Opinion
99 Cr. 805 (SWK)
February 2000
ORDER
Defendant Carlos Goiry ("Goiry") moves to exclude at trial the testimony of any law enforcement witness who may attempt to interpret or explain a series of monitored telephone conversations among the defendants or, in the alternative, for a hearing to determine the admissibility of such testimony. Goiry also moves for (1) a severance from his co-defendants charged in the conspiracy count; (2) the furnishing of daily copy of all hearings and proceedings; and (3) permission to join in the motions of the co-defendants. For the reasons set forth below, all motions are denied.
BACKGROUND
On August 17, 1999, a grand jury sitting in the Southern District of New York returned a three count indictment. Count One charges all defendants with conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A), and 846. Indictment, 66 1-3. Count Two charges Gonzalo Gasso ("Gasso") with possession with the intent to distribute approximately 50 kilograms of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A); and 18 U.S.C. § 2. Id. ¶ 4. Count Three charges Marco Perez ("Perez") with possession with the intent to distribute approximately 50 kilograms of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(A); and 18 U.S.C. § 2. Id. ¶ 5.
DISCUSSION
I. Motion for Severance
Goiry moves, pursuant to Federal Rule of Criminal Procedure 14, for an order "severing the Defendant from the trial of the other defendants." Goiry's Notice of Motion, ¶ 2. Goiry argues that he "will face the prejudicial spill over [sic] attendant evidence that is similar on its face but different in result and purpose." See Affidavit in Support of Defendant, Carlos Goiry's Pre-Trial Motions ("Goiry Aff.") at 6. Goiry also argues that he and his co-defendants "must end up in a position of antagonistic defenses." Id.
The disposition of a motion for severance under Rule 14 is within the Court's discretion. See United States v. Carrasquillo, No. S1 98 CR 927, 2000 WL 45708, at *3 (S.D.N.Y. Jan. 19, 2000). It is well established that "[t]here is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 538 (1993); see also United States v. Beverly, 5 F.3d 633, 637 (2d Cir. 1993). As a result, severance should be granted "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. at 539. Furthermore, "[m]utually antagonistic defenses are not prejudicial per se." Id. at 538.
Goiry has not supplied the Court with any concrete or particular assertions, much less facts, indicating how a joint trial would compromise his trial rights or prevent a jury from making a reliable judgment. Indeed, Goiry has failed to identify any evidence that would prejudice him at trial. Thus, the Court finds that Goiry has not shown any risk of prejudice stemming from a joint trial. Accordingly, Goiry's motion for severance is denied.
II. Motion to Bar Testimony by Special Agent
Goiry also moves to exclude at trial the testimony of any law enforcement witness who may attempt to explain or interpret a series of monitored telephone conversations between Goiry and his alleged co-conspirators. See Goiry Aff. at 3. Goiry requests that the Court hold a hearing to examine such testimony to determine whether it is sufficiently reliable to be admitted at trial. See id. at 4. This application, however, is premature. A trial date has not yet been set for this matter. Furthermore, the Government "is not yet certain whether it will be necessary to call a law enforcement witness to explain or otherwise interpret these recorded conversations." Govt's Memorandum of Law in Opposition to the Pre-Trial Motions of Defendants Marco Perez and Carlos Goiry ("Govt's Memo.") at 21. Accordingly, the application for a hearing to determine the admissibility of the special agent testimony is denied at this time. Should the Government provide notice that it intends to call a law enforcement witness to testify to these recorded conversations, Goiry may renew his motion.
III. Motion for Daily Copy
Goiry also "moves for the furnishing of daily copy of all hearings, proceedings and the like in the instant case." Goiry Aff. at 6. By statute, the Court has the discretion to approve such an expense if necessary for adequate representation. See 18 U.S.C. § 3006A. However, Goiry has not shown a need for daily copy of each and every proceeding in this case. Accordingly, Goiry's request for daily copy of all proceedings is denied. Should Goiry need a transcript of a particular proceeding, he may apply to the Court for it at that time.
IV. Permission to Join in Other Motions
Goiry also seeks "to join in all motions made by co-counsel on behalf of other defendants named in the instant indictment which are not inconsistent with the motions advanced herein." Goiry's Notice of Motions, ¶ 4. However, Goiry has not specified the motions or arguments in which he would like to join. "To allow such wholesale joinder in a large multi-defendant case would inhibit the government's ability to reply to such arguments effectively." United States v. Jennings, No. 5-98-CR-418, 1998 WL 865617 at *7 (N.D.N.Y. Dec. 8, 1998). Accordingly, Goiry's motion to join in the motions of his co-defendants is denied at this time. Should Goiry wish to join a particular motion, he may make a specific application to join it at the appropriate time.
To date, the only motion made by one of Goiry's co-defendants is Perez's motion to suppress statements and evidence on the ground that Perez was arrested without probable cause. The threshold issue on a Fourth Amendment claim is whether the defendant has standing to seek suppression. See United States v. Muyet, 946 F. Supp. 302, 304 (S.D.N.Y. 1996). The Court notes that Goiry has not offered any indication that he has standing to seek the suppression of Perez's post-arrest statements or the evidence seized incident to Perez's arrest.
CONCLUSION
For the reasons set forth above, Goiry's motion to exclude at trial the testimony of any law enforcement witness who may attempt to interpret or explain a series of monitored telephone conversations among the defendants or, in the alternative, for a hearing to determine the admissibility of such testimony, is denied. Furthermore, Goiry's motions for (1) a severance from his co-defendants charged in the conspiracy count; (2) the furnishing of daily copy of all hearings and proceedings; and (3) permission to join in the motions of his co-defendants, are denied.SO ORDERED.