Opinion
03 Cr. 601 (RWS).
October 26, 2004
HONORABLE DAVID N. KELLEY, United States Attorney for the Southern District of New York Attorneys for United States of America New York, NY.
By: HARRY A. CHERNOFF, Assistant US Attorney Of Counsel.
GREGORY E. COOPER, ESQ., New York, NY, Attorney for Defendant.
OPINION
Defendant Kaseem Stukes ("Stukes") has moved pursuant to Rule 33, Fed.R.Crim.P., to set aside the verdict rendered against him on November 25, 2003. Stukes argues that the Court erred in admitting items, i.e., crack cocaine, a handgun and currency, into evidence. For the reasons set forth below, the motion is denied.
Prior Proceedings
Stukes was charged in a superseding indictment with two counts of distributing crack cocaine on two different occasions, January 14, 2003 and April 24, 2003, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C). With respect to the first occasion, he was also charged with one count of possessing a firearm in furtherance of the narcotics offense in violation of 18 U.S.C. § 924 (c)(1)(A)(i), and one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Upon the trial from November 17 to November 25, 2003, the government called, among other New York Police Department ("NYPD") witnesses, five officers who participated in the arrests in various capacities. The government also introduced several exhibits, including a videotape of Stukes selling crack and then being arrested. In the first instance, Stukes was filmed running from the police, during which chase he allegedly discarded a 9-millimeter Hi-Point semi-automatic pistol. After the four-day trial, the jury deliberated for approximately one hour and then convicted Stukes on all four counts.
After the jury's verdict was returned on November 25, 2003, defense counsel requested additional time to file the instant motion in light of a one-week trial that counsel was to begin imminently. (Tr. 888-89). The Court made this motion returnable on January 21, 2004, and directed that the defendant's motion be served on January 7, 2004. (Tr. 889).
"Tr." refers to the trial transcript.
After two conferences, the Court set March 25, 2004 for filing of the motion. After Stukes wrote to the Court, a conference was held on March 24, and another extension for filing of the motion was granted until April 1. On April 13, no motion had been filed, and the government wrote to the Court arguing out that, in light of Stukes' failure to file the motion on time, the motion could no longer be entertained on jurisdictional grounds. The instant Rule 33 motion was ultimately served on the government on May 6, 2004, and it was marked fully submitted on June 9, 2004.
In the notice of motion, Stukes' counsel stated that Stukes sought "an Order pursuant to Rule 33 . . . setting aside the verdict of Guilty rendered . . . and either dismissing the charges against the defendant pursuant to Rule 29 of the Rules or, in the alternative, ordering a new trial."
Stukes is scheduled to be sentenced on November 3, 2004.
The Evidence At Trial
At trial, the government introduced several exhibits, including the videotape of Stukes and photographs of the area in question. The exhibits received as evidence also included the following:
Ex. 19 — crack recovered from Luis Tapia
The glassines that had contained crack had largely been emptied by the NYPD laboratory chemists who weighed and tested the substances, so what remained in each of the exhibits described herein as "crack" was mainly the glassines that by the time of trial contained only residue.
Ex. 20 — crack recovered from Marie Megget and Barry Green
Ex. 21 — crack recovered from Ramon Merced
Ex. 22 — crack recovered from Kaseem Stukes
Ex. 23 — a pistol
Ex. 24 — a magazine
Ex. 25 — ammunition
Ex. 26 — currency recovered from Kaseem Stukes
At the trial, Sergeant John Patane testified principally concerning his observations from the "VIPER room," from which he monitored the relevant events and the actions of his team of police officers. Patane testified that on January 14, 2003, he observed, via video transmission, the defendant engage in transactions with several individuals who were then placed under arrest in sequence. Patane was advised over the police radio that crack was recovered from each of the individuals. Merced (Tr. 101); Megget (Tr. 102), and Tapia (Tr. 103).
As described in Sergeant Patane's testimony, the "VIPER room" is a facility in the Castle Hill Houses, a Bronx public housing complex, where police can monitor via closed circuit television some 300 cameras located in and around the complex. (Tr. 76-77).
After Sergeant Patane gave instructions to the field team to arrest Stukes, he observed on the video monitors that the defendant was fleeing. (Tr. 105). Although he was unable to follow the chase on his monitor, Sergeant Patane was advised over the radio that "Mr. Stukes had a gun and that he had thrown it to the ground, and they picked up a gun." Id. Sergeant Patane further testified that he then summoned the Emergency Service Unit ("ESU") to the scene of Stukes' arrest to assist with an evidence search, but that he called off the ESU because his team had successfully completed the evidence search. (Tr. 106). Instead, he directed the ESU to the precinct house to help unload the firearm that had been recovered from Stukes. (Tr. 106-07).
Officer Annette Francesquini testified that she participated in the arrest of Luis Tapia, who had been observed by Sergeant Patane engaging in a transaction with Stukes, and that she witnessed crack being recovered from Tapia's shopping bag. (Tr. 300). She further testified that the crack was turned over to Officer Kevin Finegan, the designated arresting officer. (Tr. 300-01). With respect to the arrest of Stukes, Officer Francesquini testified that she reached the scene in a police van shortly after Stukes was apprehended. (Tr. 303). She testified that while driving to the crime scene, she heard Officer Donald Johnson broadcast over the radio that Stukes had a gun. (Tr. 303).
Officer Johnson testified that he participated in the arrests of Marie Megget and Barry Green (Tr. 364-65), during which Officer Johnson recovered four bags of crack which he turned over to Officer Finegan, the arresting officer. (Tr. 365). Officer Johnson also testified about his participation in Stukes' arrest, before which Officer Johnson had chased the defendant around a shopping strip. (Tr. 368). Officer Johnson testified that during the chase he saw the defendant throw a gun to the ground, and that he saw a magazine fall out of the gun. (Tr. 369). He further testified that he recovered the gun and the magazine, which contained ammunition. (Tr. 370). Officer Johnson then testified that he held onto the gun and the magazine containing bullets "to give to whoever [was] going to be the arresting officer," (Tr. 371), and that he later handed these objects off to Officer Finegan "[s]ome distance apart" from the apprehended defendant. (Tr. 372). On cross-examination, the following exchanges confirmed Officer Johnson's recollection that he had given the gun to Officer Finegan:
Q: Where did you talk to Officer Finegan and give him the gun?
A: When they came on the street later on, him and Patane came later on. (Tr. 401).
. . .
Q: When you turned, as you say you did, the gun, and while I am not so sure about the narcotics, at least the gun over to Officer Finegan, that happen on the street or back at PSA 8?
A: That happened on the street. (Tr. 404).
Officer Edwin Martinez testified that he participated in the arrest of Ramon Merced. (Tr. 415). Officer Martinez stated that he saw the crack recovered from Merced turned over to Officer Finegan by another officer who participated in the arrest. (Tr. 416). Sergeant Patane had established that another member of the field team, Officer Valdez, had also participated in the Merced arrest, as the videotape of the arrest confirmed. (Tr. 120). With respect to the arrest of Stukes, Officer Martinez testified that he had participated in the chase of Stukes, during which Officer Martinez had heard the sound of a firearm hitting the pavement. (Tr. 419). Officer Martinez further testified that after Stukes' apprehension, Officer Martinez recovered a plastic bag containing baggies of crack, which Officer Martinez gave to Officer Peter O'Grady before leaving the scene for the hospital due to an injury sustained during the chase. (Tr. 420-21).
Officer Finegan testified that he was the designated arresting officer who was responsible for arrest paperwork and property vouchering that night. (Tr. 482, 489). Officer Finegan had been stationed in the VIPER room with Sergeant Patane, and corroborated Sergeant Patane's testimony with respect to each of the narcotics transactions that they had observed over the video cameras and about which they had received contemporaneous radio reports. (Tr. 484-87). Officer Finegan also testified that he had heard Officer Johnson report over the radio during the chase of Stukes that Stukes had thrown a gun before he was stopped by Officers Martinez and O'Grady. (Tr. 488).
Officer Finegan recalled receiving the firearm evidence from Officer Johnson at the police base (Tr. 496), rather than at the scene of the arrest as Officer Johnson had recalled. With respect to Exhibit 23, the firearm, Officer Finegan testified that based on its markings and its serial number, he recognized it as the one he had vouchered on the night of Stukes' arrest. (Tr. 491). He further testified that he had received the firearm from Officer Johnson and that he was advised as to the circumstances of its recovery. (Tr. 496-97).
Officer Finegan also testified that he had received Exhibit 19, with respect to Luis Tapia, from Officer Francesquini (Tr. 507-08); that he had received Exhibit 20, with respect to Marie Megget and Barry Green, from Officer Johnson (Tr. 505-06); that he had received Exhibit 21, with respect to Ramon Merced, from Officer Valdez (Tr. 504-05); and that he had received Exhibit 22, the crack recovered from Stukes, from Officer O'Grady. (Tr. 508-09). Officer Finegan testified that he himself recovered and vouchered Exhibit 26, $930 in currency, following his search of Stukes at the police base. (Tr. 509).
Officer Finegan further testified that he had placed the firearm, the magazine, and the bullets in a cardboard box to avoid further handling of the evidence. (Tr. 497). He then sent the box to the Police Department laboratory for fingerprinting and firearms analysis. (Tr. 503). With the box, he included a copy of the property voucher and his request for laboratory examination. Id. According to the "received" stamped copy of the property voucher obtained from the Police laboratory, the evidence was received in the laboratory the day after Stukes' arrest on the evening of January 14, 2003.
At the conclusion of Officer Finegan's testimony, all of the above-referenced exhibits were received into evidence. (Tr. 622).
Police Officer Regina Burgos, the fingerprints analyst from the laboratory, subsequently testified that she received in a sealed box the gun bearing the serial number reflected on Officer Finegan's property voucher, as well as a magazine and bullets, which she identified at Exhibits 23, 24, and 25 respectively. (Tr. 666-67). Her paperwork reflects that she initialed a copy of Finegan's property voucher to acknowledge receipt of all of the evidence inventoried therein. Officer Burgos testified that she tested all of these items for fingerprints with negative results. (Tr. 667-68).
The government also called Detective Sean Hart, the NYPD firearms examiner who had carried out the requested ballistics examination of the evidence. He testified that he received this evidence from the lab's evidence control room in a sealed box bearing Officer Burgos's initials. (Tr. 638-39). In the course of his work, he cut part of the box off and sealed it in a heat-sealed bag that also contained the evidence, including a shell discharged from the firearm in the course of its examination and his report. (Tr. 637-640). The pieces of the box were admitted as government Exhibit 32. (Tr. 638). Detective Hart testified that before carrying out his examination, he did an inventory of the items in the box, and all of the items described on the associated property voucher were present. (Tr. 639).
During his examination, among other things, Detective Hart determined that the magazine that he had received in the evidence box could not fit the firearm he had received. (Tr. 640). Specifically, by reviewing items in the collection of the NYPD ballistics reference library the night before his testimony, Detective Hart had determined that the magazine had been manufactured for a Bryco 9-millimeter firearm, not for the Hi-Point 9-millimeter firearm in evidence. (Tr. 642-43, 654-55). A Bryco 9-millimeter firearm, its magazine, and a Hi-Point 9-millimeter firearm, all from the Police Department ballistics reference library, were admitted government Exhibits 33, 34, and 35. (Tr. 655-57).
On the final full day of trial, the government brought to defense counsel's attention the fact that a photograph that had been produced as Jencks Act material appeared to call into question whether the magazine in evidence was the magazine recovered by Officer Johnson and vouchered by Officer Finegan. The photograph was a Polaroid taken by the officers at the police base on the night of Stukes' arrest, and it depicted the firearm, a magazine, and a brown paper wrapper, which the government contended had likely contained the bullets that spilled out of the magazine. (Tr. 771-72, 780). The evidence was inside a cardboard box similar to that described by the witnesses, and the officers' badges had been arrayed around it to memorialize the arrest. (Tr. 732).
It was apparent from the photograph, based on the distinctive holes visible in the side of the magazine, that the magazine in the box had been a Hi-Point magazine similar to the sample magazine from the NYPD ballistics library introduced the day before as government Exhibit 35. (Tr. 774). Based on his review of the photograph, as defense counsel noted, "the Government concedes the magazine, Government Exhibit 24, that's in evidence, is not what was recovered that night." (Tr. 765).
After raising this issue with defense counsel, the government recalled an unrelated witness and rested. Defense counsel then called the government's case agent as his only witness. Defense counsel did not inquire about the magazine discrepancy, nor did defense counsel call any other witnesses to inquire on that subject. Following argument on the subject, the Court denied Stukes' application to strike the gun from evidence, but granted the application to strike the magazine and the ammunition. (Tr. 782-83).
The Court Has Jurisdiction Over The Motion
Rule 33(b)(2), Fed.R.Crim.P., states that "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days of the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." Rule 45(b)(2), Fed.R.Crim.P., states that "[t]he court may not extend the time to take action under Rules 29, 33, 34, and 35, except as stated in those rules."
The government has argued that this Court lacks jurisdiction to hear Stukes' Rule 33 motion because Stukes failed to submit this motion by the January 7, 2004 filing date that the Court set on November 25, 2003. The government argues that the Second Circuit has adopted the rule that absent the discovery of new evidence, on the eighth day after verdict, a district court is powerless to grant a criminal defendant any additional extensions of time in which to file a Rule 33 motion. However, the Second Circuit cases cited by the government do not adopt this rather harsh rule. In United States v. Moreno, the Second Circuit affirmed a district court ruling that a Rule 33 motion was untimely because it had not been made within seven days of verdict, and no extension had been granted by the court during that time. Moreno, 181 F.3d 206, 212 (2d Cir. 1999). In United States v. Mayo, the Second Circuit held that defendant's Rule 33 motion was properly denied, in pertinent part, because the defendant failed to file within seven days after verdict and no extension had been granted. 14 F.3d 128, 132 (2d Cir. 1994).
In this case, an extension of time to file the Rule 33 motionwas granted within seven days after verdict, and subsequent adjournments were also granted. This practice — i.e., granting additional extensions of time to file a Rule 33 motion even after the 7-day post-verdict period has expired — is routine among many courts in this circuit. See, e.g., United States v. Castro, No. 00 Cr. 549 (LMM), 2003 WL 23518114 at *2 (S.D.N.Y. May 19, 2003) (holding that the court could hear a Rule 33 motion where multiple extensions had been granted in the months after verdict); United States v. Robinson, 303 F. Supp. 2d 231, 235 (N.D.N.Y. 2004) (holding that a district court may grant "subsequent extensions [for the filing of a Rule 33 motion] after the seven day period following the jury verdict but within the deadline established by the original extension"); United States v. Reinhold, 20 F. Supp. 2d 541, 547-48 (S.D.N.Y. 1998) (holding that extensions for the filing of a Rule 33 motion could be granted even after the expiration of seven days after jury verdict); but see United States v. Rodriguez, No. 94 Cr. 313 (CSH), 1997 WL 337519 at *1 (S.D.N.Y. June 19, 1997) (holding that Rule 33 "prevent[s] a court from granting an extension of time [to file] once the week following the verdict has elapsed") (citing Mayo, 14 F.3d at 132); United States v. Piervinanzi, 765 F. Supp. 156, 158 (S.D.N.Y. 1991) (holding that "any extensions of time for the making of a Rule 29(c) motion must be granted, if at all, within seven days after the jury is discharged").
As the court observed in United States v. Reinhold, the purpose of Rule 33 "`is to ensure that the motion [for a new trial] comes promptly after the verdict to avoid . . . imposition of sentence in advance of resolution of dispositive motions.'" 20 F. Supp. 2d 541, 548 (S.D.N.Y. 1998) (quoting United States v. Hocking, 841 F.2d 736, 736 (7th Cir. 1998)). That purpose is served where, as here, an extension of time to file is granted within the 7-day post verdict period.
The acceptance of Stukes' motion for filing on May 12, 2004, without objection by the government, was a continuation of the initial adjourned date (January 7, 2004). Since (1) an extension of time to file was properly granted within seven days of the verdict, and (2) subsequent adjournments were properly granted pursuant to a reasonable interpretation of Fed.R.Crim.P. 33(b)(2) and 45(b)(2), the Court has jurisdiction to consider the merits of Stukes' motion for a new trial. The Motion Is Denied
Rule 33 of the Federal Rules of Criminal Procedure entitles a defendant to a new trial only if "the interests of justice so require." Fed.R.Crim.P. 33. Because of their extraordinary nature, "motions for a new trial are disfavored in this Circuit."United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995). Accordingly, a motion for a new trial should be granted only where the district court has "a real concern that an innocent person may have been convicted," after examining the totality of the evidence and considering objectively all of the facts and circumstances of the case. United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). The defendant bears the burden of showing that a new trial is warranted. United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995).
Stukes' motion is directed to the Court's admission of certain physical evidence. "Generally, before an item may be admitted into evidence, the proponent of the item must provide evidence sufficient to support a finding that the item is what the proponent claims." United States v. Casamento, 887 F.2d 1141, 1188 (2d Cir. 1989) (citing Fed.R.Evid. 901(a) ("The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.")). "To satisfy the authentication requirement, the proponent `need only prove a rational basis from which to conclude that the exhibit did, in fact, belong to the [defendant].'" Casamento, 887 F.2d at 1188 (quoting United States v. Mendel, 746 F.2d 155, 167 (2d Cir. 1984). "The government need not `rule out all possibilities inconsistent with authenticity, or . . . prove beyond any doubt that the evidence is what it purports to be.'" United States v. Jackson, 345 F.3d 59, 65 (2d Cir. 2003) (quoting United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001)).
"The chain of custody is ordinarily a method of authentication for physical evidence." United States v. Gelzer, 50 F.3d 1133, 1140 (2d Cir. 1995). "A break in the chain of custody does not necessarily result in the exclusion of the physical evidence."Id. at 1141; see also United States v. Grant, 967 F.2d 81, 83 (2d Cir. 1992). "Breaks in the chain of custody do not bear upon the admissibility of the evidence, only the weight of the evidence[.]" United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998); see also Jackson, 345 F.3d at 65.
The testimony at trial established a sufficient chain of custody to authenticate the physical evidence. With respect to the evidence of crack cocaine distributed by the defendant, each of the officers who participated in an arrest of one of the defendant's customers testified (i) that he or she witnessed the recovery of crack from the buyer and (ii) that he or she witnessed or transferred the crack to Officer Finegan, the arresting officer. Officer Finegan testified in turn that he received the crack cocaine with respect to each of the buyers in the fashion that had been testified to by the preceding witnesses.
The chain of custody with respect to the firearm was also the subject of testimony. Officer Johnson testified that he recovered it, and his testimony was corroborated, among other ways, by each of the officers who heard his radio transmission to that effect. Officer Johnson further testified that he gave the gun to Officer Finegan, and Officer Finegan testified that he in due course prepared the property voucher. (Tr. 491-96). That voucher reflected the make, type, and unique serial number of Stukes' gun. Officer Finegan testified that he had compared the serial number he had recorded on the property voucher on the night of the arrest with the serial number on the gun he was holding in court, Exhibit 23, and they were the same. (Tr. 491).
Special Agent John Ellwanger of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") testified that the unique serial number of the firearm permitted him to determine from ATF records where and when the gun, Exhibit 23, was actually manufactured. (Tr. 629-30).
Stukes contends that the evidence supports equally the possibility that the gun in evidence, rather than the magazine, was improperly admitted. Officer Johnson testified that he saw the magazine fall out of the gun at the scene of the arrest. That testimony, combined with the Polaroid photograph from the arrest showing a magazine that would have fit inside of the gun, indicates it was the magazine, not the gun, recovered during the course of Stukes' arrest that was subsequently misplaced. Any prejudice to the defendant from the initial admission of the magazine and ammunition was eliminated by the Court's striking of those exhibits from evidence.
Defense counsel appeared to recognize that the fact that the magazine that had been before the jury did not fit the gun favored the defendant, not the government, when he made the strategic choice not to elicit any testimony concerning the Polaroid photograph and related issues during the defense case. Instead, defense counsel went on in summation to use the fact that the stricken magazine could not have fit in the gun to impeach Officer Johnson's testimony generally: "Ah, Officer Johnson. Officer Johnson says the gun, man, that's the gun, I know that gun. I know because when a gun hit the ground, I saw the magazine fall out. That's not possible. Because we hear from Detective Hart that it doesn't fit." (Tr. 818).
Stukes cited several cases which describe the preferred way to establish chain of custody, but none of this authority requires that a witness like Johnson — i.e., the person who first recovered the physical evidence — authenticate the evidence for it to be admitted. For instance, Stukes cites United States v. Miller, 994 F.2d 441, 443 (8th Cir. 1993) for the proposition that "[t]he government could have easily avoided the [authentication] problem presented here by having each officer who handled [the] exhibit . . . identify his or her initials on the exhibit and . . . state whether the exhibit was in substantially the same physical condition at the time he or she first saw it and at the time of trial." Id. Rather than requiring such testimony, however, the Eighth Circuit went on to approve of the admission of evidence for which the chain of custody was established much as it was in the instant case: inMiller the detective who had recovered the crack cocaine had not testified. Id. Instead, the chain-of-custody testimony began with (i) the case agent, who received the evidence from the recovering detective, and continued with (ii) the personnel who transferred the evidence to the crime laboratory where it was tested by (iii) a forensic chemist, who testified that the evidence was retrieved from the laboratory storage room and later returned it to the local police. Id. In upholding the district court's ruling, notwithstanding the fact that the testimony concerning chain of custody began with the case agent rather than the recovering agent, the Eighth Circuit stated that if there was no showing that "the police officers or laboratory employees tampered or altered the evidence, the officials are entitled to the presumption of integrity." Id. at 443-44 (citing United States v. Doddington, 822 F.2d 818, 822 (8th Cir. 1987)).
Stukes was entitled to argue the weight of the evidence based on chain of custody issues, and he did present this defense. Officer Johnson was cross-examined on the fact that in contrast to Officer Finegan, he had failed to put his own initials on the gun that he recovered. There was no suggestion, by way of cross-examination based on the NYPD manual or otherwise, that Officer Johnson had disregarded NYPD policy by turning over the firearms evidence to the arresting officer without first marking it with his own initials. Similarly, Stukes has pointed out that Officer Johnson testified that he placed the crack he recovered in a narcotics envelope and no such envelope was vouchered. Defense counsel declined to ask the vouchering officer why this was the case or what NYPD policy required in this regard. Officer Johnson was not asked to identify the firearm in evidence, was not required to do so to establish the chain of custody, a point on which Stukes relies.
Finally, even if Stukes were somehow correct that the exhibits in question should have been struck, he is plainly wrong to contend that "[w]ithout these items, the jury would be unable to convict the defendant of the charged crimes." Pl. Mem. at 5. Even if all of the exhibits in question had been excluded, numerous officers testified that they recovered crack cocaine from Stukes and/or from his customers, and Sergeant Patane and Officer Finegan heard contemporaneous reports of these recoveries from the VIPER room. Moreover, the fact that Stukes had a gun — regardless of whether it was the Hi-Point in evidence — was the subject of testimony by Officers Johnson, Martinez, Francesquini, Finegan and Sergeant Patane, each of whom either saw the gun, heard the gun, or heard contemporaneous radio broadcasts that a gun had been recovered. Their recollections were further corroborated by the evidence that Sergeant Patane had radioed for the ESU to assist in unloading a firearm.
While a better procedure for the identification of exhibits would have been preferable, there was sufficient evidence before the jury concerning the chains of custody for these exhibits. The totality of the evidence does not establish a real concern that an innocent man has been convicted.
For the foregoing reasons, Stukes' motion is denied.
It is so ordered.