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UNITED STATES v. CHIN

December 22, 1995

UNITED STATES OF AMERICA, against WAYNE CHIN, Defendant.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge

 INTRODUCTION

 On January 25, 1995, a jury returned a verdict convicting Wayne Chin of being a felon in possession of both a firearm (Count One) and ammunition (Court Two), and acquitting him of the other two charges in the indictment, to wit, being an illegal alien in possession of a firearm (Count Three) and in possession of ammunition (Count Four).

 Presently pending before the Court is defendant's post-trial motion, made pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure, for entry of a judgment of acquittal, or for a new trial. *fn1"

 The defendant's application is multifaceted, not only with respect to the grounds urged in support of the requested relief, but also with respect to the sources of the various arguments raised. The first such motion received by the Court was made by Gary Schoer, Esq., the then attorney for the defendant. A few days thereafter, a second set of motion papers arrived, these having been authored by defendant, proceeding pro se. The defendant supplemented the grounds advanced by Mr. Schoer by adding two more arguments, viz. ineffective assistance of counsel and prosecutorial misconduct.

 Given the "ineffective assistance of counsel" claim, coupled with the fact that defendant asked that Mr. Schoer's application be entertained, *fn2" the Court accepted both Mr. Schoer's and defendant's pro se submissions. Thereafter, another attorney, viz. Emanuel A. Moore, Esq., was appointed to serve in lieu of Mr. Schoer.

 The government filed its Memorandum in Opposition to defendant's motion on March 28, 1995. Mr. Moore submitted a Reply Memorandum on May 15, 1995. And finally, the Court received a copy of a letter, dated May 17, 1995, from defendant to Mr. Moore, in which a request was made that the Reply Memorandum of May 15th be withdrawn by counsel on the ground that it represented "a love letter to the government." No such request was ever made directly to the Court, either by Mr. Moore, or by defendant. Accordingly, the Reply Memorandum has been reviewed by the Court, and considered to the extent it does not raise arguments contrary to those raised by defendant in his pro se submissions. *fn3"

 The arguments raised on behalf of defendant, via the various submissions, fall into two categories. Those in the first category seek a new trial, pursuant to Rule 33, upon the following grounds:

 1. The guilty verdicts are the result of perjurious testimony by government witnesses;

 2. The Court compromised defendant's constitutional rights by ruling that he could not call Police Officer Killigrew to the stand for the purpose of having him invoke his Fifth Amendment privilege in front of the jury;

 3. Defendant was denied a fair trial by the failure of the New York City Police Department to timely respond to his subpoena;

 4. Defendant did not receive a fair trial due to prosecutorial misconduct; and

 5. Defendant did not receive a fair trial due to ineffective assistance of counsel.

 The sixth and seventh arguments advanced are premised on Rule 29(c), and urge that:

 6. A judgment of acquittal should be entered as to Count Two because there was no evidence before the Grand Jury that the ammunition crossed state lines, thus depriving the Court of subject matter jurisdiction;

 7. Alternatively, a judgment of acquittal should be entered as to Count Two because of an absence of evidence before the petit jury that the ammunition crossed state lines.

 By way of format, a brief review of the trial evidence will be presented, to be followed by a discussion of each of the seven grounds urged in support of the relief requested. For the reasons hereinafter stated, defendant's motion for entry of a judgment of acquittal is granted as to Count Two. His motion for a new trial as to Count One is denied.

 EVIDENCE AT TRIAL

 As a prelude to discussing defendant's arguments on the merits, a brief review of the trial evidence is in order. There is no dispute that on August 21, 1989, in Brooklyn, New York, an automobile that defendant was driving was pulled over by two police officers in a marked police vehicle. As the officers approached the vehicle on foot, defendant suddenly drove away. A pursuit ensued, involving defendant's vehicle and two police cars. It is also undisputed that this phase of the pursuit ended in front of 407 Bristol Street, Brooklyn, at which point defendant alighted from his vehicle and ran down an alley into a courtyard. A number of officers gave chase. After a brief struggle, he was arrested at that location.

 The officers testified that defendant discarded a gun during the foot pursuit. That, unlike the foregoing facts, was vehemently disputed by the defense for it is -- and was throughout the trial, beginning with Mr. Schoer's opening statement (Tr. 273, 11. 6-16) -- Mr. Chin's contention that the recovered firearm was planted by the officers. In an effort to rebut that claim, the government produced evidence which indicated that he possessed the same gun nearly two years earlier. That evidence consisted of Veronica Jennings testifying to a confrontation she had with defendant (her then brother-in-law) in the lobby of her apartment building at 199 Tapscott Street, in Brooklyn, on November 23, 1987. On that occasion, she encountered defendant as she was descending the stairs from her apartment. She saw him raise his arm, whereupon she turned away and ran upstairs. As she did so, she heard a series of "pop" or "pow" sounds, which she believed were gunshots. She then discovered a hole in a door on the second floor which was not present before those sounds were heard. *fn4"

 Detective Robert Sielaw testified for the government that on November 23, 1987, he found shell casings and spent bullets in the lobby at 199 Tapscott Street upon responding to a reported shooting at that location. Those items were examined by ballistics expert Detective Charles Hopkins who explained to the jury that they were fired from the firearm that was recovered at the site of defendant's arrest on August 21, 1989.

 DISCUSSION

 1. Alleged Perjurious Nature of Government's Proof

 Three of the four police officers involved in the chase of defendant testified at trial for the government, those officers being Bill, Hare and Kalt. *fn5" Yet, although the credibility of all three officers has been called into question by the defense, specific instances of inconsistent testimony have been provided by Mr. Schoer solely with respect to Officer Kalt. As to that officer, numerous inconsistencies are underscored, coupled with counsel's conclusion that those inconsistencies establish that the witness gave perjured testimony at trial, as distinct from being attributable to lapses in memory, confusion, or other non-perjurious shortcomings of the witness.

 The inconsistencies pertain to such matters as the streets that were traveled, and in what sequence, during the course of the vehicular chase, and whether the defendant, upon alighting from his vehicle at the end of that stage of the pursuit, went behind or in front of his vehicle as he attempted to flee the scene.

 Significantly, the gravamen of the inconsistencies does not pertain directly to the actual recovery of the weapon, which was a central issue in the case. For example, it is not alleged that Officer Kalt previously testified that he observed the weapon being recovered from defendant's person, contrary to his trial testimony that he observed it for the first time in the possession of Officer Hare immediately after the arrest at 407 Bristol Street. (See Tr. at 484, 11. 12-22.) Most of the inconsistencies pertained to peripheral matters.

 Moreover, this is not a case in which evidence of inconsistent statements first surfaced post-trial. To the contrary, the veracity of the officers was aggressively attacked by the defense during the trial, in large measure by utilizing their prior testimony. The inconsistencies cited now were cited then. The jury rejected the concomitant argument that the government's proof was unworthy of belief. The Court is not prepared to find their decision flawed, nor to conclude that the testimony of Kalt, Bill or Hare was perjurious.

 It is the Court's finding the jury's verdict as to Count One was fairly derived from the evidence presented. Under such circumstances, it would be inappropriate to set aside the verdict, even if, arguendo, the Court disagreed with the conclusion reached. See United States v. Sanchez, 969 F.2d 1409, 1413-14 (2d Cir. 1992). Parenthetically, it should be noted that the record is devoid of evidence to suggest that Detective Sielaw (who recovered the shell casings and bullets in November of 1987) and Detective Hopkins (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 ...


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