The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion for Relief from Special Administrative Measures Which Are Interfering With Trial Preparations In This Capital Case (ECF No. 347) and the Government's response thereto (ECF No. 352). For the following reasons, Defendant's Motion will be granted in part and denied in part.
Defendant Kaboni Savage is currently serving a thirty-year sentence for his convictions in 2005 for the crimes of conspiracy to manufacture and distribute cocaine and crack cocaine, money laundering, and witness tampering. On September 7, 2011, a federal grand jury returned a seventeen-count Third Superseding Indictment in this case charging Defendant with, inter alia, conspiracy to participate in the affairs of a racketeering enterprise, witness tampering, witness retaliation, use of fire to commit a felony, and twelve counts of murder in aid of racketeering, all of which are eligible for the death penalty. (Third Superseding Indictment, ECF No. 284.)*fn1 The Government contends that Defendant ordered several of the murders charged in the Indictment while incarcerated as a pretrial detainee at the Federal Detention Center in Philadelphia ("FDC"). On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Defendant and two of his co-defendants, Robert Merritt and Steven Northington. (ECF Nos. 196, 197, 198.) The Government has been directed to notify the Court and defense counsel of its intention regarding the death penalty as to defendant Kidada Savage by February 17, 2012. (ECF No. 343.) The trial of Defendant and his co-defendants is scheduled for September 2012.
Prior to his trial on the 2005 convictions, Defendant was housed at
the FDC as a pretrial detainee. (Gov't's Resp. 2, ECF No. 352.)
According to the Government, court-authorized recordings intercepted
at the FDC reveal that Defendant threatened to kill multiple potential
witnesses, their family members, prison employees, and FBI agents.
(Third Superseding Indictment 16-32; Gov't's Resp. 2-3.)*fn2
The Government advises that the court-authorized recordings
show that Defendant ordered six of the murders while he was
incarcerated at the FDC. (Gov't'sResp. 2.) After Defendant was
sentenced for the 2005 convictions, he was incarcerated at various
prisons, including the United States Penitentiary in Atlanta, Georgia
("USP Atlanta"); the maximum security unit at the United States
Penitentiary in Florence, Colorado ("ADMAX"); the FDC; and the
Metropolitan Corrections Center ("MCC") in Manhattan, New York.
Because the Government believed that Defendant posed a threat to others even while incarcerated, in February 2007, the Attorney General authorized the imposition of Special Administrative Measures ("SAMs"). The Attorney General imposed the SAMs in part because in 2004 Defendant had ordered the firebombing of a Government cooperator's house while Defendant was incarcerated at the FDC. (Gov't's Ltr. 2, Oct. 24, 2001 (on file with Court).) The Attorney General has reauthorized the SAMs annually. (Gov't's Resp. 3.) The memorandum reauthorizing SAMs at the MCC states that "[t]he Bureau of Prisons adopted these special administrative conditions based on information of [Defendant's] proclivity to violence." (SAMs Mem. 1, Feb. 1, 2010 (on file with Court).)*fn3
Defendant has been complaining about nearly every aspect of the SAMs restrictions since they were imposed in 2007. One complaint has been that, at the MCC, Defendant is not permitted contact visits with his attorneys. (Gov't's Resp. 6.) After Defendant complained about not being permitted contact visits, we arranged in early 2010 for him to be transported to the FDC in Philadelphia once per month to allow him to have contact visits with his attorneys. (Gov't's Resp. 4.) In due course, we modified these arrangements to allow Defendant to travel to the FDC twice per month to allow such visits. (Hr'g Tr. 7, Sept. 30, 2010, ECF No. 159.) Because Defendant was not satisfied with the conditions of the meeting room at the FDC, he often refused to be transported to the FDC to have contact meetings with his attorneys. (Gov't's Resp. 4; Hr'g Tr. 53, Oct. 22, 2010.)*fn4
On July 16, 2010, Defendant moved to strike the SAMs in their entirety. (Def.'s SAMs Mot., ECF No. 137.) We held a hearing on September 30, 2010 to address the issue of whether Defendant was barred from seeking relief from the SAMs due to his failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We determined in our Memorandum and Order of October 21, 2010, that Defendant was not required to exhaust his administrative remedies before challenging aspects of the SAMs that directly affected his ability to prepare his defense in this criminal action. See United States v. Savage, No. 07-550-03, 2010 WL 4236867, at *7 (E.D. Pa. Oct. 21, 2010). We heard testimony and argument on the constitutionality of the SAMs during an evidentiary hearing held on October 22, 2010. On October 28, 2011, we entered an Order denying Defendant's request to lift and strike all SAMs restrictions. (ECF No. 333 (filed under Seal).)
To address counsel's concerns about better access to their client and the need to properly prepare his defense, Defendant was transferred to the FDC in March 2011. Because the FDC is not a maximum security facility equipped to handle SAMs inmates, the Bureau of Prisons had to construct a "suite" on the second floor of the FDC building to house Defendant. (Gov't's Resp. 4.) The suite consists of the cell where Defendant sleeps, an adjacent bathroom with a shower, and a room located across a small hallway where Defendant can have contact visits with his attorneys and his defense team, and which houses the discovery materials in Defendant's case and a computer for access to discovery materials. Despite these accommodations, Defendant's complaints about the conditions of his confinement persisted at the FDC. Among other things, Defendant took issue with the restriction that he remain shackled during all contact visits with his attorneys and with investigators because it "prevents [Defendant] from effectively reviewing discovery, paperwork, and related materials." (Def.'s Ltr., Apr. 8, 2011 (on file with Court).) Defendant further complained that he was unable to meet with a private investigator without the presence of his attorneys. (Id.) At the request of his attorneys, Defendant was permitted to have the leg and waist restraints removed, while wearing only hand restraints during contact visits with his attorneys. (Gov't's Ltr. 3, Oct. 24, 2011.)
At the request of all Defendants and their counsel, trial of this
matter was continued. By Order dated May 13, 2011, trial previously
scheduled for September 12, 2011 was rescheduled for September 10,
2012. (Order, ECF No. 227.) In part due to this postponement, and due
to the burden on the Bureau of Prisons in maintaining Defendant's
specially created, secure housing area at the FDC, the Bureau of
Prisons expressed a desire to transfer Defendant to another facility
on an interim basis with the intention of returning Defendant to the
FDC in sufficient time prior to his September 2012 trial.*fn5
At about the same time, Defendant requested to be returned to
ADMAX in Florence, Colorado. Defendant then retracted this
In October 2011, the Bureau of Prisons transferred Defendant to the MCC in New York on an interim basis. (Def.'s Ltr., Oct. 28. 2011, ECF No. 332.) Arrangements were made to transport Defendant from New York to the FDC in Philadelphia each month for contact visits with his defense team. Defendant is to be returned to the FDC at least six months prior to trial. Defense counsel advise that since Defendant's transfer to the MCC in October 2011, Defendant has refused to travel to the FDC for contact visits with his defense team. (Def.'s Mot. 3 n.1, ECF No. 347.)
Defendant filed the instant Motion on December 26, 2011. (Def.'s Mot.) The Motion seeks relief from certain SAMs restrictions that he alleges are interfering with his trial preparations. The Government filed a response to the Motion on January 19, 2012. (Gov't's Resp.)
The Motion requests that the Court remove or modify the following three SAMs restrictions imposed on Defendant: (1) that he remain shackled at his wrists during visits with his defense team; (2) that meetings with fact investigators may only occur when his attorneys are present at such meetings; and (3) that his attorneys only, and not his fact investigators, may disseminate the contents of his ...