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January 11, 1999


The opinion of the court was delivered by: Glasser, District Judge.


A plethora of motions have been made by one or more of the defendants named, some of which have been decided from the bench following a hearing, and some of which as yet remain undecided and will be addressed now.

I. Motions for Severance

Eight defendants, Hutchinson, Williams, Johnson, Kearse, Cumberbatch, Arroyo, Straight and Nix, have moved this court for an order that would sever the trial of each of them from that of the others. The common thread running through the motions is that each would be prejudiced by the spillover of evidence admissible as to some, but not as to others. Rucker has moved to be severed from Arroyo or, in the alternative, to suppress statements made by Arroyo. Since those statements have been suppressed following a hearing, Rucker's motion is moot.

Ten defendants in all are named in a 22 count indictment in which all are named as members and associates of a criminal organization known as the "C.I.C./Caveman" (the "enterprise") engaged in various forms of criminal activity including murder, attempted murder, assault, robbery, racketeering, racketeering conspiracy, and using and carrying a firearm in aid of a violent crime.

Multiple defendants may be properly joined if the requirements of Rules 8(b) and 14 of the Federal Rules of Criminal Procedure are satisfied. Rule 8(b) provides that two or more defendants may be charged in the same indictment "if they are alleged to have participated . . . in the same series of acts or transactions constituting an offense or offenses." Once Rule 8(b) has been satisfied, the issue of severance is then determined by reference to Rule 14.

In Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317(1993) the Supreme Court reaffirmed the preference for joint trials of defendants who are indicted together, a preference expressed many times before. See, e.g., Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176(1987). The liberal rule of joinder is designed to promote efficiency and "serve[s] the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Id. at 210, 107 S.Ct. 1702. Joint trials, in addition, limit inconveniences to witnesses, avoid delays in bringing defendants to trial and permit the entire story to be presented to a single jury. See, e.g., United States v. Stub, 57 F.3d 553, 556-57 (7th Cir.), cert. denied, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306(1995). The requirement of the Rule that the defendants are alleged to "have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" must be read to mean that the acts must be "unified by some substantial identity of facts or participants" or "arise out of a common plan or scheme." United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989) (quoting United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269(1988)). Proper joinder is determined from the face of the indictment which quite plainly here, satisfies the Rule 8(b) requirement that the acts are unified by the substantial identity of the participants and arise out of the objectives sought to be accomplished by the enterprise with which all the defendants are alleged to be associated. The fact that not every defendant is charged in every count is not dispositive. Participation in a series of transactions does not require participation in every transaction. United States v. Teitler, 802 F.2d 606, 615 (2d Cir. 1986).

Rule 8(b) having been satisfied, we turn to Rule 14 which provides, in relevant part, that "If it appears that a defendant . . . is prejudiced by joinder of . . . defendants . . . for trial together, the court may order . . . separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." The Advisory Committee Notes instruct and the courts have uniformly held that severance and other similar relief rests entirely in the discretion of the court. See, e.g., United States v. Losada, 674 F.2d 167 (2d Cir. 1982); United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992). The preference in the federal system for joint trials and the role they play in the criminal justice system has already been noted and to a significant extent informs the discretion to be exercised.

Zafiro acknowledged that a "district court should grant a severance . . . only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a co-defendant. . . . When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened." 506 U.S. at 539, 113 S.Ct. 933. The Court went on to observe, however, that less drastic measures than severance, such as limiting instructions, will frequently cure any risk of prejudice and that it was well settled that "defendants are not entitled to severance merely because they have a better chance of acquittal in separate trials." 506 U.S. at 539-40, 113 S.Ct. 933. The Courts have had many occasions to apply and in the process amplify the broad statement of principles in Zafiro. In United States v. Rosa, 11 F.3d 315 (2d Cir. 1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211(1994) for example, the Court explained that "A defendant's right to a fair trial does not include the right to exclude relevant and competent evidence. Thus, the fact that testimony against a co-defendant may be harmful is not a ground for severance if that testimony would also be admissible against the moving defendant tried separately." 11 F.3d at 341. Neither is it a ground for severance that a defendant is named in fewer counts than his co-defendants. See, e.g., United States v. Chang An-Lo, 851 F.2d 547, 556-57 (2d Cir. 1988), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530(1988) ("differing levels of culpability and proof are inevitable in any multi-defendant trial and standing alone are insufficient grounds for separate trials."); United States v. Harris, 908 F.2d 728 (11th Cir. 1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 979, 112 L.Ed.2d 1063(1991).

As has been noted, each of the defendants moving for a severance is alleged to be a member and associate of the enterprise and not all of them are named in each of the 22 counts. Some are charged more frequently than others but that difference does not preclude charging and trying them jointly. See, e.g., United States v. Locascio, 6 F.3d 924 (2d Cir. 1993). Their assertions that a severance is warranted because much evidence will be received against co-defendants which will not be relevant to the crimes with which the movants are charged are not persuasive. That circumstance does not warrant granting the relief sought. "We recognize" said the Court, that "these appellants may have suffered some prejudice when they were forced to sit . . . for over a month without any evidence being introduced concerning their activities. Nonetheless, a disproportionate introduction of evidence relating to joined defendants does not require a severance in every case." United States v. Cardascia, 951 F.2d 474, 483 (2d Cir. 1991).

The movants have failed to sustain the burden they must bear of demonstrating that they will be so severely prejudiced by a joint trial that they would be deprived of a fair trial and their severance motions are denied.

II. The Bruton Motions

The defendants Rucker, Arroyo, Straight and Johnson, made statements to law enforcement officers which refer to some of their co-defendants by name. The statements made by Arroyo have been suppressed following a hearing and are, therefore, no longer relevant. Invoking Bruton v. United States and its progeny, the defendants Kearse, Hutchinson, Nix, Straight, Williams, Cumberbatch, Rucker and Johnson moved for severance, a suppression of statements and/or a redaction of them.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968), the Supreme Court held that the confrontation clause of the Sixth Amendment was offended when a defendant's statement implicating a co-defendant was placed before the jury in their joint trial despite the cautionary instruction that the statement was to be considered only against the declarant who did not testify and was, therefore, not subject to cross-examination. Bruton was followed by Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176(1987) in which the Court held that where a co-defendant's statement "was not incriminating [to the defendant] on its face, and became so only when linked with evidence introduced later at the trial" it was proper to indulge the presumption that a jury would heed the court's limiting instruction to consider the co-defendant's statement only against him. In so holding, the Court declined to extend Bruton but expressed "no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." 481 U.S. at 211, n. 5, 107 S.Ct. 1702. Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294(1998), the most recent pronouncement on the issue, is principally relied upon for the vigorous assertion that the statements cannot be sanitized by substituting neutral pronouns for the named co-defendants and the statements must be suppressed. In this, the defendants are mistaken.

In Gray, Anthony Bell confessed that he, Gray and another man murdered the victim. Bell and Gray were indicted for murder and were tried jointly. Bell's confession was permitted to be read to the jury by the trial judge. In reading it, the reader said "deleted" or "deletion" whenever Gray's name appeared. Immediately after that reading, the prosecutor asked "after Bell gave you the information, you subsequently were able to arrest Gray, is that correct?" The reader answered "yes." The State also introduced a written copy of the confession with the name omitted, leaving in its place blanks. The jury was given a limiting instruction to the effect that the confession could be used as evidence only against Bell, not Gray. The jury convicted the defendants. The intermediate appellate Court of Maryland agreed with Gray that the confession ran afoul of Bruton and set aside his conviction. The highest court of Maryland disagreed and reinstated his conviction. The Supreme Court granted certiorari and vacated the judgment of the Maryland court. The Court held at 523 U.S. at ___, 118 S.Ct. at 1155:

  Bruton, as interpreted by Richardson, holds that
  certain "powerfully incriminating extra judicial
  statements of a co-defendant" — those naming
  another defendant — considered as a class, are
  so prejudicial that limiting instructions cannot
  work. Unless the prosecutor wishes to hold separate
  trials or to use separate juries or to abandon use of
  the confession, he must redact the confession to
  reduce significantly or to eliminate the special
  prejudice that the Bruton Court found. Redactions that
  simply replace a name with an obvious blank space or a
  word such as "deleted" or a symbol or other similarly
  obvious indications of alteration, however, leave
  statements that, considered as a class, so closely
  resemble Bruton's unredacted statements that, in our

  the law must require the same result. (citations

The defendants seize upon Footnote 5 in Richardson at 481 U.S. at 211, 107 S.Ct. 1702 in which the Court stated "We express no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun" and interpret Gray as deciding that open question and as requiring the suppression of statements in which such replacements have been made. This Circuit and others have uniformly admitted confessions which have been redacted to replace the names of co-defendants with pronouns or similarly neutral words in cases decided after Richardson In United States v. Williams, 936 F.2d 698 (2d Cir. 1991) the confession was redacted to replace the name of the defendant with the word "guy." In rejecting Williams' attack upon the admission of the confession as thus redacted, the Court wrote, at 700-01:

  These decisions have uniformly held that the
  appropriate analysis to be used when applying the
  Bruton rule requires that we view the redacted
  confession in isolation from the other evidence
  introduced at trial. If the confession, when so
  viewed, does not incriminate the defendant, then it
  may be admitted with a proper limiting instruction
  even though other evidence in the case indicates that
  the neutral pronoun is in fact a reference to the
  defendant. This analysis is adopted directly from
  Richardson itself and the principal extension of
  Richardson by our decisions is that they allow
  redacted confessions to refer to accomplices with
  neutral pronouns. (emphasis added).

Cases which have been decided since Gray v. Maryland have uniformly reached the same result. See, e.g., United States v. Edwards, 159 F.3d 1117 (8th Cir. 1998) (references to co-defendants by name replaced with neutral pronouns such as "we," "they," "someone," and "others"); United States v. Stockheimer, 157 F.3d 1082 (7th Cir. 1998); Herrera v. United States, 1998 WL 770559 (S.D.N.Y. 1998); United States v. Cambrelen, 18 F. Supp.2d 226 (E.D.N.Y. 1998); But see United States v. Peterson, 140 F.3d 819 (9th Cir. 1998) (replacing defendant's name with "Person X" impermissible under Gray); United States v. Valdez, 146 F.3d 547 (8th Cir. 1998); United States v. Hickman, 151 F.3d 446 (5th Cir. 1998) (blocking out codefendant's name with marker impermissible under Gray). See also 112 Harv.L.Rev. 142 (1998) for critical assessment of Gray.

The reference to the co-defendants by name in the statements made by others were either redacted entirely or were replaced by "someone"; "that person" (relating back to "someone"); "people"; "an individual"; neither of which run afoul of Gray. That Gray does not abjure the holding in Richardson and does not flatly prohibit the substitution of neutral pronouns and symbols for names is fairly deduced from the following excerpt from the opinion at 118 S.Ct. at 1157:

  Additional redaction of a confession that uses a blank
  space, the word "delete," or a symbol, however,
  normally is possible. Consider as an example a portion
  of the confession before us: The witness who read the
  confession told the jury that the confession (among
  other things) said,

"Question: Who was in the group that beat Stacey"

"Answer: Me, deleted, deleted, and a few other guys."

Why could the witness not, instead, have said:

"Question: Who was in the group that beat Stacey?"

"Answer: Me and a few other guys."

The motions to suppress the statements are accordingly denied.

The Search and Seizure Motions

A. Apartment 5B, 1167 Stanley Avenue

Nix has moved to suppress the items seized in the course of a search of apartment 5B, 1167 Stanley Avenue. He contends that the initial entry into the apartment by police officers to execute an arrest warrant was unlawful and fatally flawed the search warrant grounded in the affidavit of the same police officers and which described what they observed in the apartment during the execution of the arrest warrant.

On December 15, 1997, warrants were issued for the arrest of all the defendants based upon an indictment which had been returned that day and in which all were named. On the same day, December 15, 1997, Magistrate Judge Pollak issued search warrants for an apartment at 1212 Lorring Avenue and for an apartment at 1165 Stanley Avenue. The affidavit in support of an application for those warrants described both apartments as being closely linked to the criminal activity of the C-I-C/Caveman gang (the "gang"). During the search of the Lorring Avenue apartment, officers interviewed its occupant who confirmed that the gang had used the apartment to store guns and narcotics. The occupant also told the officers that Nix and other members of the gang who were the subjects of the arrest warrants referred to above, were using an apartment at 1167 Stanley Avenue to store contraband. The precise apartment was not known by the informant other than that it faced the back of the building. Based upon additional information detailed in the affidavit of Special Agent John Mulligan of the F.B.I. in support of the application for a search warrant of the subject apartment, police went to the fifth floor of 1167 Stanley Avenue and forcibly entered apartment 5B to execute the arrest warrants for defendants Straight, Arroyo and others. A security sweep of that apartment exposed Arroyo, Nix and Straight hiding in various places and also provided a view of a bullet proof vest and bags used to carry "bombs," the term used to describe bags that carry 100 vials of crack cocaine. I would note in passing, that although the police could arguably have properly seized the items which were in plain view having been in the apartment lawfully and inadvertently discovering items which they surely had probable cause to believe were evidence of a crime, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564(1971); United States v. Jackson, 778 F.2d 933 (2d Cir. 1985); United States v. Levasseur, 816 F.2d 37 (2d Cir. 1987), they did not, but instead made application for a search warrant which was duly issued by Magistrate Judge Pollak on December 16, 1997.

In a motion to suppress physical evidence, the burden of proof is on the defendant who seeks the suppression. United States v. Feldman, 606 F.2d 673 (6th Cir. 1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1648, 64 L.Ed.2d 236(1980). Once the defendant, however, has established some basis for the motion, then the burden shifts to the government to show that the search was lawful. United States v. Sacco, 563 F.2d 552 (2d Cir.), cert. denied, 434 U.S. 1039, 98 S.Ct. 779, 54 L.Ed.2d 789(1978). The standard of proof in this regard is a preponderance of evidence. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242(1974).

Considerable discussion has been devoted to the propriety of events surrounding the execution of the arrest warrants and the implications of that event for the search pursuant to a warrant conducted thereafter. In my view, that discussion is superfluous and has no bearing on the issue of whether the contraband seized should be excluded from evidence. The questions to be asked, the answers to which are dispositive, are: (1) Was the search warrant properly issued? and, (2) if not, was the police officer's reliance upon the magistrate judge's probable cause determination and on the technical sufficiency of the warrant issued objectively reasonable?

To satisfy the warrant requirement of the Fourth Amendment, an impartial, judicial officer must assess whether the police have probable cause to conduct a search, or to seize evidence, instrumentalities, fruits of a crime or contraband. See, e.g., Warden v. Hayden, 387 U.S. 294, 301-02, 87 S.Ct. 1642, 18 L.Ed.2d 782(1967). The magistrate must consider the facts and circumstances in a practical common sense manner and make an independent assessment regarding probable cause. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983). The determination by a magistrate that a warrant should issue is to be accorded great deference when reviewed de novo. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). An application of those basic principles to the affidavit of Special Agent John Mulligan drives the court to conclude that considering the facts and circumstances it describes in a practical common sense manner there is more than sufficient probable cause to conduct the search. To entertain the argument that Special Agent Mulligan's affidavit was wanting in ...

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