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United States District Court, Southern District of New York

March 19, 2003


The opinion of the court was delivered by: Richard Conway Casey, United States District Judge


Defendant Kienan Jenkins is charged in a one count indictment with possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). The Defendant entered a plea of not guilty on October 29, 2002 before this Court. Trial of this case is scheduled for April 7, 2003. The Government now requests that in the event the Defendant testifies that he did not possess a firearm, it be permitted to introduce an alleged post-arrest statement in order to impeach the Defendant. Additionally, the Government moves to quash a subpoena issued to the New York City Police Department ("NYPD"). For the reasons set forth below, the Government's motions are granted.

I. Background

On the night of September 12, 2002, officers from the New York City Housing Police Department allegedly observed a cloud of smoke and the smell of marijuana near a group of men at the Monroe Houses in the Bronx. Compl. ¶¶ 2(a), (b). The Defendant was among this group when Officer Michelson approached him to ask for identification. Id. ¶ 2(c). The Defendant produced his identification; however, when Officer Michelson returned it to the Defendant, he noticed a bulge over the Defendant's waistband. Id. ¶ 2(d). After tapping this bulge and believing it to be a gun, Officer Michelson again asked the Defendant for identification. Id. 2(d)-(e). The Defendant provided his identification for a second time, but after doing so he fled. Id. ¶ 2(g). While pursuing the Defendant, Officer Michelson observed the Defendant put an object into a trash compactor chute. Id. ¶ 2(h)-(j). Ultimately, Officer Michelson apprehended the Defendant and placed him under arrest. Id. ¶ 2(k). Officer Michelson then directed his fellow officers to search the trash compactor chute. Id. ¶ 2(m). These officers found a loaded .357 magnum Rossi revolver. Id. ¶ 2(n).

Following his arrest, the Defendant was taken to the housing precinct office (PSA-8) and placed in a holding cell. See Jenkins Decl. ¶ 2. Officer Michelson remained outside the Defendant's cell and questioned him. Id. ¶ 3. Officer Michelson asked the Defendant why he had run from the police and whether he had information about prior criminal incidents that had occurred in the Bronx. Id. The Defendant denied having knowledge about this criminal activity. Id. At some point Officer Michelson asked the Defendant whether it had been "real hot" around the Monroe Houses. Id. The Defendant contends that he replied, "yeah, that's what I heard." Id. On the other hand, the Government alleges that the Defendant responded to the effect of, "yeah, that's why I had it," or "that's why I was carrying the shit." The Government asserts that Officer Michelson understood Defendant's statement to be an admission of the fact that he had been carrying a gun, and terminated the conversation. The Defendant contends that following this conversation, he was informed of his Miranda rights for the first time. Id. ¶ 4. Which statement the Defendant actually made is an issue of fact for the jury to resolve at trial. However, for the reasons explained below, the Government may properly introduce its version of the Defendant's alleged statement should its introduction be appropriate for impeachment purposes.

II. Discussion

A. Use of Post-Arrest Statement for Impeachment Purposes

The Government has conceded that, pursuant to Miranda, it cannot offer its version of the Defendant's statement in its case in chief. Nevertheless, the Government contends that it may properly offer its version of the statement to impeach the Defendant, should he testify on direct examination that he did not possess a firearm. The Defendant argues that such use would be improper because there are significant questions about the trustworthiness of the alleged statement. In particular, the Defendant asserts that the Court must conduct a "specific reliability analysis," separate from an inquiry addressing the voluntariness of the statement. The Defendant maintains that given the totality of circumstances, the Government could not overcome its burden and therefore under such a reliability analysis the alleged statement may not be introduced at trial.

It is established that while a statement obtained in violation of a defendant's Miranda rights is subject to suppression from use in the Government's case in chief, it may nevertheless be used to cross-examine the defendant. See Harris v. New York, 401 U.S. 222, 226 (1971); United States v. Foley, 735 F.2d 45, 49 (2d Cir. 1984); United States v. Vega 589 F.2d 1147, 1152 n. 3 (2d Cir. 1978); United States v. Diop, 546 F.2d 484, 485 (2d Cir. 1976). Otherwise, the exclusion of such statements would effectively allow a defendant to lie with impunity, thereby licensing a defendant to commit perjury. See Harris, 401 U.S. at 225-26 ("Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . . The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."). Therefore, statements obtained in violation of a defendant's Miranda rights may be admissible for impeachment purposes so long as their "`trustworthiness . . . satisfied legal standards.'" Mincey v. Arizona, 437 U.S. 385, 398 (1978) (quoting Harris, 401 U.S. at 224).

The Court therefore turns to an examination of whether Defendant's statement is sufficiently trustworthy to be introduced for purposes of impeachment. The Defendant and the Government disagree as to the proper test the Court should employ to test the trustworthiness of the Defendant's alleged statement. The Defendant asserts that a statement obtained in violation of Miranda, but sought to be used by the Government for impeachment purposes, must be both voluntary and reliable in order to be sufficiently trustworthy for admission. On the other hand, the Government asserts that it must establish solely that the statement was made voluntarily and was therefore the product of a rational intellect and a free will. The Court agrees with the Government's position that it must prove by a preponderance of the evidence solely that Defendant's statement was voluntary.

The Supreme Court and Second Circuit have established that a statement violating Miranda may nonetheless be used for impeachment purposes so long as the Government demonstrates that the statement was voluntary. For instance, in Oregon v. Hass, 420 U.S. 714 (1975), the Supreme Court considered whether a defendant's statement, obtained in violation of Miranda, could be introduced by the Government to impeach a defendant. The Court reasoned that the statement was admissible because the statement was voluntary and not coerced by the police. The Court therefore stated, "There is no evidence or suggestion that [the defendant's] statements to [the police] . . . were involuntary or coerced. He properly sensed, to be sure, that he was in `trouble'; but the pressure on him was no greater than that on any person in like custody or under inquiry by any investigating officer." Id. at 723. The Court held that because the statement was voluntary, and not coerced, it was admissible to impeach the defendant.

Likewise, in United States v. Kaba, 999 F.2d 47 (2d Cir. 1993), the Second Circuit examined solely the question of whether or not a statement offered for impeachment purposes was voluntary. In Kaba the district court permitted the Government to cross-examine a defendant about statements obtained in violation of Miranda that were allegedly made to government agents. The defendant was subsequently convicted of narcotics distribution and appealed his conviction on the grounds that, inter alia, the court improperly permitted the Government to cross-examine him about these statements. In affirming the district court, the Second Circuit analyzed only the voluntariness issue and concluded that because the court's finding of voluntariness was not clearly erroneous, it was proper to use the defendant's statements for impeachment. See id. at 50-51. Accord United States v. Kapoor, No. 93 CR 1078, 1994 WL 174019, at *1 (S.D.N.Y. May 4, 1994) (holding that statements obtained in violation of Miranda could be used to impeach a defendant's credibility, but for the statements to be admissible the Government will have to show that the statements were made voluntarily).

The Court therefore agrees with the Government that if the statement was voluntary, the Court need not make an independent determination as to its reliability. If the Government makes such a showing, it may then introduce its version of the Defendant's post-arrest statement during cross-examination.

Voluntariness must be determined under "the totality of the circumstances" approach set forth in United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987). See also Diaz v. Senkowsky, 76 F.3d 61, 65 (2d Cir. 1996); Campaneria v. Reid, 891 F.2d 1014, 1019-20 (2d Cir. 1989). The Second Circuit has set forth relevant factors to be employed in determining the voluntariness of a defendant's statement. These factors include "the accused's age, his lack of education or low intelligence, the failure to give Miranda warnings, the length of detention, the nature of the interrogation, and any use of physical punishment." Campaneria, 891 F.2d at 1020.

Employing these factors, the Court finds that the Government has established that the Defendant's statement was voluntary. First, the Defendant does not allege that he was subject to lengthy or coercive questioning or subjected to physical punishment. Second, Defendant does not allege that he was physically or mentally unwell when he made the statement. In fact, the Defendant himself asserts that he told the police he did not wish to speak with them, and that he did not speak except for his response to Officer Michelson's question, which is at issue here. Third, neither Mr. Jenkin's age nor lack of intelligence indicate that his statement was involuntary. To the contrary, the Defendant, who is twenty-six years old, has two prior felony convictions and is therefore familiar with the criminal justice system. Therefore, even according to the Defendant's version of events, it is clear that the Defendant understood what was transpiring when Officer Michelson questioned him and thus was capable of asserting his own will to withstand the officer's questions. See Defendant's Letter Brief, dated February 27, 2003, at 3 ("The circumstances of Mr. Jenkins' custodial interrogation, while not rising to the level of involuntariness. . . ."). Accordingly, the Defendant's statement was not the result of his will having been overborne and was therefore voluntary.*fn1 For the foregoing reasons, the Government may properly utilize its version of Defendant's statement to impeach the Defendant on cross-examination.

B. The NYPD Subpoena

The Government and the NYPD move to quash a December 12, 2002 subpoena served by the Defendant upon the NYPD pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure (the "NYPD subpoena"). The NYPD subpoena seeks the production of all stop, question and frisk reports and memo book entries relating to the stop of the Defendant. Rule 17(c), however, is not a method of discovery in criminal cases. See United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995). In fact, "`[c]ourts must be careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed.R.Crim.P. 16.'" Id. (quoting United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980). Instead, Rule 16(a)(1) provides for governmental disclosure of evidence and therefore identifies the types of discovery the Government must disclose upon the Defendant's request. These include: the Defendant's statements and criminal records, document and tangible objects, reports of examinations and tests, and expert witnesses' opinions. Fed.R.Crim.P. 16(a)(1)(A)-(E). Rule 16(a)(2) then limits the information to which a defendant is entitled. In pertinent part, the Rule states:

Except as provided [in Rule 16(a)(1)(A)-(E)], this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case. Nor does this rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.

Rule 16(a)(2) bars disclosure of reports generated by local law enforcement agents, even when subpoenaed pursuant to Rule 17(c). See United States v. Chen De Yian, 1995 WL 614563, at *1 (S.D.N.Y. Oct. 19, 1995) ("Discovery is barred by Rule 16(a)(2) and that bar cannot be circumvented by a Rule 17(c) subpoena."); see also Cherry, 876 F. Supp. 547 (granting motion to quash subpoenas requesting disclosure of reports prepared by the NYPD). The items commanded by the NYPD subpoena are barred from discovery under Rule 16(a)(2). The Defendant is therefore not entitled to pre-trial discovery via subpoena of the NYPD investigatory files. On this ground the subpoena must be quashed.

Moreover, even apart from the fact that Rule 16 bars the disclosure of the NYPD files, the Defendant could not satisfy the requirements of Rule 17(c). The Supreme Court, in United States v. Nixon, 418 U.S. 683 (1974), stated that a defendant seeking the production of documents under Rule 17(c) has the burden of showing that: (1) the documents are evidentiary and relevant; (2) they are not otherwise procurable by the defendant reasonably in advance of trial by the exercise of due diligence; (3) the defendant cannot properly prepare for trial without such production and the failure to obtain it may delay the trial; and (4) the application is not intended as a general "fishing expedition" and is therefore made in good faith. Id. In order to withstand a motion to quash, the Defendant must establish these criteria. See United States v. Myerson, 684 F. Supp. 41 (S.D.N.Y. 1988); United States v. Witt, 542 F. Supp. 696, 698 (S.D.N.Y. 1982). The Court in Nixon expounded upon the first prong, holding that the proponent of the subpoena has the burden of proving relevance and admissibility and must also identify the materials with specificity. See Nixon, 418 U.S. at 700. To satisfy this prong, the documents must meet the test of relevancy and admissibility when they are sought; a showing of potential relevance or admissibility is not sufficient. See Cherry, 876 F. Supp. at 552 ("In order to be procurable by means of a Rule 17(c) subpoena, materials must themselves be admissible evidence.").

Here, the Defendant fails to make a sufficient showing of admissibility. Pursuant to Federal Rule of Evidence 803(8), internal NYPD investigative files would normally be deemed inadmissible as hearsay. See. e.g., United States v. Brown, 1995 WL 387698, at *10 (S.D.N.Y. June 30, 1995) ("Such [NYPD interview] memoranda would, of course, be hearsay and inadmissible as evidence at trial); United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981) (holding materials that were hearsay and therefore not admissible as evidence at trial were not subject to a Rule 17(c) subpoena); Cherry, 876 F. Supp. at 552-53. Therefore, the Defendant has not sustained his burden of proving admissibility. Moreover, given that the Defendant is fully aware of the circumstances involving his stop, the Court finds that he has failed to show precisely why he is unable to "properly prepare for trial without such production." Nixon, 418 U.S. at 699. Accordingly, the requirements of Rule 17(c) are not met.

Finally, the Defendant believes that the subpoenaed documents may be exculpatory and therefore he requests that the Court conduct an in camera review to determine whether they fall within Brady. In opposition, the Government has asserted that the documents do not contain Brady material. The Court has no reason to believe that the Government has not been acting in good faith. Rather, the Court is confident that the Government understands its obligations under Brady. For the foregoing reasons, the NYPD subpoena is quashed and the Defendant's request that the Court review these documents in camera is denied.

III. Conclusion

The Court grants the Government's motion that it be permitted to introduce the Defendant's alleged post-arrest statement to impeach the Defendant in the event that he elects to testify and denies his possession of a firearm. Additionally, the Government's motion to quash the NYPD subpoena is granted.

The parties are instructed to provide the Court with proposed voir dire, jury instructions, verdict sheets and any motions to preclude by March 26, 2003. The Court also urges the Government to supply the Defendant with whatever Jenks Act and Giglio material to which he is entitled on or before Thursday, April 3, 2003.

So Ordered:

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