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
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
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
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
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
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
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
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 ...