(who linked those items with the subject weapon in this case) were somehow part of the purported scheme to "frame" defendant.
For the reasons above stated, the relief requested by defendant, based on the alleged perjured testimony presented by the prosecution, is denied.
2. Sufficiency of Evidence as to Count Two
Defendant maintains that the evidence before the petit jury was insufficient to support its verdict of guilty to the charge that defendant was a felon in possession of ammunition. The claimed deficiency in proof pertains to the interstate commerce element of the 18 U.S.C. Section 922(g) charge. In the government's view, that element -- construing the evidence most favorably to the non-movant as required under Rule 29(c) -- was clearly established through the testimony of Special Agent Anthony Annunziato.
To place the present dispute in context, reference to the trial record is in order. All of the relevant testimony on point was elicited during the government's direct examination of Special Agent Annunziato, and is as follows:
(Tr. at 885)
23 Q. Now, sir, with respect to ammunition, do you know
24 where ammunition is manufactured, some of the areas?
25 A. Yes.
(Tr. at 886)
1 Q. What are some of the locations? 2 A. Some of the areas are Minnesota, Illinois, some of the 3 main manufacturers. 4 Q. Is any ammunition manufactured in New York? 5 A. Some ammunition is manufactured, but it would just be 6 no name manufacturers, like different individuals who 7 manufacture ammunition for their own use, no companies 8 really manufacture ammunition in New York. 9 Q. What would be a main company? 10 A. Winchester, Federal. 11 Q. Now, sir, I show you Government Exhibit eight which 12 contains various bullets. 13 Can you please take them out and indicate who the 14 manufacturer was and whether these bullets were 15 manufactured in New York State? 16 A. Winchester. 17 Q. Hold them up, sir, so we can say see what you're 18 doing. 19 A. Winchester ammunition. Winchester ammunition. 20 Winchester .45 caliber ammunition. Western ammunition. 21 Q. Where is Western manufactured? 22 A. Outside of New York State. 23 Q. What about Winchester? 24 A. Outside of New York State. Western, Winchester, 25 Western, Federal.
(Tr. at 887) 1 Q. Where is Federal manufactured? 2 A. Outside of New York State, and PMC. 3 Q. Where is PMC manufactured? 4 A. Also out of New York State. 5 Q. Sir, please place those back in the envelope or I 6 should say the plastic bag. 7 Please take a look at Government Exhibit nine. 8 Empty its contents. 9 Is there a plastic bag in there? 10 A. Yes. 11 Q. Let's look at the plastic bag first, sir. Don't 12 remove what's in there. Can you hold it up for us. Can 13 you tell whether the shell casings in there, where those 14 two were manufactured? 15 A. I believe Federal Ammunition is manufactured outside 16 of New York State. 17 Q. Was that for both? 18 A. Yes. 19 Q. What about the remaining shell casings, sir, in that envelope? 21 A. Federal, and I believe Federal.
Is the above testimony, viewed most favorably to the prosecution, sufficient to permit a reasonable person to conclude beyond a reasonable doubt that the subject ammunition was involved in interstate commerce? See, e.g., United States v. Artuso, 618 F.2d 192, 195 (2d Cir.), cert.denied 449 U.S. 879, 66 L. Ed. 2d 102, 101 S. Ct. 226 (1980) (indicating standard to be applied in deciding a Rule 29(c) judgment of acquittal motion).
As part of its proof, the government must establish a nexus between the ammunition and interstate commerce. See United States v. Carter, 981 F.2d 645 (2d Cir. 1992), cert. denied, 507 U.S. 1023, 123 L. Ed. 2d 456, 113 S. Ct. 1827 (1993). Evidence that ammunition was manufactured outside of New York State, and that defendant was found in possession of that ammunition within the State, compels the conclusion that the ammunition crossed state lines at some point. See United States v. Sanders, 35 F.3d 61 (2d Cir.), cert. denied, 130 L. Ed. 2d 407, 115 S. Ct. 497 (1994). However, the evidence of out-of-state manufacture must predate defendant's arrest. See id.
United States v. Jones, 16 F.3d 487 (2d Cir. 1994) is instructive on this point. Jones was charged, inter alia, with being a felon in possession of a firearm in violation of Section 922(g). See id. at 489. At trial, a special agent of the FBI testified "that no hand guns 'are manufactured' in New York State." Id. at 490 (emphasis added). Relying on that testimony, the District Court denied the defendant's Rule 29(a) motion to dismiss the firearm charge, concluding that the jury could infer that the weapon was manufactured elsewhere. Id.
Jones's conviction as to the count under discussion was reversed for the government's failure to establish that the firearm had, at some point prior to defendant's arrest, been involved in interstate commerce. Id. at 492. As explained by Judge McLaughlin in writing for the Second Circuit, simply eliciting testimony that the model of firearm involved is not presently manufactured in the State of New York does not suffice to create factual issues for the jury's determination.
Id. at 491-92.
Special Agent Annunziato's testimony, viewed in conjunction with the rationale espoused in Jones, indicates the inadequacy of the government's proof concerning the interstate commerce element of Count Two. Granted, the prosecutor's initial question concerning the bullets, as well as his question concerning the shells, asked whether the bullets and shell casings "were manufactured" in New York State, apparently intending to focus the witness's attention on the period prior to defendant's arrest. (See Tr. at 886, 11. 11-15; Tr. at 887, 11. 11-14.) Unfortunately, the first question asked about the bullets, which are the subject of Count Two, was compound (See Tr. at 886, 11. 11-15), and elicited merely the name of a manufacturer. The multiple answers provided in serial fashion thereafter regarding the shells and casings were stated solely in the present tense, as are all but one (See Tr. at 887, 1. 17) of the intervening questions asked by the government.
The Court recognizes that, although questions are never evidence, the substance of a question must be considered to place the answer in context. Nonetheless, it is axiomatic that to the extent there is a divergence between the question asked and the answer given, the answer alone -- if not stricken as "unresponsive" -- has evidentiary significance. Agent Annunziato told us that as of January 19, 1995, that being the date he testified, the subject bullets and casings were not being manufactured within the State of New York. He was never asked whether one or more of the items was ever manufactured in the State of New York, or some other type of question, the answer to which might have established that the ammunition was manufactured in a foreign jurisdiction and, therefore, had crossed state lines sometime prior to being recovered here on August 21, 1989. Perhaps, that was the impression Annunziato intended to convey, but that was not what he said, implicitly or otherwise. Each of his answers was in the present tense, and spoke of where such ammunition was manufactured at the time of trial, not five years before.
It may be the witness intentionally answered as he did, with full knowledge of the purpose underlying the line of inquiry, believing that his answers were helpful on the ground that "if . . . [ammunition is] . . . not now manufactured in New York, any . . . [ammunition] now possessed in New York must have been manufactured outside of New York," or so a jury could legitimately infer. From Jones, however, we know that rationale is unsound. Such testimony does not create an issue of fact for the jury's consideration. Jones, 16 F.3d at 491.
To partially reiterate in concluding this point, the issue is relatively straight forward. Was there information in the record which would permit a reasonable trier of fact to conclude beyond a reasonable doubt that the ammunition recovered on August 21, 1989, crossed state lines? Simply indicating that the manufacturers of the bullets and shell casings involved presently conduct their operations outside of New York is not sufficient. Perhaps such items were at one time manufactured within the State of New York, perhaps not. As to that issue, and Agent Annunziato's possible knowledge in that regard, the record is silent.
In Jones, the conviction was set aside because the "only evidence regarding interstate commerce was Agent Moore's testimony that hand guns are not presently manufactured in New York State." Id. The evidence here is similarly limited, and the resulting conviction similarly flawed. Accordingly, defendant's motion for a judgment of acquittal as to Count Two, made pursuant to Rule 29(c), is granted.
3. Defendant's Constitutional Rights Were not Compromised by the Court Disallowing Intended Defense Witness Killigrew From Invoking his Fifth Amendment Privilege in Front of the Jury
Certain references to the record are a necessary prelude to a discussion of this topic. Firstly, it should be noted that Officer Killigrew was one of the four officers involved in the arrest on August 21, 1989. As mentioned previously, the other three testified for the prosecution. Mr. Schoer advised the Court that he intended to call Officer Killigrew as a defense witness. It developed that if the officer was called, he would invoke the Fifth Amendment as to certain matters then under investigation. However, it was reported that he would not invoke his privilege against self incrimination concerning the events of August 21, 1989. (See Tr. at 1058, 11. 11-16.)
Counsel and the Court discussed the legal issues involved at great length. During the course of that dialogue, the Court, inter alia, indicated:
1. That Mr. Schoer could call the officer to the stand out of the presence of the jury. (Tr. at 1124, 11. 5-7.) Should he invoke the privilege solely in response to certain questions pertaining to his general credibility under Rule 608(b) of the Federal Rules of Evidence, then counsel would be precluded from re-asking those questions before the jury, given his knowledge that the witness would invoke the Fifth Amendment. (Tr. at 1133, 11. 6-21; Tr. at 1137, 11. 13-20.)
2. However, it was explained that if the witness had a change of heart, and endeavored to invoke the Fifth Amendment concerning any aspect of the events that transpired on August 21, 1989, -- including the planting of a gun in this case, or in any other case -- then the Court would pursue the matter further. Indeed, it was even discussed that if such a scenario developed, perhaps the government should be presented with the Hobson's choice of either asking that Officer Killigrew be immunized, or face the prospect of the having the accusatory instrument dismissed. (Tr. at 1116, 11. 9-21.)
3. Throughout the discussions, the Court repeated that Mr. Schoer obviously had a right to call Officer Killigrew as a defense witness, and inquire fully about the events of August 21, 1989. (Tr. at 1133, 11. 10-12; Tr. at 1138, 11. 9-15.) The only limitation imposed was asking general credibility questions which he knew beforehand would prompt a refusal to answer on the grounds of self incrimination.
In any event, defendant declined the Court's offer to, inter alia, examine the witness outside the presence of the jury. That process may have served to provide clearer parameters of the problem confronting counsel and the Court, viz. the precise questions, or lines of collateral inquiry, which would trigger assertion of the privilege.
To the defense, the issue was simple, calling for either a "yes" or "no" answer, independent of context. The position taken is well synopsized in the following excerpt from the trial transcript:
The Court: So your position is if there's any information that would be relevant under 608(b) where we anticipate the witness is going to invoke the Fifth Amendment, that the invocation should be before the jury.
Mr. Schoer: Yes.
(Tr. at 1127, 11. 8-12.)
It was the Court's view then, as it is now, that requiring a witness to invoke the Fifth Amendment before a jury on collateral credibility issues serves no legitimate purpose. The jury is not permitted to draw an inference from the witness's assertion of the right. See United States v. Deutsch, 987 F.2d 878, 883-84 (2d Cir. 1993). Accordingly, the question asked seeks information which is irrelevant under Rule 401 of the Federal Rules of Evidence.
It appears that the only reason that the defense intended to place Officer Killigrew on the stand was to have him refuse to answer questions involving collateral matters. Indeed, defense counsel never suggested at trial the manner in which Officer Killigrew's testimony might aid the defendant, or otherwise shed light on the issues in controversy.
In sum, defendant was not denied "his due process right to a fair trial and his right of confrontation," (see Def. Mot. at 13), by the Court's ruling regarding Officer Killigrew.
4. Defendant was not Denied a Fair Trial by Failure of the New York City Police Department to Timely Respond to His Subpoena
Prior to trial, defendant served a court ordered subpoena on the New York City Police Department seeking personnel records of the officers involved in the subject arrest. On January 19, 1995, defense counsel advised the Court that he had anticipated that the police department would comply with the subpoena, but had just received a telephone call from someone in their legal department indicating that they intended to move to quash the subpoena even though its original return date was January 3rd.
After reporting the above to the Court, defense counsel stated:
I honestly don't know how to handle this situation, Judge. I don't know what Your Honor can do at this point, but I think that at the close of the trial at the very least, that I think that I ought to make some sort of application to Your Honor and something ought to be done about this, not only for this defendant but for other defendants.