The opinion of the court was delivered by: DENNY CHIN
In this perjury prosecution of a New York City police officer, defendant Patrick Regan moves to dismiss the indictment or portions thereof on the grounds that (1) the declarations alleged to be false in the indictment were not "material" to any Grand Jury investigation but were elicited solely as part of a "perjury trap," (2) the Grand Jury that issued the present indictment was not properly instructed on the element of "materiality," (3) the indictment fails to properly allege "materiality," and (4) the questions upon which the indictment are based are "fundamentally ambiguous" and therefore insufficient to support the charges of perjury. Regan also moves to disqualify the two prosecutors who questioned him before the Grand Jury on the grounds that he may call them as witnesses or, if he does not, that they are "unsworn witnesses."
For the reasons that follow, defendant's motions are denied in all respects.
In 1991 and 1992, Regan was a member of the 34th Precinct Anti-Crime Unit, a plain-clothes unit of the New York City Police Department that operated in the Washington Heights area of Manhattan and focused primarily on violent crime. This prosecution is based on Regan's testimony in the Grand Jury on October 13 and 18, 1994. Regan is charged with committing perjury when he was questioned in the Grand Jury about certain telephone calls he had with two brothers, Ramon and Jose Rodriguez. The telephone calls had been placed to Regan by the Ramon brothers at the behest of Government investigators, who were investigating whether members of the Anti-Crime Unit had engaged in a pattern of, among other things, falsifying the circumstances of arrests they made.
On August 14, 1992, Regan and two other members of the Unit arrested one Jorge Almonte on narcotics and firearms charges. Almonte was turned over to federal authorities for prosecution. The officers represented to the authorities that, while driving on 187th Street, they noticed Almonte stepping from the basement of a building with a gun in his waistband. They also represented that after they gave chase, Almonte dropped a bag containing narcotics before running back into the building.
After Almonte's arrest, his attorney represented to the Government that the officers had falsified the circumstances surrounding Almonte's arrest. In October 1992, the United States Attorney for the Southern District of New York and the Internal Affairs Division of the New York City Police Department commenced an investigation into whether members of the Anti-Crime Unit had made false statements in connection with the arrest of Almonte and others.
On July 22, 1992, three members of the Anti-Crime Unit arrested two individuals, Nieves and Abreu, for possession of firearms and narcotics. Regan was not involved, but two of the three officers were also later involved in the arrest of Almonte. At a suppression hearing in the federal prosecution that followed, the officers testified that they saw someone climb out of a window with a gun in his waistband and then retreat back into the window. At the same time, one of the officers saw another man inside the same apartment, standing at the window holding a gun. One of the officers testified that after they eventually entered the apartment, he accidentally bumped into a table with a sliding top, causing the top to slide open to reveal, "in plain view," a secret compartment holding firearms, ammunition and narcotics.
The suppression motion was denied. Thereafter, however, new evidence concerning the arrest of Nieves and Abreu came to light that indicated that some of the events described by the officers during their testimony in the suppression hearing had not happened and, indeed, were physically impossible. Consequently, the Government determined, based on this new evidence as well as concerns arising from the Almonte case, that further investigation into the officers' accounts was warranted. After conducting further investigation, the Government concluded that the officers involved in the Nieves case had not been truthful. Hence, the Government filed a nolle prosequi and the charges against Nieves and Abreu were dismissed.
C. The Government's Investigation of the Anti-Crime Unit Broadens
The Government thereafter contacted the New York County District Attorney's Office to inquire about other cases in which members of the Anti-Crime Unit had participated. After conducting its own review, the District Attorney's Office referred several cases to the United States Attorney's Office for further review.
In November 1992, investigators interviewed Regan. He was advised that he and other members of the Anti-Crime Unit were under investigation. He denied, however, that he or any other members of the Unit had engaged in any misconduct. Thereafter, and continuing into 1994, an extensive Grand Jury investigation was conducted by the Government into whether members of the Anti-Crime Unit had engaged in a pattern of falsifying the circumstances of arrests they made, committing perjury, and otherwise violating the civil rights of individuals arrested. The Government interviewed many witnesses and presented evidence to the Grand Jury. No indictments were issued however, and the term of the original Grand Jury apparently expired.
By May 1994, in part because the cable installer who had been present in the building in question on the date of Almonte's arrest could no longer be located, the Government no longer viewed as viable a prosecution against the Anti-Crime Unit officers involved in the Almonte case. The Government was, however, still considering whether to seek an indictment against the three officers involved in the Nieves case.
D. The Rodriguez Brothers
In May 1994, the Government was informed by a cooperating witness named Jose Rodriguez that he had information about members of the Anti-Crime Unit. He advised the Government of a meeting he had with his brother Ramon, Regan and other members of the Anti-Crime Unit in December 1992. He provided information to the effect that Regan and other members of the Anti-Crime Unit were trying to locate Jorge Almonte in or about December 1992. Indeed, he stated that during the December 1992 meeting, Regan had asked Jose Rodriguez and his brother for their assistance in trying to locate Almonte, and Regan gave an address on 187th Street where they were to look for Almonte. Jose Rodriguez also advised the Government of other contact he had with Regan following the December 1992 meeting.
On June 2, 1994, at the instruction of investigators, Jose Rodriguez telephoned Regan at the 24th Precinct to say that he had located Almonte. In fact, Rodriguez had not located Almonte, but Rodriguez was asked to call Regan to obtain corroboration for Rodriguez's allegations that he knew Regan and had spoken to him about the investigation into the Anti-Crime Unit and to obtain evidence shedding light on Regan's motive for seeking Almonte. Rodriguez reached Regan, and the telephone conversation was recorded. The transcript confirms that Regan knew Rodriguez and that Regan had previously talked to Rodriguez about "that guy" from "187th Street." The transcript also shows that Regan said to Rodriguez: "We're just going to let things die down and go whatever way they're going to go."
The Government met with Ramon Rodriguez on August 26, 1994. Although the Government had doubts about his credibility,
it decided that it was important to interview Ramon Rodriguez about what he knew about the Anti-Crime Unit. Ramon Rodriguez told the Government that he had been an informant for the Anti-Crime Unit on several cases and that he had been actively involved with Regan. Ramon Rodriguez also advised the Government that Regan had told him that members of the Anti-Crime Unit wanted to plant drugs on Almonte, who had accused the officers of having stolen money from them. Rodriguez also stated that Regan had given him a photograph of Almonte and had asked him to try to locate Almonte. Rodriguez also stated that ...