proving that Gonzalez received Miranda warnings after he was taken into custody. The Government has not offered an affidavit or testimony from anyone asserting that Gonzalez received Miranda warnings. Moreover, on cross-examination at the suppression hearing, Officer Argiento conceded that he was not aware that Gonzalez received Miranda warnings at any time on the evening in question. See Transcript at 166. Under the circumstances, Gonzalez's statements during "custodial interrogation" are not admissible against him as part of the Government's case-in-chief.
The Court finds, nevertheless, that only Gonzalez's first two statements -- that he knew Colon and that he would be willing to give Colon a shirt -- were made in response to police conduct amounting to "interrogation." As credibly recounted by Officer Argiento, Gonzalez's last three statements -- which were directed against Officer Argiento and his wife personally, see id. at 147 -- were not made in response to police conduct that was "'reasonably likely to elicit an incriminating response from a suspect.'" United States v. Colon, 835 F.2d 27, 30 (2d Cir. 1987) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980)), cert. denied, 485 U.S. 980, 108 S. Ct. 1279, 99 L. Ed. 2d 490 (1988). As a result, only Gonzalez's first two statements are the fruit of a Miranda violation, and only those two statements are inadmissible against him during the Government's case-in-chief. Gonzalez's last three statements may be used against him for all purposes, without violating the Fifth Amendment.
Gonzalez's motion to suppress his custodial statements is HEREBY DENIED as to all statements, for impeachment purposes; HEREBY DENIED as to his last three statements, for use in the Government's case-in-chief; and HEREBY GRANTED as to his first two statements, for use in the Government's case-in-chief.
VI. ADDENDUM TO THE COURT'S RULING ON SEVERANCE AND BIFURCATION.
The Court ruled from the bench that neither Gonzalez nor Colon is entitled to a severance of his trial from that of his co-defendant, nor is either entitled to a bifurcation of his trial such that the jury would not learn of his prior felony conviction before concluding that he had possessed a firearm on the evening in question. See Transcript at 193-98.
The Court takes this opportunity to explain why, in the Court's view, the Second Circuit's decision in United States v. Jones, 16 F.3d 487 (2d Cir. 1994), does not call for a different conclusion here. In Jones, the Second Circuit held that, where a single defendant was charged with a felon-in-possession-of-a-weapon count and with counts charging other offenses, "the district court should have severed or, at least, bifurcated the felon in possession count" to avoid the effects of spillover prejudice. Id. at 492. The Second Circuit reasoned that a limiting instruction was insufficient to cure the effects of spillover prejudice because it would be beyond the capacity of jurors to put from their minds the fact that the defendant was a convicted felon when they considered whether he was guilty of the other charges against him. Id. at 492-93 (citations omitted).
The Court finds that Jones is inapposite here and that this case is controlled by the principles of severance and bifurcation discussed in the Court's bench ruling. The Second Circuit's concern in Jones was that jury would hold a defendant's own prior felony conviction against him when determining whether he was guilty of other charged offenses. The concern that defendants raise in this case, in contrast, is that the jury will hold one defendant's prior felony conviction against the other defendant when deciding whether each is guilty of a single felon-in-possession count. But this is precisely the concern that the principles of severance discussed in the Court's bench ruling address. Moreover, given the Court's finding that a limiting instruction will amply cure the effect of spillover prejudice in this case, the principles discussed in the Court's bench ruling that ordinarily preclude the bifurcation of a felon-in-possession count where only one defendant is on trial, apply with full force here.
Each defendant's motions for a severance and bifurcation are HEREBY DENIED.
Each defendant's motions for severance; bifurcation; an order requiring the Government to stipulate to the prior felony conviction element of § 922(g)(1); additional discovery, including Brady material; and an order prohibiting the Government from introducing evidence of his prior similar acts, are HEREBY DENIED on the present record. As provided in the Court's bench ruling, the Court will accept a stipulation as to the fact of each defendant's prior felony conviction, and will consider at trial the admissibility of evidence of each defendant's prior similar acts.
Each defendant's motion to suppress evidence on the ground that he was arrested without probable cause is HEREBY DENIED.
Colon's motion to suppress his statements to law enforcement officials is HEREBY DENIED as to his first three statements to Officer Crowe. Colon's motion is HEREBY GRANTED as to any later statements, for use in the Government's case-in-chief.
Gonzalez's motion to suppress identification evidence against him is HEREBY DENIED. Gonzalez's motion to suppress his custodial statements is HEREBY DENIED as to all statements for impeachment purposes; HEREBY DENIED as to his last three statements, for use in the Government's case-in-chief; and HEREBY GRANTED as to his first two statements, for use in the Government's case-in-chief.
Each defendant's motion for permission to bring additional motions is HEREBY DENIED, except to the extent that defendants could not in the exercise of reasonable diligence have filed such motions prior to the issuance of this Order.
Defendants are HEREBY ORDERED to appear for trial before the Honorable Whitman Knapp, United States District Judge, Southern District of New York, on October 17, 1994, at 10:15 A.M.
New York, New York
October 12, 1994
Peter K. Leisure