UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) ) ) v. ) Crim. Action No. 10-51-1, -2, -4 (RMC) ) ) MARK ANTHONY PRAY, et al., ) ) Defendants. ) )

MEMORANDUM OPINION ON MOTION TO COMPEL DISCOVERY

Defendants Mark Pray, Kenneth Benbow, and Alonzo Marlow1 have been indicted

by a Grand Jury, along with co-defendants who are not parties to the instant motion to compel, on

narcotics charges, murder charges in aid of racketeering, maintaining a continuing criminal

enterprise, and operating a Racketeer Influenced and Corrupt Organization (RICO), in violation of

federal and local criminal statutes. Because of the nature of the charges, each is potentially eligible

for the death penalty and is facing the death penalty authorization process at the Department of

Justice (“DOJ”). The United States Attorney has not yet made any recommendation regarding

seeking the death penalty and the Attorney General has not yet made any decision. Messrs. Pray,

Benbow, and Marlow jointly move to compel pre-authorization disclosure of certain exculpatory

evidence — in sufficient time for them to use it before DOJ to argue against the prosecutor’s seeking

the death penalty in this case. As a result of further disclosures by the government since the motion

was filed, the Defendants now limit their motion, seeking only “disclosure of individuals who are

1 For convenience, this Opinion refers to Messrs. Pray, Benbow, and Marlow as “Defendants,” although they are not the only defendants charged in the Superseding Indictment in this case. See Superseding Indictment [Dkt. # 88]. equally culpable in the charged murders but will not face the death penalty” and disclosure of “a

summary of issues which impair [government] witnesses’ credibility.” Defs.’ Reply [Dkt. # 127]

at 1, 8.2

The Court recognizes the grave situation in which Defendants find themselves and

that the information they seek could possibly help them make mitigating arguments against

authorization of the death penalty. However much these circumstances might counsel such an order

in a different case, a point the Court does not reach, no such order is appropriate in this one.

Defendants Pray and Alonzo are charged, inter alia, with the murder of Crystal Washington in order

to prevent her from testifying against Mr. Pray. The possibility of violent action against a potential

witness — cooperator or not — cannot be ignored. The Court finds the risks to the lives of others

too real to be overcome by Defendants’ request. The motion to compel will be denied.

I. FACTS

The Defendants are charged in a Superseding Indictment with murders in aid of

racketeering, i.e., death-eligible offenses: Counts Four and Five allege that on September 24, 2008,

Mr. Pray and Mr. Benbow murdered Van Johnson, Jr., and attempted to murder Steven Robinson;

Count Six alleges that on April 10, 2009, Mr. Pray and Mr. Marlow murdered Crystal Washington;

and Count Eight alleges that on January 13, 2010, Mr. Pray and Mr. Marlow murdered Jheryl Hodge.

See Superseding Indictment, Counts 4-6 & 8, at 37–40.

The government is in the midst of considering whether to seek the death penalty

against one or more of these Defendants. That process is commonly referred to as the Death Penalty

2 The Defendants drop their request for evidence suggesting that Mr. Pray was not involved in the murder of Stanley Marsh, as the government has represented that it has no such exculpatory information in its possession regarding this uncharged murder.

-2- Protocol in the U.S. Attorney’s Manual (“USAM”). Under the Protocol, the United States Attorney

for the District of Columbia will submit a recommendation to the Assistant Attorney General for the

Criminal Division, after giving counsel for each Defendant “a reasonable opportunity to present any

facts, including any mitigating factors, for the consideration of the United States Attorney.” USAM

§ 9-10.050. Any materials from defense counsel will be forwarded to DOJ with the U.S. Attorney’s

submission. Within DOJ, the Attorney General’s Review Committee on Capital Cases will review

the submission and, if either the United States Attorney recommends seeking a death sentence or a

member of the Capital Review Committee requests a conference, defense counsel will be provided

an opportunity “to present evidence and argument in mitigation.” USAM § 9-10.120. The Capital

Review Committee will make a recommendation to the Deputy Attorney General, and the Deputy

Attorney General then will make a recommendation to the Attorney General. Id. The Attorney

General alone will decide whether to seek the death penalty. Id.

Pursuant to the Protocol, counsel for Mr. Pray and Mr. Benbow made presentations

to the United States Attorney for the District of Columbia on January 31, 2011. Mr. Marlow’s

presentation is currently scheduled for February 28, 2011. Prior to those meetings, the government

had produced substantial amounts of discovery to the Defendants:

First, the United States has made seven (7) separate productions of discovery in this case. These productions have included approximately 13,800 pages’ worth of the court documents relating to Title III and search warrant authorizations, investigative case files, historical arrests, telephone records, surveillance and crime scene reports and photographs, and specific discovery relating to each of the three murders charged in the superseding indictment, including autopsy reports, crime scene reports, and crime scene photographs. The discovery also includes the line sheets and audio recordings from the extensive Title III surveillance in this case, and 51 discs containing all consensually-recorded telephone calls, undercover

-3- videos of controlled purchases of narcotics, and video surveillance by law enforcement agents. The discovery has been produced electronically and in an organized fashion, with a detailed index, to facilitate counsel’s review of the material.

Second, the government, on or about December 23, 2010, prepared a separate written response to a defense letter seeking twenty-three (23) separate categories or types of “discovery materials or information relevant to the government’s determination as to whether to seek the death penalty.” . . .

Finally, on or about January 14, 2011, the government sent all defense counsel a ten-page letter containing summaries of witness statements and other information favorable to the defense. . . . The disclosures set forth in this letter include discrepancies in eyewitness accounts, varying descriptions of perpetrators, information that others may have committed the offenses, and other information which may undercut the government’s theory at trial. These disclosures, which represent the universe of non-impeachment Brady3 material respecting the charged murders presently in the government’s possession were made over ten months before the “Group 1"4 trial date of October 31, 2011, and before any trial date has been set for the death-eligible defendants.

Gov’t Opp’n [Dkt. # 125] at 4–5.

II. ANALYSIS

Both sides to this dispute agree that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.

Maryland, 373 U.S. at 87. Brady requires the disclosure of exculpatory evidence that is material to

a defense or punishment. Giglio v. United States,

(1972), extends Brady, requiring the

3 Brady v. Maryland,

(1963). 4 The Group 1 defendants are Robert McMillan, Robert Smith, Charles Wade, and Larry Williams.

-4- disclosure of material impeachment evidence. Some courts have held that “in a death penalty

prosecution, the Brady obligation requires the Government to disclose material information that

exculpates the defendant of the crime and that would be material to the defendant’s presentation of

factors mitigating against a sentence of death.” United States v. Frank,

(S.D.N.Y. 1998).

The immediate disagreement arises because Defendants want specific information

now, while the government argues that their request is premature and that defense rights to

information under Brady are tied to trial, not the Protocol. See Gov’t Opp’n at 7 (“Brady and its

progeny delineate the accused’s right to the disclosure of evidence favorable to guilt or punishment.

This constitutional principle, however, is a trial right.”). The government also expresses grave

concerns for the safety of its witnesses. Defendants acknowledge this risk. Defs.’ Mot. to Compel

Pre-Authorization Disclosure [Dkt. # 115] at 17 (recognizing that at least one of the requests

“implicates issues of witness security”).

The Protocol does not create substantive or procedural rights for a defendant. United

States v. Feliciano,

(D. Conn. 1998). “[T]he decision to seek the death

penalty . . . is a matter of prosecutorial discretion. The Protocol did not create any individual right

or entitlement subject to the due process protections applicable to an adjudicative or quasi-

adjudicative governmental action.” United States v. McVeigh,

(D. Colo.

1996); accord United States v. Bodkins, Crim. No. 4:04-700083,

, at *3 (W.D.

Va. Nov. 5, 2004) (the USAM does not create discovery rights for a defendant); United States v.

Shakir,

(M.D. Tenn. 2000) (the Protocol does not create any

enforceable substantive or procedural rights for defendants; the prosecutor’s decision not to provide

-5- pre-authorization discovery is a matter of discretion that is not reviewable by the court).

Defendants, however, do not rely on the Protocol as a basis for their discovery

requests; instead, they cite Brady. There are cases in which similar requests by death-eligible

defendants have been granted. In United States v. Delatorre,

(N.D. Ill. 2006),

for example, the court ordered pre-authorization discovery, requiring the government to “produce

mitigating and aggravating factors and other Brady material . . . so that it may be used in defense

counsels’ arguments against pursuit of the death penalty to both the United States Attorney and the

Department of Justice”

. Even so, the court carved out certain exceptions to

disclosure — it did not require the government to produce Brady material related to witnesses at risk,

the identification of prosecution witnesses, or privileged materials.

.

Some of the decisions that Defendants rely upon are based on local standing orders

requiring disclosure. In United States v. Feliciano,

, for instance, the district

court ordered the production of some, but not all, of the requested pre-authorization discovery.

However, the court based its ruling on a Standing Order in the District of Connecticut which

“requires disclosure by the government within ten (10) days from the date of arraignment in all

criminal cases of ‘[a]ll information known to the government which may be favorable to the

defendant on the issues of guilt or punishment within the scope of Brady . . . .”

; see also United States v. Perez,

, 171 & 171 n.14 (D. Conn. 2002) (ordering

pre-authorization discovery, with exceptions, in reliance on Standing Order and based on the court’s

inherent power to manage its docket, and specifically not based on the Constitution). There is no

similar standing order in this jurisdiction.

United States v. Beckford,

(E.D. Va. 1997), another case relied upon

-6- by Defendants, was in a different posture than this case because the government had already notified

those defendants that prosecutors had been authorized to seek the death penalty. After that notice,

the defendants sought discovery concerning mitigating factors for use at sentencing. In that context,

the Eastern District of Virginia held that “defendants need only establish a substantial basis for

claiming that a mitigating factor will apply at the penalty phase, in order to invoke the Government’s

obligation under Brady and its progeny to produce any evidence which is material to that mitigating

factor.”

(citation and internal quotation marks omitted).

Even though some courts have ordered pre-authorization disclosure, the Court agrees

that Brady disclosure is a trial right. “The principle supporting Brady was avoidance of an unfair

trial to the accused. That concern is not implicated at the plea stage . . . .” United States v. Ruiz,

, 634 (2002) (Thomas, J., concurring in judgment) (citation and internal quotation marks

omitted). “The Supreme Court has never established a specific amount of time before trial when a

Brady disclosure regarding witnesses must be made,” so long as it is made in time for the defense

to prepare and present its case effectively. United States v. Edelin,

, 31 (D.D.C.

2001).

The timing of production pursuant to that trial right must be weighed in light of

concerns for witness safety. “[T]he interests of justice would not be served by premature release of

information that could compromise the security and safety of witnesses and informants who have

been cooperating with law enforcement.” Edelin, 138 F. Supp. 2d at 31. In United States v.

Martinez-Martinez, Crim. No. 01-307,

, (S.D.N.Y. Oct. 24, 2001), for example,

the defendants sought pre-authorization disclosure. The government did not have Brady material

but did possess Giglio material. Explaining that “district courts have the authority to determine, as

-7- a matter of sound case management, when the Government shall disclose Brady and Giglio

material,” the court did not order immediate production of the Giglio material but instead ordered

its production 14 days before trial.

, at *5. Further, the court denied the

defendants’ request for the names of potential witnesses. Id. at * 7. Likewise, the district court in

Frank refused to compel early production of a prosecutor’s entire witness list because of concerns

for the safety of certain witnesses. That court noted:

As a general matter, a defendant has no constitutional right to receive either Brady or Giglio material prior to trial. As the Supreme Court observed in Weatherford v. Bursey,

(1977), “[t]here is no general constitutional right to discovery in a criminal case and Brady did not create one . . . .” Exculpatory material must be disclosed, however, in sufficient time to permit a defendant to make effective use of it at trial, thus potentially necessitating pre-trial disclosure, depending on the nature of the material.

Frank,

(citations omitted) (emphasis added).

Protecting witnesses from harm is the norm, not the exception. As explained above,

the Delatorre court did not require the government to produce Brady material related to witnesses

at risk or material that would identify witnesses for the prosecution.

. In

Edelin, the court delayed both the identification of prosecution witnesses and impeaching material

related to such witnesses until a few days before their trial testimony, due to allegations that

defendants had harassed and intimidated potential witnesses:

The willingness of the defendants to harass and intimidate witnesses, and the willingness of the defendants to interfere with the judicial process led to the decision of this Court to not produce the names of witnesses until the Thursday before they testify in the upcoming trial. The same analysis supports the delay in disclosing impeaching information against those witnesses.

128 F. Supp. 2d at 33–34. The timing of the release of Brady material may also be constrained by

-8- the need to complete related investigations. The Feliciano court, for instance, did not require the

government to produce discovery relating to equally culpable defendants because such disclosure

would imperil current investigations.

.

Defendants argue that “[p]re-authorization Brady disclosures appear to be the practice

in this District.” Mot. to Compel at 7 (citing United States v. Karake,

(D.D.C.

2003); United States v. Long, Crim. No. 10-171 (D.D.C.)). The Court is not aware of any such

common practice in this district. Moreover, Defendants’ argument exaggerates the cases. Karake

was sui generis, involving defendants who were Rwandan Hutus charged with murdering American

tourists in Uganda. The case was filled with unique obstacles that confronted defense counsel who

represented non-English-speaking foreigners charged with committing capital offenses over six years

previously in Uganda. Karake,

. The government did not, in fact, contest the

application of Brady in that context, even as it read its requirements more narrowly than the Court.

at 305–06. Karake does not assist here, where the government fully contests the motion to

compel. In United States v. Long, counsel for all parties reached their own disclosure agreements

and the Judge did not order any particular disclosures; it too, therefore, is not of assistance to

Defendants in this case.

In sum, one plain principle runs through the cases: a criminal defendant’s discovery

rights — even a defendant facing the possibility of a death sentence — are constrained when there

are realistic fears for the safety of witnesses. The Court finds such a realistic fear present in this

matter. In 2006, Crystal Washington allegedly permitted Mr. Pray and his associates to use her home

as a “stash house” for their alleged narcotics conspiracy. Superseding Indictment, Count 1 ¶ 1, at

8. Apparently, her home was later searched by police, who recovered narcotics and weapons.

-9- Count 1 ¶ 12, at 9. Three years after that search, Mr. Pray and an unidentified individual allegedly

discussed their certainty that Ms. Washington would be appearing as a witness at their narcotics trial

in the Superior Court of the District of Columbia.

Count 1 ¶ 13, at 10. As a result of that

conversation and on the eve of Mr. Pray’s trial, Mr. Marlow is alleged to have murdered Ms.

Washington in order to prevent her from testifying.

Count 1 ¶ 15, at 9. The plan was successful.

Three days after Ms. Washington’s murder, the government was forced to announce that it was

unable to proceed with the Superior Court trial due to the murder of an essential witness, to the

obvious benefit of Mr. Pray.

Count 1 ¶ 16, at 10.

The Superseding Indictment also charges Messrs. Pray and Marlow with the murder

of Jheryl Hodge in broad daylight in the Barry Farm neighborhood in the District of Columbia. The

Superseding Indictment alleges that: (1) following this murder, an unidentified individual reported

to Mr. Pray that there were possible witnesses to the murder; (2) soon thereafter, Mr. Pray expressed

frustration to Mr. Marlow about the public nature of the killing; (3) a few days later, Mr. Pray asked

Mr. Marlow whether he had disposed of the weapon used to kill Mr. Hodge.

Count 1 ¶¶ 60-62,

at 17-18. Three weeks later and still worried, Mr. Pray allegedly participated in a conversation

where he discussed the idea of starting a rumor that Mr. Hodge’s murder was perpetrated by a

deceased individual in order to take suspicion off Mr. Marlow.

Count 1 ¶ 89, at 23.

The Court also is aware that a relatively minor player caught up in this situation fears

serious and imminent jeopardy to himself and his family members if his involvement were to

become known. Given the allegations in this case, that fear is reasonable.

Trial for these Defendants has not been scheduled, but it will be no sooner than 2012

because non-death-eligible co-defendants will be tried first. There is a long time between now and

-10- then and, if the allegations of violent actions have merit, there would be plenty of time to injure or

kill witnesses. Quite frankly, that is a risk the Court is unwilling to take.

III. CONCLUSION

The motion to compel pre-authorization disclosure of exculpatory evidence filed by

Messrs. Pray, Benbow, and Marlow [Dkt. # 115] will be denied. A memorializing Order

accompanies this Memorandum Opinion.

Date: February 17, 2011 /s/ ROSEMARY M. COLLYER United States District Judge

-11-