Opinion
No. 02 Cr. 1185 (RPP).
June 26, 2003.
Lawrence F. Ruggiero, Esq., New York, NY, Counsel for Defendant.
OPINION AND ORDER
Defendant Henry Boone ("Defendant") moves this Court for: 1) severance or bifurcation of Counts Three and Four of the Superceding Indictment; 2) the striking of all references to prior convictions from the Superceding Indictment, or redaction at a separate trial of Counts Three and Four; 3) reconsideration of this Court's determination that probable cause existed for the arrest of Defendant and a reopening of the evidentiary hearing for further testimony on that issue; 4) disclosure of the confidential informant(s) upon whom the arresting officer relied as providing probable cause for the defendant's arrest, and an Order directing his or their appearance at a reopened suppression hearing; and 5) disclosure of the confidential informant(s) as essential to a fair determination of these charges and to Defendant's right to prepare his defense. (Notice of Motion dated April 21, 2003 at 1-2.) In addition, Defendant moves this Court to grant Defendant access to the following discovery items: 1) memo books, notes and reports of the two officers who allegedly communicated to the arresting officer their observation of 47 bags of crack cocaine thrown from the bedroom window of the apartment in question; and 2) statements, reduced to writing, that were made by Defendant while being debriefed by officers at the 42nd precinct, prior to the administering of Miranda warnings to Defendant. (Affirmation of Lawrence F. Ruggiero, Esq., dated May 23, 2003 (the "Ruggiero May Affirmation") at 1.) For the following reasons, Defendant's motion is granted in part and denied in part.
Background
The underlying facts in this case leading up to Defendant's initial indictment are detailed in this Court's Opinion and Order dated March 5, 2003. United States v. Boone, 2003 WL 841088, *1-*2 (S.D.N.Y. 2003).
On November 12, 2002, Defendant moved this Court for an order 1) suppressing all physical evidence seized on or about June 5, 2002; 2) suppressing any statements made by Defendant on or about June 5, 2002 and other fruits of his arrest; and 3) compelling disclosure of the identity of the Government's confidential informant prior to trial, pursuant to Roviaro v. United States, 353 U.S. 53 (1957). Following a suppression hearing on January 13, 2003 (the "January Hearing"), at which Police Officer Orville Reid and Detective Albert Hickey testified, this Court denied Defendant's motion in its entirety.
On February 5, 2003, a federal Grand Jury brought a five count superceding indictment (the "Superceding Indictment") charging Defendant with: 1) possession with intent to distribute approximately 47 bags of cocaine base ("crack") in violation of 21 U.S.C. § 812, 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; 2) carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(C)(1)(A)(i) and 2; 3) possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), 924(e) and 2; 4) possession of various forms of ammunition as a convicted felon in violation of 18 U.S.C. § 922(g)(1), 924(e) and 2; and 5) possession of a firearm which had the manufacturer's serial number removed or obliterated in violation of 18 U.S.C. § 922(k) and 2.
Defendant brought the current motion on April 21, 2003. Argument on the motion was held on May 6, 2003. By Order dated May 7, 2003, the Court reopened the suppression hearing for the "limited purpose to determine precisely when Officer Orville Reid acquired knowledge that drugs were thrown from the window of apartment #14H at 1408 Webster Avenue, Bronx, New York, and when Officer Reid placed Defendant under arrest." (Order dated May 7, 2003 at 1.)
At the reopened suppression hearing on May 13, 2003 (the "May Hearing"), Officer Reid testified, expanding on the testimony he gave at the January Hearing. He testified that approximately seven other police officers from his unit, in addition to members of the Emergency Services Unit ("ESU"), were present at the scene at apartment #14H of 1408 Webster Avenue, Bronx, New York (the "Apartment") on the day of Defendant's arrest. (May Hrg. at 4.) Officer Reid was stationed in the hallway of the 14th floor outside the Apartment, and other officers were stationed on the roof, in the courtyard below the Apartment window, in the lobby of the building, and in a van parked outside of the location. (Id. at 5-6.) Officer Reid utilized a "point-to-point radio" which allowed him to "communicate directly" with the other members of his police unit present at the scene. (Id. at 6-7.) While Reid was stationed on the 14th floor, before he entered the Apartment, but at the same time the members of the ESU were trying to get into the Apartment, Reid received a radio call from a fellow officer stationed outside the Apartment telling Reid that something was coming out of the window of the Apartment. (Id. at 7, 14.) Within minutes, Officer Reid received a second radio message from the officers stationed outside the Apartment window indicating that the items that had been thrown from the window were "slabs of crack." (Id. at 7, 15.) Upon receipt of this second radio message, Officer Reid was still in the hallway, and had not yet entered the Apartment or seen Defendant. (Id. at 8-9.) At this time, Officer Reid instructed the officers stationed in the courtyard to secure the crack cocaine. (Id. at 9.)
Upon learning that crack cocaine had been thrown from the window of the Apartment, Officer Reid entered the Apartment and removed Defendant and Shakema Lopez, the other occupant of the Apartment, to the hallway because members of the ESU were attempting to secure several dogs inside the Apartment. (Id.) Members of the ESU had placed Defendant and Lopez in handcuffs prior to the time Officer Reid entered the Apartment because, in addition to the dogs present inside the Apartment, the police had received information that there was a firearm inside the Apartment. (Id. at 10.) While Defendant and Lopez were in the hallway outside the Apartment, an officer from Reid's unit showed Reid the crack cocaine that had been thrown from the window. (Id. at 10-11.) Defendant and Lopez were then removed from the hallway and taken to the 42nd precinct. (Id.)
On May 23, 2003, Defendant's counsel submitted the Ruggiero May Affirmation requesting the following additional discovery: "a) the memo book, notes, and reports of the two officers (Buckley and Bosen) who allegedly communicated to Officer Reid their claimed observation that 47 bags of what appeared to be cocaine were thrown from the bedroom window of the apartment in question; and b) discovery of all statements, that were reduced to writing, made by the defendant while being debriefed by teams of officers from the 42nd precinct in a closed-door session prior to the entry into the room of Detective Hickey and his administering to the defendant of the Miranda warnings." (Ruggiero May Affirm. ¶ 2.)
Discussion
I. Motion for Severance or Bifurcation of Counts Three and Four
In response to Defendant's motion, the Government consented to bifurcation of Counts Three and Four of the Superceding Indictment pursuant to United States v. Jones, 16 F.3d 487, 492 (2d Cir. 1994) (holding that "joinder of an ex-felon count with other charges requires either severance, bifurcation, or some other effective ameliorative procedure"). The Government proposes that the jury not be told about Counts Three and Four until after it returns a verdict as to the remaining counts, at which point the Government would be permitted to introduce evidence of the remaining elements for Counts Three and Four. The Government objects to severance "because the criminal conduct charged in Counts Three and Four of the [S]uperceding [I]ndictment is inextricably intertwined with the criminal conduct charged in the remaining counts . . . [and] severance would be inefficient and could lead to inconsistent verdicts." (Government's Letter in Opposition to Defendant's Motion dated May 1, 2003 at 3, n. 2.)
The Government's proposal for bifurcation is accepted and Defendant's motion for bifurcation is granted.
II. Redaction of References to Defendant's Three Prior Convictions in the Superceding Indictment in Bifurcated Trial for Counts Three and Four
In response to Defendant's motion, the Government consents to the redaction of the reference to Defendant's three prior convictions in Counts Three and Four of the Superceding Indictment pursuant to United States v. Baldwin, 186 F.3d 99, 102 (2d Cir. 1999) (holding that "the existence of the three prior felony convictions necessary for a sentencing enhancement pursuant to § 924(e) is a sentencing factor, rather than an element of the offense"). Pursuant to Fed.R. Ev. 404(b), the Government reserves the right to seek the admission of any or all of Defendant's prior convictions at trial on Counts One, Two and Five if Defendant contests knowledge or intent, and reserves the right to cross examine Defendant regarding these prior convictions if Defendant testifies.
In order to satisfy the elements of 18 U.S.C. § 922(g)(1) charged in Counts Three and Four, the recitation of Defendant's previous conviction "for a crime punishable by imprisonment for a term exceeding one year" will not be redacted for the bifurcated trial of Counts Three and Four and evidence of Defendant's prior convictions will be admissible at the bifurcated trial of Counts Three and Four.
As noted above, Counts Three and Four will be redacted in their entirety from the bifurcated trial on Counts One, Two and Five.
III. Reconsideration of Probable Cause Determination
Defendant moves for reconsideration of this Court's determination that probable cause existed to arrest Defendant. In its Opinion dated March 5, 2003, this Court based its finding that Officer Reid had probable cause to arrest Defendant on the following facts established at the January Hearing: Reid's knowledge that "47 bags of crack had been seized while Defendant was in the Apartment" as well as "prior information from informants that Defendant had a gun in the Apartment and was dealing drugs from the Apartment . . . and that Ms. Lopez sold drugs from the Apartment for which Defendant was dealer."Boone, 2003 WL 841088 at *5.
On May 6, 2003 at an argument on Defendant's motion of April 21, 2003, the Court expressed concern that the record did not clearly reflect testimony the Court had heard at the January Hearing. Accordingly, this Court reopened the evidentiary hearing for further testimony related to the existence of probable cause to arrest Defendant. At the reopened hearing on May 13, 2003, Officer Reid testified unequivocally that before he entered the Apartment and first saw Defendant, he received two separate radio calls from fellow police officers stationed outside the building, informing him that someone had thrown a package of what appeared to be slabs of crack cocaine from the Apartment window. (May Hrg. at 7-9, 15.) Accordingly, this Court adheres to its prior ruling that Officer Reid had probable cause to arrest Defendant, and Defendant's motion to suppress his post-arrest statements as the fruit of his illegal arrest is denied.
IV. Disclosure of Confidential Informant(s) Upon Whom the Probable Cause Determination to Arrest Was Based
Defendant moves for disclosure of the identity of the confidential informants upon whom arresting officer Reid relied as providing probable cause for Defendant's arrest. Despite Defendant's characterization that "Officer Reid's testimony afforded little confidence that [Defendant's] arrest was based upon `sufficient knowledge or reasonably trustworthy information'" (Affirmation of Lawrence F. Ruggiero dated April 21, 2003 (the "Ruggiero April Affirmation", ¶ 20), the evidence showed that Officer Reid did not rely on information from confidential informants to make Defendant's arrest. Rather, Officer Reid, a credible witness with over nine and a half years police experience involving over 500 arrests, mostly related to narcotics (Jan. Hrg. at 4, 7), had knowledge of the fact that 47 bags of crack cocaine were recovered outside the Apartment which police officers told him had been thrown from a window in the Apartment. (Jan. Hrg. at 40-41; May Hrg. at 7-9, 15.) Although Officer Reid previously acquired information from a confidential informant (whose evidence was not used to get the Search Warrant) that Defendant was selling drugs out of the Apartment and had a gun (Jan. Hrg. at 44), Defendant has not shown that the disclosure of the identity of the informants would be material to whether Officer Reid had probable cause to make Defendant's arrest. Officer Reid's knowledge of the 47 bags of crack cocaine thrown from the window of the Apartment was on its own sufficient to establish probable cause for his arrest of Defendant. Accordingly, disclosure of the identity of the confidential informants on the basis of Defendant's argument is denied.
V. Disclosure of Confidential Informant(s) as Essential to the Fair Determination of Charges
Defendant moves the Court to disclose the identity of the confidential informants as essential to the fair determination of the charges against him. Defendant argues that the Court should order the disclosure of the identity of the confidential informants to enable Defendant to establish "which informant, if any, actually saw who threw the 47 bags of narcotics from a bedroom window." (Ruggiero April Affirm. 1 23.)
This Court noted the standard for disclosure of the identity of a confidential informant in the Opinion and Order dated March 5, 2003:
The Supreme Court has held that "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [informant's] privilege must give way." Roviaro v. United States, 353 U.S. 53, 60-61 (1957). The Second Circuit has restated the Roviaro standard to require disclosure of the identity of a confidential informant if his testimony "is shown to be material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988).Boone, 2003 WL 841088 at *6. In that Opinion, this Court addressed the disclosure of the identity of the confidential informant referred to in Detective Mark Gossin's affidavit in support of the Search Warrant, and concluded that Defendant failed to show that the confidential informant's testimony would be material to Defendant's defense. Defendant has made no new argument as to why disclosure of the identity of this informant would be helpful to his defense. The same analysis still applies and, accordingly, Defendant's argument with respect to that confidential informant is rejected.
In this case, the charges consist of the possession of 47 bags of crack cocaine on June 5, 2002 and various violations of 18 U.S.C. § 922, 924 and 2 on the same date. With respect to the confidential informant who told Officer Reid prior to June 5, 2002 that Defendant was dealing drugs out of the Apartment and kept a gun in the Apartment (Jan. Hrg. at 44), Defendant has not shown that this confidential informant has any information that would be helpful to Defendant's defense. Roviaro, 353 U.S. at 60-61. Defendant's motion is denied.
VI. Additional Discovery
A. Police Officers' Memo Books, Notes and Reports
In the Ruggiero May Affirmation, Defendant requested discovery of the memo books, notes and reports of two officers who allegedly communicated to Officer Reid that they had observed 47 bags of crack cocaine being thrown form the bedroom window of the Apartment. Defendant did not seek the testimony of these officers at the January Hearing or at the reopened May Hearing. Accordingly, these officers can only be witnesses at the trial of this case.
Pursuant to 18 U.S.C. § 3500, "no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness . . . shall be the subject of subpoena, discovery or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a). The Federal Rules of Criminal Procedure do not authorize "the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500" nor the "discovery or inspection of reports, memoranda, or other internal government documents made by . . . [any] government agent in connection with investigating or prosecuting the case." Fed.R.Crim.P. 16(a)(2).
Defendant first argues that he is entitled to this discovery pursuant to Rule 806 of the Federal Rules of Evidence (Ruggiero May Affirm. ¶ 8) which provides, in relevant part, the following:
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D) or (E) has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
Fed.R.Evid. 806. Rule 801 defines "Hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). At the evidentiary hearing, the Government did not offer to admit the out-of-court statements for the truth of the matter, but rather to establish that Officer Reid had "reasonably trustworthy information of facts and circumstances" to believe that Defendant had committed a crime. United States v. Fisher, 702 F.2d 372, 375 (2d. Cir. 1983). Consequently, the statements are not hearsay and thus do not fall within the ambit of Fed.R.Evid. 806. Defendant's argument fails.
Fed.R.Evid. 801(d)(2)(C),(D) and (E) is irrelevant since it relates only to admissions by party opponents.
Defendant further argues that the material should be made available to him under the principles enunciated in Giglio v. United States, 405 U.S. 150 (1972). (Ruggiero May Affirm. ¶ 9.) However, defendant is not permitted to obtain the books and reports of police officers who may be witnesses at trial by requesting premature disclosure of Giglio material. See United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001) (holding that "Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant," but rather require the Government to turn over such material in a sufficient amount of time for "its effective use"). Accordingly, since Defendant did not request the testimony of the police officers during either the January Hearing or the reopened May Hearing, Defendant's discovery request for Giglio material pertaining to potential trial witnesses is denied at this time.
B. Statements Made by Defendant, Reduced to Writing, Prior to Being Mirandized
Defense counsel, in the Ruggiero May Affirmation, requests discovery of all statements that were reduced to writing made by Defendant while being debriefed by teams of officers from the 42nd precinct, prior to the administering of Defendant'sMiranda warnings.
Counsel's suggestion of a coercive environment at the 42nd precinct is based "[u]pon information and belief gained from [his] conversations with [Defendant]." (Ruggiero May Affirm. ¶ 13.) A defendant seeking the suppression of evidence must present his claim through an affidavit of an individual with personal knowledge of the relevant facts. See United States v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967). Defendant did not submit his own affidavit alleging facts suggesting a coercive environment in pursuit of this renewed motion. Defendant's affirmation dated November 12, 2002 did not make any such claims and, following the January Hearing, this Court ruled that Defendant's post-arrest statements were voluntary, and that any statements made by Defendant to Detective Hickey on June 5, 2002 would not be suppressed. Boone, 2003 WL 841088 at *4-*5. Since Defendant's counsel's motion is not supported by an affidavit of an individual with personal knowledge of the relevant facts, Defendant's request is denied.
Conclusion
For the foregoing reasons, Defendant's motion has been granted in part and denied in part.
IT IS SO ORDERED.