investigation stole money; (2) the vouchers do not reflect the sum total of the property seized; and (3) the supervising agents failed to insure that the chain of custody was preserved. Id.
In response, the Government indicates that none of the evidence that it will offer at trial was seized by the officers implicated in the corruption investigation, and that those officers will not be in the chain of custody. See Letter from A.U.S.A. Dietrich L. Snell to the Honorable Shirley Wohl Kram of 10/29/93, at 3, 4.
The Court finds that cross-examination of the Government's witnesses regarding the Task Force corruption investigation to show improper vouchering of the evidence, false and inaccurate reports, and problems with the chain of custody would pose a serious Rule 403 problem as such cross-examination is clearly more prejudicial than probative. First, as the Government does not intend to offer any evidence seized by the corrupt officers and as the officers will not be in the chain of custody, the defendants' proposed cross-examination regarding the corruption investigation would clearly be beyond the scope of any direct examination. See United States v. McLaughlin, 957 F.2d at 18 (party has no right to cross-examine witnesses beyond the scope of their direct examination or into matters not bearing on their credibility).
Second, as the Government does not intend to call Robles, Beck and Termini as witnesses, any testimony regarding their corrupt acts has no bearing on the credibility of the Government's other witnesses and is completely collateral to the issue of the other witnesses' veracity. Id. at 17 (main purpose served by cross-examination is to impeach credibility and expose possible bias or motive).
Third, as the Government indicates that it will not offer evidence seized by any officer implicated in the corruption investigation and that those officers will not be in the chain of custody, any testimony regarding their misdeeds would be substantially more prejudicial than probative. See United States v. Weiss, 930 F.2d 185, 198 (2d Cir. 1991) ("if the probative value of evidence is outweighed by the unfair prejudice that might result from its introduction, it should not be admitted."), cert. denied, 116 L. Ed. 2d 100, 112 S. Ct. 133 (1991). This evidence would have minimal probative value as it would merely show that certain law enforcement officers, other than those testifying, who were marginally involved in the seizure of Blue Thunder evidence, allegedly stole money during certain searches and seizures. Many of these allegations remain unsubstantiated. See United States v. Concepcion, 983 F.2d at 392 (court properly precluded cross-examination by defendant of government informant about murder allegedly committed by informant where there was insufficient evidence that such a murder had occurred or was committed by the informant and defendant's proffer consisted largely of hearsay statements by unidentified sources). Moreover, no party alleges nor does any report regarding the corruption investigation indicate that evidence was fabricated against the defendants. Rather, the allegations regarding thefts of the defendants' monies suggest that the Government now has less evidence than it might have had initially. Thus, the results of the Task Force corruption investigation have little bearing on the process used to voucher the evidence which the Government intends to introduce at trial.
On the other hand, however, the introduction of evidence of the corruption investigation by cross-examination of the Government's witnesses would be prejudicial, cause jury confusion and delay this trial. In fact, after declaring a mistrial on April 16, 1993, the Court noted that "the testimony the jury was hearing regarding 'dirty drug-dealing cops,' though largely irrelevant to the facts of this case, was likely to confuse the issues, sidetrack the trial and impede the jury from deciding the guilt or lack of guilt of the defendants based on the evidence in the case." See Memorandum Opinion and Order, dated July 30, 1993, at 21; see also Trial Transcript ("Tr.") at 1879 (wherein defense counsel argued that the jury would be subjected to an "exercise where for three months we're going to be trying police corruption and for three months we're going to be trying narcotics allegations."). Accordingly, the Court finds that cross-examination regarding the corruption investigation for the purpose of attacking the Government's system for preserving and vouchering the evidence in this case is inappropriate.
C. Cross-Examination to Show Improper Minimization of the Wiretaps
The defendants also contend that any suggestion by the Government that the agents properly minimized the Title III wiretap interceptions would open the door to cross-examination that the wiretaps were not properly minimized as the monitoring agents sought to obtain information to plan thefts of money, jewelry and drugs. However, in its March 29th Order, the Court concluded, after conducting an extensive review of the wiretap logs, that the wiretap interceptions in this case were properly minimized. See March 29th Order at 14. In addition, with respect to Beck and Termini, the Government has indicated that they did not act as monitors of the wiretaps. Thus, as no evidence has been discovered by either party calling the Court's March 29th ruling into question, the Court finds that cross-examination regarding the corruption investigation to prove improper minimization would be irrelevant and prejudicial.
D. Reliance upon Hearsay and Reference to Robles, Beck or Termini in the Openings
The defendants also suggest that the testimony of the case agents for the Blue Thunder investigation may be based to some extent on hearsay provided by Robles, Termini or Beck, giving them the right to attack the credibility of Robles, Beck and Termini through hearsay elicited from the Government's witnesses. The Court finds that this contention ignores the fact that Robles played a very limited role in the Blue Thunder case -- as an undercover agent and a wiretap monitor -- regarding which the Government will elicit no testimony. As to Beck and Termini, the Government indicates that they played virtually no role in the Blue Thunder investigation. Accordingly, the Court believes that it is extremely doubtful that any Blue Thunder case agent would base any trial testimony on facts learned from the corrupt agents and that cross-examination for this purpose is also inappropriate pursuant to Fed. R. Evid. 403. Nonetheless, the Government should refrain from eliciting any testimony based on the hearsay of Robles, Beck and Termini.
Moreover, the Court agrees with the Government's contention that all parties must refrain from referring to any aspect of the corruption investigation during opening statements. As discussed previously, the corruption of the officers is largely collateral and irrelevant to the issues that will be decided by the jury in this case. As the purpose of an opening statement is to describe those matters that a litigant intends to prove during trial, any reference to the corruption investigation during opening arguments would be improper. See United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982) ("the scope and extent of an opening is within the control of the trial court"); United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975) (trial court's decision to preclude defense counsel from referring to matters affecting government witness's credibility in opening upheld as opening statements should be confined to what the evidence will be).
II. The Admissibility of Drug Records Seized from Edward Margiotta and Myles Coker
At the first trial, the Government offered as evidence records seized from Edward Margiotta at the time of his arrest on January 8, 1986, and records seized from Myles Coker's apartment at the time of his arrest on August 1, 1991. At the time the Government offered these records, the defendants, relying on the Ninth Circuit case of United States v. Ordonez, 737 F.2d 792 (9th Cir. 1984), objected to admitting the evidence as drug records on the ground that they were hearsay for which no foundation for a hearsay exception had been established. Tr. at 1627-40. After both parties were heard, the Court declined to follow the Ninth Circuit case cited by defendants, based on Second Circuit authority, including United States v. Maldonado-Rivera, 922 F.2d 934 (2d 1990), cert. denied, 115 L. Ed. 2d 1026, 111 S. Ct. 2858 (1991). Defendants now oppose the Government's request that the Court's trial ruling be reaffirmed on the ground that the Government has not established an adequate foundation for admitting the records into evidence. The Court disagrees and finds that the documents are admissible as nonhearsay pursuant to Fed. R. Evid. 801(d)(2)(E).
In order to admit a document under Rule 801(d)(2)(E),
the Court must determine by a preponderance of the evidence that (1) there was a conspiracy; (2) that the conspiracy's members included the declarant and the parties against whom the statement is offered; and (3) that the statement was made during the course of and in furtherance of the conspiracy. United States v. Maldonado-Rivera, 922 F.2d at 958.
A. Authentication as a Coconspirator Document
As a general rule, a document may not be admitted into evidence unless it is genuine. United States v. Maldonado-Rivera, 922 F.2d at 957. This requirement of "authentication" is satisfied if the evidence supports a finding that "the matter is what its proponent claims." United States v. Bagaric, 706 F.2d 42, 67 (2d Cir. 1983) (quoting Fed. R. Evid. 901(b)(4)), cert. denied, 464 U.S. 840 (1983). In determining whether a document may be attributed to a coconspirator, the Court may consider such factors as the document's "appearance, contents, substance, timing, and provenance, together with other evidence . . . ." United States v. Maldonado-Rivera, 922 F.2d at 957; see also Fed. R. Evid. 901(b)(4). Thus, for example, in United States v. Calbas, 821 F.2d 887 (2d Cir. 1987), cert. denied, 485 U.S. 937, 99 L. Ed. 2d 275, 108 S. Ct. 1114 (1988), the Second Circuit held that pages from a spiral notebook, found in a coconspirator's hotel room, were admissible as drug records even though there was no testimony that the notebook was a drug record, there was no proof that the codefendant could speak the language in which the notebook was written, and there was no proof that the codefendant was the author of the notebook. Although Calbas contested the admission of the spiral notebook on the ground that there was insufficient evidence to link the notebook to the charged narcotics conspiracy, as well as insufficient evidence to establish the notebook's ownership, Id. at 893, the Second Circuit disagreed, finding that: (1) the notebook was found in a room recently vacated by Calbas's codefendant, together with a kilogram of cocaine; and (2) the notebook contained references to the defendant - "Enver Turku" - which also appeared in a codefendant's personal telephone directory. Id.
In the case at hand, the Court finds that, although the identity of the author of the documents at issue is unknown, the evidence suggests that the documents were authored by one or more of the alleged coconspirators. First, the documents were seized from Coker's residence. In addition, the notes contain the names, and in one case a photograph, as well as phone and beeper numbers of Coker's alleged coconspirators. Third, the documents contain references to "EJ," who the Government claims is Eric Millan, the lead defendant. In addition, the notes were found in close proximity to cash, drugs and guns, and therefore, as the Government contends, more likely than not written by someone involved in the Blue Thunder conspiracy. See United States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986) (where contents of notes seized from defendant's residence included names and initials of coconspirators, notations of numbers of ounces, subtractions and additions of six-digit figures and phone numbers, there was ample basis to admit them as authentic drug records); United States v. Helmel, 769 F.2d 1306, 1312 (8th Cir. 1985) (where the declarant's identity is unknown, documents may still be admitted as nonhearsay where the documents were discovered at the home of one of the conspirators, along with other evidence relating to a gambling organization, and fingerprints of two codefendants were found on them). Accordingly, the Court finds that the documents' contents and the circumstances surrounding their seizure provide sufficient basis to conclude that the records are authentic statements of coconspirators.
B. In Furtherance of the Conspiracy
To be in furtherance of the conspiracy, a statement must be "more than [a] 'mere narrative' description by one coconspirator of the acts of another." United States v. Maldonado-Rivera, 922 F.2d at 958 (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir.), cert. denied, 493 U.S. 933 (1989)). Rather, the statements must be such "as to prompt the listener - who need not be a coconspirator - to respond in a way that promotes or facilitates the carrying out of a criminal activity." United States v. Maldonado-Rivera, 922 F.2d at 958. With regard to drug records, the Second Circuit has held that, assuming the government establishes by a preponderance of the evidence that there was a conspiracy in which the defendants participated, the government is entitled, without more, to introduce evidence of what any coconspirator did in furtherance of the conspiracy, including records of narcotics transactions. United States v. Calbas, 821 F.2d at 893. Thus, assuming the Government provides proof, apart from these drug records, to connect the conspirators to the alleged conspiracy, these records will be admissible. Id.
For the moment, however, the Court holds that, until such time as the documents are offered by the Government to prove the truth of the facts asserted therein, the records in question are admissible for the limited purpose of showing "the character and use of the place" where the objects were found. United States v. Wilson, 532 F.2d 641, 645 (8th Cir. 1976), cert. denied, 429 U.S. 846, 50 L. Ed. 2d 117, 97 S. Ct. 128 (1976). Thereafter, should the Government seek to introduce the documents for the truth of the matters asserted therein, the documents will also be admissible as coconspirator statements, assuming the Government provides evidence connecting the coconspirators to the conspiracy.
Finally, the Second Circuit has found previously that, where Rule 801(d)(2)(E)'s preconditions are met, "the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of [the] statements." United States v. Maldonado-Rivera, 922 F.2d at 959 (quoting Bourjaily v United States, 483 U.S. 171, 183-84, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987)). Thus, the defendants' arguments that admission of the documents deprives them of their Sixth Amendment rights of confrontation are denied.
III. Myles Coker's Pre-Trial Motion to Suppress
Myles Coker ("Coker") moves to relitigate his motion to suppress physical evidence and post-arrest statements on the grounds that (1) a civil complaint, filed on July 10, 1992, against Special Agent Richard Demurgian ("Demurgian") constitutes Brady and Giglio material, see Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), which the Government failed to disclose; and (2) the July 10th suit and an October 21, 1992 civil suit, which accuse Demurgian and others of conducting warrantless searches and fabricating consents to search, reveal a "pattern of perjury and 'tailored' testimony" that would have changed the outcome of the suppression hearing. See Letter from David S. Greenfield to the Honorable Shirley Wohl Kram of 10/14/93, at 1. The Court disagrees.
By Orders dated September 4, and October 9, 1992, the Court previously denied Coker's motion to suppress physical evidence obtained pursuant to a warrantless search of his residence and post-arrest statements on the grounds that "defendant's statements were knowingly and voluntarily made after he received his Miranda warnings, and that the defendant voluntarily gave his consent to have his apartment searched." October 9, 1992 Order at 3; see also September 4, 1992 Order at 82-91. The Court finds no grounds for questioning the wisdom of its prior decisions, as Coker has not shown how prior disclosure of the civil suits would have enabled him to change the outcome of the suppress ion hearing. Accordingly, Coker's motion to relitigate his motion to suppress physical evidence and post-arrest statements is denied.
IV. Ralph Rivera's Pre-Trial Motions
Ralph Rivera ("Rivera") moves for an order: (1) pursuant to Fed. R. Cr. P. 12(b)(3), suppressing wire communications intercepted pursuant to court order; (2) pursuant to Fed. R. Cr. P. 12(b)(3) and 41(c)(1), suppressing all material seized from the defendant at the time of his arrest and all material obtained through the execution of search warrants at 171 Station Avenue, Staten Island, New York and 1668-1672 Utica Avenue, Brooklyn, New York; (3) pursuant to Fed. R. Cr. P. 7(f), directing the Government to file a Bill of Particulars with respect to Count 17 of the Indictment; and (4) pursuant to Fed. R. Cr. P. 16, requiring the Government to disclose certain evidence. The Government opposes these motions. The Court will address each motion in turn.
A. Motion to Suppress the Wiretap
Rivera moves to suppress wiretap evidence on the ground that there was no probable cause to support the issuance of wiretap warrants. By Orders dated September 4, 1992 and March 29, 1993, the Court previously denied a similar motion to suppress. As Rivera has pointed to no new facts supporting his present motion to suppress, the Court will not revisit its prior rulings.
B. Motion to Suppress the Evidence Seized from Rivera
Rivera also requests that the Court suppress evidence seized from him at the time of his arrest, as well as evidence seized from his home and business, on the grounds that: (1) the arrest and search warrants were issued without probable cause; (2) the search warrants were overbroad and open-ended; and (3) the warrants were not executed in "good faith" as "evidence was planted in his residence and on his person by government agents who conducted the searches." See Affidavit of Ralph Rivera, sworn to on October 17, 1993, at PP 4-7.
1. Probable Cause
With respect to the probable cause issue, the Second Circuit has held that the "magistrate's finding of probable cause is entitled to substantial deference . . . [and] will be upheld by a reviewing court on less persuasive evidence than would have justified a police officer acting on his own." United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) (citations omitted); United States v. Zucco, 694 F.2d 44, 46 (2d Cir. 1982) (all doubts in a close case should be resolved in favor of upholding the validity of the warrant). Thus, the Court will uphold the magistrate judge's determination of probable cause to arrest if, based on "reasonably trustworthy information," the magistrate judge had reasonable cause to believe that (1) a violation of the law has been committed; and (2) the person to be arrested committed the violation. See Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949); United States v. Serna, 625 F. Supp. 548, 560 (S.D.N.Y. 1985); United States v. LaTray, 739 F. Supp. 88, 92 (N.D.N.Y. 1990). Similarly, the Court will uphold the magistrate judge's determination of probable cause to search, if the magistrate judge concludes, based on the "totality of the circumstances," that (1) a crime was committed; and (2) there is probable cause to believe that evidence of such crime will be found in the place to be searched. See Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); United States v. Serna, 625 F. Supp. at 562.
With respect to the items seized at the time of Rivera's arrest and from his home and business, the Court finds that there was probable cause to support the issuance of both the arrest and search warrants. Rivera's arrest and the subsequent search of 171 Station Avenue and 1668-1672 Utica Avenue were premised upon a complaint and affidavits filed in this district and sworn to by Special Agent David Dongilli before a magistrate judge. Both the complaint and affidavits set forth facts in support of the allegation that Rivera was involved in a heroin distribution conspiracy, describe Rivera's participation in the conspiracy, and provide citations to certain conversations intercepted by wiretap. For example, the Affidavit of David Dongilli, sworn to on July 31, 1991 (the "July 31st Dongilli Aff."), indicates that telephone conversations intercepted on March 6, March 11, March 15, and June 18, 1991, reveal that Rivera kept track of the Blue Thunder's cash supply and its balance sheet with respect to its heroin suppliers. See July 31st Dongilli Aff. at PP 25-29. Rivera's ownership and use of the properties at issue is also described, including evidence that Rivera invested proceeds of his narcotics transactions in his automobile repair shop and was using the business to launder money. Id. at PP 23, 31-34. In addition, the Dongilli Affidavit states that, based on Special Agent Dongilli's experience, narcotics traffickers such as Rivera typically store in their homes and businesses large sums of cash, records, photographs and other items of the types seized from Rivera's home and business. Id. at PP 46, 48, 49. Rivera does not allege that any statement in the two affidavits or the complaint are false. See United States v. Castillo, 866 F.2d 1071, 1078 (9th Cir. 1988) (warrant may be invalidated by showing knowing false statements). Thus, the Court finds that the complaint and affidavits set forth the requisite probable cause for both the arrest and the search.
Rivera also urges that the search warrants lacked sufficient particularity. The particularity requirement of the Fourth Amendment is satisfied where the description of materials to be seized "enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982), cert. denied, 464 U.S. 814, 78 L. Ed. 2d 83, 104 S. Ct. 69 (1983) (citations omitted). Thus, the Supreme Court has upheld warrants authorizing the seizure of voluminous documents and "other fruits, instrumentalities and evidence of crime at this [time] unknown." Andresen v. Maryland, 427 U.S. 463, 479, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976); see also United States v. Young, 745 F.2d 733, 759 (2d Cir. 1984) (authorizing the search for "quantities of heroin and other controlled substances, other chemical substances, equipment, utensils, paraphernalia, containers, money, notes, documents and papers and other evidence of a conspiracy"), cert. denied, 470 U.S. 1084 (1985); United States v. Dunloy, 584 F.2d 6, 8 (2d Cir. 1978) (upholding a warrant for a search for "a quantity of cocaine, and additionally, all narcotic drug controlled substances, documents, records and other evidence of distribution and possession with intent to distribute narcotic controlled substances.").
Here, the search warrants in question authorized a search for:
Documents relating to narcotics trafficking activity, including records of narcotics transactions, telephone and address books; telephone records, papers evidencing beeper numbers, financial records, ledgers, monies, money orders, money order receipts, bank books, bank deposit records, records evidencing ownership in property and jewelry and other records evidencing the expenditure, transfer or concealment of money; paging devices, beepers and cellular telephones; photographs; keys to safety deposit boxes or other locked containers; firearms, firearm accessories and ammunition; identification documents, evidencing occupancy, residency or ownership of the premises to be searched; and other property, documents and things which constitute evidence of the commission of, or are designed or intended as a means of the violation of, or are contraband or the fruit of the violation of the federal narcotics laws, including, but not limited to, conspiracy to distribute and the possession with intent to distribute heroin, in violation of Title 21, United States Code, Sections 841 and 846.
see Search Warrant for 171 Station Avenue, Staten Island, New York, annexed to the Rivera Aff. as Exh. "A," and a search for:
Automobiles, snowmobiles and other vehicles belonging in fact to members of the "Blue Thunder" organization; documents relating to money laundering activity, including records of financial transactions, telephone and address books, telephone records, papers evidencing beeper numbers, financial records, ledgers, monies, money orders, money order receipts, bank books, bank deposit records, records evidencing ownership in property and jewelry and other records evidencing the expenditure, transfer or concealment of money; paging devices, beepers and cellular telephones; photographs; keys to safety deposit boxes or other locked containers; firearms, firearm accessories and ammunition; identification documents, evidencing occupancy, residency or ownership of the premises to be searched; and other property, documents and things which constitute evidence of the commission of, or are designed or intended as a means of the violation of, or are contraband or the fruit of the violation of the federal money laundering statutes and the federal narcotics laws, including, but not limited to, conspiracy to distribute, and the possession with intent to distribute heroin, in violation of Title 21, United States Code, Sections 841 and 846.