The opinion of the court was delivered by: Surrick, J.
Presently before the Court are the Government's Motion for an Anonymous Jury Panel and Heightened Jury Security (ECF No. 441), Defendant Kaboni Savage's Motion to Strike Government's Motion for an Anonymous Jury Panel and Heightened Jury Security for Failing to Abide by this Court's Pretrial Motions Deadline (ECF No. 446), and Defendant Kaboni Savage's Response to Government's Motion for Anonymous Jury Panel and Heightened Jury Security and Defendant's Motion for Sequestered Jury (ECF No. 479). For the following reasons, the Government's Motion will be granted, and Defendant's Motions will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment charging Defendant Kaboni Savage ("Savage") with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.) Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage ("Kidada"). Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government will not seek the death penalty against Kidada.
By Order dated June 29, 2011, the deadline to file pretrial motions in this case was set for February 21, 2012. (ECF No. 239.) On March 28, 2012, the Government filed a Motion for an Anonymous Jury Panel and Heightened Jury Security. (Gov't's Mot., ECF No. 441.) On March 30, 2012, Savage filed a Motion to Strike the Government's Motion on the ground that it failed to comply with the Court's deadline to file pretrial motions. (Def.'s Mot. Strike, ECF No. 446.)*fn2
On May 7, 2012, Savage filed his Response to Government's Motion for an Anonymous Jury Panel and Heightened Jury Security and Defendant's Motion for Sequestered Jury. (Def.'s Mot. Seq., ECF No. 479.) The Government filed a response to Savage's Motion for a Sequestered Jury on May 11, 2012. (Gov't's Seq. Resp., ECF No. 482.)
A. Anonymous Jury Panel and Heightened Jury Security
The Government seeks to empanel an anonymous jury and provide for heightened security during the trial in this case. Specifically, the Government requests that "the names, addresses, and places of employment of prospective jurors not be revealed to the parties, the attorneys, or to the public." (Gov't's Mot. 2.) The Government also requests that "the jurors be sequestered during lunch and recesses under the protection of the United States Marshals Service, and that they be transported to trial each day to and from an undisclosed central location, from which the jurors may return to the respective communities." (Id.) The Government argues that, in light of the Defendants' history of violence and intimidation, an anonymous jury is necessary to protect jurors from the threat of danger posed by Defendants. The Government also argues that protecting the identity of the jurors will not infringe on Defendant's right to a fair trial because Defendant may still conduct an effective voir dire and exercise peremptory challenges.
Savage does not object to an anonymous jury or to the heightened security measures requested by the Government.*fn3 (See Def.'s Mot. Seq. 5.) Savage does, however, contend that the relief requested by the Government does not provide enough protection and "stops short of what is necessary to ensure that [he] has a fair trial with an impartial jury." (Def.'s Seq. Mot. 1.) Savage contends that fully sequestering the jury is appropriate and necessary.
The district court has discretion to empanel an anonymous jury, "provided that the court's discretion is grounded in legitimate concerns for juror safety, courtroom security and protecting court proceedings from outside influences." United States v. Stewart, 325 F. Supp. 2d 474, 498 (D. Del. 2004) (citing United States v. Scarfo, 850 F.2d 1015, 1021, 1023 (3d Cir. 1988)); see also United States v. Thornton, 1 F.3d 149, 154 (3d Cir. 1993) (stating that the circuit court is "'particularly deferential' to the district court's 'substantial discretion' to empanel an anonymous jury"). In capital cases, a defendant is entitled to a list of jurors, including the jurors' addresses, at least three days before the commencement of trial, unless the court determines by a preponderance of the evidence that furnishing such list would "jeopardize the life or safety of any person." 18 U.S.C. § 3432.*fn4 Factors for courts to consider when determining whether to empanel an anonymous jury include: "(1) pretrial publicity from prior related cases that may contribute to juror apprehension; (2) any history of violence by the defendant; (3) the severity of the charges facing the defendant; and (4) any claims that the defendant previously intimidated witnesses." Stewart, 325 F. Supp. 2d at 498 (citing Thornton, 1 F.3d at 154; Scarfo, 850 F.2d at 1023-24). In making its determination, the court is not required to conduct an evidentiary hearing. Id.
We agree with the Government and Savage that an anonymous jury and heightened jury security measures are necessary. During the 2005 drug trial of Savage and Northington in this District, Judge McLaughlin determined that the use of an anonymous jury panel and heightened jury security was appropriate based upon evidence of Defendants' history of violence and intimidation of witnesses. See United States v. Savage, No. 04-269, at ECF No. 616 (E.D. Pa. filed Sept. 26, 2005). Trial in the instant case presents the same need for heightened security measures. The Indictment is replete with examples of threats, intimidation and violence against Government witnesses and their families by Defendants. Jurors also have been the subject of such tactics. While housed at the Federal Detention Center ("FDC") in Philadelphia, Savage "plotted to obtain the addresses and telephone numbers of the jurors in his 2005 federal jury trial." (Gov't's Mot. App. A. at 9.)*fn5 The evidence establishes a dangerousness and a "willingness and ability to interfere with the judicial process" on the part of Defendant. United States v. Byers, 603 F. Supp. 2d 826, 830 (D. Md. 2009) (granting Government's request for an anonymous jury panel where the defendant's conduct, which included murdering government witnesses, showed his willingness and ability to interfere with the judicial process).
Moreover, the requested relief will not impair Defendant's due process or other constitutional rights. An anonymous jury and heightened security do not infringe on a defendant's right to a fair trial because "the practice of withholding jurors' names, addresses and places of employment does not deprive the defense of the information it needs to conduct an effective voir dire and exercise its peremptory challenges." Stewart, 325 F. Supp. 2d at 499 (citing Scarfo, 850 F.2d at 1022); see also United States v. Eufrasio, 935 F.2d 553, 574 (3d Cir. 1991) ("[I]f measures are taken to inform a defendant of jury demographics and to permit ample voir dire, an anonymous jury need not impair a defendant's right to intelligently exercise peremptory challenges."). Any concerns that a jury may have the impression that a defendant is dangerous or guilty can be corrected through "careful instructions to the jurors that keeping their identity confidential [has] no bearing on the evidence or arguments in [this] case." Thornton, 1 F.3d at 154 (finding no abuse of discretion by empaneling anonymous jury). Accordingly, the Government's Motion will be granted. An anonymous jury will be empaneled for this trial. The names, addresses, and places of employment of ...