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U.S. v. SANTIAGO
October 31, 2001
UNITED STATES OF AMERICA,
JOSE SANTIAGO, ET AL., DEFENDANTS.
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
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
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
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.
B. SUPPRESSION OF EVIDENCE
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
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
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
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 ...