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October 31, 2001


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Seven defendants in this case — Jose Santiago ("Santiago"), Jose Baerga ("Baerga"), Julius Williams ("Williams"), Antonio Rodriguez ("Rodriguez"), Joseph Rini ("Rini"), Adrian Agostini ("Agostini") and Julian Marquez ("Marquez") — bring before the Court different pretrial motions seeking, among other forms of relief, severance, suppression of evidence and pre-trial disclosure. As indicated below, several other defendants charged in the same indictment, while joining in aspects of the instant motions, did not file their own.*fn1 Oral argument in connection with these motions was heard on June 22, 2001. For the reasons set forth below, the motions are granted in part and denied in part.


On November 14, 2000, the Government filed sixteen count Indictment S3 00 Cr. 237 (the "superseding Indictment") in this case charging eighteen defendants with engaging in racketeering and narcotics activities in this District from in or about 1994 through and including March 21, 2000.*fn2

Count One of the Superseding Indictment charges that a racketeering enterprise known as "Thief David's Crew" operated in the Bronx, New York and engaged in various acts of violence. Eight racketeering acts are described as being committed in furtherance of such racketeering activity, including extortion, narcotics trafficking, murder, attempted murder and robbery. Count Two charges that certain defendants conspired to violate the racketeering laws of the United States.

Count Three charges other defendants with conspiracy to violate the narcotics laws of the United States by distributing and possessing with intent to distribute heroin, crack cocaine and marijuana. Count Three sets forth thirteen overt acts in furtherance of the narcotics conspiracy. The remaining thirteen counts charge various defendants with substantive crimes including murder, attempted murder and assault with a dangerous weapon.

To date, ten defendants charged in this matter have entered guilty pleas and have either been sentenced or are scheduled for sentencing: Renames Arroyo; Lawrence Cherry; Leighton Miles; Elvis Rodriguez; Juan Quinones; Roy Castro; Ruben Pacheco; Richard Mercado; Michael Cofield; and Juaquin Diaz. The remaining ten defendants include the seven defendants who filed motions in this case and the three of the four defendants who appeared through counsel at the oral argument. The trial in this matter is scheduled to commence on January 7, 2002.



Marquez, Rodriguez, Rini and Agostini move for severance of their trials, arguing that severance is warranted due to the length and attendant burdensomeness of a trial that aggregates all remaining defendants.*fn3 See Marquez Memorandum of Law in Support of Pre-Trial Motions, dated Feb. 6, 2001 ("Marquez Memo"), at 3-9; Rini Memorandum of Law, dated Feb. 20, 2001 ("Rini Memo"), at 11-15; Affirmation of Sanford M. Katz in Support of Rodriguez's Pre-Trial Motions, sworn to Mar. 8, 2001 ("Katz Aff."), at 11; Agostini Memorandum of Law in Support of Pre-Trial Motions, undated ("Agostini Memo"), at 7-8.

The movants further contend that they will suffer prejudicial spillover through a joint trial because the jury will improperly associate them with defendants accused of violent crime, especially Williams, whose alleged offense made him eligible for the death penalty. See Marquez Memo at 9-10; Letter from Sanford M. Katz to the Court, dated May 2, 2001 ("Rodriguez Reply"), at 1; Katz Aff. at 12; Agostini Memo at 3-7. In addition, Marquez and Rini argue that severance is particularly appropriate in their cases because they are charged in Count Three only — the narcotics conspiracy — and the jury will be incapable of independently evaluating the evidence pertaining to their alleged narcotics violations and the evidence pertaining to the violent crimes committed by the racketeering enterprise. See Marquez Memo at 2-3; Rini Memo at 15. Agostini attempts to make the same argument, although he is charged in Count Eight — assault with a deadly weapon — and Count Three. See Agostini Memo at 3-7.

As a preliminary matter, the Court notes that the Government responded to its order inquiring about the status of the Government's position regarding Williams by submitting a letter dated July 19, 2001 indicating that the Government would not seek to impose the death penalty against Williams. In light of this determination, the four defendants requesting severance may not prevail insofar as the motions are predicated upon Williams's eligibility for the death penalty.

Generally, Rule 14 of the Federal Rules of Criminal Procedure permits a trial judge to grant the severance of defendants "[i]f it appears that a defendant or the government is prejudiced by . . . joinder for trial together." Fed. R. Crim. p. 14. Rule 14, however, does not require severance even if prejudice is shown; rather, the tailoring of relief, if any, is left to the trial court's sound discretion. See United States v. Haynes, 16 F.3d 29, 32 (2d Cir. 1994). In fact, the federal judiciary harbors a strong presumption in favor of joinder as a mechanism for promoting judicial efficiency (see United States v. Gallo, 668 F. Supp. 736, 748 (E.D.N.Y. 1987)), and limiting instructions to the jury have emerged as the preferred device for curing any prejudicial spillover that may result from a multi-defendant, multi-count trial. See Zafiro v. United States, 506 U.S. 534, 539 (1993) United States v. Diaz, 176 F.3d 52, 103-04 (2d Cir.), cert. denied, 528 U.S. 875 (1999).*fn4

The Gallo court determined that a trial judge should consider the following factors in determining whether severance is warranted: (1) the number of defendants and the number of counts; (2) the complexity of the indictment; (3) the estimated length of the trial; (4) disparities in the degrees of involvement by defendants in the overall scheme; (5) possible conflict between various defense theories; and (6) prejudice resulting from evidence admissible as to some defendants, but not others. See Gallo, 668 F. Supp. at 749. While none of these factors is dispositive, each is intended to provide guidance as to whether a jury will be capable of considering the evidence as to each defendant separately, independent of evidence against co-defendants. See id. The moving defendant bears the burden of showing "facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial." United States v. An-Lo, 851 F.2d 547, 556 (2d Cir.), cert. denied, 488 U.S. 966 (1988) (quoting United States v. Rucker, 586 F.2d 899, 902 (2d Cir. 1978)).

In this case, the Court is not persuaded that severance is necessary. Defendants have not shown that a joint trial will prejudice them to a degree amounting to a miscarriage of justice. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994). This is true in large part because, despite defendants' avowals to the contrary, the racketeering and narcotics conspiracy charges in the Superseding Indictment are not mutually exclusive such that defendants accused of the narcotics involvement have no relationship to those charged with racketeering. Moreover, it has been noted that "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. Nunez, No. 00 Cr. 121, 2001 WL 91708, at *3 (S.D.N.Y. Feb. 1, 2001) (quoting United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied, 462 U.S. 1108 (1983)). Defendants have simply failed to satisfy their burden because "even if the Court were to grant severance, much of the evidence regarding . . . codefendants' acts of violence would be admissible in . . . [their] trial as proof of the existence and nature of the narcotics conspiracy." United States v. Muyet, 945 F. Supp. 586, 596 (S.D.N.Y. 1996).

Finally, ten defendants have already entered guilty pleas, and it is conceivable, as the Government has represented to the Court, that additional pleas may be entered. To that end, the Court is confident that this case — if it does go to trial — will not present such complicated legal and factual issues that the jury in its deliberations will be prone to misapply the evidence relevant to particular 56. Reliance on a single photograph ordinarily would establish impermissible suggestiveness because, without comparative photographs, Victim #8 had no alternative choices by which to test the certainty of his identification. See Simmons, 390 U.S. at 383 ("This danger [of misidentification] will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw.").

Despite the potential prejudice associated with the procedure by which Santiago was positively identified by Victim #8, his suppression claim clearly runs afoul of the reliability inquiry. According to the Government, Santiago was no stranger to Victim #8. Rather, he had significant occasions for prior exposure that included growing up in the same housing development, attending the same schools, seeing him on hundreds of occasions and having conversations with him. See Government Memo at 56-58. In fact, Santiago was accused in state court proceedings of witness tampering related to Victim #8, and he there advanced the same suppression claim that is now included in this case. The claim was rejected in that forum. See id.

The detective who showed the single photograph to Victim #8 testified in state court that he did so "as a confirmatory identification" because Victim #8 stated that he "knew [Santiago] for a number of years; had seen him on hundreds of occasions; [and] had conversations with him in the past." See id., Ex. B at 18, Ex. C at 39. Thus, this Court concludes that there is not a "very substantial likelihood of irreparable misidentification" by the introduction of Victim #8's identification testimony. Manson, 432 U.S. at 116. Accordingly, Santiago's motion to suppress is denied.

Williams's motion presents a different question because, though the Government has treated and opposed his motion as such, he does not argue, at least at this stage, for suppression of identification testimony. Instead, he requests additional discovery that may support a suggestiveness argument. Williams's position is thus entirely dependent upon conjecture. The weight of authority in this District favors rejecting such a motion, although two different rationales have been adopted for doing so.

Under the first approach, trial courts have denied applications for additional discovery of official identification procedures on the grounds that disclosure "would be tantamount to the disclosure of a list of the Government's witnesses and could require the disclosure of 3500 material." United States v. Marquez, No. 91 Cr. 451, 1992 WL 88139, at *9 (S.D.N.Y. Apr. 22, 1992). See also United States v. Reyes, 922 F. Supp. 818, 840 (S.D.N.Y. 1996) defendants and charges. Any risk of this kind can be mitigated through carefully crafted limiting instructions that warn the jurors to take into account only the evidence admissible against each defendant.


1. Suppression of Post-Arrest Statements

Defendants Williams, Rodriguez and Marquez move to suppress certain statements each allegedly made following his arrest. See Williams's Memorandum of Law in Support of Motion to Suppress, dated Feb. 12, 2001, at 1-10; Katz Aff. at 9-10 and Ex. A; Rodriguez Reply at 2; Marquez Memo at 10-11.

It is well established that the prosecution is barred from using statements made during the custodial interrogation of a defendant if Miranda warnings are not properly administered. See Miranda v. Arizona, 384 U.S. 436, 443 (1966). A defendant can waive his rights and agree to respond to questions, but such a waiver is not effective unless it is made voluntarily, knowingly and intelligently. See id. at 444-45.

A court may conclude that the waiver of Miranda rights is effective "only if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension." Moran v. Burbine, 475 U.S. 412, 421 (1956) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). Such an approach permits consideration of factors like "`age, experience, education, background, and intelligence,' as well as `whether the defendant has the capacity to understand the Miranda warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.'" United States v. Dickerson, 113 F. Supp.2d 324, 326 (N.D.N.Y. 2000) (quoting Fare, 442 U.S. at 725).

Miranda safeguards come into play when a person in custody is subjected to express questioning or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). If a defendant invokes his right to counsel after Miranda warnings are read, the Government is barred from questioning the defendant in the absence of counsel. See Miranda, 384 U.S. at 444-45. However, the Government's obligation to refrain from interrogating a defendant outside the presence of his attorney "is not breached unless the Government has taken some action `that was designed deliberately to elicit incriminating remarks.'" United States v. Romero, 97 Cr. 650, 1998 WL 788799, at *2 (S.D.N.Y. Nov. 10, 1998) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986)).

a. Williams's Suppression Motion

Williams averred that the arresting officers interrogated him before reading him his Miranda rights. See Affidavit of Julius Williams, sworn to Feb. 12, 2001, ¶ ¶ 7, 10. Williams maintains that Miranda warnings were administered only after he was asked several questions regarding the death of Allen McLeod ("McLeod"), the individual he is accused of murdering. See id., ¶ ¶ 9-10.

The Government acknowledged that a hearing to determine the admissibility of Williams's post-arrest statements was required by the rule announced in United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998). See Government's Memorandum in Opposition to Defendants' Pre-Trial Motions, dated Apr. 23, 2001 ("Government Memo"), at 44. In that case, the Second Circuit held that a defendant's bare assertion that his Miranda rights were not read to him prior to the commencement of interrogation created a sufficient factual dispute to justify a hearing. See Mathurin, 148 F.3d at 69. Thus, the Court granted Williams's motion for a hearing on this suppression claim and held a hearing on September 7, 2001.

At the hearing, the Government produced one witness, Detective David Gallinari ("Gallinari") of the New York City Police Department, who conducted the interrogation of Williams at the 40th precinct Detective Squad shortly after his arrest on July 10, 1998. See Transcript from Hearing, dated Sept. 7, 2001 ("Williams Tr."), at 10, 18. It was Gallinari who read Williams his Miranda rights. See id. at 11-12, 22-23.

According to Gallinari, his questioning of Williams commenced at 3:00 p.m. after the Miranda rights were read (see id. at 10, 22-23), and Williams, though refusing to sign the standard Miranda waiver form, nonetheless made statements that he was in New Jersey at BJ's when he heard on the news that McLeod was killed; that he did not know anything about the McLeod killing; that he knew McLeod and McLeod's brother from the projects; and that he did not know anyone named Thief David, Cuso, Eric Ortiz or Juaquin Diaz. See id. at 12-13; Affidavit of Richard W. Brewster, sworn to Feb. 12, 2001, Ex. C.

Subsequent to this exchange, which lasted approximately five minutes (see Tr. at 28), Williams refused to answer any more questions, and Gallinari stopped questioning him. See id. at 13-14, 32-33. Gallinari made a contemporaneous report of the interview, attaching a copy of the Miranda rights waiver form with a notation that Williams had declined to sign it. These documents were admitted into evidence at the suppression hearing. See Tr. at 15, 35.

Williams — through counsel — asserts that the statements attributed to him were made prior to the Miranda warnings and that his refusal to sign the explicit waiver form provided by Gallinari indicated a reluctance to further participate in the interview and a desire not to waive his rights. See Williams Tr. at 24-25. Simply put, Williams claims that when a defendant refuses to sign an explicit waiver card and a law enforcement officer proceeds with questioning, the answers are involuntary and the waiver is not knowing, intelligent or voluntary. See id. at 41-42, 50; Letter from Williams's counsel to the Court, dated Sept. 14, 2001, at 1-3.

The Government has argued that a suspect's refusal to sign an explicit waiver card cannot be held to mean that Miranda warnings were not given; that a law enforcement officer cannot continue to question a defendant until explicitly stopped by the defendant; or that the refusal to sign, by itself, constitutes evidence of involuntariness. See Letter from the Government to the Court, dated Sept. 24, 2001, at 1-6.

The Court credits the testimony of Detective Gallinari and finds nothing in the record to indicate that Williams did not understand the Miranda warnings, his conversation with Gallinari, or the significance of waiving his rights. The Court further finds that there is no evidence in the record suggesting Gallinari engaged in any coercive or deceptive conduct during his interview with Williams. Focusing on Williams's refusal to sign the waiver card, the Court notes that while refusal to execute a written waiver may be taken as an indication that no waiver was intended or freely given, the signing of an explicit waiver form is not a constitutional prerequisite, and a waiver remains valid when a defendant indicates a willingness to answer questions but refuses to sign waiver. See United States v. Spencer, 995 F.2d 10, 12 (2d Cir.) (upholding finding of knowing and voluntary waiver where defendant admitted that he was presented with waiver form describing his Miranda rights and that he understood all his rights, despite his refusal to sign waiver form), cert. denied, 510 U.S. 923 (1993); United States v. Maldonado-Rivera, 922 F.2d 934, 972-73 (2d Cir. 1990) (upholding district court's determination that defendant waived his Miranda rights despite refusal to sign explicit waiver form), cert. denied, 501 U.S. 1233 (1991); United States v. Boston, 508 F.2d 1171, 1175 (2d Cir. 1974) ("[Defendantl does not urge that the absence of a written waiver automatically bars the admission of a confession. It is clear, in any event, that a written waiver is not required."), cert. denied, 421 U.S. 1001 (1975).

Based on the foregoing, the Court concludes that, in light of the short length of Gallinari's interview; Williams's prior experience in the criminal justice system; and the evidence, including Williams's refusal to execute the waiver form, that Williams's will was not overborne by coercive questioning, Williams's statement was voluntary. See United States v. Vilar, 141 F.3d 1152 (2d Cir. 1998) (table).

The Court further concludes that Detective Gallinari properly apprised Williams of his constitutional rights under Miranda before he began to question Williams; that Williams waived his Miranda rights before he made any statements to Gallinari; that Williams's waiver was voluntary, intelligent and knowing; and that Williams was fully aware of the rights he waived and the consequences of waiving these rights. Accordingly, the Court denies Williams's motion to suppress his post-arrest statements.*fn5

b. Rodriquez's Suppression Motion

On the heels of this comment, the agent purportedly began "prodding" Rodriguez, which resulted in Rodriguez remarking that the alleged victim "was only grazed . . . like two inches." Id. at 10. Not surprisingly, the Government paints a different picture of the conversation between Rodriguez and the FBI agent. The Government insists that the agent was simply responding to Rodriguez's inquiry about the nature of the Superseding Indictment when Rodriguez spontaneously and voluntarily offered the comment about the shooting. See Government Memo at 47-48.

The Government asserts that a hearing to determine the admissibility of Rodriguez's post-arrest statements should be denied on both procedural and substantive grounds. Procedurally, the Government argues that Rodriguez's failure to supply an affidavit alleging the involuntariness of his statement precludes him from obtaining a hearing. See id. at 46. As to the merits of Rodriguez's claim, the Government contends that coercion cannot be found in the agent's furnishing of information to Rodriguez pursuant to Rodriguez's own request. See id. at 48-49.

Courts in this Circuit frequently require motions to suppress evidence — in order to raise factual issues warranting a hearing — be accompanied by affidavits describing the facts giving rise to a claim of inadmissibility and have held that an attorney's affidavit is insufficient for this purpose. See United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967); United States v. Belin, No. 99 Cr. 214, 2000 WL 679138, at *5 (S.D.N.Y. May 24, 2000); United States v. Vasta, 649 F. Supp. 974, 986 (S.D.N.Y. 1986). Unlike an allegation that Miranda warnings were not given, where a conclusory assertion suffices for purposes of obtaining a hearing, other grounds for suppression ordinarily must be supported by a factual exposition. See Mathurin, 148 F.3d at 69-70.

While it would have been preferable for Rodriguez to have submitted an affidavit detailing his claim of the coercive tactics government agents allegedly used to elicit the statement he seeks to suppress, the Court does not wish to compound this deficiency by exalting form over substance. Unlike factual issues that rest solely on objective, external events uniquely dependent on the suspect's personal knowledge and involvement, the question Rodriguez raises — whether he was duped by the agent — raises a matter that is inherently grounded on subjective facts, as well as on the state of mind and credibility of both Rodriguez and the police officer.

Under these circumstances, in the context of a determination regarding the voluntariness of a Miranda waiver, the key inquiry should be not whether Rodriguez expressed his allegation in a particular legal document, but whether he sufficiently described a detailed factual context, encompassing both objective and subjective circumstances, to squarely raise disputed issues of fact and state of mind that rest on credibility and that may give a plausible basis to his claim. In so concluding, the Court is mindful of the Miranda admonishment that "any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Miranda, 384 U.S. at 476.

Applying these considerations, the Court finds that Rodriguez has set forth sufficiently detailed facts under the analysis described above to warrant a hearing. Ordinarily, if it is the suspect who, upon receiving the Miranda warnings, initiates discussion with an officer, and the officer in response does not engage in express questioning or its "functional equivalent" and does not create an atmosphere in which his words and actions are "reasonably likely to elicit an incriminating response from the suspects", the suspect's statements may be deemed voluntary, and their use at trial is not prohibited. United States v. Cota, 953 F.2d 753, 759 (2d Cir. 1992) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

Here, Rodriguez maintains that he did not engage the agent in conversation but that the agent artfully tricked him and that he was thus essentially duped into incriminating himself. The Government, at this stage based on statements no more personally attested to than Rodriguez's, asserts that it was Rodriguez who initiated the conversation and made inculpatory statements without any prodding by the agent whatsoever. As advanced, the respective positions squarely raise a substantial factual dispute, the resolution of which fundamentally rests on an assessment of the credibility of Rodriguez and the agent. The Court concludes that a hearing is required in order to determine whether the agent's comments were in fact the ...

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