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U.S. v. WILLIAMS

December 18, 2001

UNITED STATES OF AMERICA,
V.
XAVIER WILLIAMS, A/K/A "XAVIER TORRES", A/K/A "X," A/K/A "RICHIE TORRES," ELIJAH BOBBY WILLIAMS, A/K/A "BOBBY TORRES," A/K/A "BOSCO," MICHAEL WILLIAMS, A/K/A "DAVID MICHAEL TORRES," A/K/A "MIKE TORRES," A/K/A "MIKE FOSTER," KELLY ROLON A/K/A "ALEXUS QUINONES," DEFENDANTS.



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

      MEMORANDUM AND ORDER

The four defendants in this case were indicted on September 26, 2000 on multiple counts, including, inter alia, narcotics trafficking, racketeering, and murder. The Government alleges that they were all members of a criminal enterprise referred to in the Indictment as the "Torres Organization."*fn1

Before the Court are numerous pre-trial motions by the defendants. On October 16-17 and 30-31, 2001, and on November 1, 2001, the Court held evidentiary hearings in regard to several of these motions. The Court heard testimony from Detectives James Cvetic and Gary Tallant of the Allegheny County Police Department as well as from Special Agent Robert Ryan of the Internal Revenue Service. No defendant testified at these hearings, nor did any defendant call any witnesses. The findings of fact herein are based upon the testimony adduced at these hearings and we dispose of the defendants' motions*fn2 as follows:

A. Michael and Xavier Williams's motions to suppress evidence seized from their apartments at 5631 Rippey Street in Pittsburgh on or about February 21, 1996 are denied.
B. Xavier Williams's motions to suppress evidence seized from his Toyota Land Cruiser and his person on or about March 1, 1996 are denied.
C. Xavier Williams's motions to suppress evidence seized from his apartment at 1609 East 174th Street in the Bronx and from his Nissan Maxima on or about September 28, 2000 are denied.
D. Xavier Williams's motion to suppress evidence seized from his Lincoln Navigator on or about November 2, 2000 is denied.
E. Michael Williams's motion to suppress a post-arrest statement he made on March 22, 1996 is granted.
F. Elijah Bobby Williams's motion to suppress a post-arrest statement he made on April 21, 1996 is denied.
G. Michael Williams's motion to dismiss Counts Five, Six, and Seven of the Indictment is denied.
H. Xavier Williams's motion to dismiss Count Three and Racketeering Act 1 of Count One of the Indictment is denied.
I. Xavier and Michael Williams's motions to compel the Government to provide the defendants with a bill of particulars is denied.
J. Xavier and Michael Williams's motions to compel certain discovery is denied in part and granted in part.
K. Xavier Williams's motion to hold government prosecutors in contempt is denied.
L. Xavier Williams's motion for an order mandating the return of certain items seized from him is denied.

M. Michael Williams's motion for severance is denied.

N. Kelly Rolon's motion for severance is granted.

I. BACKGROUND

The defendants are accused of being members of a narcotics trafficking organization responsible for various acts of violence, including murder. Indictment at 3. Xavier Williams and Elijah Bobby Williams are brothers, and Michael Williams is Elijah Bobby Williams's son.*fn3 Kelly Rolon is Xavier Williams's wife. A lengthy investigation conducted primarily by the New York Police Department ("NYPD") and the Bureau of Alcohol, Tobacco & Firearms ("ATF") led to a grand jury returning a 17-count indictment. Because the Williams defendants are accused, in Counts Five, Six, and Seven, of crimes for which the death penalty may be sought, each has been appointed two attorneys, one of whom is "learned in the law applicable to capital cases" in accordance with 18 U.S.C. § 3005.

II. DISCUSSION

A. Motions to Suppress the Fruits of the Searches of the Rippey Street Apartments

1. Facts

On February 21, 1996, Detective Tallant drafted an affidavit (the "Tallant affidavit") in support of an application for a warrant to search the Rippey Street apartments. 11/1 Tr. at 6-7.*fn4 He did not consult any prosecutors from the District Attorney's Office or anywhere else for drafting assistance. Id. at 9. Det. Cvetic reviewed the affidavit, and then they both swore to it before a night court magistrate. Id. at 21-22. The Tallant affidavit reads as follows:

Your affiants are Detectives assigned to the Homicide Unit of the Allegheny County Police Department. All of the information contained in this affidavit was learned directly by your affiants, or relayed to your affiants by other police officers involved in this investigation.
On the evening of February 18, 1996, the Wilkinsburg Police Department requested investigative assistance from the Allegheny County Police Homicide Unit. This request was in regards [sic] to a recent shooting incident that occurred in the 1100 block of Sperling Street in Wilkinsburg. It was subsequently learned that there were three (3) victims in this case, and all of the shooting victims were pronounced dead at the scene by Emergency Medical Personnel. The victims were all shot while seated in a parked 1982 Ford Bronco. The victims were Timothy A. Moore, B/M/25, Joel MOORE, B/M/19, and Robert JAMES, B/M/33. The investigation revealed that two armed suspects approached the victim's vehicle, and that the suspects then fired numerous gunshots into the victim's [sic].
During the course of this investigation, it was learned that the three victims were involved in drug related activities. It was also learned that the victims had made a recent drug deal(s) with individuals known to frequent the Wilkinsburg/East Liberty Section of Allegheny County.
Numerous interviews have been conducted in this case. The identity of these witnesses is known to your affiants. These witnesses will be available to testify at any necessary court proceedings. It was collectively learned through these witnesses that several days prior to the shooting incident, Timothy MOORE (victim), made a crack cocaine drug deal with individuals that he knew as "BOB" and "MIKE". Bob and Mike previously indicated that they were brothers, and they were from New York. It was learned that the drug deals in question were set up through the use of telephone pagers. The telephone pager numbers for Bob and Mike were #574-5647 and #574-1745 respectively.
It was learned that during the investigation that "Bob" had a home telephone number of #661-4862. This telephone number is listed to a David Michael TORRES of 5631 Rippey Street, Apt. C-2, Pittsburgh, PA 15206. This apartment is located in the East Liberty Section of Pittsburgh. The age of Torres is consistent with the approx. age of "Bob" (as given by various witnesses).
The investigation revealed that on the evening in question, the victims agreed to meet with BOB and MIKE in Wilkinsburg to settle a drug related debt. It was reported that Tim MOORE had previously paid Bob and/or Mike approx. $2,300 for crack cocaine, but that Moore was not given arty drugs in return for the money. The victims were to meet Bob and Mike at approx. 8:30 PM (2-18-96) in a parking lot of a Texaco Gas Station in Wilkinsburg. The purpose of the meeting was to resolve the dispute over the aforementioned crack cocaine deal. Witnesses indicated that the victim's departed from the New Stanton area of Westmoreland County for Wilkinsburg at approx. 8:00 PM. It should be noted that the planned meeting place for the drug deal was in close proximity to the shooting scene.
During the investigation, your affiant learned through witnesses that the suspects, (BOB/MIKE) lived in the area of Rippey Street in the East Liberty Section of Pittsburgh. It was also learned that Bob and Mike lived with a relative known as "X". The investigation revealed that David MICHAEL TORRES resides at 5631 Rippey Street, Apt. C-2 and that two relatives lived at that same address. These relatives are Robert TORRES, AKA "BOB" Torres, and Xavier TORRES. Robert Torres lives in apartment #C-5, while Xavier resides in apartment B-3.
During a recent surveillance of the apartment building in question, a vehicle was found to be parked in front of the structure. This vehicle had a New York license plates [sic] affixed to it. The description of this car was consistent with the description of the suspect car that was observed fleeing the shooting scene.
Based on the above facts and circumstances, your affiants respectfully request a Search Warrant for the above listed residence.

The warrant was subsequently issued by the night court magistrate and executed by state officers the same day. Id. at 7.

Following the search, Michael Williams and Xavier Williams were arrested and charged in Pennsylvania state court with homicide and drug possession, respectively. See Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 536 (2001); X.W. Mem. at 1. Michael Williams filed a pre-trial motion in state court seeking, inter alia, suppression of the fruits of the search of his Rippey Street apartment. Torres, 764 A.2d at 536. The state court granted his motion, on the grounds that the search warrant was deficient because (a) it failed to establish probable cause to search the apartment; (b) it failed to establish the reliability of the sources of the information on which it was based; and (c) it failed to establish the time frame within which the information was obtained. See Commonwealth v. Torres, 714 A.2d 416, 419 (1998). Following this suppression order, the Commonwealth moved to "nolle prosse," or abandon, its case against Xavier Williams, and the court entered an order to that effect. Commonwealth v. Williams, cc 9700236 (Order of Court dated Dec. 1, 1997). The suppression order was overturned by an intermediate state appellate court, Torres, 714 A.2d at 421, but was eventually affirmed by the Supreme Court of Pennsylvania.*fn5 Torres, 764 A.2d at 540.

2. Analysis

a. Applicability of the Exclusionary Rule

The Government argues that the exclusionary rule should not be applied to the searches of the Rippey Street apartments because the search was conducted by agents of the State of Pennsylvania without any assistance from the federal agencies involved in obtaining the present indictment. Gov't Opp. at 5-10. Specifically, the Government contends that because the goal of the exclusionary rule is to deter official misconduct, and because this prosecution is so far removed from the search at issue, when we balance the "`additional marginal deterrence' obtained by invoking the [exclusionary] rule "against the cost to the public interest of further impairing the pursuit of truth'" we should decline to invoke the exclusionary rule. Id. at 6 (quoting Tirado v. Commissioner, 689 F.2d 307, 310 (2d Cir. 1982)).

We do not, however, have discretion in the matter. In Elkins v. United States, the Supreme Court rejected the argument put forth by the Government and held that "evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant' s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial." 364 U.S. 206, 223, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The Elkins rule remains the law. See, e.g., Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001); United States v. Jones, 185 F.3d 459, 463 (5th Cir. 1999) ("The question that a federal court must ask when state officials secure evidence to be used against a defendant accused of a federal offense is whether the actions of the state officials violated the Fourth Amendment of the United States Constitution.") (internal quotation omitted). It is clear, then, that the exclusionary rule does apply to the searches at issue here. Indeed, any other result would be fraught with mischievous potential.

b. Probable Cause

In Commonwealth v. Torres, the Supreme Court of Pennsylvania carefully considered the issue of whether the Tallant affidavit stated probable cause. We agree with its conclusion that, on its face, the Tallant affidavit did not satisfy the probable cause requirement of the Fourth Amendment as articulated in Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).*fn6 Specifically, we agree that the failure of the affidavit to (a) set forth the basis of knowledge and veracity of the anonymous sources cited therein, (b) provide any indication of which of the anonymous sources provided each piece of information included therein, and (c) provide significant indicia of reliability to overcome these other failures, rendered it insufficient to meet the requirements of the Fourth Amendment. Torres, 764 A.2d at 539-40; see also Gates, 462 U.S. at 238-39, 103 S.Ct. 2317; United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3 at 88 (3d ed. 1996). In contrast to Pennsylvania's jurisprudence, our analysis does not end here.

c. Good Faith Exception

Unlike Pennsylvania, which does not have a "good faith exception" to the exclusionary rule, Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 899 (1991), the federal courts do recognize such an exception. United States v. Leon, 468 U.S. 897, 899, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Therefore, the Government argues that, even if the Rippey Street search warrant was invalid, the good faith exception to the warrant requirement applies to the case at bar. Gov't Opp. at 26. We agree, and for this reason, the evidence seized from the Rippey Street apartments shall not be suppressed for violating the defendants Fourth Amendment rights.

In Leon, the Supreme Court held that the Fourth Amendment does not bar the Government from using "evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause" in its case-in-chief. 468 U.S. at 899, 104 S.Ct. 3405. As we have found that the warrant in question was unsupported by probable cause, see Section II.A.2.b, supra, and the defendants have not argued that the magistrate was anything but detached and neutral, our analysis boils down to the question of whether Detectives Tallant and Cvetic, who swore to the affidavit, and the other officers who executed the warrant, acted in accordance with the standard set forth in Leon. This is an objective standard, namely, "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 923 n. 23, 104 S.Ct. 3405; see also id. at 919 n. 20, 104 S.Ct. 3405.

Here, Det. Tallant not only swore to the affidavit that led to the Rippey Street search warrant, he captained the execution of the warrant that very evening. 11/1 Tr. at 16-18 (Det. Tallant explaining how he led several "teams" of officers in executing the search). Thus, our inquiry focuses on whether a "reasonably well trained officer" who drafted and swore to this affidavit, then led the search pursuant to a warrant supported by the affidavit, would have "known that the search was illegal, despite the magistrate's authorization." Leon, 468 U.S. at 923 n. 23, 104 S.Ct. 3405. We find that a reasonably well trained officer in that position would have relied in good faith on the warrant and not known that the search was illegal.

Det. Tallant testified that the information in the affidavit was primarily obtained from several sources: Roger Moore, brother of homicide victim Timothy Moore; Tica Carter, Timothy Moore's live-in girlfriend; and an unnamed live-in girlfriend to Robert James. 11/1 Tr. at 58-68. He further testified that he carefully drafted the affidavit so as to prevent the defendants from learning the identities of the witnesses in order to protect them from possible retaliation by the defendants, who would receive a copy of the affidavit at the time of the search. Id. at 9-12, 42-44. Thus, Det. Tallant did not put the names of any witnesses in the affidavit. Id. at 10. In addition, he gave all the information in a "collective" manner, because a defendant might have been able to identify an unnamed witness by the specific information with which they are credited. Id. at 43. While this methodology is the primary reason for the warrant's invalidity, see Section II.A.2.b, supra, we find that it was done in good faith and that a reasonably well trained officer could believe that, because a magistrate had accepted an affidavit written in this style, it was valid under the Constitution.

Det. Tallant testified as to the basis of knowledge of the sources who provided the information contained in the Tallant affidavit. For our purposes, it will suffice to mention just a few excerpts from Det. Tallant's testimony. He testified that Roger Moore and the victims' girlfriends had personal knowledge of the victims' drug activities. 11/1 Tr. at 58. He testified that the pager numbers listed in the affidavit were obtained from a girlfriend of one of the victims, who had "dialed some of those pager numbers herself." Id. at 59. He stated that Roger Moore had spoken to victim Tim Moore on the day of the homicides, and the latter told him that he was going to settle a drug debt of approximately $2,000-$3,000 that night, and that Robert James's girlfriend also told him of the debt-settlement meeting. Id. at 63-64. Finally, Det. Tallant testified that one of the girlfriends told him that the defendants lived in the Rippey Street Apartments. Id. at 66-67.

Det. Tallant also testified as to the reliability of the witnesses:

What satisfied me about their reliability is that they related to me things that they knew personally, not things that were told to them by others, that they had conversations with the victims, that they had in fact, in the case of one witness, had actually met [Elijah Bobby Williams] and [Michael Williams] and that they knew about drug transactions because they had witnessed them.
One witness was even admitting to the fact that this witness was using drugs with them and [], in my estimation, was very straightforward because this information put this particular witness in a bad light, explaining that they also had this drug-related lifestyle. I felt that they were very forthcoming with the information. Their concerns to me were not about things that they had done or illegal activities that they were involved with, they were very open about that, their concerns were safety concerns. So I felt that they were reliable.

Id. at 55-56.

Finally, Det. Tallant repeatedly testified that he honestly believed that the warrant was valid. See, e.g., id. at 8, 20. As Leon announced an objective test, this fact may seem irrelevant. Leon, 468 U.S. at 919 a. 20, 923 n. 23, 104 S.Ct. 3405. Nevertheless, the core of the Leon test is whether the search was conducted in "good faith." Thus, we would not condone a search that was conducted in pursuant to a warrant which a reasonably well trained officer could rely, but the actual officer who executed the warrant subjectively knew that it failed to state probable cause. See LaFave § 1.3(e) at 68.

In conclusion, we find that Det. Tallant and the other officers who conducted the search of the Rippey Street apartments did so in reasonable reliance on the later invalidated search warrant, and, therefore are entitled to the Leon "good faith" exception to the exclusionary rule. Accordingly, we do not suppress the fruits of the searches of the Rippey Street apartments for violating defendants' Fourth Amendment rights.

B. Motions to Suppress the Fruits of the March 1, 1996 Searches

1. Facts

On October 7, 1995, the NYPD received a phone call stating that two men had been shot on 174th Street in the Bronx, New York. Transcript of Suppression Hearing held October 16, 2001 ("10/16 Tr.") at 9. NYPD Detective Robert A. Nugent and Officer Hector Rivera, among others, went to the scene, where Det. Nugent spoke to one of the victims, Victor Mercado. Id. at 9, 12. Mercado was badly injured as a result of the shooting, and the police feared that he might die from his injuries. Id. at 35, 9. As Mercado was being placed in an ambulance, Det. Nugent asked him for the identity of the perpetrator. Id. Mercado replied that "X" had shot him, and when Det. Nugent asked for the identity of "X," Mercado told him that "X" was Xavier Williams. Id. at 10.

At the scene of the shooting, Det. Nagent also spoke with the other victim, Jose Vazquez. Id. at 27. Vazquez told Det. Nugent that he thought the shooter was a dark-skinned Hispanic man in a hooded sweatshirt. Id. at 27-28; Det. Nugent's Investigation Notes at "2305."

Several days later, Det. Nugent again interviewed the victims in the hospital where they was receiving treatment. 10/16 Tr. at 10, 40. Again, Mercado repeated that it was Xavier Williams, whom Mercado claimed to have known since the fifth or sixth grade of grammar school, who had shot him. Id. at 10. In addition, he picked out a picture of Xavier Williams from a array of photographs of six men. Id. at 39. Det. Nugent also showed Vazquez the same photograph array that was shown to Mercado. Id. at 40. Vazquez, however, did not pick anyone out as the perpetrator. Id.

In response to these interviews, NYPD officers from Det. Nugent's precinct immediately began searching for Xavier Williams. Id. at 11. Det. Nugent also prepared a "wanted card" and "wanted poster" for Xavier Williams, so that if he were stopped by law enforcement officers, they would know that he ...


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