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United States v. Cantoni

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
Mar 19, 2019
18-cr-562 (ENV) (E.D.N.Y. Mar. 19, 2019)

Opinion

18-cr-562 (ENV)

03-19-2019

UNITED STATES OF AMERICA, v. GREG CANTONI, Defendant.


SHORT FORM MEMORANDUM & ORDER

Jury selection in this case is scheduled to start on April 1, 2019. The government has filed a motion in limine, and defendant has cross-moved and raised several issues in opposition. Having considered the submissions of the parties and the arguments of counsel at the hearing on March 15, 2019, the motions are resolved in the manner and for the reasons set forth below.

Motion

Ruling

Defendant's Motion in Limine

(A) Cantoni moves to preclude thegovernment from presentinghandwriting evidence to the juryor arguing to the jury that thehandwriting in the demand notes issimilar or from a common source.

(A) The government has provided notice that it intends tocall two New York Police Department ("NYPD")handwriting experts to testify that the writing on severaldemand notes that Cantoni allegedly produced during thecharged robberies came from a common source. Cantoniargues that this testimony should be excluded becausethe government's Rule 16(a)(1)(G) disclosures areinadequate, the testimony threatens to mislead or confusethe jury, in contravention of Rule 403 of the Federal

Rules of Evidence, and the experts' methods fail to meetthe requirements of Rule 702 and Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.2786, 125 L. Ed. 2d 469 (1993). Defendant's motion isgranted, and the testimony will be excluded, pursuant toRule 403, which permits the Court to "exclude relevantevidence if its probative value is substantiallyoutweighed by a danger of one or more of the following:unfair prejudice, confusing the issues, misleading thejury, undue delay, wasting time, or needlessly presentingcumulative evidence," Fed. R. Evid. 403. The Courtdoes not reach the question of the adequacy of thegovernment's disclosures or the proffered testimony'scompliance with Rule 702 and Daubert.The government indicates that its experts will testifyonly that the demand notes came from a common source;they will not testify that Cantoni was the author of thenotes. This limitation is necessary because thegovernment never obtained a sample of Cantoni'shandwriting and, consequently, never compared hishandwriting to the writing on the notes. Notwithstandingthis limitation, the clear thrust of the testimony is to

suggest that Cantoni was the author of the notes and,thereby, to label him as the perpetrator of the robberies.Assuming arguendo that the government's disclosureswere adequate and that the experts' analysis satisfiesRule 702 and Daubert, the record makes clear that thegovernment had scientifically inadequate evidence todetermine that Cantoni was the author of the notes. Thejury, however, is likely to be misled into believing thatthe government reached this conclusion or, in thealternative, to reach this conclusion independently on thebasis of evidence the government itself foundinsufficient. Cantoni will be substantially prejudiced ifthe jury is led to believe that an expert placed him as theauthor of the demand notes, when no expert did so.Because the risk that the jury will be misled or confusedand that the defendant will be unfairly prejudicedsubstantially outweighs the probative value of testimonythat the notes were written by the same person, thehandwriting expert testimony will be excluded.

(B) Cantoni moves to preclude thegovernment from introducingevidence of license plate reader

(B) NYPD used a license plate reader ("LPR") toidentify Cantoni's vehicle on Fort Hamilton Parkway inBrooklyn, approximately one block away from the

results, which he believes thegovernment may offer to showthat his car was parked near TDBank at the time of the allegedrobbery.

August 5, 2018 robbery of a TD Bank branch. (Gov't'sReply at 3, ECF No. 35). Cantoni moves to exclude thisevidence on the grounds that LPRs make errors, thattechnology may have been used to magnify the image ofCantoni's license plate, and that the LPR evidence issubject to, and fails, Daubert analysis. To the extent thatdefendant has concerns about the technology and its usein this case, he may explore them on cross-examination.Any concerns about the manipulation of the license plateimage may similarly be explored in examining thecustodian of the LPR results.Cantoni's concerns about Rule 702 and Daubert arewithout foundation because the evidence generated fromLPR technology, a technology in common andwidespread use for homeland defense, is not expertopinion subject to gatekeeping by the Court. Althoughan analyst, like a photographer, may have used sometechnological skill to magnify the image of Cantoni'slicense plate, an image is not an opinion, and noscientific training or special qualifications are required toattest to the number on a photographed license plate.Moreover, as the government notes, the LPR photograph

it seeks to offer does not suffer from the same defects asthe photograph at issue in Green v. City and County ofSan Francisco, which was taken when "[i]t was late anddark outside, which rendered the photograph blurry andillegible," 751 F.3d 1039, 1042 (9th Cir. 2014). TheLPR photograph here was taken during broad daylight,and Cantoni's reliance on Green is, therefore, misplaced.In support of a related motion to exclude cell phonelocation data, a matter decided in a separate order issuedtoday, Cantoni notes that he gave his license platenumber and a description of his car to an FBI agent afterhe had invoked his right to counsel. (Def.'s Reply at 12,ECF No. 46). He suggests that any statement regardinghis car should, therefore, be excluded. However, hisstatement was routine booking information exempt fromthe requirements of Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602 (1966). See Pennsylvania v. Muniz, 496U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528(1990); Rosa v. McCray, 396 F.3d 210, 221 (2d Cir.2005). Discovery makes clear that this information wasrecorded on the United States Marshals Service'sstandard USM-312 intake form.

Moreover, Cantoni himself notes that the governmentalready "knew that License Plate Reader data had linkeda car near the scene of at least one of the robberies to Mr.Cantoni when [the FBI agent] asked Mr. Cantoni for adescription of his car." (Def.'s Reply at 12). Cantoni'sstatement, apparently, was cumulative of information thegovernment already possessed. Additionally, thegovernment easily could have determined Cantoni'slicense plate number and received a description of his carby searching government records. "[T]he independentsource doctrine allows trial courts to admit evidence"that would otherwise be barred by the exclusionary rule"if officers independently acquired it from a separate,independent source." Utah v. Strieff, 136 S. Ct. 2056,2061 (2016) (citing Murray v. United States, 487 U.S.533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)).Similarly, "the inevitable discovery doctrine allows foradmission of evidence that would have been discoveredeven without the unconstitutional source." Id. (citing Nixv. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 81 L.Ed. 2d 377 (1984)). Under either of these doctrines, anyMiranda violation would not preclude the use of

Cantoni's statement of his license plate number ordescription of his car.Regardless, not to lose sight of the forest for the trees, noMiranda violation took place because of the exceptionfor routine booking and pedigree questions. Cantoni'smotion to preclude the LPR evidence is denied.

Government's Motion in Limine

(A) The government moves toadmit evidence of Cantoni'sfinancial motive to commit thecharged offenses. In particular, itseeks to admit evidence thatCantoni opened three lines ofcredit that he had no ability to paywhile simultaneously starting thefirst of the three charged bankrobberies.

(A) "In prosecutions for crimes whose purpose ispecuniary gain . . . evidence of substantial indebtednessis relevant to prove the motive for committing suchcrimes." 2 Weinstein's Federal Evidence § 401.08[5].Specifically, the government seeks to admit this evidenceas "other acts" evidence to prove motive, pursuant toRule 404(b). The Second Circuit has recognized thatevidence of a criminal defendant's debt is admissible forthis purpose. United States v. Reed, 639 F.2d 896, 907(2d Cir. 1981). Indeed, more generally, "[t]he SecondCircuit has adopted an 'inclusionary' approach to otheract evidence under Rule 404(b), which allows suchevidence to be admitted for any purpose other than todemonstrate criminal propensity." United States v.

LaFlam, 369 F.3d 153, 156 (2d Cir. 2004).Consequently, the government may present evidence ofCantoni's financial hardships to prove motive to commitbank robbery.Cantoni accepts that evidence of financial difficultiesmay be admissible but contends that it should be limitedto evidence of those financial difficulties that arose priorto the commission of the charged robberies. Keyingfocus on the government's proffer of evidence thatCantoni's credit card accounts were past due inDecember 2018 - three months after the last robbery onSeptember 10, 2018 - Cantoni argues that this evidenceis irrelevant to his motive at the time of the chargedrobberies and threatens to mislead the jury, particularlyin light of the fact that Cantoni has been incarceratedsince September 20, 2018. (Def.'s Resp. at 5, ECF No.28). Presenting this evidence, Cantoni claims, wouldrequire him either to disclose to the jury that he wasincarcerated or to allow the jury to speculate as to whyhis accounts were past due. At oral argument, thegovernment agreed to limit its evidence of financialmotive to lines of credit, debts, and defaults that arose

prior to Cantoni's incarceration. With this concession,therefore, the government's motion is granted, subject toits proffered limitation.

(B) The government moves topreclude evidence and argumentconcerning Cantoni's possiblepunishment.

(B) "It is well established that when a jury has nosentencing function, it should be admonished to 'reachits verdict without regard to what sentence might beimposed.'" Shannon v. United States, 512 U.S. 573, 579,114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994) (quotingRogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091,45 L. Ed. 2d 1 (1975)). In light of this rule, evidenceregarding Cantoni's possible punishment does not makeany "more or less probable . . . [any] fact [that] is ofconsequence in determining the action," Fed. R. Evid.401. Such evidence is, therefore, "[i]rrelevant" and "notadmissible," id. Although defendant represents that hedoes not intend to offer evidence of his potentialpunishment at trial, (Def.'s Resp. at 1), in line with the"well-established precedent that jurors should not beinformed about the possible consequences of theirverdict," United States v. Watts, 934 F. Supp. 2d 451,464-65 (E.D.N.Y. 2013), the Court grants thegovernment's motion to preclude defendant fromoffering evidence of his potential imprisonment.

To the extent that Cantoni seeks to "reserve the moregeneral right to argue that the government's evidence isnot sufficiently reliable to send a man to jail," (Def.'sResp. at 2), the Court permits him to do so. Thisargument is little more than a general attack on thegovernment's case and statement of the government'sheavy burden of proof, each of which is eminentlyappropriate argument by a criminal defendant.Moreover, the government does not appear to oppose thisrequest.The government argues that, "to the extent that defendantexercises his right to testify, the government should bepermitted to cross-examine him regarding the potentialconsequences of conviction that he faces because, then, itis relevant to the defendant's credibility as a witness."(Gov't Mot. at 6, ECF No. 27). Cantoni responds that,while this may represent an appropriate form ofimpeachment for non-defendant witnesses, it is not anappropriate way to impeach a defendant witness,although he cites no law in support of this proposition.The government makes no reply to Cantoni's argument.

The Court concludes that, under Rule 403, this form ofcross-examination must be precluded. Evidence of thepossible consequences of conviction is of limitedprobative value, as the jury will already be aware that thedefendant is on trial. However, the risk that thisevidence will mislead the jury into considering thepossible punishment is substantial.

So Ordered. Dated: Brooklyn, New York

March 19, 2019

/s/ Hon. Eric N. Vitaliano

ERIC N. VITALIANO

United States District Judge


Summaries of

United States v. Cantoni

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
Mar 19, 2019
18-cr-562 (ENV) (E.D.N.Y. Mar. 19, 2019)
Case details for

United States v. Cantoni

Case Details

Full title:UNITED STATES OF AMERICA, v. GREG CANTONI, Defendant.

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: Mar 19, 2019

Citations

18-cr-562 (ENV) (E.D.N.Y. Mar. 19, 2019)