The opinion of the court was delivered by: KEVIN THOMAS DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendants James Gribben and Carlos Maldonado, New York City Police Officers assigned to the 43rd Precinct, move pursuant to Fed. R. Crim. P. 12 for dismissal of Indictment S 91 Cr. 995 (KTD) against them.
The indictment charges both defendants with conspiracy to violate 18 U.S.C. §§ 1001 and 1623 (Count 1).
It charges Gribben with one count of violating 18 U.S.C. § 1001 (Count 2) and two counts of violating 18 U.S.C. § 1623 (Counts 3 and 6). The indictment charges Maldonado with two separate violations of 18 U.S.C. § 1001 (Counts 4 and 5).
The facts set forth here are based largely on facts set forth in Indictment $ 91 Cr. 995 (KTD) and the Affidavit of Assistant United States Attorney Cari Robinson ("AUSA Robinson"). On May 17, 1991, Officers Gribben and Maldonado responded to a call for assistance concerning a domestic dispute involving a gun at a condominium. Security guards employed by the condominium accompanied both officers to the apartment where the dispute occurred. In the hallway outside the apartment, Officers Gribben and Maldonado, with the assistance of the security guards, arrested Lindsey Calhoun. In the course of that arrest, one of the security guards recovered a Smith & Wesson .38 caliber handgun from a leather bag that Lindsey Calhoun had been carrying. In two police reports dated the day of the arrest, however, Officer Gribben indicated that he seized the handgun from Calhoun's waistband.
On June 6, 1991, Officer Gribben met with AUSA Robinson in her office and advised her that during the May 17, 1991 incident, he had seized a handgun from Calhoun's waistband. Based on Officer Gribben's representations, AUSA Robinson drafted a Magistrates' Complaint charging Calhoun with illegal possession of a handgun in violation of 18 U.S.C. § 922(g)(1). On June 6, 1991, Officer Gribben appeared before Magistrate Judge Leonard I. Bernikow and, under oath, swore that the statements contained in the Magistrate's Complaint, including the following statement, were true:
Two weeks later, on June 19, 1991, Officer Maldonado met with AUSA Robinson at her office and told her that, at the time the handgun was retrieved on May 17, 1991, he was standing in front of, and facing, the door to Apartment 6H speaking to complaining witness Pamela Gordon, who was behind the apartment door. Officer Maldonado further stated that Officer Gribben was standing behind him guarding Calhoun, who had been temporarily detained. Officer Maldonado advised AUSA Robinson that when he heard Officer Gribben gasp and say something, Maldonado turned around and saw that Officer Gribben was standing next to Calhoun holding the handgun. Officer Maldonado further stated that because his back was turned away from Officer Gribben and Lindsey Calhoun, he (Maldonado) did not see who retrieved the handgun or from where it was retrieved.
On June 21, 1991, Officer Gribben appeared as a witness in connection with the investigation before the June 1991 Regular Grand Jury, in the Southern District of New York. Gribben testified, in part, as follows:
Q: Describe what happened then.
A: Me and my partner entered the building and took the elevator up to the 6th floor. When the elevator opened up there was a black male standing in front of us. I then asked him, did he come from the apartment 6H, and he said yes. So I asked him questions to see what the problem was. At that time he became very agitated and irrational, and went to his waist.
Q: Based upon your experience as a police officer, what did you think he was doing?
A: I thought he might be reaching for ...