relevant to the Witnesses’ Credibility

1265

3.

Defendants loere Deprived of Their Constitutional Confrontation Rights by Failure to Disclose Drug Use

1266

C.

The Suppressed Evidence was Material

1267

1.

The Suppressed Evidence was Admissible as to Government Witnesses’ Bias

1268

2.

The Credibility of Government Witnesses was Essential to Government’s Obtaining Defendants’ Convictions

1268

3.

The Suppressed Evidence was not Cumulative as to Government Witnesses’ Credibility

1269

4.

Government Counsel’s Admissions and Conduct Point Toivard a Finding of Materiality

1270

D.

Knowing Use of Perjured Testimony

1271

E.

The Proper Remedy

1272

CONCLUSION

1272

*1222

PROCEDURAL HISTORY OF THE CASE

Two indictments were filed on October 26, 1989 against a total of 65 alleged El Rukn gang members and associates. The first indictment filed was entitled

United States v. Henry Andrews, et al.,

89 CR 908 (N.D.I11.). It charged 38 defendants with various crimes and was assigned initially to Judge Marvin E. Aspen’s calendar. The second indictment, which was assigned to this court, was

United States v. Michael Anderson, et al.,

89 CR 909 (N.D.I1L). It alleged similar offenses and named 27 defendants. The defendants charged in one indictment were named as unindicted co-conspirators in the other indictment. The allegations of criminal conduct in each indictment spanned a period of over twenty years. Among the criminal violations alleged were offenses involving the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1961

et seq.,

including RICO conspiracy (18 U.S.C. 1962(d)); narcotics conspiracy ( 21 U.S.C. § 846 ); and narcotics distribution (21 U.S.C. 841(a)(1)); as well as substantive RICO charges (18 U.S.C. 1962(c)), which alleged numerous racketeering acts and offenses including allegations of multiple murders, kidnapping (18 U.S.C. § 1952B(a)(l)), witness intimidation ( 18 U.S.C. § 1512 (b)(3)), and witness retaliation ( 18 U.S.C. § 1513 (a)(1)).

In Case No. 89 CR 908, Judge Aspen entered pretrial orders severing the trials of various defendants.

See United States v. Andrews,

754 F.Supp. 1161 (N.D.Ill.1990);

United States v. Andrews,

754 F.Supp. 1197 (N.D.Ill.1990). Thereafter, several federal district judges, including district judges from outside the Northern District of Illinois, presided over the trials of the various severed defendants indicted in Case No. 89 CR 908.

3

This court presided over the proceedings in Case No. 89 CR 909, including all pretrial matters and the two trials which have taken place. In the course of presiding over the pretrial matters in Case No. 89 CR 909, this court ruled on numerous pretrial motions, including motions for severance. Among the pretrial motions filed or adopted by the defendants were motions for disclosure of material pursuant to the constitutional doctrines espoused in

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) and

Giglio v. United States,

405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972). The government in its pretrial response, which was consolidated to encompass all the defendants’

Brady

and

Giglio

motions, stated:

To be sure, the government is well aware of its obligations under

Brady

and will honor those obligations. At the present time, however, the government is not aware of any

Brady

material pertaining to any defendant. Should any exculpatory information come into the government’s possession, it will be promptly disclosed to the appropriate defense counsel(s).

* * * * * *

Regarding

[Giglio

] materials which relate to witnesses whom the government will call in its case-in-chief, the government will provide the defense with information that bears on these witnesses’ credibility (such as plea agreements, promises, benefits, inducements, etc.) at time sufficient to allow the defendant to make use of such evidence.

[Pjroviding

Giglio

material in the manner proposed herein comports with the law and adequately protects the defendants’ due process rights.

(Government’s Consolidated Response to Defendants’ Motions for Discovery filed June 29, 1990, pp. 5-7.)

*1223

The two trials in Case No. 89 CR 909,

United States v. Bingham, et al.

and

United States v. Burnside, et al.,

consumed over five months of-trial time from April through October 1991. Thirteen defendants were cohvicted in the two trials. Three defendants were acquitted. Some of the other defendants charged in Case No. 89 CR 909 have pleaded guilty. One defendant was dismissed pursuant to a pretrial motion by thé. government. The trials of certain other defendants remain to be scheduled.

The first trial in Case No. 89 CR 909,

United States v. Bingham, et al.,

commenced on April 9, 1991. In that trial, fourteen alleged El Rukn gang members who allegedly held the rank of “ambassador” in the El Rukn gang faced charges of RICO conspiracy, narcotics conspiracy, racketeering, and various counts of narcotics distribution. The

Bingham

trial took four months. On August 9, 1991, the jury found ten of the defendants guilty of various criminal violations. Three defendants were found not guilty. A mistrial was declared as to one defendant who subsequently pleaded guilty.

The first trial of defendants in Case No. 89 CR 908, over which Judge Aspen presided,

United States v. Boyd, et al.,

commenced on May 6, 1991 and ended September 1, 1991. The trial before Judge Conlon,

United States v. Andrews, et al.,

began on July .6, 1991 and ended August 25, 1991.

On September 23, 1991 this court started the second trial in Case No. 89 CR 909 (the fourth trial in the series of trials arising from the two “El Rukn” indictments) — the jury trial - of defendants Burnside, Griffin and Jackson.

United States v. Burnside, et. al.,

89 CR 909 (N.D.Ill.) (“the

Burnside

trial”).

The government’s lead prosecutor in the

Burnside

trial was Assistant U.S. Attorney (“AUSA”) William Hogan. When the trial concluded on October 31, 1991, defendants Burnside and Griffin were each convicted of the RICO conspiracy (Count One), the RICO substantive offense (Count Two) and the narcotics conspiracy charge (Count Three). Defendant Jackson was only convicted of the narcotics conspiracy charge (Count Three). Defendant Burnside was additionally convicted of two specific narcotics distribution offenses (Counts Eleven and Twelve).

The post-trial motions filed after the

Bum-side

trial asserted, among other things, that the government had withheld information from the defendants’ counsel which showed that two key government witnesses, Henry Harris and Harry Evans, had tested positive for illegal drugs while incarcerated at the Metropolitan Correctional Center (“MCC”) in Chicago, the federal detention center serving this district court.

4

Similar post-trial allegations were filed by the defendants in the other “El Rukn” trials. Two visiting judges who presided over some of the severed trials in Case No. 89 CR 908, Judge Harold Baker and Judge Richard Mills, denied the post-trial-motions in their respective “El Rukn” trials without a hearing or consideration of further post-trial evidence.

Judge Conlon and this court both ordered evidentiary hearings, over the government’s opposition,

5

into the defendants’ post-trial allegations. Judge Aspen delayed the execution of the sentences he imposed as to the defendants convicted in the

Boyd

trial until further determinations could be made regarding the evidence adduced at post-trial hearings and the submission of further briefs.

The evidentiary hearing before this court as to the

Burnside

trial was scheduled to begin October 13, 1992.

6

It was delayed at the request of the then United States Attorney for the Northern District of Illinois,

*1224

Fred Foreman,

7

so an “internal investigation within the U.S. Attorney’s Office” (Transcript of Proceedings of October 13, 1992, p. 5) could be conducted into information that had been received by the U.S. Attorney’s Office from a former AUSA, Lawrence Rosenthal. Rosenthal had reported that he talked to AUSA Hogan in 1989 about a drug test report he, Rosenthal, had received regarding certain “El Rukn” witnesses. None of this had been disclosed by AUSA Hogan to the defense in the

Burnside

trial.

Judge Conlon denied a similar request by then U.S. Attorney Foreman for a delay of the evidentiary hearing scheduled to commence before her. The post-trial evidentiary hearing before Judge Conlon in

United States v. Andrews, et al.,

89 CR 908, began as scheduled on October 15, 1992,

8

and former AUSA Rosenthal was called to testify on that day.

On November 16, 1992, this court began the post-trial evidentiary hearing regarding the

Burnside

trial. That hearing proceeded on an intermittent basis over the following six weeks and ended on December 31, 1992. A total of 37 witnesses testified before this court at the post-trial hearing. The testimony of other witnesses was presented by stipulation of the parties

(see

November 18, 1992 Stipulation). In one instance, the testimony of one witness, whose credibility the government does not contest, was presented as an admission by the government. (H. 4709-10.) The post-trial evidentiary hearing over which Judge Conlon presided also proceeded on an intermittent basis and concluded January 5, 1993.

Following the conclusion of the post-trial hearings conducted by Judge Conlon and this court, the government disclosed a significant amount of additional

Brady

information which had not been previously revealed. This information included government documents, notes of witness interviews, and witness statements.

(See e.g.,

Government’s Filing of January 20, 1993; Government’s Filing of February 10, 1993; Government’s Filing of February 19, 1993; Government’s Filing of March 12, 1993; Government’s Filing of March 31, 1993; Government’s (in camera) Filing of April 30, 1993; Government’s (in camera) Filing of May 6, 1993; Transcript of Proceedings of May 14, 1993; and Government’s Submissions of May 26, 1993.)

On May 24,1993 Judge Aspen conducted a further evidentiary hearing as a result of further

Brady

information revealed in late April 1993.

FACTUAL FINDINGS AS TO POST-TRIAL EVIDENCE

Having reviewed the evidence which was presented during and after the post-trial hearings, the court must conclude that key government cooperating “El Rukn” inmate witnesses, who had long-standing histories of drug usage, continued to use illegal drugs during the period of their incarceration and post-arrest, post-plea cooperation with the government. The evidence indicated' that the post-arrest illegal drug use commenced in 1988, and encompassed the period during which the government witnesses testified before the grand jury in 1989. It also included the time period during which the witnesses testified at the

Burnside

trial, September and October 1991, as well as the various other “El Rukn” trials.

On the basis of the totality of the post-trial evidence, the court must also find that 'government personnel, including U.S. Attorney’s Office personnel, were aware of the continuing drug use by these inmate government witnesses, but did not investigate it, did not stop it, and did not disclose it to defense counsel or the court before or during the

*1225

Burnside

trial. Further, substantial undisclosed benefits were provided to the government’s cooperating “El Rukn” inmate witnesses by government personnel. These “benefits” included money,-gifts, clothing, radios, beer, cigarettes, services and privileges, including the government providing means by which the witnesses’ acquisition, possession and use of illegal drugs was facilitated. The evidence which underlies these conclusions is discussed below.

I.

THE GOVERNMENT’S COOPERATING ‘EL RUKN” WITNESSES

Henry Leon Harris and Harry Evans, who formerly were high ranking “generals” of the El Rukn organization, were both government witnesses at the trial of defendants Burnside, Griffin and Jackson. Government cooperating “El Rukn” inmate witnesses Earl Hawkins and- Ervin Lee also provided testimony at the

Burnside

trial.

The jury’s assessment that these government witnesses were credible was important to the success of the prosecution’s case. (H. 74-75.) Harris provided the key testimony as to the defendants’ alleged involvement as suppliers of illegal drugs to the El Rukn organization, which led to defendants’ convictions. (H. 74.) Both Harris and Evans, along with Hawkins and Lee had pleaded guilty to felony charges and testified at the

Burnside

trial pursuant to plea agreements with the government.

9

Harris, Evans and Hawkins have yet to be sentenced. They are scheduled to appear before Judge Aspen on June 21, 1993 for further proceedings.

Harris and Evans were incarcerated at the MCC in Chicago for most of the time between the date of their arrests in the summer of 1988 and their testimony on behalf of the government at the various “El Rukn” trials. Commencing in the summer of 1988 and throughout the fall of that year, Harris and Evans were housed, at the request of the U.S. Attorney’s Office,- in protective custody on the MCC’s 6th floor. (H. 902.) Hawkins and Lee were housed there at various times as well.

II.

THE GOVERNMENT’S WITNESSES’ ILLEGAL DRUG USE

The proof which was presented post-trial leads the court to conclude that Harris and Evans, who had used illegal drugs extensively before their arrest in the summer of 1988, continued their illegal drug use while incarcerated and cooperating with the government before, during and after the trials in the “El Rukn” cases. The evidence supporting this conclusion is abundant and comes in several forms: 1) drug test results, 2) eyewitness testimony, 3) admissions made by the witnesses themselves, and 4) other circumstantial proof. The court will detail these various categories of evidence.

A.

Positive Drug Test Results

The MCC employs urinalysis testing in order to detect whether its inmates have ingested illegal drugs. In the spring of 1989, Evans and Harris each tested positive for the unauthorized presence of morphine in urine specimens they provided on April 12, 1989 (Evans)

10

and May 11, 1989 (Harris). (Defendants’ Exhibit MCC Urine Surveillance Log.)

A positive urine test for morphine is indicative of a person having ingested an opiate, such as heroin. According to publications of

*1226

PharmChem Laboratories, Inc. (the drug testing company employed by the U.S. Government to conduct drug tests (H. 357)), heroin is usually detectable in a morphine state for a period of two to four days after use. Cocaine ingestion is usually detectable in the form of cocaine metabolites in urine for a period of up to two days.

See

PharmChem

Newsletter

(May 1987). The Bureau of Prisons’ estimates that the maximum detection period after illegal drug ingestion is approximately 72 hours. (C. 211-12.)

According to the MCC’s records, neither Evans (C. 251-53) nor Harris received any authorized medication which would have caused a positive test for morphine during the defectible period before providing their April 12, 1989 (Evans) and May 11, 1989 (Harris) specimens.

11

The only reasonable inference based on all the evidence is that Harris’ and Evans’ morphine positive tests were from heroin ingestion.

The 1989 drug tests were the only positive drug tests of Harris and Evans put into evidence.- The fact that Harris and Evans did

not test

positive after the spring of 1989 does not, however, demonstrate that they did not use drugs after that time. As is discussed below, Harris, Evans and other cooperating “El Rukn” inmate witnesses were not administered any urinalysis tests after October 1989 through the period of their testimony in the “El Rukn” trials. The only other drug test attempted on either Harris or Evans after October 1989 was a random test of Harris on May 30, 1991, at which Harris refused to be tested. Other post-trial evidence indicates that the Harris’ and Evans’ illegal drug use, as well as drug use by other government inmate witnesses in the “El Rukn” trials, such as Earl Hawkins and Derrick Kees, continued during and after their trial testimony.

B.

Eyewitnesses to the Illegal Drug Use

At the post-trial hearing, five witnesses provided eyewitness testimony of Harris’ and Evans’ illegal drug usage during their incarceration at the MCC.

12

These eyewitnesses were primarily convicted felons who had themselves been incarcerated at the MCC and had cooperated with the government or were presently cooperating with the government in other federal criminal cases.

1.

Nicholas Ahrens

Nicholas Ahrens, who is a convicted felon but is no longer in custody, was housed on the 6th floor of the MCC from September 1988 to October 1989. While housed at the MCC, Ahrens had cooperated as a government witness and testified for the government in the multi-defendant RICO and narcotics conspiracy case,

United States v. John Cappas, et al.,

Case No. 88 CR 91 (N.D.Ill.) (Kocoras, J.), in which Ahrens had pleaded guilty. Ahrens observed Harris’ and Evans’ use of illegal drugs while incarcerated beginning in the fall of 1988.

Ahrens testified at the post-trial hearing that on one of the occasions when Harris

*1227

appeared “high on something,” Harris bragged to Ahrens that he, Harris, was getting heroin during visits with his wife or girlfriend in the Dirksen Building. (H. 2804.) Ahrens testified that the first time he actually saw Harris “snort” heroin was while Harris and he were in a holding cell in the Dirksen Federal Building

13

in the fall of 1988. (H. 2805.)

Ahrens testified that, in the fall of 1988, he and Harris were in one of the Dirksen Building’s holding cells late one afternoon waiting to be returned to the MCC.

14

(H. 2807.) After Harris snorted the substance, he showed the substance to Ahrens and told Ahrens it was heroin. (H. 2805; C. 939.) Ahrens did not see from where Harris had obtained the heroin. (H. 2807.) After he completed snorting the heroin, Harris had some heroin left and offered it to Ahrens. (H. 2807; C. 939.) Ahrens declined Harris’ offer and did not see where Harris put the excess heroin he possessed.

15

(H. 2807.)

2.

Raymond Bonnema,

Another eyewitness to Harris’ illegal drug possession and use was Raymond Bonnema. Like Abrens, Bonnema is a convicted felon and had also testified for the government in the

Cappas

case. Bonnema testified at the posttrial hearing that he was housed on the 6th floor of the - MCC from approximately March 1989 until March 1990. (H. 1782.) Bonnema testified he observed Harris in approximately April 1989 snort white heroin in the holding cell on the fifth floor of the MCC on a morning when Bonnema and Harris were being transported together from the MCC to the Dirksen Building.

16

(H. 1786.)

Bonnema saw. the white substance Harris was snorting in a little baggy and asked Harris if the substance was cocaine. Harris told Bonnema “No, it was heroin” and offered some to Bonnema, who declined. (H. 1786.) Bonnema also saw Harris on another occasion “snorting something out of a little white piece of paper” while in the telephone room of the sixth floor of the MCC. (H. 1788; C. 748.)

3.

“John

Doe”

17

“John Doe,” whose credibility the government does not dispute (H. 4803; Transcript

*1228

of Proceedings of May 14, 1993, p. 43.), was another eyewitness to the illegal drug usage by Harris and other cooperating government witnesses in the “El Rukn” case who were MCC inmates. (H. 4708-10.) “John Doe” was an inmate in the MCC ■ while Henry Harris, Harry Evans, Eugene Hunter and other inmates cooperating with the government in the “El Rukn” cases were housed on the 6th floor of the MCC. The government admitted at the hearing that if “John Doe” were called to testify at the hearing, he would testify as follows:

While at the MCC, John' Doe had access to the 6th floor area in which government witnesses were located.

While on the 6th floor of the MCC, John Doe observed that witnesses Harris, Hunter, and other — and others regularly received visits from African-American worn-, en whom John Doe is not able to identify by name. These visits took place in an area of the 6th floor in which prisoners and visitors were supposed to be separated from each other by a wall or partition with a glass window.

John Doe observed that Hunter,' Harris, ■and other government witnesses, were able to obtain access to the visitors’ side of this partition and make physical contact with 'the femalé visitors. On several occasions, John Doe observed the government’s cooperating witnesses on the floor of the visitors’ side of this partition engaging in sexual contact with the female visitors. John Doe describes these events as a regular occurrence, which he defines as occurrences of up to four times per week.

Following various of these visits to these witnesses, the government witnesses would state to John Doe that the female visitors had provided drugs to the government witnesses during the preceding visits. On one occasion, Harris produced a small container and identified its contents as cocaine, stating that he had obtained the cocaine during a recent visit from a female visitor. On other occasions, John Doe saw other cooperating government witnesses in possession of powdered substances which he believed to be drugs.

John Doe also saw [Eugene] Hunter in possession of an amount of cash, which John Doe identifies as approximately $2,000 to $3,000. Hunter maintained this cash in one of the gym shoes he wore while at the MCC.

John Doe was told by Hunter, Harris and other cooperating government witnesses that Assistant United States Attorney William Hogan had made efforts to intercede with the Warden of the MCC, at the request of the government witnesses-, on topics involving the quality of food and other jail amenities. The cooperating witnesses stated that the Warden of the MCC was irritated by the efforts of AUSA Hogan to intercede on such topics, and that Hogan thereafter declined to contact the Warden at the request of the cooperating witnesses.

(H. 4709-10.)

Additionally, in a further interview with FBI agents on May 3, 1993, “John Doe” stated, among other things, that “he observed Harris and Evans snort cocaine and/or heroin in the MCC on a number of occasions.” (Transcript of Proceedings of May 14, 1993, p. 46.)

“John Doe” stated it was Evans who had money in the MCC not Hunter as “Doe” had previously stated. “John Doe” also stated that “Harris was high on drugs from almost the time he arrived” at the MCC and that illegal drugs such as “heroin, marijuana and cocaine” were “smuggled in for Harris and Evans via their wives and/or girlfriends.” “John Doe” also stated “on a number of occasions, he witnessed Harris and Evans, as well as other El Rukn' witnesses, obtain drugs and engage in sexual contact with many of these female visitors.” “John Doe” further stated “he also witnessed these females provide Harris and Evans drugs in condoms or balloons, which they swallowed, and then request “Ex Lax” in order to quickly pass the condoms and/or balloons.” “John Doe” also stated he observed Hawkins, Clay and Kees smoking marijuana on a number of occasions. “John Doe” further stated that “during conversations with Hawkins, Harris and Evans, he [John Doe] learned that they [Hawkins, Harris and Evans] were able to

*1229

have sexual contact and obtain drugs from their visitors while at the United States Attorney’s Office.” (Transcript of Proceedings of May 14, 1993, pp. 44-49.)

4.

Jackie Clay

Another government “El Rukn” inmate witness, Jackie Clay, testified under a grant of immunity that he saw Harry Evans and Henry Harris use narcotics at the MCC. (H. 4620-25.) The first time was in 1989. (H. 4621.) Clay observed Evans in the “rec room” of the 6th floor of the MCC with narcotics laid out on the ledge near the pay telephone. (H. 4621.) The substance Evans snorted was a brown powder and it was packaged in aluminum foil. (H. 4622.) Evans used the end of a matchbook to scoop up and inhale the drugs. After doing this three or four times in the “rec room” phone area, Evans folded the aluminum foil containing what was left of the brown substance and put it in the breast pocket of his prison uniform jumpsuit. (H. 4623.) On that same occasion, Clay observed Henry Harris also snort some of the brown substance which Evans had. (H. 4625.)

On another occasion during that same period between the spring and fall of 1989, Clay observed Evans making a telephone call on the 6th floor of the MCC. While Evans was on the telephone, Clay observed Evans pull a folded aluminum foil packet out of his sock, open it up and snort drugs. (H. 4626-27.)

Also during that same time period, but on another occasion when Clay was in the library of the 6th floor of the MCC with Harris and Evans, Evans took aluminum foil from his sock, and put it on the table in the library. Evans and Harris snorted the substance. (H. 4627-30.)

5.

Harry Martin

Another witness, Harry Martin, who was housed in the 6th floor of the MCC during 1991 (H. 4316), testified at the posttrial hearings on December 30, 1992 that throughout the time he was at the MCC, drugs were accessible on the 6th floor of the MCC where the government’s “El Rukn” cooperating witnesses were held. (H. 4325.) Martin also testified at the 1992 posttrial hearings that during the first week of December 1991 he picked a package of cocaine out of Harry Evans’ pocket at the MCC.' (H. 4322-24.) Martin also testified that he observed Harry Evans smoking cocaine on the 6th floor of the MCC during the third week of December 1991. (H. 4321-22.) Harry Martin was interviewed by FBI agents on April 22, 1993, and testified at the May 24, 1993 hearing before Judge Aspen. In his 1993 testimony, Martin stated he lied when he testified there was a conspiracy among certain witnesses to discredit AUSA Hogan at the December 1992 posttrial hearing.

Martin testified that he, Martin, had personally told Hogan in early fall 1991 that Harry Evans was using drugs. Martin.also testified that during the first “El Rukn” trial (Summer 1991), he told AUSA Kristina Anderson about Evans’ drug usage. According to Martin, AUSA Anderson responded “Again?,” and thereafter told Martin that she would tell AUSA Hogan about the drug use.

Martin stated that Harris had told Martin that he, Harris, had used marijuana, karaehi heroin and cocaine. Martin also stated that Harris had said that he had told Hogan in 1989 about failing the drug test. Martin also stated that Harris had said that Hogan’s testimony at the 1992 posttrial hearings about never seeing the memo about Harris’ positive drug test was a lie. According to Martin, Harris had said he was there when Hogan had received the memo.

(See

Testimony of May 24, 1993; FBI Interview of Martin of April 22,1993; Defendants’ Exhibit Rosenthal Memorandum.)

Martin was- subjected to an FBI polygraph examination by the government on May 5, 1993 as to facts he had told the FBI on April 22, 1993. The FBI polygrapher’s report regarding that May 5,1993 polygraph examination concludes as follows:

At the conclusion of this interview Mr. Martin was given a series of polygraph examinations by SA Murphy. It was determined after analyzing the polygraph charts that Mr. Martin was truthful when responding to the following relevant question asked during these tests:

*1230

1. Did. you lie under oath during the El Rukn hearing about when Harry Evans used drugs? Answer-Yes

2. Did you make up the story that there was a conspiracy to overturn the El Rukn cases? . Answer-Yes

3. Did you personally tell Kristina Anderson during the El Rukn trials that Harry Evans was using drugs? Answer-Yes

4. During the El Rukn trials did you tell Bill Hogan that Harry Evans was using drugs? Answer-Yes

5. While at the MCC did you help Harris prepare for his testimony for the El Rukn trials as you’ve said? Answer-Yes

6. While at the MCC did Harris, Evans and Clay ever tell you the others were lying in the trials? Answer-Yes

7. Did you ever see Evans with drugs in his possession at the MCC during the El Rukn trials? Answer-Yes

(FBI Polygraph Report of Harry Martin, May 5, 1993.)

AUSA Kristina Anderson testified at the May 24, 1993 hearing before Judge Aspen that Harry Martin did not tell her about Harry Evans’ drug use. Hogan continued to deny any knowledge of illegal drug use by any of the government’s “El Rukn” inmate witnesses at the May 24,1993 hearing before Judge Aspen.

This court did not see the demeanor of Martin, Anderson or Hogan as they testified at the May 24, 1993 hearing before Judge Aspen, so the court cannot make a complete evaluation of the credibility of their testimony at that hearing. The court, however, will evaluate in the next section the 'testimony of the eyewitnesses whose demeanor the court did observe while they were testifying at the 1992 posttrial hearing.

6.

Evaluation of the Eyewitnesses’ Credibility

The eyewitness testimony at the 1992 post-trial hearing regarding Harris’ and Evans’ illegal drug use came from five convicted felons, Ahrens, Bonnema, Clay, “Doe” and Martin. The court need not make a-further credibility assessment as to one of the eyewitnesses, “John Doe,” because the government has conceded the truthfulness of his statements. (H. 4803.) The testimony of the other eyewitnesses whose demeanor the court did observe was consistent with “Doe’s” statements. The eyewitnesses’ accounts were consistent with one another, and were corroborated by other evidence of illegal drug use, such as the positive drug test results, the admissions by Harris and Evans, and the circumstantial evidence of their drug use. In light of all the facts presented post-trial, both at the hearings and following the hearings, the court finds the eyewitness accounts of the government’s cooperating “El Rukn” inmate witnesses’ illegal drug use to be credible.

C.

Government’s Witnesses’ Admissions of Illegal Drug Use

At the posttrial hearings both Harris (H. 1506; 4196-97) and Evans (H. 2170) denied their own continued illegal drug use and denied having access to drugs while housed on the 6th floor of the MCC. (H. 1532; 2176-77.) Their denials were contradicted not only by the testimony of the eyewitnesses who personally observed the drug use by Harris and Evans, but also by several witnesses to whom Harris and Evans admitted their continued drug use while they were incarcerated and cooperating with government counsel. Among the several people to whom Harris and Evans admitted their illegal conduct were personnel of the U.S. Attorney’s Office and other federal agencies.

1.

Henry Harris’ Admissions of Illegal Drug Use

Henry Harris admitted his illegal drug use to a number of people over a substantial span of time, before, during and after the “El Rukn” trials in which he testified.

(a)

Harris’ Admission at 1989 Disciplinary Hearing

The first documented admission Harris made of his illegal drug use was on June 27, 1989 during the disciplinary hearing which resulted from Harris having tested positive for morphine at the MCC on May 11, 1989. Harris, at the disciplinary hearing, asserted

*1231

that he, Harris, was “trying to sniff out narcotics on the 6th floor.” (Defense Exhibit Harris Incident Report 6-5-89.) Hams stated at his June 27, 1989 disciplinary hearing “I had to indulge in narcotics to keep the heat off me and gain the confidence of other inmates in the unit.”

18

(Id.)

(b)

Harris’ Admissions To Ervin Lee

On another occasion, Harris told Ervin Lee, another “El Rukn” inmate who was also a government witness in the

Burnside

trial, that he, Harris, was “high” during his testimony before the grand jury in May 1989, and that he had told “a pack of lies” to the grand jury. (H, 3213.) Harris’ admission that he was “high” in the grand jury was corroborated by the testimony of Rayfnond Bonnema, who saw Harris snorting heroin while being taken to the Dirksen Building where the grand jury sessions were held. (H. 1786.)

19

(e)

Harris’ Admissions To Tanya Van Blake

In August 1991, Harris told U.S. Attorney’s Office paralegal Tanya Van Blake that he, Harris, drank a heroin-spiked soda pop given him by Harry Evans. (H. 3838-39). When Van Blake told fellow paralegal Corinda Luchetta, Luchetta said “she had heard that version of the story, among others.” (H. 3839.)

(d)

Harris’ Admissions To Mustaq Malik '

Harris told his posttrial prison roommate, Mustaq Malik, that he, Harris, used cocaine and heroin while he was at the MCC. (H. 3003.) Harris also told Malik that he, Harris, received drugs during visit’s with his girlfriend in the U.S. Attorney’s Office. (H. 3002-05.)

(ej

Harris’ Admissions To Harry Martin

Harris, according to the April 23,1993 FBI interview and the May 24, 1993 testimony of Harry Martin, admitted that he, Harris, had used marijuana, karachi heroin and cocaine and that Harris got his drugs from his visitors. Harris admitted to Martin that he, Harris, had lied when he denied having sex or using drugs while a cooperator. Harris also told Martin that he, Harris, had told AUSA Hogan in 1989 “when he failed the drug test” and that Hogan just passed over it and went on.

Harris also told Martin, according to Martin’s FBI interview statements and testimony, that he, Harris, was there when Hogan had received the MCC memorandum (Defendants’ Exhibit Rosenthal Memorandum) which reflected Harris’ and Evans’ positive drug tests for morphine. The memorandum is dated October 18, 1989 and was delivered to the U.S. Attorney’s Office on or near that date. It was distributed in the routine practice to AUSA Hogan that same day or the next by the secretary to then First AUSA Ira Raphaelson, Cynthia Ward. Defendants’ Exhibit Hogan (Harris) Visitation Memo shows Harris was visiting Hogan at the Dirk-sen Building on October 19, 1989.

2.

Harry Evans’ Admissions of Illegal Drug Use

Harry Evans also made multiple admissions of drug use to various people over a substantial span of time before, during and after his testimony at the “El Rukn” trials, (a)

Evans’ Admissions to Nicholas Ahrens

Harry Evans, in the fall of 1988, admitted to Ahrens that he, Evans, had used heroin two or three times since he, Evans, had

*1232

begun his incarceration at the MCC in Air- ■ gust 1988. (H. 2802.) Evans also told Ahrens that he, Evans, was getting the heroin during visits from his girlfriend while at the Dirksen Building. (H. 2803-04.) Evans also told Ahrens that there were times when he, Evans, passed heroin over to Harris using a “Walkman” radio to conceal the drugs. (H. 2808.)

20

(b)

Evans’ Admissions to “John Doe”

During conversations with Harry Evans, as well as conversations with Henry Harris and Earl Hawkins, “John Doe” learned that Evans, Harris and Hawkins were able to have sexual contact with and obtain drugs from their visitors while at the U.S. Attorney’s Office. (Transcript of Proceedings of May 14, 1993, p. 47.)

(c)

Evans’ Admissions Overheard By Lenell Smith

Additionally Harris and Evans were overheard in April or May of 1992 by MCC inmate Lenell Smith, who was the 6th floor orderly, talking about the drugs Harris and . Evans had just “finished tooting.” (H. 2691-92.) In May of 1992, on two occasions three weeks apart, Evans asked Smith to get Evans some heroin through the visiting room of the 6th floor at the MCC. (H. 2689-90). Smith declined.

(d)

Evans’ Admissions to Harry Martin

Evans also admitted to Harry Martin more than once to having drugs and obtaining them from visitors. Evans told Martin that he, Evans, had his mother and son get drugs for him. Evans also told Martin that Evans’ girlfriend, Beverly, brought drugs to him at the U.S. Attorney’s Office. Evans told Martin that one of the ways these visitors could smuggle drugs to Evans was by bringing him food. (FBI Interview of Harry Martin, April 22, 1993; May 24, 1993 Proceedings before Judge Aspen.)

(e)

Evans’ Admissions During Monitored Phone Conversation

On February 19, 1993, a month and a half after the conclusion of the posttrial hearing, the government submitted a memorandum, dated January 28, 1992, which noted that, on the same date, a phone conversation had been, monitored by MCC personnel in which Harry Evans complained there was “nothing but a few ‘pebbles’ [cocaine particles] left in the “object” Evans had just received and that “his brother”

21

had “ripped him off.” (Page 1 of attachment to Government’s Filing of February 19,1993.) This further corroborated Evans’ illegal drug use. Because the document had not been revealed by the government earlier, Evans could not be asked about it without

reopening the

hearings.

D.

Circumstantial Evidence of Illegal Drug Use

In addition to the direct evidence of Harris’ and Evans’ drug use, such as the eyewitness testimony and the admissions of Harris and Evans, the circumstantial evidence also points toward a finding that Evans and Harris used drugs during the time period they were cooperating with the government. This circumstantial evidence includes: 1) the appearance of Harry Evans, who was described by several witnesses as having the appearance of being on drugs; and 2) the refusal of Henry Harris to submit to a drug test in May 1991, during the trial in the

Bingham

case.

1.

Evans Appeared to be Using Illegal Drugs

During the time period Spring to Fall 1989, Jackie Clay saw Evans and Harris

*1233

acting as though they were under the influence of drugs. (H: 4631.) The first time Clay saw Evans under the influence of drugs was in March 1989. (H. 4632.) Clay was housed at the MCC the first time from February 24, 1989 through December 12, 1989. According to Clay, during that period Evans appeared to be regularly under the influence of narcotics. (H. 4632.) During the. period September through November 1991, Clay was again incarcerated on the 6th floor of the MCC. During this period Clay again observed Harry Evans acting as if he were under the influence of narcotics. (H. 4635.)

Personnel of the U.S. Attorney’s Office, including three prosecutors and two paralegals, also observed what appeared to be drug-induced behavior by Evans during this period.

22

The AUSAs discussed and speculated that Evans appeared as though “he was on drugs” (H. 4825).

In a March 16, 1993 interview with the FBI, AUSA Theodore Poulos admitted that in the fall of 1991 during the trial before Judge Mills, he, Poulos, suspected Evans of drug use because of his appearance and other symptoms Evans displayed. Poulos also “thought that it was possible EVANS could be acquiring drugs while at the USAO [U.S. Attorney’s Office] from his mother.” (FBI Interview of Theodore Poulos, March 16, 1993, p. 8.) Poulos did not mention his “thoughts” as to Evans’ source of drugs during his testimony at the posttrial hearings. (H. 1637-1779.)

Additionally, MCC inmate Lenell Smith testified that Harris and Evans appeared to be under the influence of drugs in April 1992. (H. 2706-07.)

2.

Henry Harris’ Refusal to Take Drug Test

On May 30, 1991, Harris, who had earlier tested positive for the heroin derivative morphine,

23

refused a request by the MCC that Harris submit a urine specimen for a drug test. (Defendants’ Exhibit Harris Incident Report 5/30/91.) (H. 1497.) Shortly thereafter, Harris explained to paralegal Luchetta his refusal to provide the urine specimen saying “he was just too tired.” (H. 1842-43.) On June 27, 1991, a MC.C disciplinary hearing was conducted regarding Harris’ refusal to. submit to the urinalysis test and a record of the incident was maintained by the Bureau of Prisons. (See Defendants’ Exhibit Harris Incident Report 5/30/91.)

Taking into account the minimal effort which submitting urine for a drug test involves, the court finds Harris’ excuse of being “too tired” to be a pretext. In light of the other evidence concerning Harris’ drug use, the court views his refusal to take the drug test as indicating that he had used illegal drugs and feared that he would have tested positive. He was never tested again.

III.

THE GOVERNMENT’S AWARENESS OF ITS “EL RUKN” WITNESSES’ ILLEGAL DRUG USE

Having reviewed the evidence presented at and after the posttrial hearings, the court finds that, during the pre-indictment preparation and the postindictment prosecution of the “El Rukn” eases, including the

Burnside

trial, government personnel were aware of Harris’ and Evans’ continued drug use. The persons who were aware of the drug use included members of the-U.S. Attorney’s Office, as well as other members of the “El Rukn” prosecution team, along with other government employees who were closely associated with the “El Rukn” prosecutions.

The evidence shows that certain government personnel were aware of the illegal

*1234

drug usage, through their knowledge of the drug test results, or from talking with eyewitnesses to the drug use. Some government employees heard admissions by the drug using witnesses themselves. Some government personnel heard of the drug use from , other government personnel. Additionally, government employees were aware of circumstantial indications, which, had those indications been investigated, would have led to further evidence and further awareness of the witnesses’ drug use. The evidence showing the government’s awareness of its “El Rukn” inmate witnesses’ illegal drug use is discussed below.

A.

MCC’s Warden Told U.S. Attorney Personnel of Illegal Drug Use

During the Spring of 1989, Arthur Beeler, who was then Warden of the MCC, became aware of a drug usage problem on the MCC’s 6th floor, where Evans and Harris were housed. Warden Beeler learned this from reviewing the urinalysis findings in various reports and logs prepared and maintained by the MCC.

24

(H. 915-16.) In October 1989, Warden Beeler spoke with then First AUSA Ira Raphaelson, who was then the U.S. Attorney’s Office liaison to the MCC (H. 1088), about “inmates on the 6th floor who are using narcotics.” (H. 930-31.)

Warden Beeler also described his idea to First AUSA Raphaelson of constructing a “noncontact” visiting area on the 6th floor of the MCC to combat the drug problem caused by the “El Rukn” inmates housed there. (H. 929-30.) Former AUSA Ira Raphaelson recalled “discussions with Warden Beeler about his concerns about contact visits” (H. 1228) and recalls Warden Beeler “expressing concern” about contraband (H. 1228) being smuggled into the MCC. (H. 1228-30.) Raphaelson told AUSA Hogan about “Warden Beeler’s concerns of contraband coming to the El Rukns.” (H. 1231-32.) No U.S. Attorney’s Office personnel, however, looked into the problem any further.

In addition to Warden Beeler’s discussions with Raphaelson about drug usage by the inmates and Raphaelson’s discussions with AUSA Hogan about Warden Beeler’s “concerns of contraband coming to the El Rukns,”

Id.,

Warden Beeler, himself, had approximately a dozen conversations with AUSA Hogan in 1989 (H. 1043) on a variety of topics, such as when the “El Rukn” indictments would be returned, when the arrests would be made, the housing of.“El Rukn” individuals, and separating some “El Rukns” from others. Warden Beeler, however, could not recall whether he did or did not talk to Hogan about the 6th floor drug usage at the time. (H. 1044.) .

It was Warden Beeler’s policy that when any pretrial inmate tested positive for drugs, the Assistant U.S. Attorney assigned to that inmate’s case was to be advised of the positive urine results. (H. 907-08.)

B.

MCC’s Warden Provided a Memorandum to the U.S. Attorney’s Office Showing Positive Drug Test Results

On October 18, 1989 (the date of Defense Exhibit “Rosenthal Memorandum” which shows Harris’ and Evans’ positive drug tests for unauthorized morphine), Warden Beeler’s journal reflects the following: “Took information to Ira [Raphaelson] regarding drug use on the 6th floor.” Warden Beeler took the October 18, 1989 Memorandum (“Rosenthal Memorandum”) with other documents to Ira Raphaelson and left them with his secretary, Cynthia Ward (H. 1047-48), who recalls the October 18, 1989 memorandum. (H. 1824.) Under the normal procedure of the U.S. Attorney’s Office, Ms. Ward sent copies of that memorandum to AUSAs Larry Rosenthal and William Hogan. (H. 1142; 1829-31.) Rosenthal received his copy. (H. 45-46.) Hogan denied receiving his copy. (H. 144-46; 150.)

C.

AUSA Rosenthal Spoke With AUSA Hogan About The Positive Drug Test Results

Shortly after receiving a copy of the October 18, 1989 memorandum, Rosenthal spoke

*1235

with AUSA Hogan near Hogan’s office in the U.S. Attorney’s Office. (H. 46-47.) Rosenthal testified at the posttrial hearings to the substance of that conversation. (H. 46-50.)

Referring to the document which was labeled at the posttrial hearings “Defendánts’ Exhibit Rosenthal Memorandum,” Rosenthal told AUSA Hogan that he, Rosenthal, “thought this [the positive drug test results reflected in the memo] would be a real problem for the investigation.” Rosenthal then asked Hogan, “What he was going to do about it.” Hogan responded that: “It was not a problem, it was nothing to worry about.” (H. 48.)

Rosenthal repeated his “opinion that it would be a problem ... [because] it was discoverable, that it would have to be disclosed to the defense.” Hogan again said “It wasn’t a problem.” (H. 48.) Hogan’s demeanor made it clear to Rosenthal that Hogan had discussed that matter all he cared to. (H. 48-49.)

25

Hogan’s responses to Rosenthal’s statements about the drug results memorandum indicate Hogan was aware of the information contained therein.

AUSA Hogan denied having the conversation with Rosenthal at the posttrial hearing. (H. 146-47; 157-58; 169; 267.) As Hogan was questioned further by counsel, he, however, conceded:

He [Rosenthal] may have said something to me. I did not hear what he said, if he said what he has related in this court or in front of Judge Conlon, I didn’t hear it.

(H. 158.)

After observing both Rosenthal ánd Hogan testify and considering all of the facts, the court must conclude that Rosenthal’s testimony is accurate and truthful. Hogan’s denial of the conversation with Rosenthal is not credible. Several facts support these conclusions.

Initially, the manner in which the evidence came to light supports Rosenthal’s credibility. Rosenthal, in September 1992, related his recollection of his 1989 conversation with AUSA Hogan to Michael Shepard at a social dinner in Washington, D.C., while they discussed the matters at issue in the posttrial hearings. Rosenthal was unaware at the time of the existence of any documentary corroboration for the information he voluntarily provided Shepard that evening. Later, on October 15, 1992, when former AUSA Rosenthal testified at the posttrial hearing before Judge Conlon, a copy of the document which Rosenthal recalled discussing with AUSA Hogan in 1989 had not yet been found. (H. 12.)

The government, pursuant to this court’s suggestion on October 13, 1992, searched the stored U.S. Attorney’s Office’s files relating to the case which Rosenthal had prosecuted before this court in late 1989,

United States v. Tocco,

88 CR 841 (N.D.I11.). In those stored files, a copy of the October 18, 1989 memorandum Rosenthal had described (Defendants’ Exhibit Rosenthal Memorandum) was found. (H. 11-12.) The discovery of the Rosenthal Memorandum showed that Rosenthal, despite not having seen the memorandum in three years, had described it with extreme accuracy before Judge Conlon.

Further, the evidence regarding routine office procedures of the U.S. Attorney’s Office .and the inferences drawn therefrom compel the court to find that the “Rosenthal Memorandum” was received by AUSA Hogan. The discovery of that memorandum in the

Tocco

file, combined with the recollections of former AUSA Rosenthal and Ms. Cynthia Ward, secretary to AUSA Raphael-son in 1989, as well as the October 18, 1989 entry in Warden Beeler’s journal: “Took information to Ira [Raphaelson] regarding drug use on the 6th floor,” prove conclusively that the memo was delivered to AUSA Raphaelson in-the U.S. Attorney’s Office. The testimony of Cynthia Ward regarding her routine practice indicates that the memorandum was sent to both AUSA Hogan and AUSA Rosenthal within the U.S. Attorney’s Office. Indeed, the court cannot .conceive of

*1236

why a document containing the information found in the “Rosenthal Memorandum” would not have been forwarded to the AUSA whose witnesses were reported implicated in the use of illegal drugs. Further, there was no evidence concerning why or how the document, having been sent to AUSA Hogan by Ms. Ward, would not have come to his attention.

26

Furthermore, the court must, in making its comparative credibility assessment, consider the motivations of the respective witnesses. The government has not suggested any reason why Mr. Rosenthal, who is currently a high-ranking public official in the legal department of the City of Chicago, would volunteer information and then testify about a subject of such importance in which he currently has no discernible personal or professional interest, if his testimony were not true. Further, the government has not offered an argumént why former AUSA Rosenthal, having (undoubtedly) testified truthfully about the drug test memorandum (without knowing it would ever be found), would then, in a second part of his account, testify about the conversation he had with AUSA Hogan in 1989, if the testimony were not true.

In contrast, AUSA Hogan has a readily apparent motive for giving untruthful or incomplete testimony in the face of the posttrial accusations of his misconduct.

D.

Witnesses told AUSA Hogan of the Illegal Drug Use

At the posttrial hearing, AUSA Hogan denied knowing of his witnesses’ drug use. In addition, however, to receiving the drug test results in 1989 and speaking with Rosenthal about them at that time, AUSA Hogan learned of Harris’ and Evans’ illegal drug use from MCC inmates who had personally observed Harris, Evans and other cooperating “El Rukn” government witnesses possess and use illegal drugs. This finding is based on evidence and information which was furnished both during and after the posttrial hearing conducted by this court.

1.

Jackie Clay

Government cooperating inmate witness, Jackie Clay, who was incarcerated on the 6th floor of the MCC with Henry Harris, Harry Evans and the other cooperating “El Rukn” witnesses told AUSA Hogan three or four times in the latter half of 1989 that Harris and Evans were using heroin at the MCC. (H. 4723-31.)

Clay first told AUSA Hogan about the “El Rukn” witnesses using drugs at the MCC in July or August 1989. (H. 4724.) Clay telephoned AUSA Hogan collect to be “patched through” (have his call forwarded) to another person. During this phone conversation with AUSA Hogan, Clay specifically named Harris and Evans as the people using the drugs. (H. 4724.) In September of 1989, Clay called Hogan again “collect” to be “patched through.” Clay told Hogan in this conversation “That they were still messing around with drugs.” (H. 4728.) In late October 1989 Clay again told Hogan: “[T]he guys was still using drugs over there.” (H. 4730.)

AUSA Hogan denied at the posttrial hearing having these conversations with Clay (H. 4810). In light of the totality of the post-trial evidence presented during and after the hearing, the court finds that his denial, like his denial of the conversation with Rosenthal, is not credible.

2.

Harry Martin

Government witness Harry Martin testified on December 30, 1992 at the posttrial hearing about Harry Evans’ possession and use of illegal drugs at the MCC. Martin, however, denied telling anyone in the U.S. Attorney’s Office of that drug use because he “did not think they wanted to know.” (H. 4345.) In his testimony on May 24, 1993, Harry Martin stated that he had personally told Hogan that Harry Evans' was using drugs. Although Martin testified contrary to

*1237

this on December 30, 1992 at the posttrial hearing before this court, on May 5, 1993, he passed an FBI-administered polygraph exam on this point. In light of all the evidence, and the fact that Martin previously was called as a government witness in the posttrial hearing, the court must give some credence to Martin’s testimony that he told AUSA Hogan of the illegal drug use.

27

E.

Agents told AUSA Hogan of Drug Use “Rumors”

Special Agent William O’Brien, who was assigned to the “El Rukn” task force, along with another “El Rukn” task force investigator Sergeant Daniel Brannigan of the Chicago Police Department, in early 1990 told AUSA Hogan (H. 4768-70) that one of the WITSEC

28

marshals had said: “El Rukn’s on the 6th floor of the MCC were bragging about having sex and receiving drugs at the federal building.” (H. 4769.) Hogan again did nothing about this information and did not disclose this information to the defense in the

Burnside

trial.

F.

Second Drug Test Memorandum Provided to AUSA Hogan

In early August 1991, defense counsel in the

Andrews

trial before Judge Conlon served trial subpoenas on the MCC for records. (H. 81-83.) (Defense Exhibit MCC Subpoena 1 Conlon Trial; and Defense Exhibit MCC Subpoena 2, Conlon Trial.) (H. 136-37.) After receiving the subpoenas, MCC paralegal Charvella Christmas spoke to AUSA Hogan (H. 81-2.) On August 15, 1991, MCC paralegal Christmas furnished defense counsel and AUSA Hogan a memorandum prepared by MCC Special Investigative Supervisor, Lt. Charles Mildner, (“Defendants’ Exhibit Mildner Memorandum”). (H. 88.)

Hogan testified at the posttrial hearing that this was the first time he was aware of “any potential positive drug tests by witnesses.” (H. 80.) The 1991 MCC drug test memorandum (Defendants’ Exhibit Mildner memorandum), however, contained drug test information which Hogan had seen in 1989 (Deféndants’ Exhibit Rosenthal Memorandum) and about which he had spoken to Rosenthal. (H. 46-48.) (Defendants’ Exhibit Rosenthal Memorandum.) The 1991 Mildner Memorandum, unlike the 1989 memorandum, however, did not reveal that morphine, a heroin derivative, for which there had been positive tests as to both Evans (4/12/89) and Harris (5/11/89) was not the result of authorized medication.

G.

Evans Appeared to be Using Illegal Drugs

Several government witnesses testified to their personal observations of the effect that Harry Evans’ continued drug use had on him. Specifically, in October 1991, while'the

Burnside

trial .was going on, United States Attorney’s Office paralegal Tanya Van Blake suspected Evans was on drugs and became concerned. (H. 3819-21).

AUSA Hogan, during his second appearance on the witness stand at the posttrial evidentiary hearing, admitted: “There were discussions in the late fall [of 1991] about people having concerns about Harry Evans and drug use.” (H. 4823.) Hogan testified that the first conversation as to “Evans and drug use” took place “about the 15th or 16th of October [1991],” (H. 4824.) which was while the

Burnside

trial was’ going on. Present at the conversation were AUSA Hogan, AUSA John Hartmann and AUSA Theodore Poulos, along with U.S. Attorney’s Office paralegal Corinda Luchetta. Hogan recalls AUSA Hartmann saying of Evans at the time: “[T]he way he [Evans] looked up there [on the witness stand] you could almost think he was on drugs.” (H. 4825.)

29

*1238

In view of Evans’ history of drug use and his having tested positive for drugs while incarcerated, a probable inference would have been that Evans’ appearance (described as being like “he was on drugs”) resulted from drug use. . The government personnel involved, however, contend they attributed Evans’ appearance to health problems. Yet, no government personnel suggested Evans be checked for illegal drug use.

H.

Harris Told U.S. Attorney Paralegal of His Refusal to Take Drug Test

On May 30, 1991, Harris who had continued to use illegal drugs after his 1989 positive drug test for heroin derivative morphine,

30

refused to submit a urine specimen for drug testing. (Defendants’ Exhibit Harris Incident Report 5/30/91.) (H. 1497.) Shortly thereafter, Harris told U.S. Attorney Office paralegal Corinda Luchetta

31

that he refused to provide the specimen because “he was just too tired.” (H. 1842-43.) Although it was Luchetta’s job to tell Hogan such information (H.1841), she denied telling AUSA Hogan of Harris’ refusal to submit to the drug test. (H.1846.) In light of the other evidence known by the government, the government’s knowledge of Harris’ refusal amounted to further circumstantial proof of Harris’ illegal drug use and the government’s knowledge thereof.

32

IV.

GOVERNMENT’S FAILURE TO DISCLOSE OR INVESTIGATE EVIDENCE OF ITS WITNESSES’ ILLEGAL DRUG USE

As has just been discussed, the government, during the course of the “El Rukn” prosecution, came to possess evidence that certain of its inmate witnesses were using illegal drugs. Neither the direct evidence of the illegal drug use nor any of the facts supporting an inference of drug use were disclosed to defense counsel in .the

Burnside

trial. Furthermore, government counsel, who were aware of the facts indicating that the government’s witnesses were using illegal drugs, never investigated the illegal drug use or took any other action to detect or stop the illegal drug use by the cooperating “El Rukn” inmate witnesses.

A.

Positive Drug Test Results

1.

Failure 'to Disclose

As discussed earlier, before the

Burnside

trial began, two separate memoranda prepared by the MCC, each showing Harris’ and Evans’ positive drug test results, were delivered to the U.S. Attorney’s Office and to AUSA Hogan. The first memorandum was delivered in October 1989 (Defendants’ Exhibit Rosenthal Memorandum) and the second memorandum was delivered in August 1991 (Defendants’ Exhibit Mildner Memorandum). Both memoranda reflect Harris’ and Evans’ 1989 positive drug tests for morphine. AUSA Hogan provided neither of the two memoranda to the defense in the

Burnside

trial.

Moreover, AUSA Hogan discussed the 1989 memorandum with then-AUSA Rosenthal, who pointed out to Hogan that the memorandum “was discoverable [and] that it would have to be disclosed to the defense.”

*1239

(H. 48.) Despite receiving the memorandum and despite discussing with Rosenthal that the document would have to be disclosed to defense counsel, Hogan never provided the document nor any of the information contained in it to the defendants’ counsel in the

Burnside

trial.

The 1991 memorandum, which also was not provided to defense counsel in the

Burnside

trial, was disclosed to defense counsel in response to a defense subpoena in the

Andrews

trial over which Judge Cónlon presided. When, during the

Andrews

trial in mid-August 1991, AUSA Hogan saw the 1991 memorandum, he called MCC Executive Assistant Robert Hafer and “asked him to come over [to court] as fast as he could so [Hogan] could talk to him.” (H. 88.) After Judge Conlon allowed the 1991 memorandum (Defense Trial Exhibit MCC-2; Defendants’ Exhibit Mildner Memorandum) into evidence at the

Andrews

trial (C.Tr. 5702), Hogan again phoned Hafer and asked him “Please come [to court] as quickly as you can.” (H. 89.)

Hogan testified at the post-trial hearing before Judge Conlon that when Hafer arrived he conferred with Hafer outside Judge Conlon’s courtroom:

He [Hafer] explained, extremely briefly, to me what those [disciplinary] procedures were, his familiarity with .those witnesses and his oversight involvement in the disciplinary proceedings. He told me that he had had no disciplinary proceedings regarding those people [Harris and Evans]. And that, I think, was about the extent of our conversation.

(C. 226; H. 91-94.) After consulting with Hogan (C.Tr. 5758-83), Hafer testified. During Hafer’s testimony, Hogan did not elicit and Hafer did not reveal that neither Evans’ April 12,1989 positive drug test for morphine nor Harris’ May 11, 1989 positive drug test for morphine was authorized. Hafer and Hogan also did not disclose Harris’ May 30, 1991 drug test refusal and did not disclose the fact that disciplinary hearings had been conducted as to Harris’ illegal drug use in 1989 and his drug test refusal in 1991.

Consequently, even though the fact that Harris and Evans had tested positive for morphine in 1989 was revealed to the defendants in Judge Conlon’s trial on August 15, 1991 (Defendants’ Exhibit Mildner Memorandum), AUSA Hogan made false representations as to the meaning of the positive drug test results reflected on that memorandum. (C.Tr. 6170.)

2.

Failure to Investigate

Following their respective positive drug tests in April and May of 1989, Harris and Evans were both placed on the Urine High Risk Category list of the MCC. As such they were supposed to have been tested for illegal drugs each month until December 1989. (Defendants’ Exhibits “Urine High Risk Category” Report.) They were each tested for three months, then again on October 17, 1989. Then the MCC’s drug testing of Harris and Evans stopped. No explana-' tion was given for stopping the drug testing. (Defendants’ Exhibit MCC Urine Surveillance Log.)

B.

Reports of Illegal Drug Use

1.

Failure to Disclose

Government counsel did not disclose to the defense in the

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trial that the U.S. Attorney’s Office had received reports from various sources indicating that the “El Rukn” inmate witnesses were using illegal drugs. For example, the government did not disclose that Warden Beeler discussed drug and contraband related security problems on the sixth floor of the MCC, where the government’s “El Rukn” witnesses were housed, with First AUSA Raphaelson in 1989. .Additionally, government counsel did not disclose that government cooperating witness, Jackie Clay, who was incarcerated on the 6th floor of the MCC with Henry Harris, Harry Evans and the other cooperating “El Rukn” witnesses, told AUSA Hogan three or four times in the latter half of 1989 that Harris and Evans were using heroin at the MCC. (H. 4723-31.)

2.

Failure to Investigate

After Jackie Clay told AUSA Hogan that other cooperating inmate witnesses were using illegal drugs, Hogan told Clay that he, Hogan, would look into it.. (H. 4729.) There

*1240

is no evidence, however, that AUSA Hogan performed or requested any follow-up investigation of Clay’s statements. Drug testing could have been easily accomplished and the results thereof would have confirmed the presence or absence of drugs. Yet it was not done.

C.

“Rumors” of the Drug Use

There were several events that should have prompted the government to investigate further through drug testing or by other means. One such instance was the report of “rumors” of drug acquisition at the federal building. As discussed,

supra,

Agent O’Brien had given AUSA Hogan information that “El Rukn” witnesses were “bragging about having sex and receiving drugs in the federal building.” (H. 4769-72.) Hogan did not disclose the information to the defense in the

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trial and did nothing to investigate the information. When the “El Rukn” task force agents spoke to cooperating inmate Harry Evans about the “rumors,” they instructed Evans “to stop this kind of talk.” (H. 4774-75.) The agents, however, did not question Evans about the “rumors” and did not initiate any investigation to determine the facts.

D.

Henry Harris’ Refusal to Take Drug Test

The government did not disclose to the defense that on May 30, 1991, while the trials in

United States v. Bingham,

No. 89 CR 909, and

United States v. Crowder,

No. 89 CR 908, were going on, Harris, a witness in both trials, refused to submit a urine specimen for a drug test. (Defendants’ Exhibit Harris Incident Report 5/30/91.) (H. 1497.)

Shortly thereafter,. Harris told U.S. Attorney’s Office paralegal Corinda Luchetta of his refusal to provide the urine specimen saying “he was just too tired.” (H. 1842^13.) Luchetta denied telling AUSA Hogan at that point of Harris’ refusal to submit to the drug test (H. 1846). Harris’ refusal to be tested for drugs and Luchetta’s knowledge thereof were not disclosed to defense counsel until late 1992, after the posttrial hearings before Judge Conlon had commenced. (H. 2677.)

AUSA Poulos knew of the June 27, 1991 disciplinary hearing that resulted from Harris’ refiisal to be tested for illegal drugs. (H. 1655-58.) Poulos testified that he was not aware that the disciplinary. hearing was based upon Harris’ refusal to be tested. (H. 1659-60.) The subject of the disciplinary hearing is, however, clearly described in MCC documents.

{See

Defendants’ Exhibit Harris Incident Report, 5/30/91; DHO Report of June 28, 1991.) No MCC documents relating to Harris’ May 30, 1991 drug test refusal were provided to the defendants in the

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trial.

After Harris refused the drug test on May 30) 1991, no further drug tests were conducted on either Harris or Evans throughout the time they remained at the MCC and were testifying at the various “El Rukn trials,” including the September-October 1991 trial of the three defendants in the

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trial.

The May 30, 1991 failed attempt to test Harris for illegal drugs was the last time any such attempt was made. No witness at the posttrial hearings explained why drug tests were not performed on the government’s cooperating “El Rukn” inmate witnesses, including Harris and Evans, during the time those witnesses were testifying at the various “El Rukn” trials. '

If the government wanted proof whether or not Harris and Evans were using drugs, the government could have easily obtained it through further drug testing. AUSA Hogan knew that the MCC tested inmates. (H. 114.) The MCC could have done the testing. Alternatively, the prosecution could have had it done even more conveniently. The pretrial services section and the probation department have drug testing facilities in the Dirk-sen Building where the courts and the U.S. Attorney’s Office are located. The government requests tests routinely when defendants released on bond or on probation are suspected of illegal drug use. (H. 1752.)

Drug tests could and, in light of the evidence of drug use known to government personnel, should have been performed on these government witnesses. Harris could have been easily tested at the MCC or in the Dirksen Building at any time. He was not. Also, the fluids obtained during one of Evans’

*1241

regular, biweekly kidney dialysis sessions could have been tested without any inconvenience to Evans. None of this was done.

E.

Evans Appeared to be Using Illegal Drags

Government counsel did not disclose to the defense that several personnel of the U.S. Attorney’s Office, including three prosecutors and two paralegals, observed what appeared to be drug-induced behavior by Evans during the period of the

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trial.

On October 15 or 16, 1991, AUSAs William Hogan, John Hartmann, and Theodore Poulos observed Evans’ apparently drug-induced behavior and discussed with one another and paralegal Luchetta that .because of the way Evans appeared, “you could almost think he was on drugs.” (H. 4825.) Also not revealed until after the posttrial hearing was the fact that AUSA Poulos “thought that it was possible that EVANS could be acquiring drugs while at the USAO [U.S. Attorney’s Office] from his mother.” (FBI Interview of Theodore Poulos, March 16, 1993, p. 8.)

U.S. Attorney’s Office paralegal Tanya Van Blake also observed Evans’ seemingly drug-influenced behavior in October 1991. (H. 3819-21.) When Van Blake discussed Evans’ apparently drug-influenced behavior with Luchetta, Luchetta said “I’ve talked to Hogan. Leave it alone.” (H. 3822.) This was not revealed until Van Blake testified under a grant of immunity at the posttrial hearing before this court.

Despite their suspicions, and despite their knowing the MCC tested inmates for drugs (H. 114), none of the government counsel asked the MCC at that time or at any time to test Evans for illegal drug use. . As has been discussed, such drug testing could easily have been performed. •

V.

UNDISCLOSED BENEFITS GIVEN TO THE “EL RUKN” WITNESSES

In addition to the evidence of the illegal drug use and the government’s knowledge, nondisclosure and noninvestigation thereof, the proof presented posttrial showed that the government conferred numerous, undisclosed benefits on its “El Rukn” witnesses. This is significant for two reasons, First, the “benefits” evidence bears on the witnesses’ bias and. motivations for testifying and consequently is relevant to the question of credibility. Secondly, the special benefits bestowed can, in many instances, be viewed as having facilitated the El Rukn witnesses’ acquisition and use of illegal drugs. The court will detail the posttrial evidence presented of the benefits granted, none of which was disclosed to défense counsel prior to or during the

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trial.

A.

“Contact” Visits and Lax Security for the “El Rukn” Witnesses at the MCC and U.S. Attorney’s Office

The evidence presented posttrial demonstrated that the government provided cooperating “El Rukn” inmate witnesses with the benefit of “contact” visits with girlfriends, wives and other visitors, even though MCC policy officially prohibited these types of visits to those “El Rukn” inmate witnesses. The posttrial proof further showed that the government employed permissive security procedures in connection with the “El Rukn” inmate' witnesses’ pretrial visits to the U.S. Attorney’s Office, as well as with interaction with outside visitors who came to the MCC and the U.S. Attorney’s Office. These indulgent policies were not only undisclosed benefits provided to the witnesses, but also helped make the inmate witnesses’ illegal drug use possible.

1.

“Contact” Visits Permitted at the U.S. Attorney’s Office

At the MCC, “contact” visits were prohibited on the 6th floor, where the government’s cooperating El Rukn inmate witnesses were housed, because of the drug problems on that floor. (H. 931-32.) In order to implement the policy, MCC Warden Arthur Beeler in late 1989 had barriers erected in the visiting area of the 6th floor of the MCC to stop “contact” visits by noninmates with the 6th floor inmates.

Before the “non-contact” visiting barriers were erected, Warden Beeler had been notified of the illegal drug use problems on the 6th floor of the MCC. (H. 915-16.) An example of such notification is a June 20,

*1242

1989 Memorandum to Warden Beeler from his assistant Max Nuss which stated as to the 6th floor inmates, among other things, that:

Visits are not supervised for long periods of time, thus permitting inmates and visitors to pass contraband.

* * * * * *

A recent increase in drug use has been detected. (Defendants’ Exhibit Nuss memo of 6/20/89.) (H. 1474-75.)

Warden Beeler testified at the posttriál hearing that he was not aware that “El Rukn” cooperating witnesses were having “contact” visits in the United States Attorney’s Office during the time “contact” visits were not allowed the witnesses at the MCC. (H. 932.)

On April 10, 1989, Harry Evans was caught engaging in a sexual act during a “contact visit” at the MCC with his common law wife Beverly Wordlow (H. 2180-92; 4200-01.) Evans’ visiting privileges at the MCC were consequently revoked. Evans, however, subsequently had “contact” visits with Beverly (H. 2191; 4200-01), in AUSA Hogan’s office inside the U.S. Attorney’s Office. (H. 2198.) Evans was also allowed “contact” visits with Beverly by AUSA Hogan at 230 S. Dearborn (the Kluezynski Federal Building) after Evans told Hogan “my common law wife is scared to come to the MCC.” (H. 2202.)

“John Doe” also provided evidence regarding the contact visits at the MCC'. “John Doe” observed that Hunter, Harris, and other government witnesses were able to obtain access to the visitors’ side of this partition and make physical contact with the female visitors. On several occasions, “John Doe” observed the government’s cooperating witnesses on the floor of the visitors’ side of this partition engaging in sexual contact with the female visitors. “John Doe” describes these events as a regular occurrence, which he defines as occurrences of up to four times per week.

“El Rukn” cooperating inmate witness Eugene Hunter has offered posthearing information concerning the contact visits, though he did not mention this information during his testimony at the posttrial hearings. In an interview with the FBI dated March 19, 1993, Hunter related that he had had sexual relations with his wife during visits with her at the Kluezynski Federal Building. Hunter stated that the sexual contacts with his wife occurred “several times but not over five times” while Hunter was being guarded by ATF agents. (See FBI Interview of Eugene Hunter dated March 19, 1993.)

Cooperating El Rukn witness Jackie Clay also gave information to the FBI regarding contact visits in government offices outside the MCC. According to the FBI’s summary of the March 10, 1993 interview, Clay stated that:

On visits, Clay would meet with either his wife or ex-wife and he would be either left alone in a room for an hour or two with the door closed. When asked, Clay stated that if had wanted to he could have had sex, but he denied doing so. Clay was never advised that he could have sex but rather law enforcement personnel would say have a good visit. The visits would occur in small offices and the law enforcement officers would knock before they came into the room.

(FBI Interview of Jackie Clay dated March 10, 1993.)

More evidence of the special privilege of contact visits provided to the government’s “El Rukn” witnesses was revealed after the 1992 posttrial hearings in the form of a document entitled “EL RUKIN GUARD DUTY REPORT.” (Government’s Filing of January 20,1993; Attached to court’s January 20, 1993 Minute Order.) This document, which was prepared by ATF agents, states in the last paragraph: “Wives are not checked for weapons or contraband prior to

witness contact."

(emphasis added.)

AUSA Hogan in his posttrial hearing testimony denied that contact visits were permitted, testifying that, though visits were allowed, “they [the witnesses] were never allowed any contact.” (H. 241.) Hogan’s testimony was contradicted by the evidence, including that provided by the ATF agents- (H. 4555-56; 4785) and by the witnesses themselves (H. 1614; 2198).

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2.

Lax Security

Any security problems caused by the “contact visits” were exacerbated by the lax security measures which characterized the government’s approach to its “El Rukn” inmate witnesses. The posttrial proof showed that the government’s inadequate security methods allowed the inmate witnesses to receive contraband undetected and to transport the contraband, undetected, back into the MCC.

(a)

The "EL RUKIN GUARD DUTY REPORT”

Evidence of the government’s slack approach to security is documented in the “EL RUKIN GUARD DUTY REPORT” (hereinafter “REPORT”), which was disclosed for the first time on January 20, 1993, after the posttrial hearings had concluded. The “REPORT” was written two years earlier in January 1991 by ATF agents involved with pretrial security duties while the “El Rukn” inmate witnesses were at the task force offices on the 39 floor of the Kluezynski Building, presumably for pretrial preparation.

That 1991 REPORT states in part as follows:

El Rukin witnesses have unlimited access to telephone service in Task Force office on 39th floor (long distance, toll, forwarding etc., a dangerous practice for case security and officer safety).

El Rukin witnesses answer Task Force office telephones on 39th floor of the 230 S. Dearborn Federal building. In some instances they answer phone “ATF,” this practice could confuse Federal or State authorities when calling, leading them to believe the person on the other end of the line is an ATF employee, this situation may jeopardize this case, other cases, and officer safety.

& sfc sfr sfe ❖ ❖

Work space for El Rukin witnesses on 39th floor of the 230 S. Dearborn Federal building are not checked periodically for weapons and contraband. Special Agent Jassen found a pair of large scissors in an accessible desk drawer in early January of 1991. El Rukin witnesses offered agents an opportunity to watch pornographic videos from a collection kept in task force work spaces for El Rukin witnesses on 39th floor of the 230 S. Dearborn Federal building. The offer was not accepted but points out that such practice may have been common in the past. (The watching of videos not related to the investigation is wasteful of agent and witness time and may cause problems later in court):

El Rukin witnesses are allowed visits from wives on 39th floor of the 230 S. Dearborn Federal building. Wives are not checked for weapons and contraband prior to witness contact (the practice could be dangerous for agents and may be a wasteful practice).

(Government’s Filing of January 20, 1993.)

Although the government has. argued that the descriptions advanced in the report are inaccurate, the government objected to reopening posttrial hearings so the statements in the REPORT could be fully explored. Therefore, the authors of the REPORT were never subject to examination under oath before this or any other court. Unlike the government’s after-the-fact explanations and excuses for its nondisclosure 'of the REPORT, the REPORT was written to provide information to ATF Supervisors, not argue the government’s position in response to a court order.

(See

January 20, 1993 Minute Order.) Since the REPORT was a contemporaneous account which was created in a context free of incentives for inaccuracy or untruthfulness, the court credits the information provided in that government document.

The REPORT makes it clear that the “contact” visits in the U.S. Attorney’s Office with women who were said to be the witnesses’ common-law wives (H. 243), girlfriends

33

and, as to Evans, his mother,

34

(H. 239)

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provided ample opportunity for the transfer of illegal drugs to the government’s cooperating inmate witnesses, especially in light of the government’s lax security. (H. 212; 4785-86; 4790; 4793-99.) For example, no pat-down search was made of any female visitors’ clothing before the “contact” visits unless a female ATF agent was present. (H. 212; 1559-60; 2188.) The presence of female ATF agents was apparently a rare occurrence since neither AUSA Hogan (H. 193-94) nor any other witness at the hearing named any female ATF agent as being present to check the visitors before the “contact” visits. (H. 1545-48.) The REPORT,

supra,

clearly stated

“Wives are not checked

for weapons or contraband prior to witness contact.” (emphasis added.) Furthermore, some of these visits in the U.S. Attorney’s Office were behind closed doors. (March 9, 1993 Memorandum of IRS Special Agent Balundis attached to Government’s Submission of Additional Evidence filed March 12, 1993.)

The two-page REPORT was clearly known to and in the government’s possession during all the “El Rukn” trials and the posttrial hearings. It was not provided to any defense counsel or any court during that period.

(b)

Lax Security Shown By “El Rukn” Witnesses’ Undetected Smuggling of Contraband Items from the U.S. Attorney’s Office into the MCC

AUSA Hogan testified at the posttrial hearing that tight security measures were in place when the “El Rukn” inmate witnesses were in the U.S. Attorney’s Office. According to Hogan, “the agent was always present ... never more than steps away. If they spent ten hours in my office, there was an agent sitting at the door.” (H. 242.)

This testimony was clearly contradicted by several facts, most telling of which were the circumstances surrounding the government “El Rukn” inmate witnesses’ theft, from Hogan’s office, of AUSA Hogan’s preindictment prosecution memorandum and other materials relating to the “El Rukn” cases.

(See

Defendants’ Exhibit Hunter Confiscation Memo.) (H. 1227; 1743-45; 2331-42.)

In September of 1989, before the October 26, 1989 “El Rukn” indictments were returned by the Grand Jury, the government’s “El Rukn” inmate witnesses took these materials from Hogan’s office, transported them back to the MCC and disseminated them to other “El Rukn” witnesses.

35

Apparently, no government security personnel saw the government’s “El Rukn” witnesses in Hogan’s office stealing the prosecution materials. The court must conclude that the witnesses were unguarded at the time, contrary to the testimony of Hogan and “El Rukn” Task Force ATF Special Agents Wolfe and O’Brien. (H. 4554-55; 4786-87.)

Moreover, no one detected the “El Rukn” inmate witnesses smuggling the materials out) of the U.S. Attorney’s Office, so there must not have been any effective procedure to detect what the “El Rukn” inmate witnesses had-received or possessed as they left the U.S. Attorney’s Office. Furthermore, no one intercepted the “El Rukn” inmate witnesses when they smuggled the stolen, prosecution materials into the MCC before the indictment was returned. The materials were discovered by Hogan to be missing and were later found in the cells of several “El Rukn” inmate witnesses. (Defendants’ Exhibit Hunter Confiscation Memo; H. 1743-45; 2331-42.)

Another instance demonstrating the government’s poor security on the “El Rukn” inmate witnesses while outside the MCC, was the smuggling of a contraband substance, referred to as “Ex Lax,” from the U.S. Attorney’s Office into the MCC on December 10, 1991. Government “El Rukn” witness Ervin Lee was the recipient of the “Ex Lax” contraband substance at the MCC. He told Luchetta on the telephone to hide the substance in Hunter’s “legal papers.” (Defendants’ Exhibit Lee Tape.) Lee later admit

*1245

ted that: “He and other witnesses would get cigarettes

36

into the MCC by that method.” (Lee Interview in Government’s Submission of Additional Discovery filed March 12,1993.) This incident clearly illustrated how easily the government’s “El Rukn” witnesses could and did transport contraband substances from the U.S. Attorney’s Office in the Dirk-sen Building into the MCC.

Neither of these “smuggling” incidents, which corroborate the defense position that the “El Rukn” witnesses were not only using illegal drugs but were obtaining the drugs while in the U.S. Attorney’s Office, were revealed by the government until well into the posttrial hearing before this court. The facts of both situations conclusively proved that the government’s “El Rukn” witnesses could smuggle contraband substances and stolen government documents from the U.S. Attorney’s Office into the MCC without detection.

3.

Contact Visits and Lax Security Contributed to Drug Acquisition, Possession and Use

The statement of “John Doe” read at the posttrial healings, as well as the subsequent FBI interview of “John Doe,” provide undisputed direct evidence that Harris and Evans obtained illegal drugs during contact visits at which inadequate security measures were employed. “John Doe,” whom the government concedes to be credible, personally witnessed the contact visits and accompanying drug exchanges at the MCC. In his interview with the FBI, Doe said that he learned from Harris, Evans and Hawkins that the cooperating “El Rukn” inmate witnesses were able to obtain drugs from visitors while at the U.S. Attorney’s Office. (Transcript of Proceedings of May 14, 1993, pp. 45-46.) Also, in his interview with the FBI on March 10, 1993, Jackie Clay stated that Harry Evans told him that he could get drugs on either a visit at the MCC or at the U.S. Attorney’s Office.

37

These witnesses’ evidence regarding the procurement of drugs through the contact visits merely confirms the inference raised by other known facts. In light of the showing that the witnesses used drugs, that they were permitted to have unsupervised contact visits, and that the security procedures in place were insufficient to stop the transportation of contraband to the MCC, the most obvious conclusion to draw is that the illegal drugs were given to the witnesses during the visits.

B.

Telephone Services for the “El Rukn” Witnesses Through U.S. Attorney’s Office

The government also provided its El Rukn inmate witnesses with substantial benefits relating to telephone use. Not only did the witnesses “have unlimited access to telephone service in Task Force office on 39th floor” at 230 S. Dearborn, the Kluczynski Federal Building, as stated in the EL RU-KIN GUARD DUTY REPORT, the personnel of the U.S. Attorney’s Office provided the government’s “Él Rukn” cooperating inmate witnesses free access to the-U.S. Attorney’s telephone lines (H. 3224-25) and free call forwarding services on 'a regular basis (H. 2526-31), whenever the government’s “El Rukn” inmate witnesses were at the MCC. Neither the court nor defense counsel were apprised of these facts.

38

Under the procedures at the MCC, every phone call made by an inmate from the MCC is a collect call. Therefore, the party receiv

*1246

ing and accepting the call must pay the charge. Anytime an “El Rukn” cooperating inmate witness desired to make a phone call from the MCC to anyone anywhere, all he had to do was call a member of the “El Rukn” prosecution team at the U.S. Attorney’s Office.

Routinely, the cooperating “El Rukn” inmates’ collect calls were accepted and the call was paid for by the government. (H. 3817.) Following that, as part of the routine, if the “El Rukn” witness desired to speak to anyone (even long distance), the call was forwarded or “patched through” by the U.S. Attorney personnel to whomever the “El Rukn” cooperating inmate witness desired, again at government expense. This was done “numerous times” for the “El Rukn” inmate witnesses. (H. 2343.)

(See e.g.,

Defendants’ Exhibit Hunter Tape.)

U.S. Attorney’s Office personnel in this case provided this benefit upon the request of the government’s “El Rukn” inmate witnesses several times a week for years. This was a service not available to other inmates housed.at the MCC. Moreover, it was not a service provided by all the Assistant U.S. Attorneys who prosecuted “El Rukn” cases. For example, AUSA John Podliska, an experienced prosecutor, who was one of AUSA Hogan’s predecessors on the “El Rukn” investigation (H. 65-66), and who tried the 1987 ease in which El Rukn leader Jeff Fort and other El Rukn members were convicted,

United States v. Jeff Fort, et al, 86

CR 572 (N.D.I11.), never provided such benefits to any witness. QEL 3348.)

The evidence of the telephone privileges is especially troubling when viewed together with .the proof of the government’s “El Rukn” inmate witnesses’ drug use. In light of the evidence indicating that the witnesses received drugs from outside sources, the court can only infer that the “El Rukn” cooperating inmate witnesses utilized their telephone privileges to contact their illegal drug suppliers at taxpayer expense. An example of this type of occurrence appears in a January 28, 1992 telephone call from the MCC in which Harry Evans complained about the poor quality of the cocaine he had recently received.

(See

Government’s Filing of February 19, 1993.)

C.

AUSA Hogan’s Intercession With MCC Officials for the El Rukn Witnesses

AUSA Hogan interceded with the MCC

numerous

times

on

behalf of the

government’s

cooperating inmate witnesses on a variety of topics dealing with the inmates’ comfort and “everyday occurrences at the MCC.” (H. 428.) The witnesses knew they could call AUSA Hogan “and complain about certain things at the MCC” (H. 264; 352-56), and Hogan would talk to MCC personnel on the witnesses’ behalf.

Id.

Hogan interceded for the “El Rukn” witnesses on such things as their food, their phone calls, their recreation time, their showers and them job assignments. (H. 428.)

“John Doe” was told by Hunter, Harris and other cooperating government witnesses that AUSA Hogan had made efforts to intercede with the Warden of the MCC, at the request of the government witnesses, on topics involving the quality of food and other jail amenities. The cooperating witnesses stated that the Warden of the MCC was irritated by the efforts of AUSA Hogan to intercede on such topics, and that Hogan thereafter declined to contact the - Warden at the request of the cooperating witnesses.

39

(H. 4709-10.)

*1247

AUSA Hogan knew several MCC personnel he could and did contact on behalf of the “El Rukn” inmate witnesses. For example, Hogan telephoned Hafer and complained about Harris’ June 27,1991 disciplinary hearing. (H. 4828-30.) According to Harris, he never served the sanction imposed by the disciplinary officer at the June 27,1991 disciplinary hearing. Harris testified that a few days after the hearing (presumably also after Hogan’s phone call) “Mr. Hafer said he would remove all disciplinary reports” [and] “that he would remove any disciplinary forms that would hinder me at parol time from making parol.”

40

(H. 1528-29.)

The assistance which AUSA Hogan provided for the El Rukn witnesses is significant for a number of reasons. As an initial matter, Hogan’s interventions on behalf of the witnesses constituted benefits conferred which were not disclosed to the defense. Secondly, Hogan’s attempts to influence officials at the MCC had the effect of loosening discipline and therefore contributed to the permissive atmosphere which facilitated the illegal drug use of the “El Rukn” inmate witnesses.

Finally, the evidence establishes Hogan’s concern and involvement with the day-to-day aspects of the witnesses’ .lives and demonstrates that an open and readily used channel of communication existed between Hogan and the cooperating inmate witnesses. These facts undermine Hogan’s repeated assertions that he was oblivious to the witnesses’ improper activity or the disciplinary proceedings that resulted from their drug use.

D.

Other Undisclosed “Benefits”

The posttrial hearings revealed, for the first time several other undisclosed benefits received by the government’s “El Rukn” witnesses from the U.S. Attorney’s Office personnel. The totality of benefits reflect the extraordinary effort of the government personnel to maintain the “good will” of the “El Rukn” witnesses.

1.

Sundry Items Provided to the Witnesses

The United States Attorney’s Office personnel and ATF personnel on the “El Rukn” case provided the government cooperating witnesses sundry items such as cigarettes (H. 1926; 4795) as the “El Rukn” witnesses desired. Harris and Lee were also given beer.

41

(Defense Exhibit Hunter Transcript, p. 49; ■ Government’s Filing of February 19, 1993, attachment pp. 2 and 8.) Harris’ beer was provided him by U.S. Attorney paralegal Luchetta while the “El Rukn” prosecution team was celebrating the convictions obtained in the “El Rukn” trial before Judge Mills. (Defendants’ Exhibit Hunter Tape; Transcript, p. 49.) This “benefit” of providing beer to the “El Rukn” inmates is illegal,

42

and was not revealed to the defense until this court, in December 1992, ordered the disclosure of the December 17, 1991 tape-recorded conversation between Luchetta and “El Rukn” inmate Hunter.

Id.

Additionally, the government provided its “El Rukn” witnesses several hundred dollars in clothing, cash, gifts and other items, such as. a camera and “Walkman” radios,

43

which had been obtained by government personnel at the request of the “El Rukn” witnesses or given to them at government expense. These items, though known by the government at the time of the

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trial and at the time of the 1992 posttrial hearings, were only revealed for the first time three months after this court’s posttrial hearings ended.

(See

Government’s Additional Discovery filed

*1248

March 12, 1993 and Government’s Submission of Additional Discovery filed March 31, 1993.) (H. 3847.)

2.

U.S. Attorney’s Office Paralegal Coñuda Luchetta

Certain special benefits were also conferred on certain “El Rukn” cooperating inmate witnesses through the improper conduct of U.S. Attorney’s Office paralegal Corinda Luchetta. During a December 17, 1991 phone conversation Ms. Luchetta had with inmate witness Eugene Hunter, which was tape recorded pursuant to the routine procedures of the MCC, Luchetta willingly engaged in an intimate, sexually explicit conversation with Hunter. In the conversation, Luchetta gave descriptions of sexual fantasies at Hunter’s request. Hunter reciprocated. The two of them discussed various other personal subjects. (Defendants’ Exhibit Hunter Tape; H. 2554-2557.) The taped phone conversation demonstrates that Ms. Luchetta’s relationship with witness Hunter was inconsistent with the type of professional detachment expected of any personnel in a U.S. Attorney’s Office. (H. 1875; 2334.)

The tape recording of a phone call that took place on December 10, 1991 (Defendants’ Exhibit Lee Tape) provides additional evidence of further improper conduct by paralegal Luchetta and benefits provided to another “El Rukn” inmate witness, Ervin Lee. The December 10, 1991 phone call, which occurred one week before the taped conversation with Hunter, shows that Luchetta, at the request of Lee, provided a contraband which Luchetta and Lee. referred to as “Ex-Lax” to government inmate witness Hunter. He smuggled the “Ex-Lax” into the MCC hidden in “legal papers” also provided by Luchetta. (See Defendants’ Exhibit Lee Tape.)

44

This conduct by Luchetta, which was not revealed until the posttrial hearing, is relevant to the issues before the court for a number of reasons. Ms. Luchetta’s sexual banter with Mr. Hunter, her improper act of providing “an alcohol beverage” to an inmate in apparent violation of 18 U.S.C. § 1791 , and her improper act of providing the contraband to an inmate also in apparent violation of 18 U.S.C. § 1791 , were instances of more benefits provided to the “El Rukn” cooperating witnesses. (H. 3825-30.) Moreover, evidence exists that the benefit of providing the contraband “Ex-Lax” conferred by Luchetta may have facilitated the “El Rukn” witnesses’ illegal drug use. The May 3, 1993 FBI interview of “John Doe,” indicates that the “El Rukn” inmate witnesses’ use of the laxative Ex-Lax related to their illegal drug use. According to “John Doe”:

Females [visitors to the MCC] [would] provide Harris and Evans drugs in condoms and balloons. These individuals would immediately swallow the condoms or balloons then request “Ex Lax” in order to quickly pass the condoms and/or balloons.

(Transcript of Proceedings of May 14, 1993, p. 45.)

When the upper-level supervisors in the United States Attorney’s Office, including then United States. Attorney Foreman, learned of the taped phone conversations in December 1991, they took no meaningful action and imposed no meaningful discipline. Although paralegal Luchetta was threatened with termination, she was not discharged, suspended, demoted or even transferred to another assignment. She remained active on the “El Rukn” cases up to the time she asserted her Fifth Amendment rights at the posttrial hearings in December 1992.

Moreover, no serious investigation into other possible misconduct by Luchetta was made.

45

After paralegal Luehetta’s inappro

*1249

priate conduct became known to the officials in the U.S. Attorney’s office, including then U.S. Attorney Foreman, Ms. Luehetta received two “merit” salary increases within the U.S. Attorney’s Office totalling several thousand dollars. She was also given travel authorization and reimbursed expenses, in October 1992 to visit and confer with Henry Harris at his place of confinement just before the posttrial hearings were to begin. (H. 3958-60.)

Moreover, contrary to Department of Justice policy set forth in the United States Attorney’s Manual, then U.S. Attorney Foreman provided no notification to the Office of Professional Responsibility of the Department of Justice of Luchetta’s misconduct.

46

Providing the only explanation offered at the posttrial hearing as to the U.S. Attorney’s Office’s inadequate response to the incidents involving paralegal Luchetta’s conduct, executive AUSA Nancy Needles testified that the failure to discipline or discharge paralegal Luehetta occurred “because we all did a terrible job in following up.” (H. 4495.)

DISCUSSION AND APPLICATION OF THE LAW

I.

UNITED STATES ATTORNEY’S RESPONSIBILITY TO JUSTICE

More than fifty years ago the United States Supreme Court articulated the re-. sponsibility each United States Attorney has to the system of justice in this country:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern- at all; and whose interest,-therefore, in a criminal prosecution is not that it shall win a ease, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may' strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States,

295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935). Adherence to this standard by United States Attorneys is essential to the proper administration of justice.

47

When prosecutors fail to fulfill their obligations under the law, justice suffers:

At the time government counsel made the pretrial representations, quoted at pp. 1222-1223,

supra,

that they would “honor” their obligations under

Brady

and

Giglio ,

govern

*1250

ment counsel knew that Evans and Harris had used illegal drugs. Government counsel concealed that information and allowed the drug use to continue unchecked. Government counsel also concealed the various benefits the government provided its cooperating “El Rukn” inmate "witnesses. All of this information should have been disclosed to defendants’ counsel before the

Burnside

trial.

Government counsel’s conduct fell below that required by the prosecutorial standards articulated by the Supreme Court in

Berger ,

as well as the standards promulgated by the American Bar Association and the United States Department of Justice.

48

Improper prosecutorial conduct such as shown in this case should not be condoned or tolerated. Under the law, these prosecutorial improprieties, however, do not require a new trial or other sanctions unless the improper prosecutorial acts resulted in a constitutional deprivation of the criminal defendants’ due process rights.

See United States v. Hasting,

461 U.S.. 499, 505-10, 103 S.Ct. 1974, 1978-81 , 76 L.Ed.2d 96 (1983).

II.

SUPREME COURT’S ARTICULATION OF THE GOVERNMENT’S CONSTITUTIONAL OBLIGATIONS

Thirty years ago, the Supreme Court held in

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) that due process requires the prosecution to provide the defense upon request any evidence favorable to the accused which is material either to guilt or to punishment.

Id.

at 88 , 83 S.Ct. at 1197 . Over twenty years ago, in

Giglio v. United States,

405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972), the Supreme Court held that the government’s

Brady

obligation to provide evidence to the defense encompasses evidence affecting a government witness’ credibility. 405 U.S. at 154 .

The Supreme Court in

Giglio

also stated that the

Brady

obligation extended beyond the mere knowledge of the trial prosecutor.

Id.

In

Giglio ,

a prosecutor, other than the one who tried the case, had made a promise of immunity to the key government witness. The. promise of immunity was not disclosed to Giglio’s counsel and Giglio was convicted. The Supreme Court reversed the conviction.

In its opinion in

Giglio ,

the Supreme Court explicitly imposed upon the government the obligation to disclose impeaching information of which government personnel are aware, even though the information is not known to the prosecutors personally involved in the trial of the case. The Supreme Court commented:

To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.

405 U.S. at 154 , 92 S.Ct. at 766 . Consequently, for over twenty years the prosecutors in large U.S. Attorney’s Offices, such as the one here in Chicago, have had the responsibility to establish and implement appropriate “procedures and regulations” to ensure that the

Giglio

mandate is fulfilled in every case.

Eight years ago in

United States v. Bagley,

473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), the Supreme Court reaffirmed that the prosecutorial duty of disclosure under

Brady

included the duty to disclose impeaching evidence, which in

Bagley

were contractual agreements signed by the government’s principal witnesses stating that the Government would pay money to the witness commensurate with the information furnished during an undercover operation.

Id.

at 671 , 105 S.Ct. at 3378 .

The Supreme Court in

Bagley

rejected the Court of Appeal’s determination that

*1251

the government’s failure to disclose the

Brady

information required automatic reversal.

Id.

at 674, 105 S.Ct. at 3379 .. The Supreme Court went on to articulate the single standard for the determination whether the withheld evidence which should have been disclosed to the defense under

Brady

or

Giglio

was material and, therefore, required a new trial. The Supreme Court in

Bagley

stated:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.... A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.

Id.

at 682 , 105 S.Ct. at 3383 (citation omitted).

In

Bagley ,

the Supreme Court quoted

Berger v. United States,

295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935) regarding the prosecutorial duty to make disclosures pursuant to

Brady

and stated that “the prosecutor’s role transcends that of an adversary.” 473 U.S. at 676 n. 6, 105 S.Ct. at 3380 n. 6. Consequently, the law is clear that the failure of any U.S. Attorney or any Assistant U.S. Attorney to abide by the standards of conduct expected pursuant to the Supreme Court’s opinion in

Berger

for the disclosure of material under the-constitutional doctrine articulated in

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) and its progeny can, if warranted by the factual circumstances, rise to the level of a constitutional due process violation.

III.

PROOF OF A CONSTITUTIONAL VIOLATION

The rule compelling government disclosure discussed by the Supreme Court in the

Brady, Giglio

and

Bagley

opinions is based upon the constitutional doctrine requiring due process of law in the administration of criminal justice. To prove a constitutional due process violation resulting from the government’s failure to make a proper disclosure under

Brady ,

a defendant must establish three elements: (1) that the prosecution suppressed the evidence; (2) that such evidence was favorable to the defense; and (3) that the suppressed evidence was material.

See, Moore v. Illinois,

408 U.S. 786, 794-95 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972);

United States v. Jackson,

780 F.2d 1305, 1308 (7th Cir.1986). The court will address-each of these requisite elements individually and the evidence in this case applicable thereto.

A.

The Prosecution Suppressed the Evidence

Information of the government’s cooperating “El Rukn” inmate witnesses’ continuing drug use and their receipt of government supplied benefits first became known to defense counsel at the posttrial hearings. This impeaching evidence was not disclosed before or during the

Burnside

trial.

The government’s failure to disclose this impeaching evidence, however, does not end the inquiry. The fact that

Brady

material was not disclosed by the government does not automatically mean it was “suppressed” by the government. As the government points out, if the government had no knowledge of undisclosed

Brady

material at the time of a defendant’s trial, then the government could not be held to have suppressed that

Brady

material.

See e.g., United States v. Lockhart,

956 F.2d 1418, 1425 (7th Cir.1992). The posttrial evidence shows, however, that the government personnel had knowledge of the impeaching evidence at the time of the

Burnside

trial.

1.

Government Personnel had Knoivledge of the Undisclosed Brady Material

The government in its posttrial Brief in Opposition to Defendants’ Motion for a New Trial contends that the members of the “prosecution team” were unaware of the undisclosed

Brady

material. This argument is set forth as the government’s primary argument in the first paragraph of the “Introduction” section on the first page of the “Government’s Brief in Opposition to Defendants’ Motion for New Trial” filed March 22, 1993. It is quoted below

49

and is both factually and legally erroneous.

*1252

The posttrial evidence established that a substantial amount of

Brady

material, which was not disclosed before or during the

Bum-side

trial, was known personally to the trial •prosecutor, AUSA William Hogan. Further, the same and other

Brady

information was known to other U.S. Attorney’s Office personnel. Additionally,

Brady

information was also known to the ATF case agents, the Chicago police officers working on the case, the MCC’s Warden, and other government personnel who were involved with the “El Rukn” cases as a result of their responsibilities in dealing with the government’s cooperating “El Rukn” inmate witnesses.

The knowledge of these government employees, as well as knowledge of facts that were readily available to government personnel, is imputed to the government under the law. Further, facts government personnel would have discovered had they pursued a rudimentary investigation are also considered known to the government for purposes of

Brady .

Also known to the government were facts constituting the “tip of the iceberg” of

Brady

information which might have been discovered by the defense if the facts concealed by the government had been disclosed. The legal authority which forms the basis of the court’s conclusions on these subjects is discussed below.

(a)

AUSA Hogan had Personal Knowledge of the Undisclosed Brady Material

It is beyond dispute that facts known to the lead prosecutor in a trial are “known” to the government for purposes of

Brady. As

previously discussed, the evidence presented posttrial shows that AUSA William Hogan, lead prosecutor in the

Burnside

trial, had personal knowledge of the facts that cooperating government witnesses were using illegal drugs, and did not disclose those facts to the defense.

AUSA Hogan twice received documentation of the 1989 positive drug test results showing Harris’ and Evans’ illegal drug use — once in 1989 (Defendants’ Exhibit Rosenthal Memorandum) and once in 1991 (Defendants’ Exhibit Mildner Memorandum). He disclosed neither of the two memoranda nor any of the information they contained to the

Burnside

defense counsel.

Further, AUSA Hogan discussed the 1989 drug tests with then AUSA Rosenthal. Also, AUSA Hogan was told by his superior AUSA Ira Raphaelson about the MCC’s Warden’s “concerns of contraband coming to the El Rukns.” (H. 1231-32.) Additionally, the posttrial evidence showed that AUSA Hogan was told multiple times by government cooperating “El Rukn” inmate witnesses Jackie Clay and perhaps other witnesses

50

of Harris’ and Evans’ illegal drug use. Hogan was also told by the ATF case agents there were “rumors” of the “El Rukn” inmate witnesses’ illegal drug use.

The evidence presented posttrial points to the fact that AUSA Hogan knew of the government’s witnesses’ continuing, illegal drug use at the time of the

Burnside

trial and before. The government’s Brief in Opposition, however, ignores these facts which establish Hogan’s personal knowledge of the continuing, illegal drug use by the government’s “El Rukn” inmate witnesses.

Additionally, AUSA Hogan was aware of the substantial, undisclosed benefits provided to the government’s witnesses and failed to disclose that information as weE. Hogan personally interceded on the witnesses’ behalf with MCC officials. He personaEy allowed the “El Rukn” witnesses access to

*1253

government telephone phone lines. He personally allowed the witnesses to use offices under his control for contact and conjugal visits. Further, he allowed the “El Rukn” witnesses to continue their illegal drug use after he became personally aware of it. All of this information was known to the government for purposes. of

Brady

and was not disclosed to the defense in the

Burnside

trial, (b)

Other U.S. Attorney’s Office Personnel

had Knowledge of Undisclosed Brady Material

Even if AUSA Hogan had not been as aware of the undisclosed

Brady

material as the posttrial evidence proves he was, the fact that other U.S. Attorney’s Office personnel were aware of the

Brady

material makes knowledge of the

Brady

material attributable to the government under the precise holding in

Giglio'.

In

Giglio ,

the Supreme Court stated that ignorance by the trial prosecutor does not excuse a

Brady

violation if the

Brady

material is known to others in a U.S. Attorney’s Office.

Giglio,

405 U.S. at 154 , 92 S.Ct. at 766:

The application of this well-established principle of the

Giglio

decision means that knowledge of the October 18, 1989 memorandum of Harris’ and Evans’ positive drug tests (Defendants’ Exhibit Rosenthal Memorandum), which the U.S. Attorney’s Office received, is imputed to the government for purposes of

Brady .

Additionally, the knowledge of First Assistant Raphaelson of the drug problems on the sixth floor of the MCC was known by the government. Further, knowledge of U.S. Attorney’s Office paralegals Luchetta and Van Blake is imputed to the government.’ This includes Luchetta’s knowledge of Harris’ refusal to take a drug test on May 30, 1991, her knowledge of the benefits which she provided to the “El Rukn” inmate witnesses, and Van Blake’s knowledge of Henry Harris’ admission of his illegal drug use.

Under the

Giglio

decision, knowledge of any benefits which any U.S. Attorney’s Office personnel provided to the “El Rukn” witnesses, such as the telephone services or the sundry items and gifts, is also imputed to the government for purposes of

Brady ,

because of the obligation the Supreme Court established in

Giglio

on U.S. Attorney’s Offices “to insure communication of all relevant information on each case to every lawyer who deals with it.” 405 U.S. at 154 , 92 S.Ct. at 766.

(c)

Other Government Personnel Had Knowledge of Undisclosed Brady

"

Material

In addition, even if none of the personnel in the U.S. Attorney’s Office had been as aware, as they were, of the undisclosed

Brady

material, the fact that the ATF agents and the Chicago police officers who were part of the “El Rukn” task force'working on the “El Rukn” cases were aware of the

Brady

material makes knowledge of the

Brady

material attributable to the government for

Brady

purposes.

This conclusion is supported by the Seventh Circuit’s decision in

United States ex rel. Smith v. Fairman,

769 F.2d 386 (7th Cir.1985).1 In

Smith,

the Seventh Circuit affirméd the district court’s decision granting a habeas corpus petition. The Seventh Circuit held that a state prosecutor’s ignorance of the withheld

Brady

material did not justify the nondisclosure of the

Brady

material which had been' known to a police ballistics expert, but which was not included in the official report the expert prepared and provided to the prosecutor. The Seventh Circuit stated:

We believe that the purposes of

Brady

would not be served by allowing material exculpatory evidence to be withheld simply because the police, rather than the prosecutors, are responsible for the nondisclosure.

See Carey v. Duckworth,

738 F.2d 875, 878 (7th Cir.1984) (“a prosecutor’s office cannot get around

Brady

by keeping itself in ignorance, or compartmentalizing information about different aspects of a case.”)

Id.

at 391-92.

In this case, “El -Rukn” task force agents working with the prosecutors permitted the “El Rukn” cooperating witnesses to have contact visits with visitors at government offices. These same agents employed the lax security procedures which allowed the passing of contraband to the government’s witnesses to occur. The application of the prin

*1254

ciple articulated by the Seventh Circuit in

Smith

means that knowledge of the contact visits and lax security arrangements, which were permitted by “El Rukn” task force personnel who were working with the prosecutors in this case, is imputed to the government for purposes of

Brady .

(d)

Brady Evidence was “Readily Available” to the Prosecution Which Imputes Knowledge for Brady Purposes

In the case at bar, even if none of the U.S. Attorney’s personnel nor the federal agents nor the police officers had been as aware of the undisclosed

Brady

material as they were, knowledge of the information would still be attributed to the government for

Brady

purposes since much of the undisclosed

Brady

material was possessed by the Warden and other personnel in the MCC

51

in Chicago and was. “readily available” to the U.S. Attorney’s Office for the asking.

See e.g. United States v. Perdomo, 929

F.2d 967, 970-71 (3rd Cir.1991) (U.S. Attorney’s failure to disclose federal government’s witness’ state criminal record was held to be a

Brady

violation even though the information was not possessed by the U.S. Attorney because the information was “readily available” to the U.S. Attorney’s Office from local authorities).

In

United States v. Deutsch,

475 F.2d 55 (5th Cir.1973), the U.S. Attorney’s failure to provide a personnel file of a U.S. Post Office employee who was a key prosecution witness in an attempted bribery ease was held to be a

Brady

violation. The Fifth Circuit stated:

[T]here is no suggestion in

Brady

that different “arms” of the government, particularly when so closely connected as this one for the purpose of the case, are severable entities. And, of course, the

Brady

rule requires the government to supply evidence useful to the defendant simply for impeachment purposes.

Giglio v. United States,

1972, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 .

Id.

at 57 (footnote omitted).

Several Bureau of Prisons’ records showing that Harris’ and Evans’ positive drug tests were not authorized, such as the MCC Urine Surveillance Log and related documents, were readily available to the U.S. Attorney’s Office, as were the disciplinary records showing that Harris had admitted his illegal drug use. The disciplinary records regarding Harris’ refusal to take a drug test on May 30, 1991 during the

Bingham

and

Boyd

trials were likewise readily available to the U.S. Attorney’s Office personnel who had knowledge of the events but who neither investigated nor disclosed the information,

(e)

Government Required By Brady to Inquire Further Into Facts

Brady

does not require the government to make its files available for review based upon the defense’s speculation that the files may contain evidence favorable to the defense.

See e.g., United States v. Pou,

953 F.2d 363, 365-67 (8th Cir.1992);

United States v. Davis,

752 F.2d 963, 976 (5th Cir. 1985). Yet, under the circumstances of this case, where the facts which were known by the prosecution should have prompted further investigation,

Brady

mandates the inquiry. If government prosecutors, who are in the best position to know and learn the true facts, can merely look the other way and ignore known facts rather than conduct an examination which is warranted by those known facts, fundamental fairness and due process are easily dashed.

i.

Brady requires inquiry

In

United States v. Brooks,

966 F.2d 1500 (D.C.Cir.1992), the United States Court of Appeals for the District of Columbia discussed what it determined to be the underlying reasoning of the decisions by the Third, Fifth and Seventh Circuits which found

Bra

*1255

dy

violations to have resulted from a prosecutor’s unknowing failure to disclose information possessed by other governmental entities, and stated:

We suspect the courts’ willingness to insist on an

affirmative duty of inquiry

may stem primarily from a sense that an inaccurate conviction based on government failure to turn over an easily turnéd rock is essentially as offensive as one based on government non-disclosure.

Id.

at 1503 (emphasis added).

In the

Brooks

case, defendant Brooks had been convicted by a jury oh various drug charges in Washington, D.C. The D.C. trial judge thereafter granted a new trial. After the first trial, but before the second, the government’s chief witness against Brooks, D.C. police officer Christie Hoyle, was fatally shot with her own service revolver án the apartment of fellow D.C-. police officer David Rowland. He was later charged with Hoyle’s death after the second

Brooks

trial. 966 F.2d at 1501-02 .

Before the second

Brooks

trial, Brooks’ lawyer sought to secure or have the court examine, any D.C. police department files relating to officer Hoyle and the circumstances of her death. At the second trial, the trial judge reviewed

in camera

Hoyle’s police department personnel file and found no

Brady

material. The prosecution did not furnish any other police files relating to Hoyle’s death, such as any homicide investigation file or police “Internal Affairs Division” file. The trial prosecutor, in opposing the defense request, mischaracterized the record, contending, in essence, that such files did not exist.

Id.

The transcript of the testimony Hoyle had provided at the first

Brooks

trial was admitted in evidence pursuant to Federal Rule of Evidence 804(b)(1) at the second trial. Brooks was again convicted.

On appeal from Brooks’ second trial, the Court of Appeals for the D.C. Circuit remanded the case stating:

On remand, the district court should require the U.S. Attorney’s Office to do what it should have done earlier: to review (or have, a suitably responsible person in the Metropolitan Police Department review) any homicide and any Internal Affairs Division files of the. [Police] Department that may contain material exculpatory information (undermining the credibility of Hoyle either as a general matter or with special reference to this case).

966 F.2d at -1504.

The D.C. Circuit, in concluding that a duty to search the undisclosed police department files existed under the

Brady

doctrine, noted:

In extending the

Brady

duty to searches for' evidence, the 5th Circuit framed the matter as one of incentives-for the government, arguing that without the extension “we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government.”

United States v. Auten,

632 F.2d 478, 481 (5th Cir.1980). The 7th. Circuit has sounded a similar note, warning that “a prosecutor’s office cannot get around

Brady

by keeping itself in ignorance, or compartmentalizing information about different aspects of a ease.”

Carey v. Duckworth,

738 F.2d 875, 878 (7th Cir.1984). The 3rd Circuit, while following the 5th Circuit’s

Auten

decision, did not refer to incentives directly, although its observation that the U.S. Attorney’s failure to check an obvious database for a key witness’s criminal conviction “amounted to conduct unworthy of the United States Attorney’s Office”,

United States v. Perdomo,

929 F.2d 967, 970-71 (3rd Cir.1991), may rest on the same judgment.

966 F.2d at 1502 .

“Keeping itself in ignorance,”

Carey,

738 F.2d at 878 , failing “to turn over an easily turned rock,”

Brooks,

966 F.2d at 1503 , and engaging in “conduct unworthy of the U.S. Attorney’s Office,”

Perdomo,

929 F.2d at 971 , is precisely what the government counsel has done here. Rather than aggressively investigate the multiple indications of illegal drug use they had received, government chose to conceal and ignore the information and, worse yet, to continue to allow practices which facilitated its witnesses’ illegal conduct.

The government could have, and under MCC policy should have, continued drug

*1256

testing for an extended period after Harris’ and Evan's’ positive drug tests in the Spring of 1989. The government did not take this step, but rather ended drug testing after a few months. The government could have insisted on testing Henry Harris after he refused the drug test on May 30, 1991. The government could have tested Harry Evans when prosecutors remarked that he appeared as if he were on drugs. Upon hearing reports of drug use' by the cooperating “El Rukn” inmate witnesses, the government could have investigated by interviewing people who were cooperating government witnesses in other cases who were also living on the MCC’s sixth floor. At the very least, the government, knowing that its inmate witnesses had received and ingested illegal drugs while incarcerated, could have implemented security procedures which would have prevented, impeded or detected its witnesses’ receipt of illegal drugs. The government, however, took none of these steps, any one of which would have led to the further discovery of

Brady

information.

ii.

The government cannot assert the “ostrich” defense

Allowing the'government to absolve itself on the basis of its counsel’s asserted ignorance of the facts — ignorance prompted by the government lawyers closing their eyes to facts which should have prompted them to investigate — would be-akin to allowing criminal defendants to avoid guilty knowledge by means of the “ostrich” defense. Time and time again the government has argued, and the Seventh Circuit has concurred, that when such an “ostrich” defense is presented to a jury, the following language is appropriate to augment the standard “knowledge” jury instruction:

You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed, or that someone had withheld some important fact, yet shut his eyes for fear of what he would learn, you may conclude' that he acted knowingly, as I have used the word.

United States v. Stone,

987 F.2d 469, 470-71 (7th Cir.1993);

United States v. Caliendo,

910 F.2d 429, 433-34 (7th Cir.1990). The same principle applies here to the government counsel’s conduct, which is subject to a higher standard than that applicable to a criminal defendant.

The government’s post-hearing Brief in Opposition ignores the facts which, the government concedes, were known by its personnel at the time of the

Burnside

trial, including: (1) the positive drug test results; (2) the discussions between the MCC’s Warden and the First AUSA; (3) the drug test refusal by Harris; (4) the “rumors” of the witnesses’ drug usage; and (5) the admitted, undisclosed government-bestowed benefits, among others. Although the government personnel were proven by the post-tidal evidence to know additional facts beyond those conceded by the government, the conceded facts alone should have prompted further governmental investigation. • They did not, and the government’s post-trial arguments echo the “ostrich” theme by ignoring any duty to investigate prompted by the known facts.

The thrust of the government’s arguments are that

Brady’s

reach is limited to that evidence which falls in the lap of “the prosecution team” through no effort or inquiry on the part of any prosecutorial personnel. The government contends:

Brady ,

however, applies only to evidence possessed by “the prosecution team,” namely, the prosecutors, other prosecutorial personnel, and investigative agencies over which the prosecutor has authority in a given case. It does not reach information possessed by government agencies that did not participate in the investigation, or by cooperating witnesses. Under

Brady ,

then, the prosecution could not and did not suppress information that was possessed only by BOP, WITSEC or cooperating witnesses. -

(Government’s Brief in Opposition filed March. 22, 1993, p. 2., footnote omitted.)

The government’s Brief, in essence, claims that “the ‘El Rukn’ prosecution team” members had no duty to communicate with the personnel of any other federal agencies, such as the MCC’s Warden or the WITSEC Mar

*1257

shals, with whom the government prosecutors worked closely on a continuing basis and had authority over as related to obtaining information for court.

See United States v. Spagnoulo,

960 F.2d 990, 993-94 (11th Cir. 1992.) The government’s position that government personnel have no duty to inquire, no matter how much the known facts compel the inquiry, is inconsistent with the

Brady

doctrine which requires the government to provide due process.

See United States v. Perdomo,

929 F.2d 967, 971-72 (3rd Cir. 1991).

iii.

The “prosecution team” concept does not relieve the government’s duty to disclose under Brady

The government argues that “the prosecution team” concept justifies its position that the

Brady

material need not have been disclosed. This contention lacks merit. First, as has been previously discussed, government personnel who were members of the “prosecution team” possessed and failed to disclose evidence which was favorable to the defense. Further, the concept that the

Brady

obligation encompassed the entire “prosecution team” was not enunciated as a means by which the government could narrow its

Brady

obligations. The concept was created as a judicial response to erroneous arguments by government counsel seeking to avoid the determination that a

Brady

violation had occurred in instances where the prosecutors’ offices were unaware of suppressed

Brady

evidence

Brady

that was known to other persons involved in the prosecution’s efforts.

For example, in

United States v. Antone,

603 F.2d 566 (5th Cir.1979), the defendant was convicted in a federal prosecution which stemmed from joint, federal-state investigation. A state law enforcement agent paid the attorney fees of the government’s chief witness, Haskew. The fee payment arrangement was not disclosed by the state agent to the federal agents or federal prosecutors on the case. Consequently, it was not disclosed to defense counsel. The government erroneously argued that the state agent’s knowledge of the state’s payments to the witnesses’ attorney should not be attributed to the federal government for

Giglio

purposes. The

Antone

court stated:

In the instant case, extensive cooperation between the investigative agencies convinces us that the knowledge of the state team that Haskew’s lawyer was paid from state funds must be imputed to the federal team. We have little difficulty in concluding that the state investigators functioned as agents of the federal government under the principles of agency law utilized in

Giglio .

The state agents were in a real sense members of the prosecutorial team.

603 F.2d at 570 .

The “prosecutorial team” concept does not, however, relieve the government of its duty to inquire about

Brady

information when the known facts warrant further inquiry into facts readily available. As'the court stated in

United States v. Auten,

632 F.2d 478 (5th Cir.1980):

If disclosure were excused in instances where the prosecution has not sought out information readily available to it, we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government. This we decline to do.

The argument proffered by the government is not new. In

United States v. Deutsch,

475 F.2d 55 (5th Cir.1973), the prosecution contended that it was not in possession of the information requested by the defendant. The information sought was in the files of the United States Postal Service. We noted that the prosecution was not denying that it had access, it merely denied present possession “without even an attempt to remedy the deficiency.”

Id.

at 57 . Finding no suggestion in

Brady

that different arms of the government are such separate entities as.to be insulated one from the other, we remanded

Deutsch

for an examination of the information involved after concluding that the prosecutor was, for disclosure purposes, in possession of the subject information.

See United States v. Trevino,

556 F.2d 1265 (5th Cir. 1977). Recently in

United States v. Antone,

603 F.2d 566, 569 (5th Cir.1979), we cited

Deutsch

as authority for the declara

*1258

tion that we decline “to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.”

632 F.2d at 481 (footnote omitted).

It should never be the law that by maintaining ignorance, the U.S. Attorney’s Office personnel can fulfill the government’s due process obligation when the facts known not only warrant disclosure but should prompt further investigation.

The D.C. Circuit in

Brooks, supra,

expressed the following:

As has proved true of the other aspects of

Brady

jurisprudence, no formula defining the scope of the duty to search can be expected to yield easily predicted results. Where, as here, however, there is an explicit request for an apparently very easy examination, and a non-trivial prospect that the examination might yield material exculpatory information, we think the prosecution should make the inquiry. As the burden of the proposed examination rises, cleai’ly the likelihood of a pay-off must also rise before the government can be put to the effort.

966 F.2d at 1504 . In the case at bar, the government’s burden of investigation was minimal. All that the prosecutors had to do was ask the MCC’s Warden, the WITSEC marshals or the government’s “non-El Rukn” witnesses who were housed at the MCC with the “El Rukn” witnesses.

The problem here was not the availability of sources for thev

Brady

information. The problem was that the U.S. Attorney’s Office personnel did not investigate, did not inquire, and’ did not request further drug testing. Personnel of the U.S. Attorney’s Office had the power, authority and means to obtain much of the

Brady

information the government now disclaims. To draw artificial barriers, based on the government’s self-willed prosecutorial ignorance, would, in this case, encourage “the ostrich” approach, would reward “conduct unworthy of the United States Attorney’s Office,”

Perdomo,

929 F.2d at 970-71 , and would deny the defendants the due process of law which

Brady

'and its progeny were crafted to preserve.

(f)

The Government had an Obligation Under Brady to Disclose Facts Which Constituted the “Tip of the Iceberg”

Even if, contrary to this court’s findings, government personnel did not know the extent of the “El Rukn” cooperating witnesses’ illegal drug use and did not have a duty to inquire into indications of.that illegal drug use, government counsel did have a duty to disclose those indications to the defense, so as to enable defense counsel to undertake the inquiry which the government deliberately avoided.

In

United States v. Shaffer,

789 F.2d 682 (9th Cir.1986), the Ninth Circuit, affirming the trial court’s grant of a new trial pursuant to

Brady ,

reasoned that the duty of disclosure under

Brady

extended not only to the government’s knowledge of concrete exculpatory information, but also to facts from which other exculpatory information could be inferred,

ie.,

facts which could constitute the “tip of the iceberg” of other

Brady

evidence. 789 F.2d at 690-91 .

In

Shaffer ,

the facts which formed the “tip of the iceberg” were indications that the government, by not pursuing a civil forfeiture action against a government witness who had admittedly been involved in the drug trade, tacitly allowed him to keep the proceeds of his drug profiteering in return for his testimony. The Ninth Circuit stated:

The government contends that, because there was no explicit agreement on this matter, it had nothing to disclose. (Citations omitted.) Apparently the government misunderstands the district court’s ruling. While it is clear that an explicit agreement would have to be disclosed because of its effect on Durand’s credibility, it is equally clear that facts which imply an agreement would also bear on Durand’s credibility and would have to be disclosed. (Citation omitted.) Indeed, as the Eleventh Circuit has observed: “If the arguably exculpatory statements of witnesses were in the prosecutor’s file and not produced, failure to disclose indicates the “tip of an iceberg” of evidence that should have been revealed under

Brady. United

*1259

States v. Griggs,

713 F.2d 672, 674 (11th Cir.1983).

This conclusion seems directly applicable to the facts in the instant appeal. The failure to disclose the extent of Durand’s assets is exculpatory material that could indicate the “tip of an iceberg” of a secret deal of leniency.

789 F.2d at 690-91 .

The principles expressed in

Shaffer

and the cases cited therein are also “directly applicable” to the facts of this case. Even if the government was somehow justified in ignoring the multiple indications of witness drug use which it admittedly knew, such as,

inter alia,

the 1989 positive drug tests or Harris’ refusal to be tested, the defense was entitled to this information and to the right to pursue its own investigation. Further, as in

Shaffer ,

the defendants in this case were entitled to know the undisclosed 'facts, such as the government’s lenient security measures, the absence of drug testing and the other benefits, all of which pointed to an implicit and illicit deal between the government and its witnesses. The post-trial evidence revealed a sizable “iceberg” of

Brady

material. The defendants in the

Burnside

trial deserved the opportunity, which was denied them by the government, to discover the full extent of that “iceberg” before they went to trial.

2.

No Other Facts Excuse the Government’s Non-Disclosure of the BradyGiglio Material

In a further attempt to have this court excuse its

Brady

and

Giglio

failures, the government has argued that the defense counsel in the

Burnside

trial could have subpoenaed the information which govérnment counsel had not disclosed. The government has also argued its

Brady

and

Giglio

violations should be excused because the 1991 MCC memorandum showing the positive 1989 drug tests (Defendants’ Exhibit Mildner Memorandum) was put in evidence at the

Andrews

trial before Judge Conlon and was therefore part of the “public record.” Again, the government’s arguments lack merit.

In presenting arguments which blame defense counsel for their failure to obtain the

Brady

materials, the government ignores the pretrial representations it made regarding the government’s promised compliance with

Brady

and

Giglio ,

which were signed by AUSA Hogan and are quoted at pp. 1222-1223,

supra.

These representations stated that the

Giglio

material would be provided to the defense “at a time sufficient to allow the defendant(s) to make adequate use of such evidence.” (Government’s Consolidated Response to Defendants’ Motions for Discovery, filed June 29, 1990.)

The government’s arguments on these points also disregard the facts that the prosecution did more than merely fail to disclose the information or comply with its pretrial representations. Government counsel took affirmative steps to prevent defense counsel from learning of the

Brady

and

Giglio

material by deliberately frustrating “El Rukn” defendants’ lawyers’ attempts to obtain the material through subpoenas. Further, the .government, most specifically AUSA Hogan, deliberately distorted the public record so as to conceal the true facts relating to the

Brady

material.

(a)

Government Counsel Resisted and Did Not Comply with Defense Trial Subpoenas

The government’s argument in its post-trial Brief in Opposition at page 5 that “Defendants Could Have Obtained Evans’ and Harris’ Drug Tests Results with a Subpoena” is spurious in light of the post-trial facts. No trial subpoena served by any defense counsel in any of the “El Rukn” trials which preceded the

Burnside

trial was ever properly complied with. In every instance, the government resisted production and failed to properly furnish the subpoenaed information.

At the outset of the

Boyd

trial before Judge Aspen, defense counsel served a. subpoena for information as to “any chemical analysis” of the government witnesses, as well as their movements to and from the MCC. AUSA Hogan strenuously resisted compliance with those subpoenas stating to Judge Aspen: “We strongly oppose that, your Honor ...” (Aspen Trial, May 6, 1991, Tr. 2-3). AUSA Hogan knew that Harris and Evans had tested positive for unautho

*1260

rized drugs and that they had thereafter continued their drug use. At no time during the

Boyd

trial did AUSA Hogan or any other government personnel disclose the existence or nature of the subpoenaed information regarding the “chemical analysis” of the government witnesses, which would have shown, had it been produced, Harris’ and Evans’ illegal drug use.

When the defendants’ counsel in the

Andrews

trial before Judge Conlon served subpoenas in August 1991 calling for drug testing information as to the “El Rukn” inmate witnesses, AUSA Hogan again resisted compliance, arguing to Judge Conlon that:

all those. records are protected by the Freedom of Information Act, which the defendants have not complied with the requirements, and many of them are privileged.

(C.Tr. 5535-36.)

On August 15, 1991 before Judge Conlon, the government possessed even more information which should have been disclosed under

Brady

and

Giglio

than had been known on May 6, 1991 before Judge Aspen. For example, Harris’ drug test refusal of May 30, 1991 and Harris’ admission that he had drunk a heroin-spiked soft drink handed him by Evans were known to U.S. Attorney’s Office paralegals, if not the AUSA’s. Yet the information was still not disclosed. Moreover, even though ordered by Judge Conlon, the government failed to comply fully with the subpoenas in the

Andrews

trial. Consequently, significant information which was required to be disclosed under

Brady

and

Giglio

was not disclosed in any of the trials before Judge Aspen, before Judge Conlon, or before this court.

It was the government’s affirmative obligation to comply with the requirements of the

Brady

and

Giglio

decisions as well as with its own pretrial representations in this case that it would disclose the

Brady

and

Giglio

material it possessed. It was also the government’s obligation to properly comply with the trial subpoenas served upon it. The government did none of these things as to the facts regarding the illegal drug use by its “El Rukn” inmate witnesses and did none of these things regarding the undisclosed benefits received by its “El Rukn” inmate witnesses.

In

Freeman v. State of Georgia,

599 F.2d 65, 71-72 (5th Cir.1979), the Fifth Circuit, reversing the district court’s denial of a writ of habeas corpus, refused to excuse the State’s

Brady

violation on the grounds that the defendant had failed at trial to subpoena a material witness. The facts involved a policeman who, for personal reasons, had helped conceal an exculpatory witness from the defense. The court stated:

When a police statement misleads the defense into believing that evidence will not be favorable, the state cannot thereafter argue that it was a waiver not to request it. A defendant cannot have waived more than what he knew existed. Freeman was not required to subpoena a witness whose report to the police contained nothing favorable to his case. Moreover, we cannot overlook the fact that even if he had tried to locate Darlene, it would have been futile because of her concealment.

599 F.2d at 72 .

The precept underlying the ruling in

Freeman

applies in this case. AUSA Hogan sought to ensure that the defense would never seek out the

Brady

information by taking actions to mislead the defendants into thinking that no

Brady

information existed. The government should not be allowed to profit from its efforts to prevent defendants from obtaining

Brady

information.

See also United States v. Shaffer,

789 F.2d 682, 690 (9th Cir.1986) (prosecution misleading defense as .to favorable nature of information nullifies disclosure under Brady);

accord Hughes v. Hopper,

629 F.2d 1036, 1039 (5th Cir.1980).

The government, in seeking to have its suppression of the

Brady

and

Giglio

material excused, refers this court to a 1991 case from the Fifth Circuit and claims:

United States v. Ellender,

947 F.2d 748 (5th Cir.1991), is almost squarely on point. There, the court held that the prosecution’s failure to disclose prison records of the defendant did not violate

Brady

because the defendant could have subpoenaed the records himself.

Id.

at 757.

*1261

(Government’s Brief in Opposition filed March 22, 1993, p. 5.)

Contrary to the government’s argument, the

Ellender

case is not on point. The

Ellender

court explicitly noted:

4. We need not reach the question of whether Ellender’s prison record might be deemed to be exculpatory and express no opinion on the matter.

947 F.2d at 757 n. 4. Moreover, it was defendant Ellender’s own prison record that defendant Ellender claimed the government refused to provide him, not government witnesses’ positive drug test results or benefits received from the government by the government’s witnesses.

Defendant Ellender in the

Ellender

case was obviously well aware of the existence of his own prison record. The defendants in the

Burnside

trial were, however, not aware, informed or apprised of any MCC records showing the unauthorized use of drugs by Evans or Harris. Nor were defense counsel informed of any of the undisclosed benefits bestowed by the government on its cooperating “El Rukn” inmate witnesses until after the

Burnside

trial had concluded. Furthermore, defense counsel did not know of the information because the government had taken steps to ensure that defense counsel would not know. The

Ellender

court based its holding on the principle that “where the defendant’s own lack of reasonable diligence is the

sole

reason for not obtaining the pertinent material, there can be no

Brady

claim.” 947 F.2d at 757 (citation omitted) (emphasis added). In this case, government suppression and obfuscation, not lack of diligence by defense counsel, is the reason defendants did not have the

Brady

and

Giglio

material the government had suppressed.

Also, in

Ellender ,

a letter detailing the psychiatric treatment of a government witness, Doug Tull, who testified against a co-defendant of Ellender’s, Swope, was not turned over to the defense at the trial: The court stated:

The government contends that any failure to disclose this letter did not prejudice Swope because he could still discredit Tull through cross-examination. This letter qualifies as impeachment material and therefore

Brady

required the government to disclose it to Swope.

947 F.2d at 757 .

The Fifth Circuit in

Ellender

went on to note that the government’s failure to disclose the psychiatrist’s letter did not necessitate a new trial because the letter was not material, and because the defendant “knew of Tull’s psychiatric treatment and could have raised this issue on cross-examination.”

Id.

As in

Ellender ,

the undisclosed information as to the drug use by and benefits bestowed upon certain of the government’s “El Rukn” inmate witnesses was impeaching information the government was required to disclose. Unlike the

Ellender

case, however, neither the defendants in the

Burnside

trial-nor this court were aware or apprised of the impeaching information which had been suppressed by government counsel. Moreover, in contrast to the

Ellender

case, the government here took affirmative steps to prevent the defendants from obtaining the materials. Defense counsels’ not specifically seeking that material by subpoena, therefore, does not excuse the government’s concealment and misrepresentations.

(b)

The Brady Material

Was

Not Available From the “Public Record”

Initially, it should be noted that each of the defendants’ counsel in the

Burnside

trial were court-appointed and reimbursed for their time and expenses under the

Criminal Justice Act

(“CJA”) program in the district court. Defense counsel in the

Burnside

trial did not monitor

all

the preceding “El Rukn” trials and were not expected to do so. The efficient use of Criminal Justice Act funds to pay and reimburse defense counsel is a very practical reason why our system of justice should require the government’s counsel to provide the

Brady

and

Giglio

information to defense. counsel rather than have defense counsel use their time and the sparse CJA funds to try to gather information favorable to the defense which is already in the government counsel’s possession.

Moreover, contrary to the government’s arguments, although the Defense Exhibit Mildner Memorandum was put into evi

*1262

dence in the

Andrews

case before Judge Conlon, it was not available to defense counsel in the

Burnside

trial for the following reasons.

First, AUSA Hogan intentionally did not provide the 1991 “Mildner Memorandum” nor the part of the

Andrews

trial transcript dealing with the “Mildner Memorandum” to the

Burnside

defense counsel (H. 16; 143)

52

as he was required to do under his pretrial representations quoted at pp. 8-9 and under the

Brady

and

Giglio

doctrine. Because of the non-disclosure, defense counsel properly inferred that no

Brady

or

Giglio

material existed.

Secondly, the government had obtained a highly restrictive pretrial protective order in Case No. 89 CR 908, which inhibited communications among defense counsel of the various “El Rukn” trials. That pretrial protective order had to be lifted post-trial to let the respective defense counsel in the

Burnside

trial in Case No. 89 CR 909 obtain information from defense counsel in the

Andrews

trial in Case No. 89 CR 908. Before that post-trial1 modification,

53

the exchange of information by defense counsel of the different “El Rukn” cases was restricted at the government’s insistence.

Third, pursuant to the Local Rules of the Northern District of Illinois, each counsel, not the district court’s clerk, is to maintain exhibits introduced at trial. (General Local Rule 33 of the Northern District of Illinois.)

54

The defense exhibit, designated post-trial as “Defendants’ Exhibit Mildner Memorandum,” though admitted in evidence by Judge Conlon in the

Andrews,

trial, was not publicly available as part of the public record which could be obtained from the court’s clerk.

Furthermore, AUSA Hogan was able to distort the facts in the public record about the “Mildner Memorandum” by continuing to conceal further significant

Brady

and

Giglio

material. The scant information which was provided to defense counsel in the

Andrews

trial in response to the defense’s trial subpoena was so minimal as to be ineffectual. This allowed AUSA-Hogan to conceal and misrepresent the true facts to Judge Conlon, and to the jury in his closing argument in the

Andrews

case, thereby obfuscating the facts which would have been disclosed to defense counsel in the

Burnside

trial had they examined the

Andrews

trial transcript and received a copy of the “Mildner Memorandum” exhibit.

Although the fact that Harris and Evans both had tested positive for morphine in 1989 (Defendants’ Exhibit Mildner Memorandum) was revealed on August 15, 1991 in response to a defense subpoena in Judge Conlon’s case, all the other impeaching facts which the government knew about Harris’ and Evans’ illegal drug use were not revealed. Government trial counsel AUSA Hogan succeeded in continuing to suppress additional facts which should have been disclosed under

Brady .

These facts included the following:

(1) the fact that no prescribed medication producing a positive drug test for •morphine was authorized either for Harris during the defectible time period before his May 11, 1989 positive test or for Evans during the defectible time period before his April 12, 1989 positive test (C. 252);

(2) the fact that Harris and Evans had been suspected drug users by government personnel in 1989 and thereafter;

*1263

(3) the fact that personnel in the U.S. Attorney’s Office, including Hogan, had known of Harris’ and Evans’ positive drug test results since at least October 1989;

(4) the fact that prison disciplinary hearings had, in fact, occurred as to Harris and Evans, respectively, for drug related (H. 1476; 1481-88) and non-drug related acts (H. 2191);

(5) the fact that government “El Rukn” witness, Jackie Clay, an MCC inmate with Harris and Evans, had repeatedly told Hogan about Harris’ and Evans’ continuing drug use;

(6) the fact that Harry Martin told Hogan of the illegal drug use;

(7) the fact that Harris had refused to submit to a drug test at the MCC on May 30, 1991 less than a week before he testified at the first “El Rukn” trial;

(8) the fact that a disciplinary hearing into Harris’ May 30, 1991 drug test refusal had occurred on June 27, 1991 in a jury room in the Dirksen Building;

(9) the fact that Hogan in late June 1991 had telephoned Hafer and complained about the timing and location of that June 27, 1991 disciplinary hearing of Harris (H. 4830); and

(10) the fact that at the time of the

Bum-side

trial Harris and Evans had not been tested for the ingestion of illegal drugs at the MCC in almost two years.

Had these ten impeaching facts, which AUSA Hogan successfully continued to suppress despite the introduction of the “Mildner Memorandum,” been revealed at the

Andrews

trial, AUSA Hogan could have never been able to distort the public record to make it appear that Harris’ and Evans’ positive drug tests resulted from authorized medication. Had these impeaching facts, which AUSA Hogan deliberately continued to suppress, been revealed at the

Burnside

trial, then further areas could have been explored and exposed by defense counsel on cross-examination of the government witnesses. Moreover, further witnesses could perhaps have been called to testify by the defense. Hogan’s suppression of the undisclosed facts and his distortion in the public record of the true facts, however, stymied the defense inquiry and the possibility of presentation of further defense evidence.

In his closing argument in the

Andrews

trial before Judge Conlon, AUSA Hogan told the jury that:

[Defense counsel] talk about the fact Henry Harris tested positive for morphine while he was at the MCC in witness protection.

You heard Bob Hafer get on here and he told you that there never was a disciplinary hearing.

55

[Defense counsel]- wants you to believe that was by some sort of intercession of the federal government; that perhaps I or Mr. Poulos called up the MCC

56

and said, “Oh, you got Henry Harris’ dirty with a urine sample over there? Don’t test him;

57

don’t discipline him.”

58

*1264

There is not a shred of evidence in this case,

59

ladies and gentlemen, that we have anything to do with the independent disciplinary procedures of the MCC.

(C.Tr. 6170.)

Had all the true facts been revealed, AUSA Hogan could have never made those factually false arguments. Had the government not concealed the

Brady

information it had, the public record would have differed substantially and would have undoubtedly attracted the attention of the defense counsel in the

Burnside

trial. The government should not now be allowed to take advantage of its distortions of the public record.

The reasoning of the Ninth Circuit in

United States v. Shaffer,

789 F.2d 682, 690 (9th Cir.1986) supports this Conclusion. One aspect of the

Brady

material at issue in

Shaffer

was tape recorded information that could have been used to impeach a government witness’ testimony. The government argued that it had not violated

Brady

because it had told the defense of the existence of the tapes. Rejecting this argument, the Ninth Circuit stated:

Second, the district court was correct in holding that, while the government did apprise Shaffer’s counsel of tapes that detailed Durand’s involvement, such disclosure was inadequate because the government also told Shaffer’s counsel that these tapes would be of no value to Shaffer’s defense. This later statement negates any disclosure made in the earlier statement.

789 F.2d at 690 .

The principle animating the Ninth Circuit’s ruling in

Shaffer

is that governmental actions which mislead defendants about the nature of

Brady

material estop the government from later claiming that the defense lacked diligence in obtaining those materials.

Government counsel here took many actions which distorted the public record and deceived the defendants about the nature of the

Brady

information that the government possessed and suppressed. The government, not the defense, therefore bears the responsibility for the fact that the

Brady

information did not emerge until after the

Burnside

trial.

B.

The Suppressed Evidence was Favorable to the Defense

The

Giglio

and

Bagley

decisions established and

reaffirmed that

evidence which impeaches the government’s witnesses is favorable evidence which must be disclosed to the defense under the

Brady

doctrine. The evidence suppressed in the

Burnside

trial was highly impeaching of the government’s witnesses and therefore meets the second element of a

Brady

constitutional violation. (Government’s Memorandum of Law, filed May 11, 1992, pp. 3-4.)

1.

The Illegal Drug Use was Relevant to the Witnesses’ Abilities to Recollect and Relate

Before the court held the post-trial evidentiary hearings, but after the drug test results became known to defense counsel in the

Burnside

trial, government counsel argued:

Only drug use showing that the witness was under the influence of narcotics while observing the acts that are the subject of his testimony, or showing that the witness was under the influence of narcotics while testifying, has any probative potential.

See e.g., United States v. Sampol,

636 F.2d 621, 666-67 (D.C.Cir.1980). And even if long term drug use may impact on a witness’ ability to recollect, one or two instances does not advance that inquiry. Therefore, even if true, isolated drug use while at the MCC, well after the

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