Opinion
No. 3:17-CR-00124-2
09-22-2021
UNITED STATES of America, Plaintiff, v. Maurice Duncan BURKS, Defendants.
John Benjamin Schrader, Assistant US Attorney, Debra Teufel Phillips, U.S. Attorney's Office, Nashville, TN, Ivana Nizich, Assistant US Attorney, Shauna S. Hale, Assistant US Attorney, Department of Justice-Organized Crime & Gang Section, Washington, DC, for Plaintiff. John M. Bailey, IV, Brentwood, TN, Eileen M. Parrish, Nashville, TN, for Defendants.
John Benjamin Schrader, Assistant US Attorney, Debra Teufel Phillips, U.S. Attorney's Office, Nashville, TN, Ivana Nizich, Assistant US Attorney, Shauna S. Hale, Assistant US Attorney, Department of Justice-Organized Crime & Gang Section, Washington, DC, for Plaintiff.
John M. Bailey, IV, Brentwood, TN, Eileen M. Parrish, Nashville, TN, for Defendants.
ORDER
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Almost nine years later, and despite protracted litigation, whether Maurice Burks shot and killed Malcolm Wright at C-Ray's in Clarksville, Tennessee on November 3, 2012 remains an unanswered question. After a 25-day trial involving four other Defendants with 42 counts spread amongst them, a jury found that he did by virtue of its return of guilty verdicts on Counts Ten, Eleven, Thirteen, and Fourteen of the Third Superseding Indictment.
The Court, acting as a thirteenth juror, could not let those verdicts stand. This was because Wright's girlfriend – the only percipient witness to the murder – testified that the person standing over her boyfriend's body was of "medium height," but Burks is 6’4" tall. It was also because the three informants that were the backbone of the Government's case as it pertained to Wright's murder were simply unbelievable. One (Danyon Dowlen), changed his story over time, would seemingly say anything to please the Government, and his last story did not square with the forensics from the scene, scant as they were. The second (Ronnie Daniels) essentially refused to testify before the petit jury, meaning that his unchallenged grand jury testimony was all it really heard from him on the subject. The third (Dezorick Ford), a rival gang member, simply told the jury that he met Burks in jail, and was told by him that "I hope they don't come get me on a bad motherf**k." From this vague statement, it would have required a quantum leap to conclude Burks was confessing to Wright's murder. Accordingly, the Court granted Burks’ request for a new trial. United States v. Darden, No. 3:17-CR-00124, 2019 WL 3946133 (M.D. Tenn. Aug. 20, 2019).
The Government appealed. Notwithstanding that "a district court judge, who had a ring-side seat at the trial, may appropriately ‘act as a thirteenth juror, assessing the credibility of the witnesses and the weight of the evidence’," while "appellate court judges, who have only a transcript to work with, have no such authority," United States v. Dimora, 750 F.3d 619, 627–28 (6th Cir. 2014), the Sixth Circuit reversed in a split decision. United States v. Burks, 974 F.3d 622 (6th Cir. 2020) ( Burks I ). Burks then filed a petition for writ of certiorari, but his request was denied. Burks v. United States, ––– U.S. ––––, 141 S. Ct. 1722, 209 L.Ed.2d 484 (2021) ( Burks II ).
Meanwhile, with the appeal before the Sixth Circuit still pending, and as it was preparing for trial against a severed co-defendant, the Government discovered that it had failed to disclose a Report of Investigation ("ROI") regarding Dowlen. That ROI could be read as suggesting that, weeks before trial, Dowlen could not recall whether the weapon supposedly used by Burks to kill Wright was a .40 or .45 handgun. This was hardly a distinction without a difference because Dowlen claimed that he saw Burks with what the Government characterized as a "twin .45" shortly after the murder, and ballistics confirmed that a .45 was used to kill Wright. This prompted Burks’ to file another motion for a new trial. That motion, too, was granted because the ROI was Brady material that had not been disclosed in time for use at trial. United States v. Burks, No. 3:17-CR-00124-2, 542 F.Supp.3d 737 (M.D. Tenn. June 1, 2021) ( Burks III ).
The Government again appealed. Less than a month later, the appeal was dismissed at the Government's request.
This brings us to the present and the Government's "Motion to Dismiss Counts 10, 11, 13 and 14 of the Third Superseding Indictment Without Prejudice, and Set the Case for Sentencing." (Doc. No. 1845). Quite understandably, Burks does not object to dismissal of those counts, but he requests that they be dismissed with prejudice. He raises two arguments, neither of which is persuasive.
First, Burks argues that the Government's motion for dismissal without prejudice "is an attempt[ed] end run around" of this Court's September 27, 2019 Order that denied the Government's request to sentence Burks on Counts One and Two while his interlocutory appeal was pending. Specifically, Burks relies upon the following from that Order:
The Court takes its sentencing responsibility seriously, and spends countless hours preparing for each sentencing hearing, just as it will do in relation to the November 2019 sentencing of Burks’ Co-Defendants. This is because there is nothing simple or easy about sentencing another human being. Until you have done it, you have no appreciation of the gravity of the responsibility. Because of the need to prevent sentencing disparity, the Court will undoubtedly review material regarding Burks when it prepares for sentencing the other Defendants, but that review will not be at the same depth that would be undertaken were Burks being sentenced at that time. What the Government proposes, however, is the possibility of preparing for, and holding, two sentencing hearings (maybe years apart) for Burks when one will do. That will not only waste the Court's time, but also that of counsel.
United States v. Burks, 408 F. Supp.3d 908, 911-12 (M.D. Tenn. 2019) ( Burks IV ) (emphasis supplied by Burks). Burks argues that "[t]he Court's reasoning is just as persuasive now as it was almost two (2) years ago [and] [t]his Court must, and should, know the outcome of the charges in counts ten, eleven, thirteen, and fourteen before sentencing Mr. Burks on counts one and two." (Doc. No. 1860 at 3).
Persuasive or not, this Court's language must be read in context. At the time the Court entered the Order, Counts Ten, Eleven, Thirteen, and Fourteen were still very much alive, with the only question being whether they would be retried or not. Either way, Burks’ sentencing could go forward in one proceeding – either after a retrial on the Counts related to Wright's murder (were the Court affirmed), or on all of the counts after the appeal was completed (were the Court reversed). Under either scenario, the concern about "preparing for, and holding, two sentencing hearings" in this particular case would be negated.
To date, no decision maker has said that Burks did not murder Wright. To the contrary, the trial jury found him guilty on four counts in relation to that murder, and the Sixth Circuit found sufficient evidence to support those verdicts. Even when this Court twice-granted his request for a new trial, it never once intimated, let alone said, that Burks was innocent. Rather, the first time around, the Court observed that it "does not know whether Burks killed Wright at C-Rays on November 12, 2012," but "proof beyond a reasonable doubt is a standard not to be trifled with." Darden, 2019 WL 3946133, at *25. The second time around, the Court began its opinion with a question it simply could not answer: "Who killed Malcolm Wright with a .45 caliber pistol at C-Ray's on November 3, 2012?" Burks III, 542 F.Supp.3d at 739. And, when the Court denied the Government's request for a sentencing while Burks’ appeal was pending, the Court identified the "critical unanswered question" as being "whether Burks murdered Wright." Burks IV, 408 F.Supp. 3d at 910. The only attempted "end around" is Burks’ effort to shoehorn this Court's September 27, 2019 Order into an acquittal.
Second, Burks argues that dismissal without prejudice would somehow violate Rule 48(a) of the Federal Rules of Criminal Procedure, which allows the Government to dismiss an indictment, information, complaint with leave of the Court. It would not.
Recently, this Court described the workings of Rule 48(a) as follows: "[T]he trial court has little discretion in considering a government motion to dismiss made pursuant to Federal Rule of Criminal Procedure 48(a)." United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995) (citation omitted). Not only have some courts employed a presumption that a prosecutor acts in good faith when seeking a dismissal without prejudice, see e.g., United States v. Palomares, 119 F.3d 556, 558 (7th Cir. 1997) and United States v. Dyal, 868 F.2d 424, 428 (11th Cir. 1989), "[t]he principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g. , charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 30 n.15, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (collecting cases); accord United States v. Stapleton, 297 F. App'x 413, 430 (6th Cir. 2008). "Put succinctly, a Rule 48 motion that is not motivated by bad faith is not clearly contrary to manifest public interest, and it must be granted." United States v. HSBC Bank USA, N.A., 863 F.3d 125, 141 (2d Cir. 2017) (citation omitted, emphasis in original).
"Some courts of appeals that have elucidated this ‘public interest’ test have stressed how ‘severely cabined’ it is, ‘equat[ing] a dismissal that is clearly
contrary to the public interest with one in which the prosecutor appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial’—in other words, bad faith." Id. (quoting In re Richards, 213 F.3d 773, 787–88 (3d Cir. 2000) ). Thus, "[a] district court is ‘duty bound’ to grant the government's Rule 48(a) motion to dismiss an indictment without prejudice unless ‘it specifically determines that the government is operating in bad faith’ in pursuing the motion." United States v. Mujahid, 491 F. App'x 859, 860 (9th Cir. 2012) (citation omitted).
United States v. Alvarado-Velasquez, 322 F. Supp. 3d 857, 859–60 (M.D. Tenn. 2018)
Burks has identified nothing approaching bad faith on the part of the Government. While he argues that "it is time – or, more accurately, long past time – for the government's prosecution of Mr. Burks for Malcolm Wright's killing to be put to a final rest," (Doc. No. 1860), the simple fact remains that he was tried once in relation to Wrights murder, and found guilty.
Accordingly, the Government's "Motion to Dismiss Counts 10, 11, 13 and 14 of the Third Superseding Indictment Without Prejudice, and Set the Case for Sentencing" (Doc. No. 1845) is GRANTED and those Counts are DISMISSED WITHOUT PREJUDICE . Sentencing on Counts One and Two has already been scheduled for May 12, 2022. (Doc. No. 1850).
IT IS SO ORDERED.