e @ ,

The government, on the other hand, contends that it is not limited to one piece of
evidence to prove its case, even when an element is uncontested, Old Chief, United
States, 519 U.S. 172 (1997), ‘The government cites Gonzalez v. DeTella, 127 F.3d 619,
621 (7" Cir. 1997), in which graphic photos of shooting victims were admitted to
corroborate and illustrate the testimony of a witness and a pathologist. The Seventh
Circuit concluded that the photographs were relevant and the risk of misleading the jury
was not greal enough to render the defendant’s trial constitutionally unfair. /d. (emphasis
added), See also United States v. Velasquez, 246 F.3d 204, 210 (2d Cir. 2001) (autopsy
photographs admitted to establish severity of beating and underscore moral blame in
covering it up, even though defendant offered to stipulate that the beating occurred).

While these cases do not dictate a ruling one way or the other, they do suggest
that the photographs at issue demand careful consideration. The Court recognizes that
photographs of bums suffered by the kidnaping victims serve an important purpose in
proving that the kidnaping and torture occurred and that these photographs may very well
corroborate and illustrate the victims’ testimony and the government’s theory of the case,
but that does not end the inquiry. The photographs are allegedly very gruesome in that
they depict severe burns to the victims’ genitals, anuses, and other parts of their bodies,
As such, they may be sufficiently shocking to clicit an emotional response from the jury.
Further, the probative value of the photographs is somewhat lessened if they do not relate
to a disputed issue of fact.

In sum, the Court cannot conduct the required balancing test and make a final
ruling on admissibility without first knowing how many photographs are at issue,
viewing the photographs, and considering the specific bases for admission of each one.

4



Affiliation (133] is denied. Defendant’s Motion to Strike Surplusage and Exclude

References to the “Carman Brothers Crew” [137] is granted in part and denied in part.

SO ORDERED ENTERED: c/a s/o Y

HON. RONALD A,
United States Judge



defendants is a central issue,” United States v. Thomas, 86 F.3d 647, 652 (7th Cir, 1996)
‘
(collecting cases).

The government contends that the Latin Kings evidence is admissible because it
is relevant to proving the genesis, composition, and evolution of the alleged RICO
enterprise. Seven defendants in this case are alleged to be members of the Kedzie and
Cortez section of the Latin Kings (hereinafter “KC Latin Kings”). Two other defendants
are alleged to be members of other sections of the Latin Kings, and the remaining two
defendants are alleged to be members of other street gangs. In 1994, defendant Richard
Carman was put in charge of a subsection of the KC Latin Kings. Carman allegedly used
his status within the gang to recruit trusted Latin Kings members to participate in the
drug transactions, kidnapings, and robberies that {orm the basis for the RICO and
conspiracy charges. The government contends that the Latin Kings evidence will help
explain not only how Richard Carman was able to convince his co-defendants to
participate in the alleged crimes, but also the continued allegiance of at least one co-

defendant even afier Carman shot him through the leg.

Carman does not rebut these allegations, rather he contends that evidence of
defendants’ tics to the Latin Kings is irrelevant because the gang is not the charged RICO
enterprise. This argument misses the point. The Court has little trouble agreeing with
the government that the gang affiliation evidence is probative of the alleged genesis,
composition and operation of the alleged enterprise and conspiracy. The evidence will
aid the jury in understanding the contex( of defendants’ relationships with each other and

the influence certain defendants had over others. Thus, the Court finds the probative



Therefore, the Court denies defendant’s motion to exclude grucsome photographs of the
alleged victims without prejudice. Defendant’s request for notice of the government’s
intent to introduce these photographs at trial is granted. The government is hereby
ordered to give defendant notice of its intent to introduce any of the disputed photographs
at least thirty days prior to trial. Within seven days thereafter, defendant may renew his
motion, at which time the Court will review the photographs and make a final ruling on
admissibility.’

Il. Motion to Strike and Exclude Latin Kings Evidence.

Defendant Richard Carman moves to strike references to the Latin Kings gang
from the indictment and exclude all such evidence from the trial. This motion is denied

for the reasons that follow.

Carman argues that evidence relating to various defendants’ membership in the
Latin Kings street gang should be excluded from trial because it is irrelevant and unfairly
prejudicial, To exclude gang evidence, a defendant must demonstrate that the probative
value is substantially outweighed by the danger of unfair prejudice. Fed. R, Evid. 403.
Courts recognize that gang evidence is “likely to be ‘damaging to a defendant in the cyes
of the jury,’” therefore its admissibility must be carefully considered. United States v.
Butler, 71 F.3d 243, 251 (7th Cir. 1995) (quoting United States v. Rodriguez, 925 F.2d
1049, 1053 (7th Cir. 1991)). At the same time, gang affiliation is “particularly relevant,

and has been held admissible, in cases where the intertclationship among various

? This opinion applies only to photographs described in this motion and not to any other
unidentified “gruesome depictions” of the victims.

5



presupposes the existence of a RICO enterprise and the brothers’ roles in it, which the
government has the burden of proving. The government does not contend that anyone
used the name “Carman Brothers Crew” to refer to defendants. Instead, the government
argues that the name serves the essential purpose of identifying the RICO enterprise,

which makes it relevant and not inflammatory.

The Court agrees with the defendant. An attorney cannot make statements
relying on evidence which has not been put before the jury. United States v. Velez, 46
F.3d 688, 691 (7th Cir. 1995). “On the other hand, when the jury has the evidence in its
possession and is equipped to ascertain whether the government’s characterization is
accurate, a statement characterizing that evidence is not improper.” Jd. at 692. The
government is not entitled to refer to the enterprise as the “Carman Brothers Crew”
unless it puts forth evidence tending to show that an enterprise existed and that Richard
and Jerome Carman were its leaders. Thus, the motion to preclude use of the phrase the
trial is granted. The motion to strike the phrase from the indictment is denicd without
prejudice. If Carman so desires, he can raise the issue again before the indictment goes
to the jury. The Court will revisit the issue at that time based on the evidence adduced at

trial.
CONCLUSION

For all of the foregoing reasons, the Court denies defendant’s Motion to Exclude
Gruesome Depictions of the Victims [129] without prejudice. Defendant’s request for

notice of the government’s intent to introduce the aforementioned photographs at trial is

granted. Defendant's Motion to Strike Surplusage and Exclude Evidence of Gang



Minute Order Farm (06/97)

United ®. District Court, Northern visti Illinois

N f Assigned Jud; Sitting Judge if Other
noe Magistrate Judge Ronald A. Guzman than Assigned Judge
CASE NUMBER 02 CR 464-1 DATE 6/28/2004
CASE USA vs. RICHARD CARMEN
TITLE

[in the foltowing box (a) indicate the party fling the motion, e.g., plaintif¥, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) Qa Brief in support of motion due

@) aq Answer briefto motion due____—. Reply to answer briefdue___.

(4) oO Ruling/Hearingon set for_— at

(3) Oo Status hearing[held/continued to) (set for/re-set for]on_____sset for_ at

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__—setfor_— at

(7) oO Trial[set for/re-set for]on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 COFRCP41(a)(1)  FRCP41(a)(2).

ao) [Other docket entry] For all of the foregoing reasons, the Court denies defendant’s Motion to

Exclude Gruesome Depictions of the Victims [129] without prejudice, Defendant’s request for notice of
the government’s intent to introduce the aforementioned photographs at trial is granted. Defendant’s
Motion to Strike Surplusage and Exclude Evidence of Gang Affiliation [133] is denied. Defendant's
Motion to Strike Surplusage and Exclude References to the “Carman Brothers Crew” [137] is granted in
part and denied in part.

(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

umber af natices

Notices mailed by judge's staff,

Notified counsel by telephone.

a | Docketing to mail notices.

Mail AO 450 form.

K

Copy to judge/magisirate judge.

MOG ! MLS “SA
Mayo

date mailed notice

courtroom eqie Wd 82 KAP HOOe

ca deputy's
initials EPR =

Td Le Pabtife received in
‘Ke tt Merk's Office ning pul ini



value outweighs the potential for unfair prejudice. Of course, this does not mean that the
government is entitled to introduce unlimited Latin Kings evidence. Moreover, the
government is still required to prove that each individual defendant participated in the
specific crimes with which he is charged, See United States v. Thomas, 86 F.3d at 653
(probative value of evidence of gang membership outweighed potential threat of jury
finding defendant “guilty by association” because there was also direct evidence of
defendant’s participation in drug conspiracy). Defendant’s motion to exclude evidence at

trial of defendants’ Latin Kings gang affiliation is therefore denied.

Defendant further argues that references to the Latin Kings strect gang are mere
surplusage and should be stricken from the indictment. A motion to strike under Fed. R.
Crim. P. 7(d) should be granted only if the targeted allegations are clearly not relevant to
the charge, and are inflammatory and prejudicial. United States v. Chaverra-Cardona,
667 F, Supp. 609, 611 (NLD. Ill. 1987). As explained above, evidence of defendants’
gang affiliation is relevant to the charged crimes. The motion to strike is therefore

denied.
Ill. Motion to Strike and Exclude References to the “Carman Brothers Crew.”

The indictment refers to the RICO enterprise as the “Carman Brothers Crew,”
after defendants Richard and Jerome Carman, who are in fact brothers. Richard Carman
moves to strike the name “Carman Brothers Crew” from the indictment and preclude use

of it at trial? Defendant asserts that the government invented the name, and that it

> Defendant Jerome Carman has not objected to use of the name “Carman Brothers
Crew.”



: @ @

discretion. United States v. Souffront, 338 F.3d 809, 825 (7th Cir. 2003). In determining
whether relevant evidence should be excluded, a court must decide whether its probative
value “is substantially outweighed by the danger of unfair prejudice... .” Fed. R. Evid.
403, Undue prejudice means “an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” /d. advisory committee's
notes. Photographs, in particular, can be unfairly prejudicial if they are “sufficiently
shocking or repulsive” enough to necessarily elicit an emotional response from the jury.
Souffront, 338 F.3d at 826.

Defendant's argument that gruesome photographs are inadmissible if they do not
relate to a disputed issue of fact warrants careful consideration in light of Gomez v.
Ahitow, 29 F.3d 1128, 1139 (7th Cir, 1994) and Ferrier v. Duckworth, 902 F.2d 545,
548-49 (7th Cir. 1990). In both cases, the Seventh Circuit indicated that the district court
erred in admitting gruesome photographs, but ultimately found no reversible error. Jd.
For instance, in Gomez, the defendant was convicted of armed robbery and murder. 29
F.3d at 1129, The court admitted photographs showing the victim’s body at the crime
scene and the gunshot wounds ftom which he died. /d. at 1139. In his habeas petition,
the defendant claimed admission of these photographs violated his constitutional right to
due process and right to a fair trial. /d. The government contended the photographs were
properly admitted because they were “corroborative of testimonial evidence and were
probative of the circumstances of Perez's death.” Jd, Neither the fact of Perez’s death
nor the cause of his death were at issuc. The Seventh Circuit remarked that the “only
conceivable reason for placing them in cvidence was to inflame the jury,” but ultimately
denied defendant's petition, Jd. at 1139 (quoting Ferrier, 902 F.2d at 548).

3



@ @ °

money from one of the defendants. In the aftermath of the kidnaping, law enforcement
took photographs of the victims’ injurics. The photographs depict severe burns to the
victims’ genitals and anuses as well as other parts of their bodics. These photographs
were shown to the grand jury and have becn disclosed to defendants during discovery.
Richard Carman requests an order excluding these photographs from the trial. In the
alternative, Carman seeks an order requiring the government to give notice and establish
the relevance of any such photograph prior to introducing it at trial.

In support of the motion, Carman argues the photographs are inadmissible under
Rule 403 because they do not aid the jury in resolving any matter at issue.’ According to
defendant, neither the victims’ identities, nor the injuries sustained, are disputed,
Defendant claims that the victims will be available to testify to their injuries and that
admitting the photographs will only serve to inflame the jury. The government, on the
other hand, contends the photographs are highly probative and admissible becausc they
illustrate and corroborate the victims’ testimony and support the government's theory of
the case. The government also claims the motion is premature because it has not yet
decided which photographs it intends to introduce at trial. Neither party has indicated
how many photographs are at issue.

The admissibility of evidence under Rule 403 is squarely within the trial judge’s

' None of the cascs cited by defendant establishes this as an absolute rule. The only case
cited by defendant whcre a photograph was cxcluded is United States v. Salim, 189 F. Supp. 2d
93, 98 (S.D.N.Y. 2002), which is distinguishable. In Salim, the photograph was taken after the
victim underwent surgery to remove a comb Irom his eye, Jd. at 98-99. The court excluded it,
but stated it would revisit the issue if the government could show the photograph accurately
depicted injuries from the attack and not also trauma from the surgery. /d. at 99. In this case,
Carman has made no claim that the photographs inaccurately depict injuries inflicted during the
kidnaping.



‘ . @ @

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
Plaintiff, } 02 CR 464-1
v. ) Judge Ronald A. Guzman
RICHARD CARMAN, }
Defendant. }

MEMORANDUM OPINION AND ORDER

Before the Court are Richard Carman’s Motions to (1) Exclude Gruesome
Depictions of the Victims, (2) Strike Surplusage and Exclude Evidence of Gang
Affiliation, and (3) Strike Surplusage and Exclude References to the “Carman Brothers UG,
Crew,” Defendant’s motions are denied in part and granted in part, as explained below.’ Y, Mery

Background “Say

This case involves eleven defendants and a twenty-nine count superseding
indictment (hereinafter “indictment”) alleging a pattern of racketecring activity and an
overlapping drug conspiracy. Defendant Richard Carman was the alleged ringleader. A
detailed understanding of the case is not necessary for purposes of these motions, and
therefore only the relevant facts are included in this opinion.

Analysis

L Motion to Exclude Gruesome Depictions of the Victims.

One of the charged racketeering acts in this case involves the alleged kidnaping,
interrogation and torture of seven individuals who were suspected of stealing drugs and

1

3a,