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UNITED STATES v. MILLAN

November 15, 1993

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



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

 SHIRLEY WOHL KRAM, U.S.D.J.

 Pursuant to the Court's September 22, 1993 Order, the Government moves to modify the Court's March 29, 1993 Order (the "March 29th Order") permitting the defendants limited cross-examination of Government witnesses concerning the misconduct of Investigator Robert Robles ("Robles"), Detective Jeffrey Beck ("Beck") and Sergeant Joseph Termini ("Termini"). The Government submits that the Court should now preclude any reference to Robles, Beck, Termini, or any other individual implicated in the Government's investigation of corruption by New York Drug Enforcement Task Force members (the "Task Force"), during the cross-examination of Government witnesses, as well as during the defendants' opening statements.

 In addition, the Government submits that the Court should reaffirm its prior rulings concerning: (1) the inadmissibility of evidence concerning the allegation of rape made against Anthony Damiani, a Government witness; (2) the admissibility of the audiotapes of the wiretapped telephone conversations through the testimony of summary witnesses; (3) the admissibility of drug records seized from Edward Margiotta at the time of his arrest on January 8, 1986 and the admissibility of drug records seized from the residence of Myles Coker on August 1, 1991; (4) the admissibility of the pen register information printed at the top of the telephone conversation transcripts once the pen register tapes have been admitted and testimony is given describing how the information on the transcripts is taken from the pen register tapes; (5) the inadmissibility of evidence concerning various unrelated Bivens actions commenced against certain Task Force members; (6) the denial of a limiting instruction with regard to evidence seized from Myles Coker's residence; and (7) the Government's ability to recall law enforcement witnesses, including co-case agent David Dongilli, as necessary during the case. The Government also moves for reconsideration of the Court's October 8, 1993 Memorandum Opinion and Order (the "October 8th decision") directing the Government to provide evidence that defendant Eric Millan ("Millan") has sufficient funds, other than those restrained under the federal forfeiture statute, to retain private counsel.

 DISCUSSION

 I. Precluding Cross-Examination and References in the Defendants' Opening Statements regarding Robles, Beck, Termini and the Corruption Investigation

 By Order dated March 29, 1993, the Court ruled that the defendants should be permitted to cross-examine the Government's witnesses regarding corruption allegations against Robles, Beck and Termini, but limited cross-examination to the time period of the Blue Thunder investigation and to the witnesses' personal knowledge regarding the arrests of Robles, Beck and Termini. March 29th Order at 24. The Court emphasized that this limited cross-examination would enable the defendants to rebut any implied endorsement of Robles's credibility in the Government's opening statement. Id. at 21. Due to the prejudicial effect of the Government's opening, the Court found that the probative value of such cross-examination outweighed the danger of unfair prejudice to the Government, under Fed. R. Evid. 403. Id. at 23.

 At this time, the Government indicates that it does not intend to repeat its opening of March 9, 1993 at the upcoming trial and does not intend to make any mention of Robles, Beck, Termini or the corruption investigation. In addition, the Government intends to move to dismiss Counts Two, Three, Four and Five of the Indictment, as those counts involve Robles's undercover purchases of heroin from the Blue Thunder organization. Moreover, the Government does not intend to elicit testimony from any of its witnesses concerning those undercover purchases, and does not intend to offer at trial any evidence seized during a search or arrest performed by Robles, Beck, or Termini. Nor does the Government intend to call either Robles, Beck, or Termini as witnesses. See Letter from A.U.S.A. Dietrich L. Snell to the Honorable Shirley Wohl Kram of 10/15/93, at 2.

 Accordingly, the Government moves, pursuant to Fed. R. Evid. 611(b) and 403, to preclude cross-examination of any of the Government's witnesses concerning the malfeasance of Robles, Beck and Termini, and to preclude the parties from referring to any aspect of the corruption investigation in their openings, on the grounds that: (1) such testimony would only confuse and mislead the jury because it would not tend to prove that the evidence offered by the Government is incomplete or improperly seized, and because it would not tend to undermine the credibility of any witness; (2) such cross-examination would be beyond the scope of any direct examination of the Government's witnesses; and (3) any offer of evidence of corruption would be solely for the improper purpose of inciting the jury's anger at the misconduct of law enforcement personnel in connection with matters collateral to the issues the jury must decide in this case. The Government also requests that the Court order all parties to refrain from referring to any aspect of the corruption investigation during opening statements on the grounds that (1) the officers' corruption is entirely collateral and irrelevant to the issues that will be decided by the jury in this case; and (2) such evidence is inadmissible at trial.

 The defendants oppose the Government's motion on the grounds that (1) the corruption at issue was widespread, and "calls into question the entire system of preserving and vouchering the evidence seized on August 1, 1990 [sic]," see Letter from Maurice Sercarz to the Honorable Shirley Wohl Kram of 10/22/93 (the "Sercarz Letter"), at 2; (2) members of the Task Force, who were implicated by Robles and Termini in various crimes, participated in monitoring the wiretaps in this case, and thus, must be cross-examined concerning the possibility that improper monitoring may have occurred, id. at 3; (3) as the testimony of the Government's witnesses, specifically the case agents, may be based to some extent on hearsay provided by Beck, Robles, or Termini, the defendants have the right to attack the credibility of Robles, Termini and Beck, id. at 4; and (4) that the defendants may want to call Robles, Beck or Termini as witnesses in their case.

 A. Standard of Law

 The purpose of cross-examination is to impeach credibility and expose a witness's biases or possible motives for testifying. United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992). Although it is well established that the Court may, in its discretion, limit the scope and extent of cross-examination, see United States v. Concepcion, 983 F.2d 369, 391 (2d Cir. 1992), cert. denied, 126 L. Ed. 2d 124, 114 S. Ct. 163 (1993), it is also recognized that "wide latitude should be allowed, . . . when a government witness in a criminal case is being cross-examined by the defendant, . . . and the trial judge's discretion 'cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony . . . ." United States v. Reindeau, 947 F.2d 32, 35 (2d Cir. 1991) (quoting United States v. Pedroza, 750 F.2d 187, 195-96 (2d Cir. 1984)). However, "cross examination is not improperly curtailed if the jury is in possession of facts sufficient to make a 'discriminating appraisal' of the particular witness's credibility." United States v. Caming, 968 F.2d 232, 237 (2d Cir. 1992) (quoting United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990), cert. denied, 499 U.S. 940, 113 L. Ed. 2d 453, 111 S. Ct. 1397 (1991)), cert. denied, 113 S. Ct. 416 (1992). Moreover, under Rule 403, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of . . . confusion of the issues, or misleading the jury. . . ." Fed. R. Evid. 403. Thus, the trial judge has "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, . . . prejudice, confusion of the issues . . . or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986).

 B. Cross-Examination to Show Improper Vouchering of the Evidence

 Relying on allegations implicating three officers in the theft of a substantial amount of money from defendant Carlos Rivera's car at the time of his arrest, the defendants contend that "evidence exists which calls into question the entire system of preserving and vouchering the evidence seized on August 1, 1990 [sic]." Sercarz Letter at 2. Thus, the defendants maintain that, should the Government infer that the physical evidence in this case was appropriately vouchered and preserved, the defendants should be allowed to prove otherwise. The defendants further contend that, as reports by Government agents regarding the seizure of items of physical evidence are false or inaccurate, the defendants should be permitted to introduce evidence, either through cross-examination or direct testimony, that: (1) some agents involved in the Blue Thunder 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. *fn2"

 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 ...


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