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August 18, 1999


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


Indictment number 99-CR-6027 was filed against the defendant on April 6, 1999, charging him with three counts, all in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). The defendant brought a Notice of Motion dated June 2, 1999 seeking various forms of relief. The Government filed a response dated June 18, 1999 in opposition to the defendant's motion. The Court heard oral argument on June 21, 1999, after which two matters remained outstanding. The first involved the defendant's request for a hearing on Project Exile, the prosecutorial initiative pursuant to which the United States Attorney brought the case. The Court reserved on this application. The second, involved the defendant's motion to suppress physical evidence that was seized as a result of two searches conducted at the defendant's residence following his arrest on a parole warrant. In regard to this matter, the Court held a hearing on July 7, 8, and 23 of 1999. For the reasons to be stated, both of the defendant's outstanding applications are denied.


The Project Exile program, which was initiated here in Rochester in September of 1998 and which is modeled after a similar program in Richmond, Virginia, is a result of the collaboration of several state and local law enforcement agencies, including the Monroe County District Attorney's Office, the Rochester Police Department, the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the United States Marshal's Service, the New York State Police, the Monroe County Sheriffs Department, the Monroe County Chiefs of Police, and the United States Attorney's Office. The stated purpose of the Project Exile program is to federally prosecute firearms-related crimes in order to take advantage of federal pre-trial detention and sentencing statutes. The defendant contends that Project Exile may violate his constitutional guarantee of equal protection under the law. As to this equal protection argument the defendant, who is an African-American, relies on three grounds. First, he suggests that he will likely be tried by a jury drawn from a population with a greater proportion of non-African-American people than he would be if prosecuted in State court. Accordingly, he moved for inspection of jury lists as an initial step in establishing this claim, and requested leave to supplement his jury composition argument after inspection of jury records. Although the Court granted the defendant access to the Master and Qualified jury wheels on July 21, 1999, the defendant has been unable to support his suggestion that the jury selection process in federal court is constitutionally infirm with any type of proof. Therefore, to the extent that the defendant is seeking any type of relief on this equal protection ground, it is denied.

The second ground advanced by the defendant is that Project Exile violates the Fifth Amendment prohibition against selective prosecution based on race. In this regard, the defendant attempts to show, through the use of statistics, that similarly-situated individuals are treated differently. Specifically, the defendant states that since January 1, 1998, twenty-seven of the thirty-three defendants the Federal Public Defender's Office has been assigned to represent on gun-related charges are African-American. To demonstrate that similarly-situated individuals of a different race have been treated differently, the defendant cites five cases where white gun offenders were not diverted from state court to federal court for prosecution, and suggests upon information and belief (without stating the sources of such information and belief), that other examples of non-African-American defendants being prosecuted in state court rather than federal court, exist. Based upon these allegations, the defendant requests a hearing, so he can subpoena witnesses and documents to support his claim. However, to be entitled to the relief he seeks, the defendant must make a credible showing that some evidence exists which tends to show, one, that similarly-situated individuals of a different race were not prosecuted and, two, that the decision to prosecute him was invidious or in bad faith. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). The Court finds that the statistics cited by the defendant do not amount to the requisite credible showing that similarly- situated individuals of a different race were not prosecuted. See United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992). Even assuming, arguendo, that the statistics advanced by the defendant constituted sufficient evidence of discriminatory effect, the defendant fails to offer any evidence of discriminatory intent. Consequently, the defendant's application for a hearing, based on selective prosecution is denied.*fn1

The third equal protection ground advanced by the defendant is one of disparate impact. Specifically, the defendant contends that by targeting the City of Rochester for its Project Exile initiative, the Government has, in effect, targeted African-Americans for prosecution. The relief the defendant seeks is a hearing on this claim as well. However, to be entitled to this relief, the defendant must not only demonstrate that the prosecutorial initiative has a disparate impact, he must also show racial animus or disparate treatment. In other words, a prosecutorial initiative, such as Project Exile, may legitimately "target a certain activity for enforcement, even if that activity is primarily engaged in by members of one race, without necessarily violating the Constitution's guarantee of equal protection." United States of America v. Jones, 36 F. Supp.2d 304, 312 (E.D.Va. 1999). Even if the Court were to accept the defense position that, based on 1990 Census Data, Project Exile disproportionally impacts African-Americans, the defendant has failed to come forward with any evidence regarding racial animus or disparate treatment. Therefore, the defendant's motion for a hearing on the ground of disparate impact is also denied.


As indicated above, two searches of the defendant's residence occurred following his arrest on a parole warrant on January 12, 1999. It is the defense position that both searches were unlawful, since no warrant had been issued and no exception to the warrant requirement existed to justify a warrantless search. At the commencement of the evidentiary hearing, the Government contended that the first search, which was limited to the defendant's bedroom, was proper as incident to a lawful arrest, or alternatively, valid under the rules and regulations of the New York State Division of Parole, which permit the search of a parolee's residence at any time. The Government further maintained that the second search, which included the defendant's entire residence, was lawful based on consent.

However, as the hearing progressed, the Government changed its position as to the first search of the defendant's bedroom. The undisputed facts established at the hearing were at odds with the Government's initial position that the search was incident to a lawful arrest. Moreover, based on the Court's research, it became apparent that the Government's alternate theory, that the New York State Division of Parole had carte blanche authority to search the defendant's residence, was at odds with both federal and state law. Nonetheless, as explained below, the Court finds that both the first search of the defendant's bedroom, and the second search of his entire residence were lawful.


The Court, having had a chance to consider the evidence presented at the hearing, including the testimony of all the witnesses called to the stand, as well as the exhibits received, and the Court having made determinations on issues of credibility, now makes the following findings of fact.

On January 12, 1999, the defendant, Charles Grimes was a parolee with the New York State Division of Parole assigned to the Rochester, New York Office. In this regard, on May 16, 1996, the defendant had signed a Certificate of Release to Parole Supervision in which he acknowledged certain conditions of release, including the following:

  4. I will permit my Parole Officer to visit me at my residence
  and/or place of employment and I will permit the search and
  inspection of my person, residence and property . . .*fn2
  6. I will notify my Parole Officer immediately any time I am in
  contact with or arrested by any law enforcement agency. I
  understand that I have a continuing duty to notify my Parole
  Officer of such contact or arrest.

As of January 1999, Grimes was living at 37 Linnet Street in the City of Rochester. His parole officer at the time was Cynthia Mooney. On January 11, 1999, the defendant had called Mooney to inform her that he had contact with members of the Rochester Police Department twice the preceding week for operating a motor vehicle without a license. However, the next day Mooney spoke to Sgt. Mark Mariano, the coordinator of the Clinton Section of the Rochester Police Department. Mariano told Mooney that the defendant was a suspect in numerous robberies. In particular, he mentioned to her a robbery of a beer delivery truck involving the use of a hand gun in which the driver of the truck had been assaulted. Mariano further reported to Mooney that the defendant's vehicle had been observed leaving the scene of the incident. Mooney also learned that when the defendant's vehicle was stopped by the police, it was searched, and while no gun was found, a ski mask was discovered, and that the defendant had been arrested and taken into custody. Mooney then conferenced the matter with Senior Parole Officer Philip Overfield. Additionally, Mooney advised Overfield that the defendant was in violation of the ...

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