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precluding cross-examination regarding CCRB complaints where there was "no information suggesting that the [officer], who was not a witness during the CCRB hearings, was found by the CCRB to be incredible"
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10 CR 627 (RPP).
May 3, 2011
OPINION AND ORDER
I. Introduction
On April 25, 2011, the Defendant moved this Court, through motions in limine, to: 1) dismiss the indictment for destruction of exculpatory evidence or, in the alternative, 2) exclude from evidence the drugs which fell from the Defendant's person under Federal Rule of Evidence 403. The Government submitted its opposition to the Defendant's motion on April 29, 2011.
On April 27, 2011, the Government moved to preclude the Defendant from cross-examining New York City Police Department ("NYPD") Lieutenant Joseph Kourakos about substantiated New York City Civilian Complaint Review Board ("CCRB") findings against him regarding the propriety of a search in or about 2004 and in or about 2006. To date, the Defense has not submitted an opposition to this motion.
For the following reasons, the Defendant's in limine motions are denied and the Government's in limine motion is granted.
II. Factual Background
On the evening of May 22, 2010, NYPD Officer Kreshnik Bakraqi ("Officer Bakraqi") pulled over a livery cab driver unknown to law enforcement and later identified a Marino Polanco ("Polanco"). Officer Bakraqi handcuffed and searched Polanco and while subsequently placing Polanco on the ground, observed "an object" fall from his person. A "Report of Drug Property Collected" filled out on May 24, 2010 described the object as a "plastic wrapped brick containing suspected heroin." (Def. Memo at 7.)
On May 24, 2010, a Complaint was filed in the Southern District of New York charging Polanco with possession with intent to distribute 100 grams or more of heroin and conspiring to do the same, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A) and 846. (Compl. ¶¶ 1-3.) On June 14, 2010, the DEA separated the object from its packaging and tested the contents, confirming the object contained heroin. (Declaration of Andrea M. Griswold ("Griswold Decl.") ¶ 4.) The DEA did not take photographs of the package before altering its appearance. (Id. at ¶ 5.)
III. Defendant's in Limine Motion
The Defendant puts forth two arguments in his in limine motions. First, Defendant argues that the Government's transformation of the package's appearance has deprived Polanco of his right and ability to present exculpatory evidence on the critical issue of knowledge in violation of his due process rights and as such, that the indictment against him must be dismissed. (Def. Memo at 7.) Alternatively, Defendant argues that if the indictment is not dismissed, the drugs seized from his person should at minimum be excluded from evidence because, in its current form, the drug evidence is "highly prejudicial and of negligible probative value." (Id. at 10.)
a. The Defendant has failed to show that his due process rights have been violated
A Defendant must demonstrate three elements in order to succeed in proving that his due process rights were violated by the loss or destruction of evidence such that an indictment must be dismissed: first, that the evidence at issue possessed "exculpatory value that was apparent before it was destroyed," California v. Trobetta, 467 U.S. 479, 489 (1984); second, that the evidence was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means," id.; and third, that the government acted in bad faith in destroying the evidence. Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988).
The Defendant has failed to demonstrate any of these three elements. First, the defendant has not made a showing that the drugs in their original form — a solid brick of heroin — had any exculpatory value. The Defendant argues that there was an exculpatory value in the original packaging of the drugs based on the arresting officer's testimony at the suppression hearing that the "first thing that went through his mind" on seeing the object on the ground was "why does he have a bar of soap on him." (Transcript of December 3, 2010 Hearing ("Tr. 12/3/10") at 44.) While the officer did testify that his initial assessment was that the object was a bar of soap, he also testified that as soon as his lieutenant picked it up, the object appeared to him to be "a controlled substance, heroin." (Id.) As such, there is no basis to conclude that the heroin, prior to being transformed from its original form and tested, had any apparent exculpatory value.
Second, the Defendant has not shown that the Government has destroyed evidence "of such a nature that the Defendant would be unable to obtain comparable evidence by other reasonably available means." See Trombetta, 467 U.S. at 489. As the Government points out in its opposing papers, the evidence at issue "has not been destroyed, but was rather subject to testing" and altered from its original form. (Gov. Opp. Memo at 13.) Further, neither the Court, nor the parties, has been able to identify a case in which drug evidence was considered "destroyed" for due process purposes when its appearance was altered as a consequence of testing. The fact that the evidence appeared in a solid brick form at the time it fell from the Defendant's person, and that it now appears as a combination of larger pieces and powder heroin, can still be elicited from law enforcement witnesses at trial by the Defense.
Finally, the Defendant has also failed to show that the purported destruction of evidence was made by the Government in bad-faith. The Defendant does not dispute that the drugs were in fact sent to the DEA laboratory for the purpose of testing whether it contained heroin, but rather asserts that the Government should have taken additional steps prior to its testing. This allegation does not meet the standard required byYoungblood and its progeny of a showing of "bad faith" requiring the dismissal of the indictment.
b. The drug evidence has high probative value that is outweighed by any potential prejudice to the Defendant
The Defendant also moves this Court to exclude the drug evidence from trial as violative of Federal Rule of Evidence 403 which provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by the considerations of undue delay, waste of time, or needless presentation of cumulative evidence." This motion is also denied.
The probative value of drug evidence in a narcotics case is significant. Here, although the drugs are no longer in their original form — a single brick — the evidence establishes the "color, volume, and texture" of the seized heroin. (Gov. Opp. Memo at 19.) The exhibit would also establish the manner in which the drugs were wrapped. (Id.) The Defense has failed to establish prejudicial value that would outweigh this high probative value. In fact, the only prejudice the Defendant alleges is that associated with the drugs changing from "brick" form to "chunks of brick along with powder." (Id. at 20.) Again, the Defense will be able to elicit testimony at trial about the appearance of the drug evidence at the time of the seizure and question law enforcement witnesses about the processes that led to the change from brick form to brick and powder form. As such, the jury will be informed as to what the drugs looked like at the time of seizure, and there is no risk of confusion or prejudice stemming from the admission of the drug evidence.
Further, as the Government highlights in its brief, courts have rejected challenges to the admission of drug evidence despite changes in the drugs' appearance over time "focusing not upon whether the appearance has changed at all but rather on whether the change reflected tampering." (Gov. Opp. Memo at 18.) InUnited States v. Allen, the Sixth Circuit rejected challenges to such a claim finding drug evidence had properly been admitted though "[t]he original evidence bag was destroyed and replaced with a DEA evidence bag, and . . . the weight of the crack cocaine diminished over time." 619 F.3d 518, 525 (6th Cir. 2010). The Court noted, "it does not appear that there was anything improper" about the replacement of the evidence bag or the diminishing weight of the drugs. Id. Likewise, in this instance, it does not appear that the Government engaged in any improper behavior. As such, Defendant's second in limine motion is also denied.
IV. Government's In Limine Motion
The Government moves this court to preclude the Defendant from cross-examining NYPD Lieutenant Joseph Kourakos about substantiated CCRB findings against him regarding the propriety of searches. In or about July 2004, a civilian complained to the CCRB that Lieutenant Kourakos used excessive force and conducted a search without sufficient cause. The CCRB found that the complainant's excessive force allegation was unsubstantiated, but his allegation regarding the search was substantiated. As a result of the substantiated finding, the NYPD gave Lieutenant Kourakos an "Instruction," which is the least severe disciplinary sanction. (Gov. Memo at 4.) In or about 2006, a complainant alleged that Lieutenant Kourakos conducted a stop and frisk without sufficient cause. The CCRB found the allegation substantiated and Lieutenant Kourakos received a "Command Discipline-A," — the second least severe disciplinary sanction. (Gov. Memo at 5.)
To the extent the Defendant intends to use these substantiated CCRB complaints to impeach Lieutenant Kourakos's credibility, the Defendant is precluded from doing so. The scope and extent of cross-examination is within the sound discretion of the Court.United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004). Although the CCRB found the complainants' allegations to be "substantiated," there is no information suggesting that the Lieutenant, who was not a witness during the CCRB hearings, was found by the CCRB to be incredible. As such, the CCRB findings at issue have no bearing on Lieutenant Kourakos's credibility and any related cross-examination intended to impeach the Lieutenant based on this factual scenario is precluded. See United States v. Lawes, 292 F.3d 123 (2d Cir. 2002) (upholding Government's motion to preclude defendant from cross-examining a law enforcement witness about an earlier finding by the CCRB that the witness, in an unrelated incident, had used excessive force against another arrestee and finding that the CCRB finding was not probative of truthfulness and would be a distraction to the jury); see also United States v. Laster, 2007 WL 2872678, at *2 (S.D.N.Y. Sept. 28, 2007) (precluding defense from cross examining police officer concerning substantiated CCRB complaint that he failed to secure prompt medical attention for an arrestee because the incident or the facts underlying the charge did not bear on the officer's credibility); United States v. Smith, 2007 WL 188734, at *1 (S.D.N.Y. Jan. 24, 2007) (precluding cross-examination of officers concerning CCRB findings because such findings were "unrelated to the instant action and . . . only tangentially relevant if at all").
V. Conclusion
For the foregoing reasons, Defendant's in limine motions are denied and the Government's in limine motion is granted.
SO ORDERED.