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UNITED STATES v. MILLAN-COLON

September 22, 1993

UNITED STATES OF AMERICA
v.
ERIC MILLAN-COLON, et al., Defendants.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 For purposes of this opinion, familiarity with the facts of this case, which involves a heroin distribution conspiracy known as "Blue Thunder," are presumed. See United States v. Millan-Colon, No. S9 Cr. 6851, 1993 U.S. Dist. LEXIS 10596, 1993 WL 284776 (S.D.N.Y. July 30, 1993); United States v. Millan, 817 F. Supp. 1086 (S.D.N.Y. 1993); United States v. Millan, 817 F. Supp. 1072 (S.D.N.Y. 1993). Presently before the Court are defendants Al Bottone, Sr., Al Bottone, Jr., Vincent Basciano, Eric Millan, Larry Weinstein and Carmen Mendoza's (collectively, the "Defendants") motions for: (1) severance, pursuant to Rule 14 of the Federal Rules of Criminal Procedure and the Second Circuit's opinion in United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990); (2) a pre-trial hearing to determine the extent, if any, of law enforcement misconduct with regard to the Title III interceptions in this case; (3) an opportunity to relitigate all previously submitted motions, including a requested hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); and (4) a continuance. These motions stem from the Court's April 16, 1993 decision granting a mistrial in this case in light of the prejudicial impact of the Government's opening statement, failure to establish a clear chain of custody over the evidence and daily revelations that certain key witnesses, namely, three law enforcement officers, were engaged in corrupt activities. See United States v. Millan, 817 F. Supp. 1086 (S.D.N.Y. 1993). The Government opposes these motions and cross-moves for an order (1) limiting voir dire examination of the prospective jurors so that no venireperson's name, address or employer is disclosed; (2) directing that the jurors be kept together, accompanied by a United States Marshal and transported to and from the courthouse from an undisclosed central location; and (3) reaffirming all prior rulings of the Court. For the reasons that follow, the defendants' motions are denied in part and granted in part. The Government's cross-motion is denied.

 DISCUSSION

 I. Defendants' Request for a "Casamento" Severance

 In accordance with Rule 14 of the Federal Rules of Criminal Procedure and the Second Circuit's opinion in United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990) ("Casamento"), defendants Bottone, Sr., Bottone, Jr., Basciano, and Mendoza *fn1" request a severance of the above-captioned case into two trials consisting of: first, a trial of the alleged "street-level distributors," followed by; second, a trial of the alleged "suppliers." The Government opposes this request.

 In Casamento, the Second Circuit upheld the District Court's decision to conduct a seventeen-month joint trial of twenty-one defendants on a wide variety of charges, including narcotics conspiracy, money laundering, RICO, and RICO conspiracy. See United States v. Casamento, 887 F.2d at 1151. Although the Casamento court indicated that in rare cases where the prosecution's case is expected to exceed four months and involve more than ten defendants the trial court should carefully consider a severance, id. at 1151-53, the court declined to adopt any per se rule, and instead, acknowledged that the trial judge enjoys "considerable discretion" in determining whether a severance should be granted, id. at 1151.

 At a pre-trial conference on September 9, 1992, the defendants in this case previously raised Casamento, as grounds for severing this matter into two trials. Thereafter, despite the defendants' Casamento concerns, the case proceeded to trial with twelve defendants. The retrial, currently scheduled for October 12, 1993, will consist of eleven defendants, one defendant less than the twelve present at the outset of the first trial, and is expected to continue for over four months. The Court did not find previously, nor does it now hold, that the anticipated length and complexity of this trial warrants severance into two separate trials of "suppliers" and "distributors." Rather, the prior proceedings indicate that the present case involves a cohesive heroin distribution organization whose operation, while encompassing many participants, can be readily and best understood by a single jury. In addition, as the same body of evidence is admissible against all defendants, a severance would result in several lengthy and duplicative trials, which would constitute a waste of judicial and law enforcement resources. Accordingly, the defendants' request for a Casamento severance is denied.

 II. Defendants' Request for a Minimization Hearing

 Defendants contend that a pretrial hearing is necessary to scrutinize alleged government misconduct with regard to the Title III interceptions involved in the Millan investigation. Specifically, defendants allege that agents, monitoring the defendants' wiretapped conversations, listened with the intent to locate drug locations and then burglarize these locations. See Letter from Benjamin Brafman to the Honorable Shirley Wohl Kram of 8/20/93, at 1. Consequently, according to defendants, the conversations were not properly minimized.

 As this same request was extensively discussed and found to be without merit in the Court's March 29, 1993 Order, the Court will not revisit this issue again. Rather, for substantially the same reasons set forth previously, see March 29, 1993 Order at 12-14, the defendants' motion is denied.

 III. Defendants' Request for a Franks Hearing

 Pursuant to the Supreme Court's decision in Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), a defendant is entitled to a evidentiary hearing where he or she presents proof that an affiant knowingly, intentionally or recklessly included false statements in a search warrant affidavit. Specifically, in order to warrant a hearing, the defendant must: (1) allege a deliberate falsehood, supported by offers of proof, on the part of the affiant; (2) point out specifically the portion of the warrant affidavit claimed to be false, accompanied by a statement of supporting reasons; and (3) provide affidavits of witnesses, or explain why such were not provided. Id. at 171. Mere conclusory allegations based on a desire for cross-examination or allegations of negligent or innocent mistake are not sufficient. Id.

 With this standard in mind, the Court finds that the defendants in this case have failed to identify a single inaccuracy in any of the affidavits filed in support of the warrants, or present any evidence indicating that a Franks hearing is necessary. Accordingly, as the defendants have failed to present the proof required by the ...


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