The opinion of the court was delivered by: SWEET
On May 9, 1985, following a four-day trial, a jury returned a guilty verdict on each of two counts against Raymond Jimenez ("Jimenez"). He was found guilty of violating 21 U.S.C. §§ 812, 841, and 846. Jimenez has now moved to set aside the verdict and to suppress certain evidence at any retrial, alleging 1) that the government failed to comply with its obligations under Fed.R.Crim.P. 12(d)(2) to disclose to the defense prior to trial statements made by Jimenez to Detective Dennis Casey ("Casey") at the time of Jimenez's arrest on November 20, 1984; 2) that the introduction into evidence of post-arrest statement by Jimenez to Casey, in response to question posed prior to Miranda warnings in the absence of a public emergency or exigent circumstances violated Jimenez's Fifth and Sixth Amendment rights; and 3) the admission of certain "similar fact" evidence was improper. The motions are denied.
Jimenez was arrested on November 20, 1984 at 175th Street and Audubon Avenue. After being handcuffed but before being given his Miranda warnings, Jimenez was asked by the arresting officers "where he had come from." Jimenez responded that he had just been at an apartment at 532 West 175th Street, and based on Jimenez' answer, the officer, with Jimenez, proceeded to the apartment. There the officers made further arrests and seized $6,595.00 in cash which Curtis Ross, the apartment's occupant, stated belonged to Jimenez. Jimenez was given his Miranda warnings while at the apartment and thereafter acknowledged that the cash was his.
During the informal discovery that preceded trial, Assistant United States Attorney Stephen Markstein ("Markstein") advised Don Buchwald, counsel for Jimenez ("Defense Counsel"), that Jimenez had made no post-arrest statements. In a letter of December 21, 1984 to Markstein, Defense Counsel wrote:
You have advised me that no statements of any kind were obtained by the government from my client . . . to the best of your knowledge. You agreed to promptly advise me otherwise if you learn to the contrary.
Defense Counsel also subsequently requested, pursuant to Fed.R.Crim.P. 12(d)(2), all evidence the government intended to use at trial that was discoverable pursuant to Rule 16. In a letter dated January 4, 1985, Markstein wrote to Defense Counsel that:
Since I last spoke to you concerning the case, I have been informed that defendant Jimenez, following his arrest and being advised of his rights, admitted that the $6,959 confiscated from a brief case at 532 West 175th Street, see 2(d) above, belong to him.
No disclosure of any other post-arrest statements was made.
No allegation has been made that the failure to disclose Jimenez' statements was intentional or more than inadvertance. Assistant United States Attorney Charles La Bella, who tried the case, submitted an affidavit in response to this motion stating:
In preparation for trial I thoroughly reviewed the case file, including all DEA reports and GX 35021, Agent Mark Moger's Surveillance Report, which constituted the primary report of the activities leading up to the arrest of Raymond Jimenez and the post-arrest activities.
In preparation for trial I also interviewed Agent Mark Moger and Agent Dennis Casey. I have no recollection of being told of Casey's question nor Jimenez' answer before trial. It was my under- standing during pretrial preparation that one of the many surveillance agents outside of 532 West 175th Street had observed the defendant come from the Ross apartment.
In the morning of the second day of trial, Casey, an investigator with the New York Enforcement Task Force, testified on direct examination as follows:
A. Okay. When I returned to that location we were still conducting surveillance on this auto which was double parked on 175th Street just over Audubon Avenue. The car I am referring to is the Oldsmobile, and at approximately 7:30 p.m., a gentleman sitting over there with the white shirt on and a young lady headed towards that auto.
Q. Was that the defendant who headed towards the car?
Q. Was that the same car you had followed earlier into New Jersey and back again to New York?
Q. When they approached the car, what did you do?
A. At that time I identified myself, I grabbed Mr. Jimenez, placed him under arrest, I rear cuffed him. The other officer assisted me, took custody of the young lady that was there. We asked him where they came from and then we went to an apartment on 175th Street.
Q. Did he tell you where he had come from?
Q. Did you go back to that location?
Q. What happened when you got there?
A. Okay. I had Mr. Jimenez in custody at that time. We knocked on the door, identified ourselves as police officers, and I believe it was Mr. Ross who let us in, ...