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denying Fifth and Sixth Amendment suppression motion where moving papers contained "no factual contentions" regarding the claims
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No. 04 Cr. 196 (DAB).
August 26, 2004
Memorandum Order
Defendants Leroy Brathwaite ("Brathwaite"), Abdhul Odige ("Odige"), and Jean Yonel ("Yonel") have each filed respective pre-trial motions. Specifically, Brathwaite moves the Court for discovery, suppression of his statements during custodial interrogation, and Brady material. Odige moves for the suppression of his post-arrest statements and an out of court identification. Yonel moves for discovery, Brady material, and severance. Lastly, both Brathwaite and Yonel join in any motions by co-defendants consistent with their own respective defenses.
For the reasons that follow, Defendants Brathwaite's and Yonel's Motions are DENIED except for severance, on which the Court reserves judgment. In connection with that issue, the Court ORDERS that the Government redact any mention of Defendants Brathwaite and Yonel from every videotaped statement to be introduced at trial. The Court further ORDERS a Suppression Hearing to be held on Tuesday, October 5, 2004 at 11:00 a.m. to determine the facts required to resolve the issues raised by Odige's Motion.
FACTUAL BACKGROUND
On March 2, 2004, Defendants Derrilyn Needham ("Needham"), Brathwaite, Odige, and Yonel (collectively the "Defendants") were indicted by a federal grand jury on four counts, alleging (1) that the Defendants had conspired to seize, detain, and threaten to kill, injure, and continue to detain another individual to induce a third party to pay ransom, (2) that the Defendants did seize, detail and threaten to kill, injure and continue to detain another individual to induce a ransom payment, (3) that Needham had, in the commission of a crime of violence, used and carried a firearm, and (4) that Brathwaite, Odige, and Yonel had, in the commission of a crime of violence, used, carried, and brandished a firearm. (Indictment ¶¶ 1-4.)
At the March 15, 2004 and May 3, 2004 conferences before the Court, the Government indicated that discovery in the case consisted of taped telephone calls, video statements, firearms, and other physical and documentary materials. (Mar. 15, 2004 Trans. at 7-9; May 3, 2004 Trans. at 3-4.) The Defense Counsel who were present at the May 3, 2004 conference indicated that they had received the bulk of discovery and were awaiting only a few remaining items. (May 3, 2004 Trans. 3-5.)
Neither Mr. Martin, counsel for Defendant Brathwaite, nor Mr. Cohn, counsel for Defendant Odige, were present at the May 3, 2004 conference. However, they have not indicated in their papers that the discovery to which the Government referred in the Conferences before the Court was not produced in a timely fashion.
DISCUSSION
I. DiscoveryBrathwaite and Yonel both move the Court for an order to obtain discovery. They cast wide nets, enumerating a long list of generally discoverable items which include "transcripts or testimony relating to the criminal action," "any written report or document . . . concerning a physical or mental examination," "any and all photographs . . . relating to the criminal action," "any tapes (including video) or other electronic recordings which the prosecution intends to introduce at trial." (Osuna Aff. ¶¶ 9-19; see also Martin Aff. ¶¶ 1-15.) They do not indicate anywhere in their papers that the Government has withheld or is continuing to withhold information or items related to discovery in the instant case.
In its Reply, the Government details the extent of the discovery, which it has turned over to each Defendant; this includes: videotapes, New York City Police Department Vouchers for property seized by officers as evidence in the case, telephone records, photographs taken during the investigation, an audiotape containing the ransom calls allegedly made by Defendants, and redacted police "Informationals, which provide detailed information about the hostage taking investigation." (Gov't Memo. in Oppos. at 3.) The Defendants have not replied to the Government's assertions here.
In light of the detailed discovery the Government has turned over to Defendants and in the absence of any indication that the Government has withheld or is withholding any discovery material relevant to the case, the Court DENIES Defendant Brathwaite's and Yonel's Motions.
II. Brady Material
It is well-established that "[t]he prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment." United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Brady v. Maryland, 373 U.S. 83, 87 (1972)). Such evidence "includes not only evidence that is exculpatory, i.e., going to the heart of the defendant's guilt or innocence, but also evidence that is useful for impeachment,i.e., having the potential to alter the jury's assessment of the credibility of a significant prosecution witness." United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citingGiglio v. United States, 405 U.S. 150, 154-55 (1972) and Napue v. Illinois, 360 U.S. 264, 269 (1959)). Courts often refer to exculpatory and impeachment evidence as Brady and Giglio material respectively.
The prosecution need not provide Brady and Giglio materials immediately; instead, "as long as a defendant possess Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not provide the evidence sooner." Coppa, 267 F.3d at 144. There are nevertheless some instances "where disclosure of exculpatory evidence for the first time at trial would be too late to enable the defendant to use it effectively in his own defense. . . ." Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (quoting United States v. Cobb, 271 F. Supp. 159, 163 (S.D.N.Y. 1967)).
Defendants Brathwaite and Yonel seek disclosure of Government'sBrady and Giglio material. The Government responds that, as to Brady, it "is aware of and has complied with its obligations with regards to these matters." (Gov't Memo. of Law at 7.) Furthermore, the "Government has followed and will continue to follow, its customary practice of producing any information favorable to the defense." (Id. at 8.) As forGiglio material, "[t]he Government will take a practical approach to production of Giglio and Jencks material that ensures that the material can be examined and utilized effectively by the defense without the need for delay of trial." (Id. at 8.) The Government affirmatively cites United States v. Greyling, 00 Cr. 631 (RCC), 2002 WL 424655 at *2, in which Judge Casey determined that production of Giglio material by the Wednesday before the week in which a witness testifies was appropriate. The Court agrees that this timing is appropriate and ORDERS that the Government produce to Defendants such material for each witness no later than the Wednesday before the week in which that witness will testify.
Accordingly, since the Defendants have not demonstrated (nor even alleged) any evidence of improper behavior on the Government's part in either producing or withholding exculpatory matter and since the Government has acknowledged its duty underBrady, this Court DENIES the Motion for compelling production of Brady material. However, the Court does ORDER that the Government produce Giglio and Jencks material for each witness to the defense no later than the Wednesday before the week in which that witness will testify.
III. Bill of Particulars
Pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, Brathwaite and Yonel move for a bill of particulars. "Rule 7(f) permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. . . . Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (stating same standard and noting that "[t]he principles governing requests for a bill of particulars are well settled").
A "bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989)); see also United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). "Acquisition of evidentiary detail is not the function of a bill of particulars." Torres, 901 F.2d at 234. Indeed, the Second Circuit has "consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973) (citations omitted).
In deciding a motion for a bill of particulars, "[t]he important question is whether the information sought is necessary, not whether it is helpful." United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990). Courts have been highly reluctant to require a bill of particulars when a defendant has asked for specific identities of co-conspirators or others allegedly involved. So long as an indictment and discovery sufficiently enable a defendant to avoid surprise and prepare for trial, a bill of particulars is not warranted. See Torres, 901 F.2d at 233-234 (upholding district court's denial of a bill of particulars where "a wealth of evidentiary detail from the discovery to date, including electronic intercepts, search evidence and exhaustive supporting affidavits"); United States v. Rodriguez, 1999 WL 820558 at *2 (S.D.N.Y. 1999) (denying motion for a bill of particulars identifying known co-conspirators where the indictment coupled with discovery allowed a defendant "both to prepare his defense and to avoid prejudicial surprise at trial"). Finally, the granting of "a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
Defendants Yonel and Brathwaite argue that the conspiracy count in the Indictment is not sufficiently specific and thereby restricts their ability to prepare for trial. (Osuna Aff. ¶ 20.) Specifically, Yonel argues that the Indictment lacks three specific categories of facts or information: (1) the exact date, times, and places of the offense charged and of his arrest and the exact circumstances of his arrest, (id. ¶ 21); (2) the specific acts allegedly attributable to Defendant Jean or any of his co-conspirators, (id. ¶¶ 22, 23); and (3) the specific words attributable to Defendant Jean or any of his alleged co-conspirators during the commission of the alleged crime mentioned in the complaint. (Id. ¶¶ 24, 25.)
Yonel also argues that a bill of particulars is required to ascertain "whether any person to be called as a witness by the prosecution is known, or with due diligence could be known by the prosecution to (a) have charged or convicted of a crime; (b) to have been under psychiatric or other psychological care or treatment or; if a witness is a police officer, state whether he or she has been subject to investigation and/or disciplinary proceedings and/or suspension or termination for improper or criminal behavior on the force." (Osuna Affirm. ¶ 26.) This request, however, is essentially one for Giglio material — an issue which the Court has already addressed. The Government has indicated and the Court has held that such materials will be produced before a witness' testimony.
Defendant Brathwaite requests a different set of particulars. Specifically, his contentions fall into three categories: (1) Brathwaite's joining of the alleged conspiracy including the dates, times and locations of any meeting or conversation in which he was involved, (Martin Aff. at 5); (2) the overt acts in furtherance of the conspiracy or acts of concealment allegedly committed either by Brathwaite or a member of the conspiracy including the dates, time and locations of any such acts, (id. at 5); and (3) the name, address and other known information about "known" but not indicted co-conspirators and what is known of their identities. (Id. at 6.) Brathwaite contends that his request is "reasonable" because "all of the requests posed at bar seek information (i.e., who, what where, when and how)." (id. at 6.)
The Court disagrees with Defendants' assessment of the Indictment. Count One of the Indictment advises each Defendant, with sufficient detail, of the illegal acts he or she has been charged with committing, including the dates of the alleged conspiracy. The Indictment, coupled with the discovery materials the Government has already provided to Defendants — their post-arrest statements, criminal history reports, videotaped interviews with each defendant, NYPD reports, telephone records, photographs, law enforcement notes describing the calls made in connection with the case, and an audiotape containing the ransom calls made in connection with the case — adequately enable Defendants Jean and Brathwaite the opportunity to prepare a defense and avoid unfair surprise at trial. (Gov't Reply at 6.)
The Second Circuit and courts in the Southern District have routinely denied requests of this nature. Indeed, courts have denied requests for bills of particulars concerning the "wheres, whens, and with whoms" of the crime. See, e.g., United States v. Mitlof, 165 F. Supp.2d 558, 569 (S.D.N.Y. 2001) (denying request for bill of particulars where defendant sought details of the "wheres, whens and with whoms" that courts have held to be beyond the scope of a bill of particulars) (citations omitted); United States v. Bin Laden, 92 F. Supp. 2d 225, 242 (S.D.N.Y. 2000) (denying request for bill of particulars where the defense sought detailed information on how the conspiracy was formed, when each participant was alleged to have joined, and the "when, where, how, and with whom" of the conspiracy); United States v. Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993) (motions in conspiracy cases for the "whens," "wheres," and "with whoms" are routinely denied because the Government should not be compelled to provide a preview of its evidence and give away its case before trial). Courts have denied bills of particulars seeking the names and identities of unindicted co-conspirators. Torres, 901 F.2d at 233 (denying bill of particulars where the defendant had requested "the identity of other persons `known and unknown' as alleged in . . . the indictment" but had received ample discovery); United States v. Glisson, 03 Cr. 148 (DAB), 2003 WL 21709502 at *3 (S.D.N.Y. Jul. 23, 2003) (denying a single defendant's bill of particulars regarding his unindicted co-conspirators because he had received sufficient discovery to apprize him of the facts necessary to mount a defense); United States v. Trippe, 2001 WL 434849 at *7-8 (S.D.N.Y. Apr. 27, 2001) (denying bill of particulars seeking names of all co-conspirators and aiders and/or abettors in light of routine denial of such requests in case law and the sufficiency of information contained in the indictment and obtained through discovery) (citations omitted).
Courts have also refused to grant a motion for a bill of particulars where defendants seek specific information regarding the circumstances of the conspiracy's creation and a specific defendant's entrance into that conspiracy. United States v. Nachamie, 91 F. Supp.2d 565, 574 (finding that since "the government is not required to prove exactly when or how a conspiracy was formed or when or how a particular defendant joined the scheme, and as the circumstantial proof on which the government usually relies to prove the existence of a scheme often does not reveal such details, the courts have consistently rejected demands for particulars as to the formation of a conspiracy or the entry into the conspiracy of a particular defendant or confederate.") (citations omitted). Finally, courts have not granted defendant's requests for bills of particulars concerning the specific acts or words which defendants or a particular defendant are alleged to have done or said. See generally Feola, 651 F. Supp. at 1132 (collecting cases) ("As a general rule, the defendant does not `need' detailed evidence about the conspiracy in order to prepare for trial properly. It is well settled that defendants need not know the means by which it is claimed they performed acts in furtherance of the conspiracy nor the evidence which the Government intends to adduce to prove their criminal acts.")
The Court finds therefore that the Indictment is not deficient here. The discovery produced clearly enables Defendants to mount an adequate defense; the demands for bills of particulars are essentially "attempting to compel the production of the very type of evidentiary minutiae that is not appropriate in a bill of particulars, and can only serve to limit the defendant[s'] proof at trial." Mitlof, 165 F. Supp.2d at 569 (citation omitted).
Accordingly, the Defendants' Motions for a bill of particulars are DENIED.
IV. Severance
Defendants Yonel and Brathwaite move, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, for severance. (Osuna Aff. ¶ 2.) Yonel contends that severance is necessary because each of his co-defendants have made statements implicating him as participating in the alleged kidnapping, (id. ¶¶ 4, 6), thereby violating his right to confrontation. (Id. ¶ 5.) Brathwaite joins in the Motion for the same reasons. (Brathwaite Notice of Motion ¶ 5.)
Rule 14 states in pertinent part: "If the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendant's trials, or provide any other relief that justice requires." F.R.Cr.P. 14(a).
Defendants seeking severance have a difficult standard to meet. As the Supreme Court has noted,
[t]here is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials `play a vital role in the criminal justice system.' They promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. . . .'
. . . a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants. . . . Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. . . .
When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.
It is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. Rules 8(b) and 14 are designed `to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.'
Zafiro v. United States, 506 U.S. 534, 537-40, 122 L. Ed. 2d 317, 113 S.Ct. 933 (1993) (citations omitted).
The district court enjoys a broad discretion in determining whether to sever a criminal proceeding, see, e.g., United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993), and that decision is, as the Second Court has noted, "virtually unreviewable." United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992).
The right under which Yonel moves to sever his trial is the Sixth Amendment's Confrontation Clause. (Osuna Aff. ¶¶ 4, 6.) Specifically, Yonel's co-defendants directly implicate him in the alleged kidnapping during videotaped statements to law enforcement officers. Brathwaite argues the same.
In Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court determined that a defendant is deprived of his Sixth Amendment rights when the government introduces at a joint trial the confession of a nontestifying co-defendant which names the another defendant as a participant in the crime.
The rule announced in Bruton, however, is not absolute. The Supreme Court limited Bruton's reach in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), where the justices explicitly stated that where "limited to facially incriminating confessions,Bruton can be complied with by redaction — a possibility suggested in that opinion itself." Richardson, 481 U.S. at 208-209 (citing Bruton, 391 U.S. at 134 n. 10). For the redaction to be constitutionally sound, the government must "eliminate not only the defendant's name, but any reference to his existence." Richardson, 481 U.S. at 211. Finally, the elimination of the defendant's name and existence must not be partial but total. In Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the Supreme Court found that the Sixth Amendment had been violated when the "State ha[d] simply replaced the nonconfessing defendant's name with a kind of symbol, namely, the word `deleted' or a blank space with commas."Id. at 192. This confession still referred to the "existence" of a nonconfessing defendant and was thus constitutionally infirm. Id. at 193-95. Finally, the redaction cannot distort the statement's meaning, purge substantially exculpatory information, or change the "tenor of the utterance as a whole."United States v. Alvarado, 882 F.2d 645, 651 (2d Cir. 1989).
Yonel and Brathwaite argue that redaction of the videotaped statements is "impractical." (Osuna Aff. ¶ 7.) The Government has stated that it is prepared to redact "those portions of the co-defendants' statement that implicate the defendant." (Gov't Reply at 12.)
Absent a redacted copy of the videotapes, the Court has no basis to determine whether any direct assertions of Yonel's or Brathwaite's participation in the conspiracy have been completely eliminated in accordance with Gray, Richardson, and Bruton. Accordingly, the Court reserves judgment on this issue and ORDERS the Government to redact the tapes at issue and to provide copies of these redacted statements both to the Court and to Defendants within 30 days of the date of this Order.
V. Fifth and Sixth Amendments
Both Defendants Brathwaite and Odige move for suppression based on the Fifth and Sixth Amendments.
Brathwaite moves for a "hearing . . . to determine the admissibility of any statement taken from the defendant during custodial interrogation and an Order suppressing such statements if they were taken in violation of" the Fifth and Sixth Amendments. (Brathwaite Notice of Motion ¶ 4.) There are no factual contentions contained in the Notice of Motion nor his attorney's accompanying Affirmation and Memorandum of Law regarding this claim.
As a threshold matter, Brathwaite does not offer any evidentiary support for his factual assertion besides what is quoted immediately above, in his attorney's affidavit. An attorney's affidavit absent personal knowledge is insufficient to justify a suppression hearing. United States v. Gonzalez, 02 Cr. 1312 (DAB), 2003 WL 21222377 at *3 (S.D.N.Y. May 27, 2003).
Since Brathwaite has failed to demonstrate any factual basis for his claim here, no hearing is required and the Defendant's Motion is DENIED.
Defendant Odige, however, has submitted an affidavit in which he claims that he was beaten by the police, denied his right to counsel, and unconstitutionally coerced into making incriminating statements. (Odige Aff. ¶¶ 2-6.) He further argues that an out of court identification was unduly suggestive. (Id. ¶ 7.) Odige's account, the Government notes, conflicts with its own rendition of the circumstances surrounding the crime and his arrest, necessitating that the Court conduct an evidentiary hearing regarding the suppression motions. (Gov't Reply to Odige at 1.)
The Court therefore ORDERS a suppression hearing to be held on Tuesday, October 5, 2004 at 11:00 a.m.
VI. Wiretap Suppression
Finally, Brathwaite moves for a
hearing . . . to determine the admissibly [sic] of all evidence obtained as a result of an illegal wiretap, in that such surveillance did not comply with the sealing requirements of 18 U.S.C. § 2516(1); or in the alternative, an Order suppressing all evidence obtained as a result of an illegal wire tap, in that the government did not comply with the exhaustion of normal investigatory techniques as required by 19 U.S.C. Section [sic] 2518 . . . [and] in that (1) the government did not establish that any alleged individual act of any defendant was linked to the organization; and (2) did not establish that the cell phones would be used for any illegal activity by any individual defendant. . . .
(Brathwaite Notice of Motion ¶¶ 6, 7.)
The Government argues that the discovery produced for this case included telephone records and consensually recorded telephone conversations but did not involve any wiretap evidence. The Court observes that Brathwaite did not file a reply to the Government's arguments here. Indeed, Defendant has not demonstrated that any such evidence has actually been obtained in this investigation nor has he cited any case law in which the provisions of Title III relate to the telephone evidence that has been given to him during discovery.
Since Defendant here has failed to demonstrate that the Government actually obtained any wiretap evidence or that Title III pertains to any of the evidence actually obtained in the Government's investigation in this case, the Court finds the claim meritless and DENIES the Motion.
Conclusion
For the reasons stated above, Defendants Yonel's and Brathwaite's Motions are DENIED except for their Motion to Sever. The Government is ORDERED to redact the videotaped statements within 30 days of the date of this Order to eliminate the "existence" of both Defendants from the statements in accordance with Supreme Court precedent and to give copies of those redacted tapes to both the Court and Defendants.
The Court additionally ORDERS a suppression hearing to be held on Tuesday, October 5, 2004 at 11:00 a.m. on the outstanding factual issues surrounding Odige's arrest and his Fifth and Sixth Amendment claims.
Finally, the Court finds that in the interests of justice, time is excluded until Tuesday, October 5, 2004 at 11 a.m.
SO ORDERED.