United States District Court, Southern District of New York
April 16, 2003
UNITED STATES OF AMERICA,
MANUEL A. SANCHEZ, JR., A/K/A "MANNY SANCHEZ, MARTIN BOSSHART, GENARRO BRUNO, JEANE SARLO, AND DENNIS MCSWEENEY DEFENDANTS.
The opinion of the court was delivered by: Richard Conway Casey, United States District Judge
OPINION AND ORDER
Defendants Jeane Sarlo, Dennis McSweeney, Manuel Sanchez, Jr., Martin Bosshart, and Genarro Bruno have been charged with conspiracy to obstruct justice and making false statements to the United States District Court for the Eastern District of New York and representatives of the Pre-Trial Services Administration. Defendant Manuel Sanchez is additionally charged with making false statements to the United States Attorney's Office for the Eastern District of New York and the United States Customs Service. Sarlo and McSweeney have both pled guilty, and Bosshart was murdered shortly after he was released on bail. Defendants Bruno and Sanchez now move for severance of their trials. Bruno additionally moves for dismissal on statute of limitations grounds and has filed various discovery motions. For the reasons set forth below, Defendants' motions are denied in their entirety.
On March 27, 2001, a federal grand jury sitting in the Southern District of New York returned a one-count Indictment ("Indictment") against Jeane Sarlo and Dennis McSweney charging them with (1) conspiracy to obstruct justice and (2) making false statements to the United States District Court for the Eastern District of New York and to representatives of the Pre-Trial Services Administration ("PSA") in order to secure the pre-trial release of a drug-dealer, Cesar Agramonte. Sarlo and McSweeney allegedly posted their home as security for Agramonte's release, perjured themselves in open Court at a bail hearing and made false statements to representatives of the PSA in exchange for $275,000. The conspiracy is alleged to have lasted from in or about July of 1996 through September of 1996.
On September 4, 2001, a federal grand jury sitting in the Southern District of New York returned a two-count Superseding Indictment ("Superseding Indictment"). Count One of the Superseding Indictment names Manuel A. Sanchez, Jr., Martin Bosshart, and Genarro Bruno as additional defendants in the conspiracy to obstruct justice and make false statements charged in the original indictment. Count Two charges Manuel Sanchez with participating in an additional conspiracy to obstruct justice and making false statements to the United States Attorney's Office for the Eastern District of New York and the United States Customs Service in order to corruptly obtain a cooperation agreement and sentencing consideration for Agramonte.
Count One of the Superseding Indictment alleges that Bosshart and Bruno delivered a total of approximately $275,000 in cash to McSweeney and Sarlo in two installments — $10,000 in or about June 1996 and another $265,000 in or about the middle of August 1996 — as payment for Sarlo and McSweeney's agreement to post their home as bail for Agramonte and for their false testimony. Bosshart and Bruno allegedly drove Sarlo and McSweeney to the Eastern District to testify at the July 3, 1996 bail hearing. Count One also charges Sanchez with serving as an intermediary and translator between Agramonte and his lawyer Pat Stiso.*fn1 Stiso had concocted the plot to bribe Sarlo and McSweeney to act as suretors and have them provide false testimony to the Court about their relationship with Agramonte. Count One also alleges that, after her testimony at the bail hearing, Sarlo delivered approximately $200,000 in cash to another co-conspirator not named as a defendant in this case, CC-2, on or about September 9, 1996.
Count Two of the Superseding Indictment charges defendant Sanchez with participating in an additional conspiracy to obstruct justice and make false statements. From in or about September 1996 through December of 1997, Sanchez, Stiso, and others allegedly conspired to obstruct justice and make false statements to representatives of the United States Attorney's Office for the Eastern District of New York and the United States Customs Service in order to obtain a cooperation agreement and a reduced sentence for Agramonte. The conspirators allegedly agreed to create a phony heroin mill with the understanding that Agramonte would provide false information to law enforcement officers in order to obtain a reduced sentence. Count Two alleges six overt acts committed by Sanchez and his co-conspirators in furtherance of the conspiracy. With regard to Sanchez, Count Two alleges that he again acted as an intermediary and translator for Stiso, who devised the scheme to create a phony heroin mill and have Agramonte provide misinformation to the Government.
Sarlo and McSweeney have both pled guilty. Bosshart was murdered shortly after he was released on bail. Thus, Bruno and Sanchez are the only two defendants who are now prepared to go to trial in this case. Bruno has filed a motion to dismiss the government's case on statute of limitations grounds and various discovery motions. Both Bruno and Sanchez have moved for severance.
A. The Statute of Limitations
Bruno advances two arguments in support of his request that Count One be dismissed on statute of limitations grounds. First, he argues that the last overt act committed in furtherance of the conspiracy charged in Count One occurred in the middle of August 1996, not on September 9, 1996, as alleged in the Indictment. Bruno claims that Count One must be dismissed because the Indictment was filed on September 4, 2001, beyond the five-year statute of limitations.*fn2 Second, Bruno contends that he was incarcerated from April 1996, well before the formation of the conspiracy alleged in Count One, until several years after the end of the conspiracy and, therefore, could not have participated in the conspiracy. See Affirmation of Paul McAllister, Esq., para. 6 ("McAllister Aff.").
The applicable statute of limitations is five years. See 18 U.S.C. § 3282. Because the indictment was returned on September 4, 2001, the conspiracy must have continued until at least September 4, 1996 in order to fall within the statutory period. A conspiracy charge falls within the statute of limitations if at least one overt act in furtherance of the conspiracy was performed within the statutory period. See Grunewald v. United States, 353 U.S. 391, 397 (1957).
The indictment alleges that Sarlo returned the $275,000 to Bosshart on September 9, 1996. If this act was done in furtherance of the conspiracy, the alleged crime falls within the statutory period. Bruno argues that the government's case should be dismissed because Sarlo's return of the money was clearly outside the scope of the conspiracy. This Court agrees with the government that whether Sarlo's return of the money was an act in furtherance of the conspiracy is an issue of fact for the jury. See United States v. Benussi, 216 F. Supp.2d 299, 311 (S.D.N.Y. 2002) ("The precise scope of the conspiratorial agreement [is] an issue for the jury."). See. e.g., United States v. Frank, 156 F.3d 332, 338 (2d Cir. 1997); United States v. Aracri, 968 F.2d 1512, 1517 (2d Cir. 1992). Thus, Bruno's motion to dismiss on statute of limitations grounds is denied.
Bruno's motion also suggests that the Government's case should be dismissed because Bruno was incarcerated from April 1996, before the formation of the conspiracy alleged in Count One, until several years after the conspiracy had terminated. Bruno contends that he therefore could not have participated in the conspiracy. Bruno has offered no proof of his incarceration. Moreover, whether Bruno was incarcerated during the conspiracy and whether or not he participated in the conspiracy are issues of fact to be determined by the jury.
B. Motions to Sever
Both Bruno and Sanchez claim that their trials should be severed because a joint trial would result in unfair prejudice.
1. Standard for Severance
A motion to sever is committed to the sound discretion of the trial court. See United States v. Blout, 291 F.3d 201, 209 (2d Cir. 2002). Rule 14 of the Federal Rules of Criminal Procedure provides that a trial court may sever a multi-defendant trial "[i]f it appears that a defendant or the government is prejudiced by the joinder of defendants in an indictment or information, or by such joinder for trial together."
There is a preference, in the federal system, for the joint trial of defendants indicted together. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993) ("[A] district court should grant a severance motion only if there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence"). A defendant arguing that severance is appropriate must demonstrate more than the danger of some prejudice or a better chance at acquittal in a separate trial. See United States v. Torres, 901 F.2d 205, 230 (2d Cir. 1990). A defendant must demonstrate that he or she would be prejudiced so severely by the joinder that he or she would be denied a constitutionally fair trial, resulting in a miscarriage of justice. See Rosa, 11 F.3d at 341.
2. Bruno's Motion for Severance
Bruno claims that Counts One and Two of the Superseding Indictment charge Defendants with two distinct and separate conspiracies. Count One charges five defendants, including Bruno and Sanchez, with obstructing justice by defrauding the court and the PSA at Agramonte's bail hearing. Count Two charges only Sanchez with conspiracy to defraud the U.S. Attorney's Office into signing a cooperation agreement with Agramonte. Bruno argues that the two conspiracies are completely distinct, and that this vitiates the efficiency benefits of a joint trial. Bruno additionally argues that antagonistic defenses may have to be raised and that the jury may cumulate the evidence against the respective defendants based upon the separate allegations.
The fact that Bruno is charged with only one of the two conspiracies does not entitle him to a separate trial. The joinder of defendants charged in separate conspiracies is proper where, as here, "the transactions alleged in both conspiracy counts were a part of a series of acts that shared a common purpose." United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989). A defendant seeking severance must demonstrate prejudice so great as to deny him a fair trial, and severance is generally not warranted where the crimes charged in an indictment are similar in nature. See United States v. Cardascia, 951 F.2d 474, 483 (denying severance motion where the indictment contained two different bank fraud conspiracies because the unrelated evidence presented did not involve different types of crimes or crimes of a violent nature). Here, the two conspiracies charged in the Superseding Indictment, conspiracy to obstruct justice by defrauding the PSA and conspiracy to defraud the U.S. Attorney's Office into signing a cooperation agreement, are so similar in nature that the trial of these two defendants together would not result in any unfair prejudicial spillover to Bruno or the denial of a fair trial.
Bruno further claims that he is entitled to a separate trial because "mutually inconsistent defenses [may] have to be raised." McAllister Aff. ¶ 26. An adversarial stance by a codefendant does not, alone, require severance. In order for antagonistic defenses to warrant a severance, the defenses must conflict to the point of being so irreconcilable that in order to accept the defense of one defendant, the jury must of necessity convict a second defendant. Bruno has failed to articulate any specific type of prejudice that would occur at a joint trial and has not met his burden of showing that he will suffer prejudice so great as to deny him a fair trial. Bruno's severance motion is therefore denied.
3. Sanchez's Motion for Severance
Sanchez claims that severance is warranted because he would be prejudiced by the cross-examination of Pat Stiso concerning Stiso's criminal involvement in prior drug crimes. Sanchez asserts that Stiso will serve as a witness for the Government and that Bruno's attorney intends to cross-examine Stiso about his past criminal activity in order to impeach his testimony. Sanchez argues that he would be improperly tainted with guilt by association because the jury would assume that Sanchez also acted as an interpreter for Stiso in his other criminal activities. Sanchez argues that at a separate trial, he would not attack Stiso's credibility with respect to his law practice. Rather, as part of his defense, Sanchez would rely on the fact that Stiso was an officer of the Court and a member of the Bar in good standing as part of his defense.
At the outset, the Court notes the Government has not yet decided to call Stiso as a witness. Assuming, however, that the Government were to call Stiso to testify at trial and that Bruno's attorney cross-examined Stiso with respect to his other criminal activities, Sanchez has the burden of proving that such evidence would be so prejudicial as to deny him a fair trial. The argument that the jury will impute to Sanchez the crimes committed by Stiso is purely speculative. The Court is confident that, with a proper limiting instruction, any such danger would be cured.*fn3 For these reasons, Sanchez's severance motion is denied.
C. Bruno's Other Discovery Motions
Bruno has also made several pre-trial motions requesting various categories of discovery from the Government and seeking to preclude evidence at trial. A trial date has not yet been set and no evidence has been offered. Thus, Bruno's requests to preclude evidence of his prior crimes are denied as premature and without prejudice. The Court will address Bruno's evidentiary requests when and if they arise at or just prior to trial, and Bruno should raise them at that time. His motion to compel production of Giglio and Brady material is also premature and is therefore denied without prejudice.
First, Bruno requests that the Court preclude the government from offering any evidence of other crimes, wrongs or bad acts by Bruno or third parties, other than those charged in the Superseding Indictment. Federal Rule of Evidence 404(b), which governs the admission of prior bad acts, requires that the Government provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown" of its intent to use evidence of other crimes, wrongs, and bad acts. The Government has indicated that it may offer evidence of Bruno's prior crimes to prove identity to rebut any alibi defense raised by Bruno. See Government's Brief at 16 n. 6. However, the Government has stated that it will notify Bruno's counsel and the Court no later than 14 days prior to trial if it determines that there is Rule 404(b) evidence that it intends to offer. See id. at 15. Because Bruno's motion is premature, it is denied without prejudice.
Second, Bruno requests that the Court preclude the Government from impeaching him with his prior crimes. Federal Rule of Evidence 608 governs the admissibility of prior bad acts to impeach a witness's credibility, and Rule 609 governs the admissibility of impeachment evidence of a witness' prior convictions for crimes punishable by death or imprisonment in excess of one year. See Fed.R.Evid. 608; Fed.R.Evid. 609. Rule 608 has no notice requirement. Rule 609 requires notice only where a party intends to introduce evidence of a conviction that is more than ten years old. United States v. Livoti, 8 F. Supp.2d 246, 250 (S.D.N.Y. 1998). Introduction of such evidence requires "sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." Fed.R.Evid. 609(b). Bruno has no convictions for crimes admissible under Rule 609 that are more than ten years old. See Exhibit C to Hotz Decl. Because there is no notice requirement for the introduction of such evidence, the Court will address this issue when the case proceeds to trial and the issue arises.
Bruno also requests that the Court compel discovery of Brady material including, but not limited to, information that would "negatively impact on the credibility of any Government witness" and all information within the possession of the Government that supports Bruno's claim that he was actually incarcerated during the time he was alleged to have committed the crime charged in Count One of the Indictment. Bruno Notice of Motion at 2-3. Brady v. Maryland, 373 U.S. 83 (1963), governs the Government's responsibilities with respect to evidence favorable to the defendant. The Government has advised defense counsel in writing that it is not aware of any material required by Brady and that it will promptly disclose any Brady material that comes to light. See Hotz Decl. ¶ 6.
Brady establishes no general right to pretrial discovery, and gives rise to no pretrial remedies. See In re United States, 267 F.3d 132, 144 (2d Cir. 2001). Where, as here, the government has made a good-faith representation to the Court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady, a defendant is entitled to no further pretrial discovery of Brady material. See United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y. 1996) ("Courts in this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to Brady where the government, as here, has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady"). Accordingly, the Court denies Bruno's motion to compel discovery of Brady material.
Bruno's request also seeks impeachment evidence, or "Giglio" material. Giglio v. United States, 405 U.S. 150 (1972). A request to compel production of such impeachment material is premature at this time. See United States v. Nunez, 2001 WL 91708, at * 8 (S.D.N.Y. 2001) ("There is no constitutional right to have early disclosure of Giglio and 3500 material"). The government need only produce Giglio material "in a reasonable time to permit the defense to review such material in preparation for cross examination." Id. Bruno's request for production of such evidence is therefore denied as premature.
Bruno additionally requests that the Government be ordered to produce a witness list well in advance of trial. A defendant ordinarily may not require the government to identify its witnesses before trial. See,e.g., Weatherford v. Bursey, 429 U.S. 559, 559-60 (1977); United States v. Aeolus, 638 F.2d 466, 481 (2d Cir. 1980).
In order to compel the Government to produce a witness list before trial, a defendant must show "that the disclosure was both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case." United States v. Bejaia, 904 F.2d 137, 139-40 (2d Cir. 1990) (internal quotation marks omitted) (alterations in original). Here, Bruno has failed to make any showing whatsoever justifying the need for disclosure of the identities of the Government's witnesses. His motion to compel the Government to produce a witness list is therefore denied.
Finally, Bruno's request for leave to file additional motions is denied as premature. The Court will entertain requests to file additional motions when Bruno makes a request for a specific motion.
In conclusion, Bruno's motion to dismiss Count One of the Superseding Indictment is denied, as are Bruno's and Sanchez's motions for severance. Bruno's evidentiary and discovery requests are premature and dismissed without prejudice.