IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA, JORGE

PETER CORNELL, also known as King J and King Jay RUSSELL LLOYD KILFOIL, also known as King Peaceful and Jonathan Hernandez RANDOLPH LEIF KILFOIL, also known as King Paul SAMUEL ISAAC VELASQUEZ, also known as King Hype IRVIN VASQUEZ, also known as King Dice CARLOS COLEMAN, also known as King Spanky ERNESTO WILSON, also known as King Yayo : : : : : : : : : : : : : : : : : 1:11CR402-1 SUPERSEDING 1:11CR402-2

1:11CR402-3 1:11CR402-9 1:11CR402-12 1:11CR402-13 1:11CR402-14

GOVERNMENTS MOTION FOR SANCTIONS FOR VIOLATION OF RULE 615 NOW COMES the United States of America, by and through

Ripley Rand, United States Attorney for the Middle District of North Carolina, James M. Trusty, Chief, Organized Crime & Gang Section, Department of Justice, and the undersigned attorneys, and files its Motion for Sanctions for Violation of Rule 615. I. RELEVANT FACTS On October 22, 2012, jury trial began in the above-entitled case. Prior to of opening all statements the government case moved for

sequestration

witnesses,

except

agents

Douglas

Rentz, John Lowes, and Nicholas Combs. The Court granted this motion and ordered that after opening statement, all witnesses

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 1 of 10

for the government and all witnesses for the defense be subject to sequestration pursuant to Rule 615. Reverend Johnson, a

defense witness, was among those individuals in the courtroom at the time the Court entered this order. After evidence began in this case, substance of in-court testimony was improperly shared with defense witnesses who are scheduled to testify in this case. This information has been shared by the defendants and by others who are seated in the courtroom. Jorge Specifically, in telephone calls made by defendant from the Forsyth County Jail to individuals

Cornell

identified as D, Reverend Johnson, and Alana Cornell, it is clear that in-court testimony of witnesses has been improperly shared in violation of the Courts order of sequestration.

Jorge Cornell is in the custody of the United States Marshal and is being housed at the Forsyth County Jail. The Forsythe County

Jail allows inmates to make telephone calls, however, prior to each call the inmate is and advised that that may the be call is from a

correctional

facility

it

recorded

and/or

monitored at any time. On October 22, 2012 Cornell made two telephone calls to Reverend Johnson and D wherein he discussed the sequestration order as well as the testimony of witnesses. Again, on October 24, 2012 Cornell made a telephone call to D in which both discuss the fact that trial testimony

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 2 of 10

was shared with Alana Cornell. On October 25, 2012 Cornell made two telephone calls to Reverend Johnson, again discussing receipt of testimonial

details from October 24, 2012. On October 27, 2012 Cornell made one telephone call to

Reverend Johnson and four calls to Alana Cornell, in which the parties discussed the testimony of witnesses who had testified during that day, including the substance of grand jury

testimony. On October 30, 2012 Cornell called D at the residence of Alana Cornell, and Cornell discussed witness testimony with D. Finally, On November 4, 2012 Cornell called Reverend

Johnson to again recount the days testimonial evidence. On November 8, 2012 a press conference was held outside the Federal Courthouse in Winston-Salem, North Carolina. course of the news conference, Reverend During the shared

Johnson

information with the media that had been improperly revealed to Johnson by Cornell. Specifically, Johnson revealed the fact that a police department employee had told federal investigators

about an officer who claimed to have shot Cornell in 2008, a disclosure that was brought out in the courtroom for the first time during the pre-trial conference, and more specifically just days prior to the press conference. by Cornell to Reverend Johnson, During telephone calls made Cornell discussed this

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 3 of 10

information and the need to have it presented to the media. For the following reasons, the government requests this

Court impose sanctions, including barring Reverend Johnson and Alana Cornell from testifying in this case, due to a willful violation of this Courts sequestration order. In support of

this motion, the government will provide copies of all of the relevant recorded jail telephone calls and a copy of the

newspaper article detailing the press conference of November 8, 2012. II. Argument of trial witnesses serves the important

Sequestration

purpose of preventing the possibility of one witness shaping his testimony to serve a specific purpose based on what other

witnesses have provided.

See, United States v. McMahon, 104 Rule 615 of the Federal Rules of

F.3d 638, 643 (4th Cir. 1997).

Evidence, from its plain and unambiguous language provides: At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize the exclusion of. . . (3) a person whose presence is shown by a party to be essential to the presentation of the partys cause. . . Fed.R.Evid. 615. This rule prohibits the discussion of trial See,

testimony with any other witness who has yet to testify. United States v. Rhynes, 218 F.3d 310, 317 (4th Cir. 2000).

When an in-court violation of a Rule 615 order occurs, a

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 4 of 10

criminal defendant need not show the violation prejudiced him. A conviction may be upheld only if the violation was harmless beyond a reasonable doubt. United States v. Farnham, 791 F.2d

331, 335 (4th Cir. 1986); United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir. 1982). An out-of-court Rule 615 violation is a different story. When an out-of-court violation is brought to the attention of the court, the remedies available, while varied, include

exclusion of witness testimony, holding the responsible party in contempt, sanctions for the offending witness, or letting the trial proceed unabated. United States v. Leggett, 326 F.2d 613,

614 (4th Cir.) (per curiam), cert. denied, 377 U.S. 955 (1964); United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997);

McMahon, 104 F.3d at 642. This Circuit has agreed that broad discretion can be

exercised to prevent a witness from tailoring testimony in light of the testimony of other witnesses, permit the discovery of false testimony and other problems related to credibility, and manage trials in the interests of justice. v. Brown, 2011 WL 6046370, *3 (E.D.N.C.). See, United States Sanctions must be

fixed in proportion to the severity of a partys misconduct. Cf. Doyle v. Murray, 938 F.2d 33, 34 (4th Cir. 1991). The Fourth Circuits decision in United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) is particularly instructive.

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 5 of 10

In

Cropp,

the that

defense he had

called never

witness

named

Carter, from

who co-

testified

purchased

narcotics

defendant Mosley, nor had he ever seen Mosley with drugs. Id. However, it became clear to the trial court during Carters

testimony that Mosley had spoken with Carter prior to Carters testimony, in violation of the courts sequestration order, and in fact the defendant had told Carter that there had been

previous testimony that Carter had purchased crack from Mosely on numerous occasions. Id. Based on the defendants clear,

intentional violation of the courts sequestration order, the court excluded Carters testimony. Id. In upholding the trial courts ruling, the Fourth Circuit, while clearly hesitant to endorse the use of such an extreme remedy, nevertheless concluded that the trial court was well within its discretion to strike the witnesss testimony,

especially where the violation was plainly the fault of the defendant or defendants counsel and indeed the defendant

himself was behind this violation in some way. Id. Here, far more so than in Cropp, the evidence before this Court himself is definitive has violated and this unambiguous Courts that defendant Cornel and

sequestration

order

intentionally subverted the purpose and spirit of the rule in this case. Specifically, on the dates specified above, Jorge Cornell, who is an inmate at the Forsythe County Jail, made

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 6 of 10

telephone calls to Reverend Johnson, D, and Alana Cornell. During the course of these calls Cornell openly and improperly discussed testimony provided by witnesses who have testified in this case, even acknowledging the existence of the Courts order designed to preclude such obstructionist conduct. Cornell

further made requests that Reverend Johnson be provided with the specifics of this testimony. In addition, Cornell was informed

by D that when he is not available, the substance of notes taken by individuals in court is shared with Reverend Johnson. Given this irrefutable evidence of the defendants blatant disregard requests defendant for that the the Courts Court sequestration take immediate of Rule order, action 615. the government the the

regarding Just as

Cornells

violation

defendant has a right to a fair trial by jury, the government also holds this right, which will be completely undermined if the defense is allowed to call two witnesses whose testimony has been so tainted and influenced by defendant Cornell and the

information he has provided them concerning the specifics of so many of the governments substantive witnesses. To allow these two witnesses to testify in the face of defendants intentional, repeated violation of this Courts sequestration order would be to permit willful, obstructionist The conduct to pass without

serious

consequence.

government

therefore

respectfully

requests that this Court prohibit Reverend Johnson and Alana

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 7 of 10

Cornell

from

testifying

and

thus

preserve

the

integrity

and

fundamental fairness of this trial. Respectfully submitted this the 12th day of November, 2012. Respectfully submitted, RIPLEY RAND UNITED STATES ATTORNEY

ROBERT A.J. LANG Assistant United States Attorney

JAMES A. TRUSTY CHIEF ORGANIZED CRIME & GANG SECTION

LESHIA M. LEE-DIXON Trial Attorney

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 8 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA, JORGE PETER CORNELL, also known as King J and King Jay RUSSELL LLOYD KILFOIL, also known as King Peaceful and Jonathan Hernandez RANDOLPH LEIF KILFOIL, also known as King Paul SAMUEL ISAAC VELASQUEZ, also known as King Hype IRVIN VASQUEZ, also known as King Dice CARLOS COLEMAN, also known as King Spanky ERNESTO WILSON, also known as King Yayo : : : : : : : : : : : : : : : : : 1:11CR402-1 SUPERSEDING 1:11CR402-2

1:11CR402-3 1:11CR402-9 1:11CR402-12 1:11CR402-13 1:11CR402-14 CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of November, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Michael W. Patrick, attorney for Jorge Peter Cornell (1), Brian M. Aus, attorney for Russell Lloyd Kilfoil (2), Christopher B. Shella, attorney for Randolph Leif Kilfoil (3, Mark Everette Edwards, attorney for Samuel Isaac Velasquez (9), Helen L. Parsonage, attorney for Irvin Vasquez (12), Charles L. White, Jr., attorney for Carlos Coleman (13) and Scott C. Holmes, attorney for Ernesto Wilson (14).

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 9 of 10

I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none. Respectfully submitted, RIPLEY RAND United States Attorney

ROBERT A. J. LANG Assistant United States Attorney

JAMES A. TRUSTY CHIEF ORGANIZED CRIME & GANG SECTION

LESHIA M. LEE-DIXON Trial Attorney

Case 1:11-cr-00402-JAB Document 279 Filed 11/12/12 Page 10 of 10