The United States Government says that it has admissible evidence that Guyanese drug accused, Shaheed ‘Roger’ Khan had ordered the executions of Davendra Persaud and Donald Allison before he was arrested on drug charges and wants this allowed at the upcoming trial to underline his then continuing criminal enterprise.
Khan’s lawyers have opposed a motion the government had filed for the court to rule on the admission of evidence on uncharged acts by Khan while he was here. Khan has also denied the claims that he killed the two men. However, the US government said that what it was seeking to have admitted was direct evidence of the continuing criminal enterprise and other charges in this case. “This evidence has significant probative value and the probative value is not substantially outweighed by any potential danger of unfair prejudice,” the US government said in a motion filed on Monday in the New York court. It added that any prejudice could be addressed by a proper limiting instruction from the court.
Back in May, the US government filed a motion in the Eastern District Court of New York seeking to obtain a pre-trial ruling to admit evidence regarding uncharged criminal activity by Khan. The judge has not yet ruled on the motion.
In their motion opposing the US government’s request, Khan lawyers denied that their client killed Persaud and Allison and alleged that Allison could have been killed because he was supplying guns to an anti-government gang in Agricola.
The defence lawyers had further argued that introduction of such evidence, based principally on the word of cooperating witnesses with no first-hand knowledge of the murders, would unfairly prejudice Khan and would fundamentally change the tenor and expand the scope of the trial.
The defence lawyers stated that in the case of Persaud’s murder, they had interviewed cyclist Tyrone Hamilton, who was with Persaud at the time he was killed. According to the defence, Hamilton provided them with the name of the person who shot Persaud — a person with whom Hamilton was familiar — and had stated that it was neither Khan nor anyone associated with Khan. Hamilton later denied to Stabroek News ever telling the lawyers who had killed Persaud.
Specifically, the US government is seeking to have admitted at trial: evidence that Khan threatened Persaud and Persaud’s family, seized Persaud’s car to satisfy a drug debt, and ultimately, ordered Persaud’s murder.
Khan had said that Persaud was probably killed by someone with whom he had previous brushes.
The US also wants to introduce as evidence that the drug accused was responsible for the murder of Agricola boxing coach Allison. Khan had said that Allison had strong links with the Buxton criminal gang and had supplied arms to them. The US government had said that Allison had insulted Khan in public and as a result he ordered his execution.
Meanwhile, in supporting its motion the US said that as previously argued, although the allegations were not charged in the indictment, the acts constitute direct proof of the continuing criminal enterprise and narcotics conspiracy. Khan is facing an 18-count indictment, which includes continuing a criminal enterprise.
Arguments
Arguing that alternatively, the evidence of murders of the two men was admissible under Rule 404 (b), the US charged that in Khan’s opposition, he did not challenge that the uncharged acts were both relevant to and probative of the charged narcotics offenses, or that they were alternatively admissible under Rule 404(b). Instead, he argued that he was not responsible for the acts, attacked the nature of the government’s proof and claimed the evidence should be excluded under Rule 403.
This evidence, however, was not unfairly prejudicial in the context of the charged crimes and the defendant’s other arguments, the US government said, adding that it should go to the weight the jury should place on the evidence, not whether it was admissible in the first instance.
Further, strongly arguing that the uncharged conduct was admissible and not unfairly prejudicial, the US government said that the uncharged criminal activity that it was seeking to have admitted in its motion in limine was admissible as direct evidence of the crimes charged in the indictment because the acts “arose out of the same transaction or series of transactions as the charged offense[s], … [are] inextricably intertwined with the evidence regarding the charged offense[s], [and are] necessary to complete the story of the crime [on] trial.”
It noted that although Khan denied participating in the Persaud and Allison murders, he speculated about alternative theories of the evidence, and disparaged the reliability of cooperator testimony. Uncharged and other acts could be admissible if a reasonable jury could find by a preponderance of the evidence that the defendant committed those acts, the US government argued citing other cases where this had happened.
According to the US, even murder convictions requiring proof beyond a reasonable doubt may be sustained based on the testimony of a single accomplice “so long as that testimony was not incredible on its face and was capable of establishing guilt beyond a reasonable doubt. The US government further charged that there seems to be no dispute that Persaud and Allison were, in fact, murdered, and it expected to introduce admissible cooperator testimony that Khan was responsible for those murders and that the murders furthered the goals of his drug trafficking organization.
The government also plans to introduce the taped call between Persaud and his wife about the threat to Persaud’s family, and cooperator testimony that the defendant seized Persaud’s car as partial payment for a drug debt. Noting that the crux of the defendant’s argument was that this evidence was unreliable because it consisted primarily of cooperator testimony, the US government said it expected Khan to dispute this vigorous fact at trial.
The US pointed out that the main argument raised by the defendant was that the charged crimes were less serious than the uncharged criminal conduct because the defendant has “only” been charged with narcotics offenses.
However, this was not the case, the US said, noting that the defendant was charged with being the leader of a continuing criminal enterprise. “He literally is charged with being a drug lord and ruling a vast criminal enterprise. This charge is so serious that if convicted at trial, the defendant faces a statutory mandatory minimum sentence of life imprisonment. The average juror would not be shocked that ruling a drug organization involved the use of violence, threats, and intimidation, and that a person in such a position did not arrive and remain there through polite requests,” the US government declared.
It added that indeed, one would expect that violence go hand-in-hand with leading a continuing criminal enterprise. Thus, the evidence of violence is on par and consistent with the charges against Khan, and would not inflame jurors’ emotions.
