2. Motion of Defendant Victor
Next, the Court considers the Defendant Victor's contentions that he will suffer spillover prejudice. Defendant Victor contends that his trial should be severed on the ground that he will be prejudiced by the admission of evidence regarding Count IV of the Indictment, which charges his co-defendants with certain firearms violations.
Courts in this circuit have consistently held, however, that "[a] properly joined defendant is not entitled to a separate trial merely because there will be testimony relating to other criminal activities of his codefendants." United States v. Jimenez, 824 F. Supp. 351, 369 (S.D.N.Y. 1993) (citations omitted); see also United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984); United States v. Lyles, 593 F.2d 182, 190 (2d Cir.), cert. denied, 440 U.S. 972, 59 L. Ed. 2d 789, 99 S. Ct. 1537 (1979).
Moreover, in cases factually similar to the case at bar, courts in this Circuit have consistently held that the joinder of weapons charges with charges involving narcotics and narcotics conspiracy does not result in spillover prejudice. See, e.g., Jimenez, 824 F. Supp. at 369; United States v. Feola, 651 F. Supp. 1068, 1122-23 (S.D.N.Y. 1987) (citations omitted) aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834 (1989).
Again, to the extent that any evidence regarding the weapons charges will only be admissible against the co-defendants, the Court will instruct the jury in that regard, and will emphasize that each defendant is entitled to have his case determined solely from the evidence admitted against him. See United States v. Cervone, 907 F.2d 332, 341-42 (2d Cir. 1990), cert. denied, 498 U.S. 1028 (1991). Thus, the mere fact that certain evidence may be admissible against his co-defendants but not against Defendant Victor does not establish prejudice sufficient to warrant severance.
III. Bill of Particulars
The Court next considers the third category of pre-trial motions: the requests for particularization. Defendant Peres demands a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure.
Peres requests the disclosure of certain information regarding Count One of the Indictment, which alleges that Defendant Peres participated in a conspiracy to import, distribute, and possess with intent to distribute marihuana. (See Peres Omnibus Mot. at 2-5.)
The purpose of a bill of particulars is "'to provide defendant with information about the details of the charge against him if this is necessary to the preparation of his defense, and to avoid prejudicial surprise at trial,'" United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (citation omitted), cert. denied, 498 U.S. 906 (1990), as well as to enable a defendant to interpose a plea of double jeopardy if subsequently prosecuted for the same offense. United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (citations omitted). The Second Circuit has explained that "generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Id. (citations omitted). Thus, a bill of particulars "should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused," Torres, 901 F.2d at 234 (citations omitted), and "it is not enough that the information would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the government is not required to disclose additional details about its case." United States v. Payden, 613 F. Supp. 800, 816 (S.D.N.Y. 1985). The decision to grant or deny a bill of particulars is within the sound discretion of the trial court. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
More specifically, courts in this Circuit have explained when particulars must be provided with respect to allegations of conspiracy. As a general rule, a defendant is not entitled to detailed evidence about a conspiracy to properly prepare for trial. United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834 (1989). For example, details regarding the date on which the conspiracy was formed, or when each participant entered into the conspiracy need not be revealed before trial. United States v. Persico, 621 F. Supp. 842, 868 (S.D.N.Y. 1985). Furthermore, "defendants are not entitled to discover through a bill of particulars the locations in addition to those listed in the indictment at which they are alleged to have violated the statute, where the information already made available to defendants is sufficient to enable proper preparation for trial and further discovery would amount to an unnecessary revelation of evidence." Feola, 651 F. Supp. at 1133 (citation omitted). The Government need not disclose the substance of the conversations and details of agreements between or among coconspirators, see United States v. Kahaner, 203 F. Supp. 78, 84 (S.D.N.Y. 1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 835 (1963); nor is the Government under a duty to disclose the precise manner in which the crimes alleged in the indictment were committed. United States v. Remy, 658 F. Supp. 661, 670 (S.D.N.Y. 1987). Indeed, "since the Government is not required to charge any overt acts in the indictment," a defendant is not generally entitled to receive information verifying the meetings or activities of the conspirators, or the exact time and place of the overt acts. Feola, 651 F. Supp. at 1133. "Similarly, the Government is under no obligation to disclose the specific role played by a defendant in a conspiracy, or the particular acts each defendant is alleged to have participated in, had knowledge of, or for which he is being held responsible." United States v. Jones, LEXIS GENFED Library, DIST File, No. SS85 Cr. 1075, 1986 WL 275, at *2 (S.D.N.Y. May 28, 1986) (citations omitted). Finally, the refusal of a district court to direct the filing of a bill of particulars as to the names of unindicted co-conspirators is not an abuse of discretion. United States v. Gotti, 784 F. Supp. 1017, 1018 (E.D.N.Y. 1992) (citing United States v. Torres, 901 F.2d 205, 233-34 (2d Cir.), cert. denied, 498 U.S. 906 (1990)).
Because Defendant Peres has received adequate information regarding the time, place, and nature of the charged conspiracies, as well as his involvement in the alleged conspiracy (see Gov't Aug. 8, 1994 Letter), and in keeping with the reasoning of the cases cited above, Peres's requests with regard to any such specific details are denied.
One remaining request for particularization requires further exploration: Defendant Peres's request for the quantity of controlled substances that he allegedly possessed. (Peres Omnibus Mot. at 5.) As it appears that the Government has made available for inspection the controlled substances at issue and disclosed their approximate weight (see Russo Aug. 26, 1994 Letter), the Court finds that Defendant Peres has been provided with adequate information in this regard. Moreover, the statutory provision under which Defendant Peres is charged provides additional notice of the approximate quantity of drugs at issue. See 21 U.S.C. §§ 841(b)(1)(B)(vii). Therefore, Defendant Peres's demand for particulars with respect to the quantity of illegal substances is likewise denied.
To the extent that the Court has not addressed a specific request for particulars, such request is also hereby denied.
IV. Motions to Suppress
The Court next turns to Defendants' motions regarding the suppression of certain evidence that is sought to be introduced at trial. Defendants seek to suppress three general categories of evidence, each of which is addressed separately below.
A. Search of Defendant Victor's Boat
First, the Court considers Defendant Victor's motion to suppress the physical evidence seized during the warrantless search of his boat. The Government contends that the warrantless search was authorized by 19 U.S.C. § 1581(a), which provides, in pertinent part, that
any officer of the Customs may at any time go on board of any vessel . . . at any place in the United States or within the customs waters . . . and examine the manifest and other documents and papers and examine, inspect, and search the vessel . . . and every part thereof and any person, trunk, package, or cargo on board . . . .
Defendant Victor contends that Section 1581 is inapplicable to this case. More specifically, he contends that his boat was not a "vessel" within the meaning of Section 1581.
(Russo Feb. 9, 1995 Letter at 2.)
Section 1581 "imparts an obviously broad grant of authority to Customs officials." United States v. Manbeck, 744 F.2d 360, 382 (4th Cir. 1984), cert. denied, 469 U.S. 1217 (1985). This broad authority, however, "must be interpreted in a manner consistent with the limitations imposed by the Fourth Amendment." Id. Generally, in determining whether a search or seizure runs afoul of the Fourth Amendment, the Court must examine the "'reasonableness' of the type of governmental intrusion involved." United States v. Villamonte-Marquez, 462 U.S. 579, 588, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983). More particularly, when reviewing the a search or seizure of a vessel, the Supreme Court has explained that, in determining "reasonableness," courts must take into account the concerns implicated by "vessels located in waters offering ready access to the open sea." Id. Applying this reasoning, the Supreme Court, in Villamonte-Marquez, found that Customs Agents had not violated the Fourth Amendment when, without any suspicion of wrongdoing, they boarded and conducted a document inspection of a vessel that was anchored in a waterway approximately 18 miles inland from the gulf coast.
Defendant Victor contends that, unlike the vessel in Villamonte-Marquez, the vessel at issue in this case did not have "ready access to the open sea," in that (1) the vessel was secured to a dock, (2) Defendant Victor, the owner of the vessel, was "in custody many yards away," and (3) "more than a dozen agents were on the scene."
(Russo Feb. 9, 1995 Letter at 2-3.) None of these circumstances, however, persuades the Court that the boarding of the vessel violated the Fourth Amendment. First, Defendant Victor has provided no support for the proposition that the mere docking of a boat deprives it of access to the open sea. Indeed, one Circuit has specifically explained that the mooring of a boat is irrelevant to a determination of the reasonableness of the boarding of a vessel. United States v. One 1972 44' Striker, 753 F.2d 867, 868 (11th Cir. 1985) (court rejected argument that Villamonte-Marquez does not apply to docked vessels, explaining that "no such limitation is found in Villamonte-Marquez; the mooring to a private dock is not important; it is access to the open sea that is determinative") and a number of other courts have also upheld the boarding of vessels that had been secured to a dock. See, e.g., United States v. Throckmorton, 784 F.2d 1003, 1005 (9th Cir. 1986); Manbeck, 744 F.2d at 369, 383-84; United States v. Bain, 736 F.2d 1480, 1487-88 (11th Cir.), cert. denied, 469 U.S. 937, 83 L. Ed. 2d 275, 105 S. Ct. 340 (1984); United States v. One Blue Lobster Vessel, 639 F. Supp. 865, 870 (S.D. Fla. 1986); United States v. One Defender Lobster Vessel, 606 F. Supp. 32, 37 (S.D. Fla. 1984)
Moreover, that Defendant Victor, the owner of the boat, was handcuffed, and that numerous officers were present on the scene, do not demonstrate that the boat was deprived of access to the open sea. First, as indicated by the cases above, it appears that the determination of whether a vessel has such "access" merely turns upon its location, and does not involve an examination of potential practical impediments to its movement. See, e.g., One 1972 44' Striker, 753 F.2d at 868; Throckmorton, 784 F.2d at 1005. Moreover, courts have repeatedly upheld boardings where Customs Officers did not believe that anyone in control of the vessel was in the vicinity. See, e.g., One Blue Lobster Vessel, 639 F. Supp. at 867 (upholding boarding of vessel after those on board had left the area); One Defender Lobster Vessel, 606 F. Supp. at 34 (upholding boarding where agents had no reason to believe that the owners or others capable of moving the vessel were in the area). Finally, that the owner had been apprehended does not preclude the possibility that other individuals -- either on the boat or in the surrounding area -- could maneuver the boat into the open sea.
Cf. United States v. Ader, 520 F. Supp. 313, 328 (E.D.N.C. 1980) (upholding warrant less search of vessel where suspects had been arrested and area secured, on grounds that there was a "possibility that others involved, but not present, might threaten the destruction of evidence" and that "the officers could not be certain that all participants had been apprehended"). Based upon the rationale of the cases cited above, the Court finds that the boarding of the vehicle was constitutionally permissible; and therefore, Defendant Victor's motion to suppress the evidence recovered from his boat is denied.
B. Search of 234 Foxhurst Road
Next, the Court considers the motions of Defendants Peres and Kenny to suppress the physical evidence seized from the premises located at 234 Foxhurst Road.
As each Defendant has advanced independent grounds for suppression of this evidence, their motions are addressed separately below.
1. Motion of Defendant Kenny
First, the Court considers the motion of Defendant Kenny, which seeks suppression of the evidence on the ground that "the search warrant may have been issued without full disclosure of all known information to the presiding magistrate." (Kenny Mem. at 11.) Defendant Kenny requests that the Court conduct a hearing in this regard pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). Even assuming, however, that Defendant Kenny has standing to contest the search of the premises,
his motion is denied at this time.
The law is clear that, to obtain a hearing on the veracity of a statement in a search warrant affidavit, a defendant must make a "substantial preliminary showing" that (1) a false statement or omission was knowingly and intentionally, or with reckless disregard for the truth, included in the warrant affidavit, and (2) the allegedly false statement or omission was necessary to the finding of probable cause. See United States v. Mankani, 738 F.2d 538, 545 (2d Cir. 1984); see also Franks, 438 U.S. at 171-72.
Defendant Kenny contends that a hearing is required in this case because law enforcement agents actually knew the identity of the "anonymous caller," but failed to disclose the caller's identity. However, even if the Court were to assume that the agents were aware of the caller's identity,
Defendant Kenny has submitted no support for the proposition that the disclosure of the caller's identity would have altered the Magistrate Judge's determination of probable cause. A substantial portion of the information provided by the anonymous caller was corroborated by the agents, and, as such, the Magistrate Judge was able to adequately assess the reliability of the caller; and Defendant Kenny has not explained why identification of the caller would have led to a contrary result. Cf. United States v. Wells, 1989 U.S. Dist. LEXIS 17451, Crim. A. No. 88-87-01, 1989 WL 252841, at *4-5 (D. Vt. Jan. 30, 1989). As Defendant Kenny has failed to make a "substantial preliminary showing" that an alleged falsity or omission would have affected the determination of probable cause, his motion for a Franks hearing on this ground is denied.
In the alternative, Defendant Kenny contends that the Court should dispense with the requirement that the defense must make a "substantial preliminary showing" of material falsity to obtain a Franks hearing, in light of Defendant Kenny's allegations regarding the Government's conduct during his interrogation. In essence, Defendant Kenny contends that because the Government acted egregiously in obtaining his statement, the Court may assume that the Government also acted egregiously -- by making material false statements or omissions -- in obtaining the search warrant. Defendant Kenny has failed to submit any caselaw in support of the proposition that the Court may disregard the requirement of a "substantial preliminary showing" and award a Franks hearing on the basis of unsupported assumptions. As such, Defendant Kenny's motion for a Franks hearing on this ground is also denied. The Court notes, however, that if the evidence elicited at the hearing with regard to the Government's conduct during the interrogation provides support for Defendant Kenny's contention that there were material omissions or falsities in the warrant affidavit, Defendant Kenny may renew his motion for a Franks hearing.
2. Motion of Defendant Peres
Next, the Court considers the motion of Defendant Peres. Defendant Peres first contends that the search warrant for the premises, which was signed by Magistrate Judge Orenstein, was not supported by probable cause.
In order to suppress evidence seized pursuant to a search warrant, a defendant must demonstrate that (1) there was inadequate probable cause to support the issuance of the warrant, and (2) even if the warrant was invalid for lack of probable cause, the officers who obtained and executed the warrant failed to act in an objectively reasonable fashion. See United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984); United States v. Love, 859 F. Supp. 725, 733 (S.D.N.Y. 1994), aff'd sub nom. United States v. Roberts, 41 F.3d 1501 (2d Cir. 1994).
a. Probable Cause
The Court first considers whether there was sufficient probable cause to issue the warrant. In reviewing an application for a search warrant, the magistrate judge must determine whether, given the "totality-of-the-circumstances," (1) a crime has been committed, and (2) there is probable cause to believe that evidence of such crime would be found at the identified location. See Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983). It is well established that a Magistrate Judge's finding of probable cause is entitled to substantial deference. Love, 859 F. Supp. at 733 (citing Travisano, 724 F.2d at 345). The District Court is required, however, to determine "whether 'the magistrate performed his neutral and detached function on the facts before him, and did not merely serve as a rubber stamp for conclusions drawn by the police.'" Id. (quoting Travisano, 724 F.2d at 345).
The affidavit submitted in support of the search warrant in this case provided Magistrate Judge Orenstein with sufficient probable cause for the issuance of the warrant. The affidavit explains that an anonymous caller set forth detailed information regarding the operation of the alleged conspiracy, its members, and the contraband that would be found at the premises. Significant portions of this information were corroborated by Customs agents and Nassau County police officers. The affidavit also contained information from two cooperating witnesses, both of whom corroborated the statements of the anonymous caller and provided additional information with regard to the alleged conspiracy and the contraband that would be found at the premises.
This information, given the totality of the circumstances, clearly established a fair probability that the objects sought in the warrant would be found at the identified location.
See Travisano, 724 F.2d at 346. As such, Defendant Peres's motion to suppress the physical evidence on the ground that there was insufficient probable cause is denied.
b. Good Faith
Even if the Court were to find that there was insufficient probable cause to support the issuance of the warrant, Defendant Peres has failed to allege that the officers who obtained and executed the search failed to act with objective good faith. See United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). Defendant Peres does not allege that the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 45 L. Ed. 2d 416, 95 S. Ct. 2254(1975) (Powell, J. concurring) ); nor does he contend that the warrant was so "facially deficient" that the executing officers could not have presumed it to be valid. Id. As such, Defendant Peres's motion to suppress must fail.
C. Post-Arrest Statements and Search of Defendant Kenny's Room, Safe Deposit Box, and Bank Account
Finally, the Court considers the motions of Defendants Kenny, DeCiantis, and Peres for the suppression of certain statements made following their arrests, as well as the motion of Defendant Kenny for the suppression of certain physical evidence seized from his room in his mother's home, his safe deposit box, and his bank account. On May 1, 1995, the Court will conduct a hearing with regard to the relevant circumstances surrounding these arrests, interrogations, and searches.
The final category of pre-trial motions advanced by the Defendants is for discovery. Defendant Peres moves for discovery of certain materials pursuant to Federal Rule of Criminal Procedure 16. (See Peres Omnibus Mot. at 5-15.) The Court notes that Local Criminal Rule 3(d) provides, in relevant part, that:
No motion [for discovery] shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issue raised by the motion without the intervention of the court and has been unable to reach such an agreement.