2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 1 of 16 Pg ID 4371 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, File No. 15-20652 -vsHon. George Caram Steeh COREY BAILEY (D-4), Defendant. C H R IST O P H E R G R A V E L IN E (P 69515) Assistant U .S. Attorney 211 W . Fort Street, Suite 2001 D etroit, M ichigan 48226 Phone: (313) 226-9155 christopher.graveline@ usdoj.gov C R A IG A . D A L Y , P .C . (P 27539) Attorney for C orey Bailey (D -4) 615 G risw old, Suite 820 D etroit, M ichigan 48226 Phone: (313) 963-1455 4bestdefense@ sbcglobal.net K E IT H A . SP IE L F O G E L (IL B A R 2689537) Attorney for C orey Bailey (D -4) 190 S. LaSalle St., Suite 520 C hicago, Illinois 60603 Phone: (312) 236-6021 spielfogel@ sbcglobal.net MOTION TO STRIKE ALLEGATIONS AND PRECLUDE EVIDENCE REGARDING A HOMICIDE AND SHOOTING FOR WHICH DEFENDANT WAS TRIED AND ACQUITTED Defendant COREY BAILEY, through his attorneys, CRAIG A. DALY, P.C. and KEITH A. SPIELFOGEL, moves this Court to strike allegations and preclude evidence regarding a certain homicide and shooting for which Defendant was previously tried and acquitted, for the following reasons: 1. Defendant COREY BAILEY (“Bailey”) is charged in eleven counts of the Fifth Superseding Indictment, as follows: Count One, RICO Conspiracy, 18 U.S.C. §1962(d); Count Four, Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(1); Count Five, Use of Firearm, 18 U.S.C. §924(c); Count Six, Attempted Murder in Aid -1- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 2 of 16 Pg ID 4372 of Racketeering, 18 U.S.C. §1959(a)(5); Count Seven, Attempted Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(5); Count Eight, Attempted Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(5); Count Nine, Assault with Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); 2; Count Ten, Assault with Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); 2; Count Eleven, Assault with Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); 2; Count Twelve, Use and Carry of a Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. §924(c); 2; and Count Thirty-Two, Possession of a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. §924(c); 2 (Doc. #704). 2. Count One references a certain homicide as follows: On or about October 21, 2009, R.C.-1 was shot and killed and R.C.-2 was shot in the chest by COREY BAILEY and another. (Fifth Superseding Indictment, Overt Act (75), Doc. #704, Pg. ID 3800). 3. The Indictment also alleges, as part of the Notices of Acts with Enhanced Sentencing the following: 2. On or about October 21, 2009, in the Eastern District of Michigan, enterprise member COREY BAILEY, aided and abetted by others known and unknown to the grand jury, did commit an act involving murder, that is, murdering R.C.-1, perpetrated by means of lying in wait, or any other willful, deliberate, and premeditated killing, all in violation of Michigan Compiled Laws, Section 750.316(1). -2- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 3 of 16 Pg ID 4373 3. On or about October 21, 2009, in the Eastern District of Michigan, enterprise member COREY BAILEY, aided and abetted by others known and unknown to the grand jury, did commit an act involving murder, that is, assaulting R.C.-2 with intent to commit murder, all in violation of Michigan Compiled Laws, Sections 750.83 and 767.39. (Fifth Superseding Indictment, Notice of Acts with Enhanced Sentencing, Doc. #704, Pg. ID 3807-08). 4. Bailey was charged in Wayne County Circuit Court for the homicide and shooting on October 21, 2009 of R.C.-1 (Ronald Calloway) and R.C.-2 (Robert Lee Calloway). Wayne County Circuit Court Case No. 09-031618-01-FC (Appendix, Exhibit A, Amended Information Felony). 5. After a jury trial in state court, Bailey was acquitted of all charges on December 1, 2010 (Appendix, Exhibit B, Jury Verdict Form; Exhibit C, Order of Acquittal/Dismissal). 6. The Fifth Amendment to the United States Constitution protects a criminal defendant from being subjected to multiple punishment for the same offense, or multiple trials for the same offense after an acquittal of a crime. U.S. Const. Am V. 7. Notwithstanding the current status of the law allowing for a dual sovereignty exception to the Double Jeopardy Clause, this Court should preclude -3- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 4 of 16 Pg ID 4374 reference to and evidence at trial of the October 21, 2009 incident for which Bailey was tried and acquitted. 8. The law and facts supporting this motion are more fully set forth in the attached Brief and incorporated by reference. 9. Concurrence in this motion was sought and denied by the government on October 24, 2017. WHEREFORE, Defendant requests this Court strike allegations and preclude evidence regarding the October 21, 2009 incident for which Defendant was previously tried and acquitted. Respectfully submitted, s/Craig A. Daly CRAIG A. DALY, P.C. (P27539) Attorney for Corey Bailey (D-4) 615 Griswold, Suite 820 Detroit, Michigan 48226 Phone: (313) 963-1455 4bestdefense@sbcglobal.net /s/Keith A. Spielfogel KEITH A. SPIELFOGEL (Bar No. 2689537) Co-Counsel for Corey Bailey (D-4) 190 S. LaSalle St., Suite 520 Chicago, Illinois 60603 Phone: (312) 236-6021 spielfogel@sbcglobal.net Dated: December 12, 2017 -4- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 5 of 16 Pg ID 4375 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, File No. 15-20652 -vsHon. George Caram Steeh COREY BAILEY (D-4), Defendant. C H R IST O P H E R G R A V E L IN E (P 69515) Assistant U .S. Attorney 211 W . Fort Street, Suite 2001 D etroit, M ichigan 48226 Phone: (313) 226-9155 christopher.graveline@ usdoj.gov C R A IG A . D A L Y , P .C . (P 27539) Attorney for C orey Bailey (D -4) 615 G risw old, Suite 820 D etroit, M ichigan 48226 Phone: (313) 963-1455 4bestdefense@ sbcglobal.net K E IT H A . SP IE L F O G E L (IL B A R 2689537) Attorney for C orey Bailey (D -4) 190 S. LaSalle St., Suite 520 C hicago, Illinois 60603 Phone: (312) 236-6021 spielfogel@ sbcglobal.net BRIEF IN SUPPORT OF MOTION TO STRIKE ALLEGATIONS AND PRECLUDE EVIDENCE REGARDING A HOMICIDE AND SHOOTING FOR WHICH DEFENDANT WAS TRIED AND ACQUITTED 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 6 of 16 Pg ID 4376 TABLE OF CONTENTS Page INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF CONTROLLING AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6 I. THE COURT SHOULD PRECLUDE ANY EVIDENCE OF A HOMICIDE FOR WHICH BAILEY WAS TRIED AND ACQUITTED FOR IN STATE COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 RELIEF SOUGHT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 7 of 16 Pg ID 4377 TABLE OF AUTHORITIES Page CONSTITUTIONAL PROVISIONS U.S. Const. Am. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 FEDERAL CASES Bartkus v. Illinois, 359 U.S. 121 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Elkins v. United States, 364 U.S. 206, 215 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . 4 Green v. United States, 355 U.S. 184, 187-88 (1957). . . . . . . . . . . . . . . . . . . . . . . 3 Heath v. Alabama, 474 U.S. 82, 88-89 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 77-78 (1964).. 5 North Carolina v. Pearce, 395 U.S. 711, 717(1969). . . . . . . . . . . . . . . . . . . . . . . . 3 Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016). . . . . . . . . . . . . . . . . 4 Rinaldi v. United States, 434 U.S. 22 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 United States v. Mardis, 600 F.3d 693, 696 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . 4 FEDERAL STATUTES 18 U.S.C. §924(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S.C. §924(c); 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S.C. §1959(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S.C. §1959(a)(3); 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S.C. §1959(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S.C. §1962(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 1 1 1 1 PUBLICATIONS United States Attorneys’ Manual §9-2.031 (Jan. 2000). . . . . . . . . . . . . . . . . . . . . . 5 -ii- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 8 of 16 Pg ID 4378 STATEMENT OF ISSUE I. SHOULD THE COURT PRECLUDE ANY EVIDENCE OF A HOMICIDE FOR WHICH BAILEY WAS TRIED AND ACQUITTED FOR IN STATE COURT? Defendant answers “yes” Government answers “no” -iii- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 9 of 16 Pg ID 4379 STATEMENT OF CONTROLLING AUTHORITY Defendant relies on the following controlling authority: U.S. Const. Am. V -iv- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 10 of 16 Pg ID 4380 STATEMENT OF FACTS Defendant COREY BAILEY (“Bailey”) is charged in eleven counts of the Fifth Superseding Indictment, as follows: Count One, RICO Conspiracy, 18 U.S.C. §1962(d); Count Four, Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(1); Count Five, Use of Firearm, 18 U.S.C. §924(c); Count Six, Attempted Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(5); Count Seven, Attempted Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(5); Count Eight, Attempted Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(5); Count Nine, Assault with Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); 2; Count Ten, Assault with Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); 2; Count Eleven, Assault with Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); 2; Count Twelve, Use and Carry of a Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. §924(c); 2; and Count Thirty-Two, Possession of a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. §924(c); 2 (Doc. #704). Count One references a certain homicide as follows: On or about October 21, 2009, R.C.-1 was shot and killed and R.C.-2 was shot in the chest by COREY BAILEY and another. (Fifth Superseding Indictment, Overt Act (75), Doc. #704, Pg. ID 3800). The Indictment also alleges, as part of the Notices of Acts with Enhanced Sentencing the following: -1- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 11 of 16 Pg ID 4381 2. On or about October 21, 2009, in the Eastern District of Michigan, enterprise member COREY BAILEY, aided and abetted by others known and unknown to the grand jury, did commit an act involving murder, that is, murdering R.C.-1, perpetrated by means of lying in wait, or any other willful, deliberate, and premeditated killing, all in violation of Michigan Compiled Laws, Section 750.316(1). 3. On or about October 21, 2009, in the Eastern District of Michigan, enterprise member COREY BAILEY, aided and abetted by others known and unknown to the grand jury, did commit an act involving murder, that is, assaulting R.C.-2 with intent to commit murder, all in violation of Michigan Compiled Laws, Sections 750.83 and 767.39. (Fifth Superseding Indictment, Notice of Acts with Enhanced Sentencing, Doc. #704, Pg. ID 3807-08). Bailey was charged in Wayne County Circuit Court for the homicide and shooting on October 21, 2009 of R.C.-1 (Ronald Calloway) and R.C.-2 (Robert Lee Calloway). Wayne County Circuit Court Case No. 09-031618-01-FC (Appendix, Exhibit A, Amended Information Felony). After a jury trial in state court, Bailey was acquitted of all charges on December 1, 2010 (Appendix, Exhibit B, Jury Verdict Form; Exhibit C, Order of Acquittal/Dismissal). The Fifth Amendment to the United States Constitution protects a criminal defendant from being subjected to multiple punishment for the same offense, or multiple trials for the same offense after an acquittal of a crime. U.S. Const. Am V. -2- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 12 of 16 Pg ID 4382 Notwithstanding the current status of the law allowing for a dual sovereignty exception to the Double Jeopardy Clause, this Court should preclude reference to and evidence at trial of the October 21, 2009 incident for which Bailey was tried and acquitted. ARGUMENT I. THE COURT SHOULD PRECLUDE ANY EVIDENCE OF A HOMICIDE FOR WHICH BAILEY WAS TRIED AND ACQUITTED FOR IN STATE COURT. The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides, in pertinent part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Am. V. Among protections provided by the Fifth Amendment is the protection against a second prosecution for the same offense after acquittal. North Carolina v. Pearce, 395 U.S. 711, 717(1969). This protection seeks to prevent “the state with all its resources and power from “mak[ing] repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as embracing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88 (1957). -3- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 13 of 16 Pg ID 4383 Currently, the dual sovereign doctrine creates a judicially created exception providing “that the double jeopardy clause does not apply to suits by separate sovereigns, even if both are criminal suits for the same offense.” United States v. Mardis, 600 F.3d 693, 696 (6th Cir. 2010). “[P]rosecution in both state court and federal court for offenses that would otherwise constitute the same ‘offense’ under the Fifth Amendment if tried successively in the same forum is constitutional under the dual sovereignty doctrine.” Id. citing Heath v. Alabama, 474 U.S. 82, 88-89 (1985).1 The dual sovereignty doctrine has more recently come under attack, since it fails to serve the very purpose of shielding individuals from the harassment of multiple prosecutions for the same conduct. Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016) (Ginsburg, J., concurring). The doctrine rests upon a misinterpretation of the Framers understanding of double jeopardy. Also, the extensive federalization of crimes along with cooperation between federal and state prosecutors raises serious question about the continued validity of the doctrine. The United States Supreme Court has already eliminated dual sovereignty exceptions in the context of other constitutional prosecutions. See, Elkins v. United States, 364 U.S. 206, 215 (1960) (holding the evidence obtained in unlawful searches 1 An exception to the dual sovereignty doctrine is the “sham prosecution.” Mardis, 600 F.3d at 697, citing to Bartkus v. Illinois, 359 U.S. 121 (1959). -4- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 14 of 16 Pg ID 4384 by state officials was inadmissible in a federal trial under the Fourth Amendment); Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 77-78 (1964) (abolishing rule that state and federal authorities could compel a witness to incriminate himself in the other’s courts). Finally, notwithstanding any constitutional bar in this case, the Petite policy of the Department of Justice policy, precludes successive prosecutions in most cases. The policy, “precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act[s] or transaction[s]” unless (1) the matter “involve[s] a substantial federal interest”; (2) the prior prosecution “left that interest demonstrably un-vindicated”; and (3) there is sufficient evidence to sustain a conviction of a federal offense, by an unbiased trier of fact.” United States Attorneys’ Manual §9-2.031 (Jan. 2000). See also, Rinaldi v. United States, 434 U.S. 22 (1977). In the present case, Bailey was charged in Wayne County Circuit Court with first degree premeditated murder of Ronald Calloway and assault with intent to murder Robert Calloway, Julian Gentry, Justin Judge, and Deante Calloway, felon in possession and felony firearm on October 21, 2009 (Appendix, Exhibit A, Amended Information). After a jury trial, he was acquitted of all counts on December 1, 2010 (Appendix, Exhibit B, Jury Verdict Form; Exhibit C, Order of Acquittal). In the Fifth -5- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 15 of 16 Pg ID 4385 Superseding Indictment, the government intends to establish the Rico Conspiracy in Count One, in part, by use of the conduct involving the shooting death of Ronald Calloway and shooting of Robert Calloway (Fifth Superseding Indictment, Overt Act 75, Doc. #740, Pg. ID 3800). Additionally, the government seeks to enhance Bailey’s sentence by use of evidence involving his acquittal (Fifth Superseding Indictment, Notice of Acts with Enhanced Sentencing, Doc. #740, Pg. ID 3807-08). RELIEF REQUESTED WHEREFORE, Defendant requests this Court strike allegations and preclude evidence regarding the October 21, 2009 incident for which Defendant was previously tried and acquitted. Respectfully submitted, s/Craig A. Daly CRAIG A. DALY, P.C. (P27539) Attorney for Corey Bailey (D-4) 615 Griswold, Suite 820 Detroit, Michigan 48226 Phone: (313) 963-1455 4bestdefense@sbcglobal.net /s/Keith A. Spielfogel KEITH A. SPIELFOGEL (Bar No. 2689537) Co-Counsel for Corey Bailey (D-4) 190 S. LaSalle St., Suite 520 Chicago, Illinois 60603 Phone: (312) 236-6021 spielfogel@sbcglobal.net Dated: December 12, 2017 -6- 2:15-cr-20652-GCS-DRG Doc # 776 Filed 12/12/17 Pg 16 of 16 Pg ID 4386 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, File No. 15-20652 -vsHon. George Caram Steeh COREY BAILEY (D-4), Defendant. CERTIFICATE OF SERVICE I, CRAIG A. DALY, P.C., hereby certify that on the 12th day of December 2017, I electronically filed Motion to Strike Allegations and Preclude Evidence Re: Homicide and Shooting For Which Defendant Was Tried and Acquitted with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Hon. George C. Steeh, AUSA Christopher Graveline and Attorneys of Record. Respectfully submitted, /s/Craig A. Daly CRAIG A. DALY, P.C. (P27539) Attorney for Corey Bailey (D-4) 615 Griswold, Suite 820 Detroit, Michigan 48226 Phone: (313) 963-1455 E-Mail: 4bestdefense@sbcglobal.net Dated: December 12, 2017