The opinion of the court was delivered by: Garaufis, United States District Judge.
The defendant in this matter, Gehabae Worjloh ("Worjloh" or "Defendant"),*fn1 was convicted by jury verdict before this court of (1) conspiring to distribute and possess with intent to distribute crack cocaine; (2) distributing and possessing with intent to distribute crack cocaine; and (3) unlawful possession of a firearm. Currently before the court are Defendant's post-trial motions, seeking (1) a post-trial Franks hearing on the admissibility of certain evidence presented at trial; (2) a new trial based on claims of constructive amendment of the indictment; and (3) a new trial based on an alleged violation of the Sixth Amendment right to counsel.
For the reasons set forth below, the Defendant's motions are DENIED.
I. Background Facts Relevant to the Motions
On March 29, 2002, the New York City Police Department ("NYPD") executed a New York state search warrant issued on March 22, 2002 for a location known as 530 Hegeman Avenue, Brooklyn, New York. During the execution of the search and based on evidence obtained therefrom, the Defendant was arrested. His case was brought in New York State Supreme Court, Kings County, Indictment # 2087/2002.
On January 29, 2003, a federal search warrant was executed by the Drug Enforcement Agency ("DEA") at the same location, specifically Apartment 2F at 530 Hegeman Avenue. Again, evidence was recovered and Worjloh was arrested pursuant to a federal arrest warrant. The Defendant's indictment in the present case arises from this second arrest. At the time of the arrest, the Defendant's New York State Supreme Court case was still pending, but was ultimately dismissed in favor of prosecuting the federal charges.
Prior to trial, which commenced in April 2005, the Defendant submitted for the court's consideration several pre-trial motions.*fn2 Of relevance to the instant motions, the Defendant moved inlimine for (1) the suppression of statements he made to federal agents following his January 29, 2003 arrest; and (2) the suppression of evidence procured from Worjloh's residence pursuant to the search warrant executed by the NYPD on March 29, 2002. In a Memorandum & Order dated October 14, 2004 ("10/14/04 M&O"), I considered and denied the Defendant's motions to suppress.*fn3 The Defendant filed a timely motion for reconsideration of my 10/14/04 M&O. In his motion for reconsideration, the Defendant challenged my decision not to suppress the contested evidence. The Defendant's motion for reconsideration was denied by M&O dated February 4, 2005 ("2/4/05 M&O").*fn4
Post-trial, several submissions to the court have been made concerning the Defendant's conviction. On May 3, 2005, attorney Martin Goldberg, then counsel for the Defendant, submitted a Memorandum of Law requesting a post-trial Franks hearing, suppression of the fruits of the allegedly unlawful searches of the Defendant's residence, and the grant of a new trial.*fn5
Worjloh also submitted pro se to the court on June 7, 2005, a Rule 29 motion seeking a judgment of acquittal. Finally, on November 14, 2005, the Defendant's current CJA-appointed counsel, Sally Butler, submitted a Supplemental Memorandum of Law in Support of Defendant's Previously Submitted Post-Trial Motions ("Def. Supp. Mem."). Ms. Butler's Supplemental Memorandum incorporates the arguments of the two previously filed motions, and requests a post-trial Franks hearing, suppression of allegedly tainted evidence, and the grant of a new trial.
I will now consider the Defendant's post-trial motions.
III. Defendant's Request for a Post-Trial Franks Hearing on the 2002 NYPD Search*fn6 Pre-Trial Motion
On March 29, 2002, the NYPD executed a search of Worjloh's residence at 530 Hegeman Avenue in Brooklyn pursuant to a search warrant issued one week earlier, on March 22, 2002, by Justice Francois Rivera of the Supreme Court of the State of New York. The warrant was issued based on the affidavit of NYPD Detective Hasan Jenkins ("Jenkins"). In his affidavit, Jenkins attested that the location was a "two-story brown brick building"and that a confidential informant had previously purchased crack cocaine from both the first and second floors of the residence.
Both Jenkins and the confidential informant were questioned by Justice Rivera about the basis for issuing the warrant. During this questioning, Detective Jenkins described 530 Hegeman Avenue as a "[t]wo-story attached one-family home" and indicated that from his observations he concluded that one family lived in the building. The confidential informant confirmed this information by telling Justice Rivera that 530 Hegeman was a "[o]ne-family brick house." As a result of the search, the NYPD seized numerous pieces of contraband, including drugs, drug paraphernalia and a 9mm handgun from the residence, and arrested the Defendant.
Before trial, Worjloh moved to suppress all evidence obtained as a result of the March 2002 search, arguing that the search was based on a defective warrant in that it did not account for the fact that the residence at 530 Hegeman Avenue was not a single family house but rather was subdivided into multiple apartments. Worjloh maintained that Justice Rivera had been misled and had been provided significant false information so that a warrant for the entire premises would be issued. Among other contentions, Worjloh argued that Jenkins falsely informed Justice Rivera that 530 Hegeman Avenue was an "attached" home with all windows facing the front. Pictures of the residence demonstrated that it was in fact an unattached home having windows on its sides. Worjloh also provided to the court at oral argument in support of his motion in limine a number of real estate records and a housing violation document indicating that 530 Hegeman Avenue is listed as containing multiple units. Additionally, Worjloh furnished an affidavit and an affirmation indicating that during 2002, 530 Hegeman Avenue served as the residence of individuals who were not members of his family.
In my 10/14/04 M&O, I considered the Defendant's challenge to the validity of the warrant issued by Justice Rivera and I denied Worjloh's motion for a Franks hearing. Under Franks v. Delaware, a defendant may contest the validity of a warrant "where the defendant makes a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks, 438 U.S. 154, 155 (1978) (emphasis added). I held that a Franks hearing was not merited. Worjloh failed to establish that Jenkins either intentionally or recklessly incorrectly described the exterior of the house. As I explained in the M&O, based on the record, it seemed more likely that Detective Jenkins simply made a mistake in recounting the details of the house.
In the 10/14/04 M&O, I also determined that the allegedly false information presented by Jenkins to Justice Rivera was not necessary to establish probable cause for the warrant because the remainder of the affidavit, without that information, was sufficient to establish probable cause. See United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000). Jenkins's affidavit contained information provided by the confidential informant, who indicated that he had recently purchased drugs at the house on two occasions. The confidential informant also testified that 530 Hegeman Avenue was a "[o]ne-family brick house." Further, the fact that the house did not contain separate residences and that it was used in its entirety by those selling drugs there was supported by the affidavit's indication that the confidential informant had purchased drugs from both the first and second floors.
As Detective Jenkins affirmed in his affidavit and also testified, he regarded the confidential informant as extremely reliable. The informant's information had resulted previously in several arrests and seizures of contraband. Thus, the warrant was not defective when issued because the alleged falsity related to information provided by a confidential informant that was reasonably relied on by the officer in his affidavit. See United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995); United States v. Gonzalez, 835 F.2d 449, 451 (2d Cir. 1987). Independent of Detective Jenkins's mischaracterization of the house's exterior, sufficient information was provided to establish probable cause for the issuance of a warrant to search 530 Hegeman Avenue. See United States v. Travisano, 724 F.3d 341, 346 (2d Cir. 1983) ("To establish probable ...