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denying request for evidentiary hearing regarding motion to suppress evidence where defendant failed to show disputed issues of material fact justifying hearing existed
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S1-98-CR. 927 (RWS)
January 17, 2000
MARY JO WHITE, United States Attorney for the Southern District of New York Attorney (ROBERT H. HOTZ, JR. and PAUL W. BUTLER Assistant US Attorneys Of Counsel) for United States of America
LISA SCOLARI, ESQ., Attorney for Defendant New York
OPINION
Defendant Celestino Carrasquillo ("Carrasquillo") has moved (i) for an order suppressing all post-arrest statements attributed to Carrasquillo; (ii) for an order, pursuant to Rule 14, Fed.R.Crim.P., granting Carrasquillo a severance from the trial of certain of his co-defendants; (iii) for an order, pursuant to Rule 404(b), Fed.R.Evid., requiring the Government to specify, at least thirty days before trial, any "bad act evidence" it intends to offer at trial, and granting him a pretrial hearing on the admissibility of such evidence; (iv) for an order, pursuant to Rules 403, 608, and 609, Fed.R.Evid., "directing the government to appraise the defendant of all prior conduct with which the Government would impeach him" at trial, and granting him a pre-trial hearing on that issue; (v) for an order, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Bagley, 473 U.S. 667 (1985), "compelling disclosure of all material that would exculpate [Carrasquillo] or tend to impeach evidence of guilt"; (vi) for an order compelling the Government to produce various statements; (vii) for an order requiring the Government to "produce a list of witnesses, reveal the identity of informants and cooperating co-defendants, and [to] provide the defense with an opportunity to interview them in preparation for trial"; (viii) for an order "permitting counsel to join in co-counsel's motions and to reserve the right to bring any additional motions which may become necessary pursuant to further discovery."
For the reasons set forth below, Carrasquillo's motion will be granted in part and denied in part.
Background
On August 20, 1998, Carrasquillo was indicted in the Southern District of New York for conspiring (along with several other non-moving defendants) to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. Though that indictment contained other counts charging his co-defendants with further offenses, and though a superseding indictment was delivered on May 20, 1999 charging defendant Anthony Ramirez ("Ramirez") with murder in aid of racketeering, Carrasquillo is only charged with a narcotics conspiracy offense.
The instant motion was filed on December 7, 1999.
Briefing was received through December 15, 1999, at which time the matter was deemed fully submitted.
Discussion
I. Suppression of Post-Arrest Statements
After his arrest on July 22, 1998, Carrasquillo made a number of post-arrest statements to law enforcement officers. Carrasquillo does not challenge the Government's contention that he was advised of his Miranda rights. Furthermore, he concedes that he signed a Miranda "waiver" card prior to making the statements at issue. However, Carrasquillo claims that his waiver was not made knowingly, as he "had been drinking prior to his arrest and that affected his ability to knowingly waive his Fifth Amendment right to remain silent."
It is well-settled that "`[t]he police may use a defendant's confession [obtained during a custodial interrogation] without transgressing his Fifth Amendment right only when the decision to confess is the defendant's free choice.'" Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997) (quoting United States v. Anderson, 929 F.2d 96, 98 (2d Cir. 1991)). To that end, law enforcement agents conducting a custodial interrogation are required to provide a suspect with Miranda warnings, including the right to remain silent and the right to counsel, "principally to safeguard the suspect's privilege against self-incrimination." United States v. Ramirez, 79 F.3d 298, 304 (2d Cir. 1996).
Whether a defendant voluntarily waived his rights is based on an evaluation of "the totality of all the surrounding circumstances, including the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials." Anderson, 929 F.2d at 99; see also Nelson, 121 F.3d at 833. The Government bears the burden of demonstrating by a preponderance of the evidence that a defendant voluntarily waived his Miranda rights. See Colorado v. Connelly, 479 U.S. 157, 168-69 (1986); Nelson, 121 F.3d at 833.
However, a defendant seeking the suppression of evidence is not automatically entitled to an evidentiary hearing on his claim. The defendant must show "that disputed issues of material fact exist before an evidentiary hearing is required." United States v. Castellano, 610 F. Supp. 1359, 1439 (S.D.N.Y. 1985). The Court is "not required as a matter of law to hold an evidentiary hearing if [defendant's] moving papers did not state sufficient facts which, if proven, would have required the granting of the relief requested." United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969). The required showing must be made by an affidavit of someone with personal knowledge of the underlying facts. See United States v. Caruso, 684 F. Supp. 84, 87 (S.D.N.Y. 1988). "A hearing is not required if the defendant's statements are general, conclusory or based on conjecture." United States v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y. 1989).
The Government contends that the motion fails because it is not supported by an affidavit based on personal knowledge, and the Court is in agreement. Carrasquillo instead offers only an attorney affidavit. This alone, given the nature of his challenge to the post-arrest statements at issue, would suffice to merit the denial of Carrasquillo's motion. See United States v. Birkett, No. 99 Cr. 338(RWS), 1999 WL 689992, at *8 (S.D.N Y Sept. 2, 1999); United States v. Tobon-Sierra, No. S1 96 Cr. 374 (DLC), 1996 WL 556941, at *3 (S.D.N.Y. Oct. 1, 1996); United States v. Munoz, 751 F. Supp. 1109, 1113-14 (S.D.N.Y. 1990).
However, even if Carrasquillo were to make the self-same allegations upon personal knowledge that have already been made by his attorney, such statements would not present factual issues for which a hearing is required. Counsel's affirmation states merely that Carrasquillo contends that his "waiver was not knowing and that his statements were not voluntary because he had been drinking prior to his arrest."
As an initial matter, it is worth noting that this statement provides no indication as to the amount Carrasquillo had been drinking, or for how long prior to his arrest Carrasquillo had been consuming alcohol. For that matter, it is not even asserted in the affirmation that Carrasquillo was actually intoxicated. Furthermore, while the Court does not discount the possibility that, under certain circumstances, intoxication may preclude a finding of voluntary and intelligent waiver, the courts have resisted adopting a per se rule that inebriation or use of drugs automatically prevents a defendant from appreciating the nature and consequences of his statements. See Avincola v. Stinson, 60 F. Supp.2d 133, 160 (S.D.N.Y. 1999) (collecting cases); see also United States v. Turner, 157 F.3d 552, 555-56 (8th Cir. 1998); Government of the Virgin Islands v. Samuel, No. Crim. F92/1997, 1997 WL 903253, at *4 (V.I. Nov. 5, 1997); United States v. Hogan, 933 F. Supp. 1008, 1017 (D. Kan. 1996).
For these reasons, the motion is therefore denied.
II. Severance
Carrasquillo has also moved, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, to have his trial severed from that of his co-defendants. Carrasquillo contends that, because a co-defendant is presently charged with the crime of murder and he is only charged with a narcotics conspiracy offense, "the spill-over prejudice would detract from his ability to receive a fair trial."
Rule 14 provides in pertinent part: "If it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment . . ., the court may order . . . separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." Fed.R.Crim.P.
14. The disposition of a motion for severance under Rule 14 is entrusted to the sound discretion of the trial court. See United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir. 1987). Moreover, "[a]ny analysis of . . . requests for severance must begin from the position, repeatedly expressed in the decisions of our Court of Appeals, that defendants who are indicted together will normally be tried together." United States v. Ianniello, 621 F. Supp. 1455, 1477 (S.D.N.Y. 1985).
In addition to challenging the bonafides of Carrasquillo's severance motion, the Government has suggested that the motion is premature — given that the Department of Justice has not yet decided whether it will seek the death penalty against defendant Ramirez, and given the bifurcated motion schedule previously set by this Court.
The merits of Carrasquillo's motion need not be addressed at this time, as the motion is indeed premature. His Rule 14 motion is therefore denied. Leave is granted for Carrasquillo to resubmit a motion for severance at such time as the penalty sought by the Government against Ramirez is determined.
III. Discovery Motions
1. Rule 404(b) Evidence
Carrasquillo has requested that the Government be required to notify him, at least thirty days prior to trial, if it intends to offer evidence of "other crimes, wrongs or acts" against him. Fed.R.Evid. 404(b). He also requests that the admissibility of such evidence be determined at a pretrial hearing, suggesting that the trial court's "discretionary function [in determining admissibility] is abrogated if both the defendant and the court are confronted with such evidence in the heat of trial." Rule 404(b) requires that the Government provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b). The Government states that, aside from a conviction stemming from a 1997 firearms-related arrest, it is presently unaware of any other evidence that might be considered 404(b) evidence, and that if it intends to introduce any such evidence at trial it "will make every effort to notify Carrasquillo's counsel and the Court no later than ten days prior to trial." This is reasonable and fair, and the Court sees no reason in law why the requested thirty-day notice should be required. Moreover, to the extent that Carrasquillo has requested a pretrial hearing on such matters, his motion is premature.
Though the designation of this conviction is not at issue in the instant motion, the Government contends that this conviction would not actually be considered Rule 404(b) evidence, as the weapons possessed by Carrasquillo in connection with that offense were used in furtherance of the narcotics conspiracy for which he is presently being prosecuted.
Carrasquillo's motion shall therefore be denied.
2. Impeachment Evidence
Carrasquillo has further requested that the Government advise him, prior to trial, concerning any prior conduct that it will seek to utilize against him at trial as impeachment material. As with Carrasquillo's other requests pursuant to Rule 404(b), Carrasquillo requests a pretrial hearing concerning any such evidence.
Under Rules 608 and 609 of the Federal Rules of Evidence, evidence of a witnesses' prior bad acts or convictions may be admissible to impeach that witness' credibility. However, except where a party intends to introduce evidence of a conviction that is more than ten years old, neither rule imposes any notice requirement. See United States v. Brunson, No. 97-CR-398 RSP, 1998 WL 146271, at *3 (N.D.N.Y. Mar. 26, 1998); United States v. Livoti, 8 F. Supp.2d 246, 250 (S.D.N.Y. 1998). Under Rule 609, the party seeking to introduce evidence of such a conviction must give "sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." Fed.R.Evid. 609(b).
The Government has indicated that the only conviction that would qualify under Rule 609(b)'s special notice provision would be Carrasquillo's 1983 conviction for disorderly conduct, but that it does not intend to use that conviction for impeachment purposes. Consequently, Carrasquillo's motion shall be denied.
3. Brady Material
Carrasquillo has requested disclosure of exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), impeachment material under Giglio v. United States, 405 U.S. 150 (1972), and all evidence that is favorable to him under the rationale of United States v. Bagley, 473 U.S. 667 (1985). Carrasquillo has also submitted that the Government should be ordered to provide all traditional Brady material "as soon as it is discovered," and all Giglio material no later than thirty days prior to trial.
With respect to Carrasquillo's requests for exculpatory material pursuant to Brady, the Government maintains that it is well aware of its obligations under Brady, but is aware of no such material relating to any defendant at this time. The Government has also indicated that "it will promptly disclose any Brady material that comes to light."
Courts within this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to Brady where the Government, as here, has made a good-faith representation to the Court and defense counsel that it both recognizes and has complied with its disclosure obligations under Brady. See, e.g., United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y. 1996); United States v. Schwimmer, 649 F. Supp. 544, 549 (E.D.N Y 1986); United States v. Massino, 605 F. Supp. 1565, 1581 (S.D.N.Y. 1985), rev'd on other grounds, 784 F.2d 153 (2d Cir. 1986). The Government has thus far met its Brady obligations, and the Court has been given no reason to believe that the Government will not continue to comply with those obligations in the future.
Defendants have also moved to require disclosure of Brady material of an impeachment nature, i.e., Giglio material, at least thirty days prior to trial. Brady, however, establishes no general right to pretrial discovery, and gives rise to no pretrial remedies. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Evanchik, 413 F.2d 950, 953 (2d Cir. 1969). "Neither Brady nor any other case . . . requires that disclosures under Brady must be made before trial." United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2d Cir. 1974); United States v. Matos-Peralta, 691 F. Supp. 780, 790-91 (S.D.N.Y. 1988).
Due process requires only that a defendant receive such information before it is too late for him to make beneficial use of it at trial. See United States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983); United States v. Shoher, 555 F. Supp. 346, 352 (S.D.N.Y. 1983). The Government has agreed to make such impeachment information available to the defense "shortly before trial." This is more than adequate, given that other courts have allowed disclosure as late as "one day prior to the day the witness is called to testify on direct examination." United States v. Gutierrez-Flores, No. 94 Cr. 393 (CSH), 1994 WL 558034, at *3 (S.D.N.Y. Oct. 11, 1994). This practice will allow defense counsel ample time to prepare for cross-examination of Government witnesses as they testify at trial, or, alternatively, to request additional time in which to prepare.
The Court accepts the Government's representation that it will provide timely disclosure if any Brady material comes to light. For these reasons, the motions to compel disclosure are denied.
4. Production of Statements
Carrasquillo has requested an order requiring the Government "to provide statements made to law enforcement officials that are contradictory of or inconsistent with any other statements, whether such statements have been made by individuals who are cooperating or not and whether [or not] the government is going to call the individual as a witness." He premises this request, in part, upon Kyles v. Whitley, 514 U.S. 419 (1995), and suggests that such production is necessary given that the "stories of cooperating co-defendants often `evolve' or change over the course of proffer sessions."
However, as the Government correctly observes, there is no merit to Carrasquillo's request that the statements of Government witnesses be disclosed prior to their testimony at trial. Pretrial disclosure of all witness statements is governed by the Jencks Act, 18 U.S.C.A. § 3500 (1999). The Jencks Act specifically requires the production of a witness statement only after the "witness called by the United States has testified on direct examination." Id. § 3500(b); see United States v. Scotti, 47 F.3d 1237, 1250 (2d Cir. 1995). Moreover, neither Rule 16 of the Federal Rules of Criminal Procedure nor the Jencks Act requires, as a matter of course, the production of co-conspirator statements. United States v. Heatley, 994 F. Supp. 483, 490 (S.D.N.Y. 1998).
This being said, the Government has agreed to adhere to its customary practice of producing all Jencks Act material "the day before the corresponding witness will testify," or "in the event additional time is reasonably required to review such material, . . . sufficiently in advance of the witness' testimony so as to avoid any delay at trial." This would appear to be more than adequate.
To the extent that Carrasquillo seeks disclosure of any statements by nonwitnesses that would be covered by Kyles, as discussed above concerning Brady material the Government has already acknowledged its obligation to provide such material that comes to light in a prompt fashion.
Carrasquillo's motion is therefore denied.
5. Request for a Witness List, Identity of Informants, and Opportunity to Interview Cooperating Co-conspirators
Carrasquillo has requested that the Government provide him with a witness list prior to trial, including the identity of all confidential informants. Additionally, he requests an opportunity to interview any such witnesses prior to trial. This court has previously declared that, in determining whether disclosure of a witness list is appropriate, the defendant's specific need for the information "should be balanced against the `possible dangers accompanying disclosure (i.e. subornation of perjury, witness intimidation, and injury to witnesses).'" United States v. Cafaro, 480 F. Supp. 511, 520 (S.D.N.Y. 1979) (quoting United States v. Cannone, 528 F.2d 296, 302 (2d Cir. 1975)). "[A]bsent `some particularized showing of need,' the defendant is not entitled to lists of government witnesses or persons interviewed by it." United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983) (quoting United States v. Pastor, 419 F. Supp. 1318, 1330 (S.D.N.Y. 1975), aff'd, 557 F.2d 930 (2d Cir. 1977)). Moreover, with regard to the identity of informants, disclosure is normally appropriate only where disclosure of the informant's identity is shown to be material to the defense. See United States v. Riddick, No. 98 Cr. 676(LMM), 1999 WL 182584, at *1 (S.D.N.Y. Apr. 2, 1999); United States v. Ahmad, 992 F. Supp. 682, 685 (S.D.N.Y. 1998); United States v. Heatley, 994 F. Supp. 483, 489 (S.D.N.Y. 1998). "[A]n abstract, conclusory claim that such disclosure [is] necessary," Cannone, 528 F.2d at 301-02, is insufficient. Moreover, "[e]specially in narcotics cases, where the dangers of witness intimidation, subornation of perjury or actual injury to witnesses are great, the defendant's request for a witness list should not be granted absent a particularized showing of need." United States v. Taylor, 707 F. Supp. 696, 703 (S.D.N.Y. 1989) (citations omitted). Carrasquillo has made no such showing, and the Court finds nothing in the record currently presented that could support Carrasquillo's request that the identities of confidential informants be disclosed prior to trial.
Carrasquillo's motion is accordingly denied. However, Carrasquillo shall be granted leave to renew his request for disclosure of the identity of informants prior to trial.
IV. Leave to Join Other Defendants' Motions, and to Make Additional Motions
Carrasquillo has moved for leave to join in his co-defendants' motions, and to bring additional motions as they become necessary in light of subsequent discovery. Insofar as the latter request is concerned, Carrasquillo will be permitted to make additional motions only for good cause shown should additional discovery produce new material facts and issues, or where leave has been provided for herein. The Court will not, however, accept additional motions that rehash the issues resolved in the current motions. The Court will exercise its discretion in determining the validity of any future motions.
Though no other motions are presently before the Court, leave to join in the future motions of other defendants is granted, with the caveat that such leave will not be granted concerning motions raising issues identical to those resolved in the instant opinion. Furthermore, Carrasquillo shall be required to indicate, by letter or facsimile, those specific motions in which he wishes to join.
Conclusion
For the reasons set forth above, Carrasquillo's motion is granted in part and denied in part.
It is so ordered.