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noting that disclosure of witness lists is "particularly inappropriate" in cases charging violent crimes
Summary of this case from U.S. v. RemireOpinion
04 Cr. 1036 (GEL).
April 21, 2005
OPINION AND ORDER
Defendants Joey Figueroa, Donovan Francis, Javier Robles, and David Tiru are among ten defendants charged in the instant indictment with conspiracy to commit robberies in violation of the Hobbs Act, 18 U.S.C. § 1951, eleven substantive counts of robbery and possession of a firearm in furtherance of robbery, 18 U.S.C. §§ 1951, 924(c), and conspiracy to possess narcotics with intent to distribute, 21 U.S.C. § 846. Defendant Figueroa is also charged as a felon in possession of a handgun. 18 U.S.C. § 922(g)(1). In these pre-trial motions, they seek various relief, including bills of particulars, additional discovery, suppression of evidence, and severance. With limited exceptions described below, the motions will be denied.
I. Bills of Particulars
Francis, Robles, and Tiru each move for bills of particulars. A bill of particulars is appropriately directed when facts beyond those contained in the indictment are necessary to prepare an effective defense, avoid surprise and prejudice, and prevent double jeopardy. United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). "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. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989). Moreover, where the Government has provided full discovery, a bill of particulars will rarely be necessary. United States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N.Y. 1995). Bills of particulars are not appropriate to force the Government to disclose the manner in which it will prove the charges, or to provide evidentiary details. United States v. Wilson, 565 F. Supp. 1416, 1438-39 (S.D.N.Y. 1983).
Here, defendants' motions seek vast quantities of evidentiary detail entirely inappropriate for a bill of particulars. The indictment sets forth simple charges of robbery, and identifies the date and place where the robberies are alleged to have occurred. "Details as to how and when the conspiracy was formed, or when each participant entered it, need not be revealed before trial." United States v. Persico, 621 F. Supp. 842, 868 (S.D.N.Y. 1985). The motions for a bill of particulars are denied.
II. Discovery
Robles and Tiru also seek a wide range of discovery beyond that already provided by the Government. The Government represents that it has provided or will provide certain of the material sought by Robles: the results of fingerprint comparisons with respect to Robles, statements made by Robles during certain proffer sessions with the Government, and information concerning identification procedures that resulted in witness identifications of Robles. These aspects of his motion are accordingly denied as moot.
The other matters sought by the defendants are outside the scope of discovery required by the Federal Rules of Criminal Procedure. It is well established that witness lists and exhibit lists need not be provided in advance of trial. United States v. Bejasa, 904 F.2d 137, 139-40 (2d Cir. 1989). Such disclosure is particularly inappropriate in this case, which involves charges of violent crimes, where the witnesses will include cooperating individuals and victims. The identities of confidential informants are privileged, Roviaro v. United States, 353 U.S. 53, 59 (1957), unless the defendant shows that discovery of the witness's identity is material to the defense, United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988); Robles entirely fails to make such a showing. Discovery of statements by alleged co-conspirators that the Government will seek to introduce pursuant to Fed.R.Evid. 801(d)(2)(E) is not required. See Fed.R.Crim.P. 16(a)(1)(A)-(B) (specifying statements that must be discovered to defendant). No specific discovery rule requires the Government to produce to defendants statements made by co-defendants that might raise issues under Crawford v. Washington, 541 U.S. 36 (2004), or Bruton v. United States, 391 U.S. 123 (1968). It is wise, of course, for the Government to produce such materials in sufficient time for issues regarding such statements to be resolved pre-trial; the Government represents that it is not aware of any at this time, and that it will produce any such statements that come to light in a timely manner. Police reports are not expressly made not discoverable by Fed.R.Crim.P. 16(a)(2), except to the extent that they contain materials otherwise discoverable. The Government has represented that it has produced or will produce such reports as are made discoverable by Rule 16, Brady/Giglio, or 18 U.S.C. § 3500. The Court is without power to order material discoverable underBrady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), or 18 U.S.C. § 3500 weeks in advance of trial, as requested by Tiru. See United States v. Coppa, 267 F.3d 132 (2d Cir. 2001); 18 U.S.C. § 3500(a). The Government represents that it will produce such material in sufficient time for the defense to make effective use of it at trial. (G. Br. 51-52.) The Court is not without remedial power if the Government fails in this undertaking.
Finally, the Government has complied with Robles's request that it explain and justify the redactions in certain documents produced by the Government pursuant to Rule 16. (G. Br. 39-40.) It remains open to the defendant to challenge by further motion any specific redaction that it believes has not been adequately justified, or that prevents effective use of the discovery material in preparing a defense.
III. Prior Similar Act Evidence
Robles seeks to require the Government to produce evidence that it intends to offer pursuant to Fed.R.Evid. 404(b) one month before trial; Tiru seeks similar production approximately two months before trial. Although Rule 404(b) requires the Government to provide "reasonable notice in advance of trial" of its intention to use such evidence, in order to permit pre-trial determinations of admissibility where possible, no specific timetable is established. Here, the Government proposes to produce such material approximately thirty days before trial, thus satisfying Robles's demand. Nothing in Tiru's motion justifies earlier disclosure of such material. Accordingly, Robles's motion is granted on consent, and Tiru's is denied.
IV. Severance
Tiru moves for a separate trial, arguing that since he is charged with only one substantive robbery count, while other defendants are charged with additional robberies, he will be prejudiced by the "spillover" from their crimes. The motion will be denied.
Because the interests of efficiency and justice are usually well served by joint trials, a severance is warranted only if "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993). Severance will rarely be appropriate simply because one defendant is charged with fewer or less culpable acts than his co-defendants, or because there is less evidence against him. "[D]iffering levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990) (internal quotation marks omitted).
Here, Tiru is charged with the same kind of conduct as his co-defendants, and is charged with participation in the same conspiracies. There is no indication that the evidence against others in the case will be more shocking or prejudicial than the evidence against him; the difference is simply one of the extent of participation in the conspiracy and the number of robberies in which Tiru is alleged to have participated. The total number of incidents involved in the indictment is limited. There is no reason to believe that a properly-instructed jury will be unable to keep the evidence against the various defendants separate and return a just verdict.
V. Suppression Issues
A. Francis
Francis moves for suppression of evidence obtained in the search of an automobile. As the Government represents that it will not seek to use any of evidence obtained during this search at trial, the motion will be denied as moot.
B. Figueroa
Figueroa moves to suppress evidence seized in a warrantless search of an apartment where he was staying with his girlfriend. In an affidavit submitted in support of the motion, Figueroa assets that the police requested permission to search the apartment, and all of the adults present either refused or remained silent. (Figueroa Aff. ¶ 3.)
The Government argues that Figueroa's motion does not require an evidentiary hearing, because a hearing is required only when "the petition alleges facts which if proved would require the grant of relief," Grant v. United States, 282 F.2d 165, 170 (2d Cir. 1960), and the facts alleged in the affidavit are based on "personal knowledge." United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967). According to the Government, Figueroa's affidavit does not meet this standard, because the affidavit acknowledges that Figueroa was told by the police that his girlfriend's mother, who was the primary resident of the apartment, consented to the search by telephone. (G. Br. 12-16.)
The Government's principles are sound. To obtain an evidentiary hearing, a defendant must submit affidavits establishing by personal knowledge facts that, if accepted, would render the search illegal. The Government is also correct that voluntary consent by someone who has authority over the place to be searched is reasonable within the meaning of the Fourth Amendment. United States v. Matlock, 415 U.S. 164, 169-171 (1974); United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996). While it is not clear that the police may "remain in a home over the objections of the primary occupant" in hopes of obtaining consent from a third party whom they "know has lesser authority over the premises than the primary occupant," Koch v. Town of Brattleboro, 287 F.3d 162, 168 (2d Cir. 2002), the law is clear that consent to search may be given by the voluntary consent of any person authorized to give such consent. United States v. Elliot, 50 F.3d 180, 185 (2d Cir. 1995). It is also clear that "even in situations where the defendant has already refused consent[,] the officers may nevertheless rely on consent from a third party who has the requisite authority to give it."United States v. Lewis, 386 F.3d 475, 481 (2d Cir. 2004). The Government asserts, and Figueroa does not dispute, that the girlfriend's mother was a resident, and the lessee of the apartment, and therefore had authority to consent to the search, and indeed had superior rights as an occupant to Figueroa, who maintains that he was present only as an overnight guest.
However, the Government is incorrect that Figueroa's affidavit is insufficient to call for a further evidentiary showing by the Government. The principle that the motion must demonstrate facts showing the search to be illegal cannot require a defendant to prove a negative. Here, Figueroa's affidavit asserts, on personal knowledge, that the search was without warrant and that no one present consented. A defendant cannot be expected to identify all persons having potential authority to consent to search, and then to round up affidavits from all such persons indicating that they did not consent to a search.
It is a closer question whether Figueroa can be expected to provide an affidavit from the specific person on whose consent he has been advised the Government purports to rely. Here, Figueroa's affidavit acknowledges that he was told by a police officer that his girlfriend's mother consented to the search, and Figueroa has not provided an affidavit from the mother denying that she did so. At the same time, the fact that a police officer told Figueroa that the girlfriend's mother consented to the search does not make it so. The Government effectively contends that an unsworn assertion that someone consented to the search, provided by the police at the time of the search to the occupants of an apartment, imposes a burden on the defendant to obtain an affidavit from a possibly uncooperative or unfriendly witness in order to put the Government to the proof that such a consent occurred.
It appears more equitable to require the Government at a minimum to produce sworn testimony that the consent was obtained. Figueroa has made an evidentiary showing that the search was made without warrant, and without the consent of anyone present. The only contrary "evidence" is the unsworn hearsay statement of a police officer, candidly reported by Figueroa, that a person not present had granted consent. On that record, the evidence would have to be suppressed, as the first-hand evidence indicates that no consent was obtained, and the only indication that there was any consent is inadmissible hearsay. Absent further evidence, an evidentiary hearing would be required.
If, on the other hand, the Government provided an affidavit from the officer who allegedly obtained the consent, setting forth facts that support a finding that consent was obtained from a person who had authority to grant consent, no further hearing would be required absent contradictory evidence submitted by the defendant. Should such an affidavit be provided, the record would contain uncontradicted evidence of the legality of the search, and defendant's first-hand evidence would not be sufficient to put the facts asserted by the Government in contest, without the testimony of the person allegedly granting consent.
Accordingly, decision on Figueroa's motion to suppress evidence is deferred. If the Government provides evidence to support its contention that consent was validly obtained, and Figueroa fails to provide affidavits contesting that evidence by first-hand knowledge, the motion will be denied without a hearing. If the Government fails to provide such evidence, the motion will be granted. If both sides produce affidavits that create a contested issue of fact, a hearing will be ordered. The Government will have two weeks to make a supplementary submission; if an adequate submission is made, defendant will have two weeks to submit a response.
CONCLUSION
For the foregoing reasons, decision is deferred on defendant Figueroa's motion to suppress evidence; defendant Robles's motion for early disclosure of evidence the Government intends to offer pursuant to Fed.R.Evid. 404(b) is granted on consent; and all other defense motions are denied.SO ORDERED.