Opinion
00 CR. 432 (DLC)
December 13, 2001
Steven R. Glaser, Office of the United States Attorney Southern District of New York, New York, NY, for the United States.
Labe M. Richman, New York, NY, for defendant.
OPINION AND ORDER
On January 25, 2001, defendant Edgar Ortega ("Ortega") was convicted after a jury trial of one count of conspiracy to distribute and to possess with the intent to distribute heroin and five grams or more of crack cocaine, and one count of distribution and possession with the intent to distribute heroin within 1000 feet of a public elementary school. On March 9, 2001, Ortega filed a motion for a new trial, pursuant to Rule 33, Fed.R.Crim.P., or in the alternative for a hearing, on the ground that the Government did not disclose a photo identification of the defendant prior to trial despite a specific request from defense counsel and that the photograph used in the identification had been obtained illegally. Ortega also requests a post-trial suppression hearing to determine whether the introduction at trial of some of the crack cocaine seized from a building owned by the defendant violated his Fourth Amendment rights. The defendant excuses his failure to move to suppress before trial on the ground that evidence at trial suggests that the items seized were not, as the Government had assured him prior to trial, in "plain view." For the following reasons, a hearing will be held on the Government's failure to disclose the photo identification. The motions are otherwise denied.
BACKGROUND
The evidence at trial established that Ortega was a part owner with his brother Oscar Ortega of a drug trafficking organization operated for several years out of 731 and 732 Union Avenue in the Bronx, New York. The Government witnesses at trial were New York City Police Officer Luis Durant ("Officer Durant"), who described his surveillance activities and participation in evidence seizures; Detective Damion Santiago ("Detective Santiago"), who described his undercover purchases of heroin; Ortega's co-defendant Gilbert Ruiz ("Ruiz"), who was both a manager and "pitcher" or salesman for the organization for three months in 1994, and again from 1998 to 2000; and Mohammed Omer, a chemist with the Police Department, who identified substances seized as cocaine base.
Oscar Ortega pleaded guilty on December 27, 2000, to conspiring to distribute crack cocaine and heroin from in or about March 1999 through in or about February 2000.
As the leader of the drug organization, Oscar Ortega set drug prices, distributed drugs to his managers, and collected proceeds from drug sales. The defendant helped his brother with the daily operation of the organization, supplied the managers with drugs, offered discounts for purchases of larger quantities of drugs, collected money from drug sales, and oversaw the organization's operations by watching from a nearby corner. Ortega did not handle drugs or money in the street, but would stand near the corners of 156th Street and Union Avenue ("156th and Union") and act as a lookout to ensure that the police were not in the vicinity.
The organization operated for more than four years, storing crack cocaine and heroin at the buildings located at 731 and 732 Union Avenue. Ortega lived in Apartment 4B, 731 Union Avenue, and kept crack cocaine inside a drawer in his bedroom. Ortega had inherited and owned the building at 732 Union Avenue, an unoccupied building with an adjacent garage from which the organization operated. Crack cocaine was stored in a refrigerator in the basement of 732 Union Avenue. The building at 732 Union Avenue is directly across the street from Ortega's apartment at 731 Union Avenue.
The trial included testimony about police observations on six separate occasions made by two entirely separate units of the Police Department. On March 10, 1999, during a search following the observation of drug activity, police officers recovered 660 vials of crack cocaine from the basement of 732 Union Avenue. On April 8, 1999, again during a search following the observation of drug activity, police officers recovered 78 vials of crack cocaine from the top of a door frame at 731 Union Avenue. As part of a separate operation, on November 26, 1999, December 2, 1999, and December 8, 1999, an undercover police officer purchased glassines of heroin from members of the organization.
The events of March 10 and April 8 were described by Officer Durant. Officer Durant was assigned to the Street Narcotic Enforcement Unit of the 40th Precinct. That unit responds to community complaints, making observations and arrests, but does not do undercover work. The remaining events were described by Detective Santiago, who worked with the South Bronx Initiative, a unit of the Bronx Narcotics Bureau that makes undercover purchases of illegal drugs.
On January 7, 2000, the defendant, as well as Oscar Ortega, Daniel Chaparro, and Andres Martinez were arrested in connection with the heroin sales. The evidence regarding these events established the following.
Each of Ortega's co-defendants pled guilty to narcotics conspiracy.
March 10 Seizure
On March 10, 1999, the day of the search for which the defendant seeks a post-trial suppression hearing, Officer Durant was posted across the street from 731 Union Avenue, on top of a building behind 732 Union Avenue. During his surveillance,
Officer Durant observed a 14-year-old male Hispanic sell drugs he had retrieved from the lobby of 731 Union Avenue. He came out of the building and handed the woman a small object in exchange for money. The money for the drugs was ultimately handed to Gilbert Ruiz. Officer Durant knew Ruiz from a prior arrest, and had seen him "numerous times" before that day.
Officer Durant then observed Oscar Ortega drive up in a car registered to the defendant, which Oscar Ortega parked on the southeast corner of 156th and Union. Oscar Ortega got out of the car and activated a car alarm with a remote control. Oscar Ortega talked with a couple of young Hispanic men, and then called the 14-year-old over to him. They spoke briefly and, afterward, Oscar Ortega unlocked his car with the remote control. The 14-year-old went to the car, opened the right rear passenger door, and retrieved a white shopping bag. Officer Durant could see green items in the bag. While the 14-year-old retrieved the bag, Oscar Ortega stood at the corner of 156th and Union and looked around. After looking around, Oscar Ortega yelled "go, go, go" to the 14-year-old. The 14-year-old then ran from the corner of 156th and Union towards 732 Union Avenue.
Responding to Officer Durant's directions, a team of officers who had been waiting nearby came to the scene. Officer Durant went into the basement of 732 Union Avenue and saw Officer Burgos with the 14-year-old in custody. Officer Burgos handed Officer Durant the white shopping bag with green topped vials of crack cocaine that the 14-year-old had been carrying. Officer Durant and Officer Burgos then searched the basement and Officer Burgos found more green topped vials of crack cocaine, which he gave to Officer Durant, and Officer Durant found six bullet-proof vests, ammunition, and a rusty, inoperable rifle. All of these items except for the rifle were introduced at trial.
Officer Burgos did not testify at trial.
The bullet-proof vests and ammunition corroborated Ruiz's testimony about events in the life of the drug organization in which the defendant had participated.
Crack Sales
On April 8, 1999, Officer Durant conducted surveillance on 731 Union Avenue by sitting on some stairs just south of 156th and Union with a newspaper and a coffee mug. Officer Durant observed Oscar Ortega playing basketball with a group of people in front of 732 Union Avenue. The defendant was watching the game. Officer Durant recognized the defendant because he had seen him about three or four times a week on the corner of 156th and Union.
Officer Durant saw one of the men who had been playing basketball sell drugs he had retrieved from the lobby of 731 Union Avenue by reaching up and removing them from the top of the door frame. When that man returned to the basketball game, he handed Oscar Ortega the money. Oscar Ortega then went to the front of 731 Union Avenue, where a white van was parked. He opened the van, put the money into a white bag, closed the van door, and returned to the basketball game.
After Officer Durant radioed the arrest team and described Oscar Ortega and the male Hispanic, both men were placed under arrest. Officer Durant then radioed Officer Orench and directed him to the lobby of 731 Union Avenue, where Officer Orench found 78 orange topped vials of crack cocaine. Officer Orench handed Officer Durant the vials of crack cocaine, and Sergeant Mulqueen handed him the white bag that had been in the van. There was money inside the bag. Throughout this time, the defendant "was just standing there."
Heroin Sales
Detective Santiago, working in an undercover capacity, purchased heroin in glassines bearing the stamp "Murder Muzik" in the area of 156th and Union on November 26, 1999, December 2, 1999, and December 8, 1999. On November 26, 1999, Santiago saw Oscar Ortega and the defendant standing in front of the garage at 732 Union. He described the defendant as "a larger male Hispanic wearing a black bubble jacket and baggy blue jeans." Oscar Ortega asked Detective Santiago what he wanted, and Santiago said he wanted "two bundles" of heroin. The defendant then told Santiago to step inside and that another person would take care of him. A person called "Diggety" came over to Santiago and negotiated a price of $95 a bundle, or $190 for two bundles, which was a $10 discount. Diggety went into a "trap door" inside the garage, and later returned with two bundles, or 20 glassines, of heroin.
Detective Santiago said that two bundles referred to 20 glassines of heroin.
Detective Santiago identified Ortega in court as the person with whom he interacted on November 26, 1999.
While Detective Santiago was waiting for Diggety, other drug sales were made in the garage. Detective Santiago described the activity inside the garage as follows:
There were other young individuals selling crack in zip locks. There was a knife on like a type of wooden stand they had on the side. At that point Oscar Ortega and Edgar Ortega had now entered the garage and they were in conversations with some of the kids that were selling crack.
After purchasing the heroin, Detective Santiago went back to his command, "vouchered" the drugs, and filled out a "buy report." In the buy report, Detective Santiago nicknamed the defendant "J.D. Bubble" because of the black "bubble jacket" he was wearing. In that report, he described the defendant as 18 to 23 years old, 170 to 175 pounds, with a light mustache.
On December 2, 1999, Detective Santiago returned to the area of 156th and Union as part of the same investigation. Detective Santiago saw Oscar Ortega, Andres Martinez, and another male Hispanic whom he nicknamed "J.D. Young" on the corner of 156th and Union. He also saw the defendant near that corner, but closer to 731 Union Avenue. The defendant "was just standing there." Detective Santiago walked to the garage, but it was closed and locked. Andres Martinez walked up to Santiago and asked him who he was. Santiago told him he was looking for Diggety. Andres Martinez said he would take care of him, and they negotiated a price of $190 for two bundles of heroin. At this point, Santiago lost sight of the defendant. Detective Santiago told Martinez that, if he came back the following week, he wanted a better discount for five bundles of heroin. Martinez said he would have to check with "his boss" on the price for the five bundles. Martinez then went up to Oscar Ortega and spoke with him briefly. Martinez and Oscar Ortega then entered the building at 731 Union Avenue. When Martinez returned to Detective Santiago, he told him that the five bundles would be $450, which was a $10 discount per bundle.
On December 8, 1999, Detective Santiago returned to the same area. He did not see the defendant. When he saw Martinez near 731 Union Avenue, he went up to him and asked "if he had that for me." Martinez said "the five bundles?" and Santiago said yes.
When Detective Santiago tried to confirm that the price would be $450, Martinez answered "Edgar's not here. Let me see what Danny's going to say." Detective Santiago and Martinez then walked up to Daniel Chaparro. Martinez told Daniel Chaparro that Santiago had been there last week, that they had agreed on a price of $450, and that "Edgar had approved it." Chaparro told Martinez that if he sold the heroin to Santiago for $450, it would "come out of [his] cut." Martinez and Detective Santiago negotiated, and Martinez said he would sell him the five bundles for $475.
In the"buy report" that Detective Santiago wrote on December 8, he reported that Martinez said "Edgar is not here," and that "Edgar" had approved the $450 price.
Detective Santiago agreed on the price of $475 and waited in the lobby of 731 Union Avenue while Martinez retrieved the heroin. When Martinez returned, Detective Santiago complained about the extra $25. He asked him: "Then who's the guy last week that approved the 450 for the five bundles?" Martinez said, "That was Edgar, he's also a manager but he's not here today, so it would have to be 475."
Detective Santiago returned to the area later that day, and attempted to buy five more bundles of heroin, but Martinez would not sell it to him because there were police vans in the area and other members of the organization thought Santiago was a cop.
Sometime after December 8, 1999, a fellow officer showed Santiago approximately 20-30 "mug shot" photographs "of people of the general area" of 156th and Union in order to identify the people with whom he had dealt during his undercover investigation. Santiago identified Ortega, Daniel Chaparro, and Oscar Ortega from those photographs.
The fact that the defendant had a prior drug conviction was admitted through a stipulation at trial pursuant to Rule 404(b), Fed.R.Evid.
January 7 Arrests
On January 7, 2000, the police decided to conduct "an observation" in front of 731 Union Avenue so that Detective Santiago could identify and arrest "everyone that interacted with [him] during the drug transactions." Detective Santiago parked an unmarked car with tinted windows on the corner of 155th Street and Union Avenue, and sat in the backseat with binoculars and a point to point radio. He watched the area for about an hour, and, during that time, radioed his supervisor whenever he saw one of his subjects.
At some point, Detective Santiago's supervisors decided to arrest the people he had identified. The police officers "grabbed" and lined up about eight to ten people. Detective Santiago drove closer, and via the radio identified the defendant, Daniel Chaparro, Andres Martinez, and Oscar Ortega as people with whom he had dealt when he purchased heroin at 731 Union Avenue.
On cross examination, Detective Santiago testified that he did not rely on the photo identification when he picked the defendant out of the eight to ten men outside 731 Union Avenue on January 7, 2000.
Defense The defendant called Sergeant Thomas Dimuro, a narcotics supervisor in the Narcotics Division, to question him about the procedures used in connection with Detective Santiago's undercover investigation. The defendant did not testify, but through cross examination and argument sought to show that he was not a member of a narcotics conspiracy, and had been misidentified by Detective Santiago. The "buy report" for November 26, 1999 described J.D. Bubble — the person that Detective Santiago identified as Ortega — as an 18 to 23 year old, 170 to 175 pound man, with a light mustache. In contrast, as defense counsel demonstrated to the jury, Ortega was 26 years old, weighed about 240 pounds, and had a goatee and a mustache at the time of arrest.
Based on the difference between Detective Santiago's description of J.D. Bubble in the "buy report" and Ortega's appearance, defense counsel raised the issue of misidentification in his opening remarks to the jury:
The issue at this trial will be one of identification. You will have to decide whether the undercover is accurate and reliable in saying that Mr. Ortega at 240 pounds is JD Bubble, who is 170 to 175, 18 to 23 years old. And light mustache. Not beard. Mustache. And that's going to be what you guys are going to have to decide: Is there a reasonable doubt that the defendant is JD Bubble?
Defense counsel cross-examined Detective Santiago on his identification of the defendant:
Q: JD Bubble is the person that you think is Edgar Ortega, correct?
A. Correct.
Q. And could you please read to the ladies and gentlemen of the jury the description that you have listed in Defendant's Exhibit L [the buy report] for JD Bubble.
A. JD Bubble. Male Hispanic, approximately 18 to 23 years old, five-eight to five-ten, 170, 175, black bubble jacket, blue jeans, short dark hair, trim short mustache.
Q. When you say 170 to 175, next to that on Defendant's Exhibit L is the word LBS. Correct?
A. Yes.
Q. What does the word or the phrase or the initials LBS stand for?
A. Pounds.
Q. So when you say 170 to 175 you mean 170 to 175 pounds?
A. Approximation, yes.
Q. Do you mean 170 to 175 pounds? I didn't ask you if it was an approximation. Do you mean that?
A. Yes.
Q. And you try to be as accurate as you could, correct?
A. Right.
During the Government's direct examination of Detective Santiago, defense counsel learned for the first time that Detective Santiago had identified Ortega's photograph from a group of mug shots sometime after December 8, 1999. During cross examination, Detective Santiago testified that the photo identification was in mid-December 1999.
Before trial and on the morning of Detective Santiago's testimony, defense counsel asked the Government if there had been a police-arranged identification of Ortega, and the Government assured him that there had not been one.
Defense counsel further cross-examined Detective Santiago regarding his identification of the defendant on the day he was arrested:
Q. On January 7th did you see the defendant on the street?
A. Yes.
Q. Did he have a mustache and beard, goatee, like he has now sitting at the table?
A. I believe so.
Q. At the time did he look, in terms of size, the same that he does now?
A. I can't judge that.
Q. Would you like him to stand?
A. Well, the time he was, that I saw him he had a bubble jacket, so it's very difficult to judge his size with a bubble jacket.
Q. And a bubble jacket is kind of poofy, correct?
A. Yes.
Q. So it kind of makes people look bigger than they are.
A. Some of them.
. . .
Q. But you can see how thick someone's face is, correct?
A. Correct.
In summation, turning the mid-December photo identification to his advantage, defense counsel argued that Detective Santiago's identifications of the defendant on January 7, 2000, and in court were based on the prior photo identification:
[Detective Santiago] was shown mug shots and he picks out JD Bubble. Now is that fair? . . . What if the person who is JD Bubble hasn't been arrested? What if
JD Bubble is someone who doesn't have a mug shot? Is that fair to give to somebody pictures of mug shots when it's clear that they're criminals, that they have records and then let someone pick them out. . . . I suggest that that was suggestive, even though there were a lot of pictures, they were all mug shots and a mistake could have been made.
Now once he sees the picture of Edgar, once Edgar's picture is given to him, the ID is done. That's it. Because he sees the picture. Come on. He's not thinking about JD Bubble now. Is he? He's thinking about the picture. He's looking at it. Your mind, you know, humans make mistakes. Human fallibility. Think about that, ladies and gentlemen. We're not videotape machines. Humans. Now that I see a picture of somebody, now that picture is etched in my brain. Do you think I'm going to remember what JD Bubble looks like?
On January 25, 2001, the jury convicted Ortega on both counts of the indictment.
Motion for Mistrial
Defense counsel objected to Detective Santiago's testimony regarding the photo identification and later that same day moved to strike the testimony and for a mistrial on the ground that he had not been informed of the photo identification before trial. The Court denied the motion for a mistrial, but ordered the Government to provide supplemental discovery regarding the photo identification.
There was no motion made at the morning recess following this testimony. The motion was made at the luncheon recess, after Detective Santiago's testimony had been concluded.
On February 6, 2001, the Government provided supplemental discovery to Ortega. This discovery included approximately 90 mug shot photographs of people who had been arrested in the area of 156th Street and Union Avenue which had been gathered by Detective Hector Nolasco and shown to Detective Santiago on December 16, 1999. Included as one of the 90 photographs was one of Ortega with the name "JD Bubble" handwritten on it. Before trial, the Government had provided Ortega with a copy of his own mug shot — the same one that was in the group of 90 photographs — but that mug shot did not have "JD Bubble" written on it.
With the 90 photographs, the Government also provided an affidavit by Detective Nolasco, who was assigned the task of helping Detective Santiago identify the people from whom he had purchased heroin. Detective Nolasco states:
Toward that end, I obtained approximately 90 mugshots (the "Mugshots") of individuals who had been arrested in the vicinity of [156th and Union]. I thereafter showed the Mugshots to Detective Santiago. While I am not certain of the precise date that I showed him the Mugshots, my best recollection is that I did so on or about December 16, 1999. After reviewing the Mugshots, Detective Santiago identified the following individuals as people with whom he had dealt at the Location during his successful heroin purchases: EDGAR ORTEGA, OSCAR ORTEGA, and DANIEL CHAPARRO.
The Government did not provide any evidence regarding the order in which the photographs were placed, whether the photographs were in a book, how Detective Santiago reviewed the photographs, or who wrote "JD Bubble" on Ortega's photograph and when.
According to the Government's memorandum of law, after Detective Santiago identified Ortega, Detective Nolasco wrote "JD Bubble" on Ortega's mug shot.
Post-trial Motions
Ortega now moves for a new trial on the ground that his due process rights and 18 U.S.C. § 3500 ("Section 3500") were violated when the Government failed to notify defense counsel that there was a police-arranged photo identification of Ortega and failed to turn over prior to trial the photographs used in that identification. In the alternative, Ortega requests that the Court order an evidentiary hearing. Among the issues Ortega raises with respect to the photo identification is whether the circumstances of the identification were unduly suggestive. Ortega also argues that the photograph used in the identification violated his Fourth Amendment right to be free from unreasonable searches and seizures, and that the photo was kept by the New York City Police in violation of the New York State Sealing statute, N.Y. Crim. Proc. Law § 160.50. In addition, Ortega requests a post-trial suppression hearing to determine whether the seizure of some of the crack cocaine found in the basement of 732 Union Avenue violated his Fourth Amendment right to be free from unreasonable searches and seizures.
DISCUSSION
I. Photo Identification
"[T]he court may grant a new trial to [a] defendant if the interests of justice so require." Rule 33, Fed.R.Crim.P. A new trial should be granted when a jury has reached "`a seriously erroneous result'" or when the verdict is "`a miscarriage of justice.'" United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (citation omitted). Both parties have treated the photo identification as newly discovered evidence. "A motion for a new trial based on newly discovered evidence is `not favored,' and a district court `must exercise great caution . . . and may grant the motion only in the most extraordinary circumstances,' where it is required in the interest of justice." United States v. Diaz, 176 F.3d 52, 106 (2d Cir. 1999) (citation omitted) (emphasis in original). Further,
While Ortega received his photograph prior to trial, it was only during trial that he learned that photograph was one of many Detective Santiago had viewed sometime between December 8, 1999 and January 7, 2000. It was only after trial that Ortega actually saw the photographs used in the photo array. When Ortega was given these photographs, he learned for the first time that "JD Bubble" was handwritten on his photograph.
[w]hen a trial court learns of newly discovered evidence after a conviction, it should grant a new trial if the defendant makes a showing that the evidence is in fact "new," i.e., it could not have been discovered, exercising due diligence, before or during trial, and that the evidence is so material and noncumulative that its admission "would probably lead to an acquittal."
United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (citation omitted). In all cases, "[i]t is the defendant who bears the burden of showing that a new trial is called for." United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995).
Government's Conduct
Ortega first asserts that the Government violated Section 3500 and his due process rights by eliciting testimony from Detective Santiago about the photo identification at trial without informing him prior to trial about the December 1999 photo spread shown to Detective Santiago, or providing him with a copy of the photograph of Ortega with the handwritten name "JD Bubble" on it. Although the Government concedes that it should have disclosed the prior identification and photographs to Ortega before trial, it asserts that its failure to do so does not provide a basis for a new trial.
Detective Santiago's testimony concerned only the heroin charges. The jury's verdict that Ortega had participated in a conspiracy to distribute five grams or more of crack cocaine was supported by Ruiz's testimony, Officer Durant's testimony, and physical evidence.
Section 3500 requires the Government to produce written statements of a Government witness "made by said witness and signed or otherwise adopted or approved by him." 18 U.S.C. § 3500(e)(1). Under Section 3500, "photographs must be produced if they constitute a part of a written statement." United States v. Simmons, 390 U.S. 377, 387 (1968). The Government has presented no evidence identifying the writer of the words "JD Bubble" on the defendant's photograph or addressing whether this writing was adopted or approved by Detective Santiago.
The Government argues in a memorandum of law that the photograph of Ortega with "JD Bubble" written on it was not Section 3500 material because Detective Nolasco, who did not testify at trial, wrote "JD Bubble" on the photograph, and not Detective Santiago.
Assuming the photographs were required to be produced under Section 3500, "[t]he legal standard to be applied in determining whether a new trial should be granted when the government fails to produce Jencks Act material, 18 U.S.C. § 3500, depends on whether the suppression was deliberate or inadvertent." United States v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975). "If the government deliberately suppresses evidence or ignores evidence of such high value that it could not have escaped its attention, a new trial is warranted if the evidence is merely material or favorable to the defense." Id. On the other hand, if the Government's failure was inadvertent, "a new trial is required only if there is a significant chance that this added item, developed by skilled counsel, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." Id.
In his motion papers, Ortega alleges that the production prior to trial of Ortega's mug shot photograph without "JD Bubble" written on it was a "hidden redaction of a document," and thus constituted prosecutorial misconduct.
The Government has not provided any explanation for its failure to turn over the photographs to the defendant before or even during trial. In its memorandum in opposition to this motion, the Government acknowledges learning of the photo identification "shortly" before trial. An evidentiary hearing is therefore necessary to determine whether a photograph of the defendant was Section 3500 material and whether the Government deliberately suppressed evidence of the photo identification. See, e.g., United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975) (remanding for post-evidentiary hearing); United States v. Hilton, 521 F.2d at 167-68 (same); United States v. Nguyen, No. S6 94 Cr. 241 (LLS), 1996 WL 26635, at *2 (S.D.N.Y. Jan. 24, 1996) (granting post-trial hearing). If there is a determination that the photograph was Section 3500 material, and after the Court determines whether the failure to provide such material was deliberate or inadvertent, the parties will be given an opportunity to address whether a new trial is warranted under the appropriate legal standard.
Based on the Government's direct examination of Detective Santiago, it is apparent that the Government knew that Santiago had identified Ortega from a photo array. The Government asked Santiago: "Now I want to direct your attention to sometime between December 8, 1999 and January 7, 2000. Was there a time that you reviewed some photographs?" Further, the Government did not provide notice of the photo identification during trial when defense counsel asked on the morning of January 24, in another context, whether there had been a police arranged identification of the defendant.
Counsel's Credibility with the Jury
Ortega further argues that a new trial is warranted because defense counsel's credibility with the jury was affected because in his opening (1) he did not mention the photo identification, and (2) told the jury that Detective Santiago had identified Ortega six weeks after the crime, i.e., on the day of his arrest on January 7, 2000, instead of sometime between December 8, 1999 and January 7, 2000. This argument is without merit.
While defense counsel was not able to mention the photo identification to the jury during his opening remarks, neither did the Government. Defense counsel gave an extended and detailed opening statement that effectively focused attention on, among other things, the differences between Ortega's appearance and Detective Santiago's written description of J.D. Bubble. These discrepancies remained important facts for the jury to weigh with or without evidence of the photo identification. As to the second point, defense counsel said nothing in his opening that would have made it appear that he was misleading the jury because he did not mention the photo identification. Defense counsel stated in his opening:
This is a continuing investigation. . . . They don't do this deal on 11/26 and then go and snatch everybody right then and then you are kind of right there and you are caught. That's not what the evidence is going to show you. In fact the evidence is going to show that they leave and don't arrest anyone. . . . They come back six weeks later on January 7th to arrest everybody. . . .
[W]hen the defendant is there on January 7th he's like a lot of other kids in the Bronx. He's wearing a bubble jacket, like the other kids who were there on 11/26.
Defense counsel's remarks were entirely consistent with the trial evidence.
Request for Hearing on Suggestiveness
Ortega also requests a hearing to determine whether the circumstances of the photo identification were unduly suggestive. As described above, Detective Santiago identified Ortega from a pretrial photo array, on the day of his arrest, and at trial. "A witness who identified a defendant prior to trial may make an in-court identification of the defendant if: (1) the procedures giving rise to the pretrial identification were not unduly suggestive; or (2) the in-court identification is independently reliable, even though the pretrial identification was unduly suggestive." United States v. Salameh, 152 F.3d 88, 126 (2d Cir. 1998). See United States v. Simmons, 390 U.S. 377, 384 (1968); United States v. Lumpkin, 192 F.3d 280, 288 (2d Cir. 1999).
In his reply memorandum, the defendant essentially withdraws his request for a Wade hearing.
Ortega has not shown that a post-trial hearing on this score is necessary. The defendant has failed to identify any reasonable ground for finding that the photographs were unduly suggestive. All of the 90 photographs were mug shots, and nearly all of them were of Latino men.
Ortega argues that "[i]t appears that there are not many white latinos in the group of photos." The Government has provided the Court with photocopies of the 90 photographs. Although it is difficult to make a judgment about skin tone from most of the photocopies, the pedigree information lists the "race" for 54 of the men — including the defendant — as "white hispanic," for 12 as "black hispanic," for 10 as "black," and for one as "white." Thirteen others were of women.
Moreover, Detective Santiago's in-court identification was independently reliable. As Detective Santiago testified, his identification of the defendant when he was arrested on January 7, 2000, was based on his own observations of and his interactions with Ortega on November 26, and December 2, 1999, including a brief conversation with him on November 26. These observations, and the witness's ability to observe and recall, were subject to extensive examination at trial. Detective Santiago had every motive to be particularly attentive to the individuals who he perceived were part of a narcotics organization since his purpose in being there was to identify those for whom there was probable cause to arrest. There is no need for a hearing to explore these issues further. The jury's verdict on the heroin count, which rested entirely on Detective Santiago's identification of the defendant, represented their judgment that his identification testimony was reliable. The defendant has pointed to no arguments beyond those rejected by the jury to establish otherwise. Weighing the factors identified in Manson v. Brathwaite, 432 U.S. 98, 114 (1977), this Court also concludes that the identification was independently reliable.
Improper Use
Ortega also argues that evidence of the photographic identification was improperly admitted at trial since the mug shot of him used in his photo array was obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures and kept in violation of the New York State Sealing Statute, N.Y. Crim. P. Law § 160.50 ("Section 160.50"). The photograph came from the files of the New York City police, who had possession of the photograph from what Ortega contends was an illegal arrest in 1998, on unrelated charges. Any charges from that prior arrest have apparently been dismissed.
Section 160.50 provides, in relevant part:
Upon the termination of a criminal action or proceeding against a person in favor of such person, . . . the record of such action or proceeding shall be sealed. . . . Upon receipt of notification of such termination and sealing:
(a) every photograph of such person and photographic plate or proof, . . . and all duplicates and copies thereof, . . . shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination of the action or proceeding. . . .
N Y Crim. P. Law § 160.50(1)(a) (McKinney 1992) (emphasis supplied).
The argument based on any violation of Section 160.50 can be swiftly rejected. "Evidence admissible under federal law cannot be excluded because it would be inadmissible under state law." United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (citation omitted). Even when the underlying investigation leading to the federal investigation "was conducted solely by state officials," federal law applies. United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir. 1987). As the Second Circuit explained in response to an identical argument based on an alleged violation of Section 160.50, "we do not think that the `seizure' alleged is one that deserves the special protections provided by the fourth amendment." United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992).
The Fourth Amendment argument pressed by the defendant is, however, more complex. Assuming arguendo that the defendant was photographed following an arrest made without probable cause, the question is whether the use of that photograph must be suppressed. The Supreme Court has explained that the "apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun v. United States, 371 U.S. 471, 488 (1962) (citation omitted). See also United States v. Thompson, 35 F.3d 100, 105 (2d Cir. 1994). For example, "where flagrantly illegal arrests were made for the precise purpose of securing identifications that would not otherwise have been obtained, nothing less than barring any use of them can adequately serve the deterrent purpose of the exclusionary rule." United States v. Edmons, 432 F.2d 577, 584 (2d Cir. 1977). In Edmons, the FBI rounded up a few suspects from the scene of a prior crime "on a mere pretext" in order to display them to the agents who had witnessed the crime. Id. at 583. Without these arrests, the in-court identification of the defendants could not have occurred. The Second Circuit cautioned, however, that "[w]e are not obliged here to hold that when an arrest made in good faith turns out to have been illegal because of lack of probable cause, an identification resulting from the consequent custody must inevitably be excluded." Id. at 584. See also United States v. Crews, 445 U.S. 463, 447 (1980) (suppressing pretrial identification through use of photograph taken during illegal detention); Davis v. Mississippi, 394 U.S. 721, 728 (1969) (suppressing fingerprints obtained during an illegal detention); United States v. Perez, 732 F. Supp. 347, 352 (E.D.N.Y. 1990) (suppressing photograph obtained after illegal detention).
Although the Government has not provided any evidence regarding the 1998 arrest that produced the mug shot at issue here, the evidence at trial clearly shows that there is no link between that arrest and Detective Santiago's undercover work over a year later. Detective Santiago testified that his unit's investigation of the Ortega drug organization began on November 26, 1999, with no advance planning. On November 26, his unit had planned to go to Union Avenue, between 156th Street and Westchester, and buy heroin from someone with the help of an informant. Detective Santiago drove to the location, but the informant was unable to find the person he knew. At that point, Detective Santiago looked across the street and saw the defendant and Oscar Ortega standing in front of an open garage at 732 Union Avenue. Only then did Detective Santiago begin his investigation of the defendant's organization. At that time, Detective Santiago did not know the defendant and had never heard his name. Moreover, the unit did not even rely on the photo identification in making their arrests. As described above, Detective Santiago individually identified each person arrested on January 7, 2000. It is clear, therefore, that the police officers working with Detective Santiago did not exploit any illegality that may have produced the 1998 mug shot, and that Detective Santiago's trial testimony regarding the photo identification would, in any event, qualify as "means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. at 488. The defendant's motion for a hearing regarding these issues is therefore denied.
Since defense counsel used the photo identification to his own advantage at trial in arguing that it had led to the misidentification of the defendant on January 7, 2000, and at trial, even if there had been any taint at trial from any underlying illegality, it would likely have been "harmless beyond a reasonable doubt." Harrington v. California, 395 U.S. 250, 251 (1969) (quoting Chapman v. California 386 U.S. 18, 24 (1967)). See also Moore v. Illinois, 434 U.S. 220, 232 (1977); United States v. Jarvis, 560 F.2d 494, 500 (2d Cir. 1977).
II. March 10 Seizure
Ortega moves to suppress some of the crack cocaine seized from 732 Union Avenue on March 10, 1999, as a violation of the Fourth Amendment's prohibition on unreasonable searches and seizures. A motion to suppress evidence must be made prior to trial. Rule 12(b)(3), Fed.R.Crim.P. A failure to make the motion prior to trial "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." Rule 12(f), Fed.R.Crim.P. See also United States v. Salameh, 152 F.3d 88, 125-26 (2d Cir. 1998); United States v. Sanchez, 35 F.3d 673, 678 (2d Cir. 1994). "A district court may grant relief from the waiver upon a showing of: (1) cause for the defendant's non-compliance, and (2) actual prejudice arising from the waiver." United States v. Howard, 998 F.2d 42, 52 (2d Cir. 1993).
Ortega requests that the Court hold a post-trial suppression hearing to determine whether Officer Burgos violated Ortega's Fourth Amendment rights when he obtained some crack cocaine from the basement at 732 Union Avenue. Ortega argues that Officer Durant's trial testimony that Officer Burgos had found the crack cocaine after conducting a search in the basement, undermines the Government's representation to defense counsel prior to trial that the police had entered the basement "in hot pursuit" and had found all of the items seized in "plain view." Ortega contends that Ruiz's separate testimony that the organization kept crack cocaine in a green refrigerator in the basement of 732 Union Avenue raises a question as to whether the crack cocaine seized by Officer Burgos in the basement was found inside the refrigerator and not in plain view.
As an initial matter, nothing in Officer Durant's testimony is inconsistent with the discovery of these items in plain view. Ortega merely speculates that the search conducted by Officer Burgos may have been unlawful based on the Government's "suspicious" failure to call Officer Burgos to testify. The defendant was given sufficient notice prior to trial to permit him to evaluate whether to bring a motion to suppress and he chose not to contest the legality of the seizure.
The Government planned to call Officer Burgos and had produced Section 3500 material for him, but found it unnecessary to do so once the crack cocaine was admitted into evidence without any objection from the defendant. The Section 3500 material for Officer Burgos included his testimony before a grand jury that he recovered the crack cocaine at issue in this motion "on the side" of a room in the basement of 732 Union Avenue and handed it to Officer Durant.
Ortega's decision to not move to suppress was a sound, strategic decision since to succeed in any pre-trial motion the Court would have to find that the defendant had an expectation of privacy in the building. While Ortega now argues that Ortega's ownership of the building was not in dispute, "mere ownership of property does not establish a legitimate expectation of privacy unless the owner vigilantly protects the right to exclude others." Gudema v. Nassau County, 163 F.3d 717, 722 (2d Cir. 1998). "[E]ven in the absence of a warrant and probable cause, a search of property that has been abandoned, for example, does not violate a privacy interest." Id. (emphasis supplied).
By not moving to suppress the evidence seized at 732 Union Avenue, defense counsel preserved the argument that the building at 732 Union was an abandoned building and that the drugs and other items stored there did not belong to the defendant. During trial, defense counsel attempted to establish that this building was abandoned. He asked Officer Durant: "This building, is — 732, is it an abandoned building?" Durant answered "yes." Defense counsel also showed Officer Durant a photograph of the garage attached to 732 Union Avenue. He asked: "Now the inside of that garage, which is adjacent to what is really an abandoned building, 732 Union Avenue, there's a lot of junk in there; correct?" Durant answered "correct." Defense counsel asked Ruiz: "And that building [732 Union Avenue] now is an abandoned building; correct?" Ruiz replied "correct." Finally, in summation, defense counsel argued:
All of this stuff here, the vials, the drugs, the vests, other than Gilbert Ruiz, nobody ever saw the defendant with any of this stuff. And there's no evidence linking him to any of this stuff. And the funny thing is they say, oh, a building conveniently owned by the defendant. I mean, this was his father's building. It is abandoned. Now it is owned by the City. The taxes ate it up. This is in the South Bronx. It is an abandoned building with windows shot out. Is this worth any money? Anybody could use this as their drug operation. Anybody in the neighborhood . . . But this, because he said owned, conveniently owned by the defendant, come on, it is an abandoned building that now the City owns. So anybody could stash anything there. Certainly Oscar Ortega and his buddies could do that. That doesn't mean the defendant is guilty.
(Emphasis supplied). Since the defendant made a strategic decision not to move to suppress items recovered from 732 Union Avenue, see, e.g., United States v. Montalvo, 271 F.2d 922, 926 (2d Cir. 1959), he has not shown "cause for [his] non-compliance" with Rule 12(f), Fed.R.Crim.P. See United States v. Santos Batista, 239 F.3d 16, 20 (1st Cir. 2001).
CONCLUSION
For the reasons stated, defendant's motion for a new trial pursuant to Rule 33, Fed.R.Crim.P., is denied at this time. Defendant's request for a hearing regarding the Government's failure to turn over the Section 3500 material is granted. Defendant's request for a hearing to determine whether the photographic identification was unduly suggestive or whether the photograph was improperly obtained is denied. Defendant's request for a suppression hearing regarding the March 10, 1999 seizure is denied.
SO ORDERED: