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United States v. Davis

April 21, 2009


The opinion of the court was delivered by: Sand, J.


On March 11, 2009, this Court issued an order denying, inter alia, Defendant Roderick Gunn's motions for: (1) dismissal of Counts One and Eight of the Indictment on double jeopardy grounds, (2) a Bill of Particulars, (3) immediate production of Brady and Giglio materials, (4) production of grand jury minutes, and (5) suppression of statements made to law enforcement officers.*fn1 Defense counsel has submitted a motion for reconsideration of the double jeopardy motion and Gunn has submitted a pro se motion for reconsideration of the other motions listed above. Gunn has also submitted a new motion requesting a pretrial evidentiary hearing to determine whether statements made by his three co-defendants are admissible under the co-conspirator exception to the hearsay rule, Fed. R. Evid. 801(d)(2)(E).

For the foregoing reasons, we deny the motions for reconsideration and for an evidentiary hearing on the double jeopardy issue. We also deny Gunn's pro se reconsideration motion on the discovery matters and his request for a pretrial evidentiary hearing on the admissibility of co- conspirator testimony. We grant Gunn's request for a suppression hearing relating to statements made at proffer sessions in the absence of counsel.

I. Standard for Motions for Reconsideration

Although neither the Federal Rules of Criminal Procedure nor the local criminal rules provides a standard for deciding reconsideration motions in criminal cases, courts in this district have applied the standard of Local Civil Rule 6.3. United States v. Leaver, 358 F. Supp. 2d 273, 277 (S.D.N.Y. 2005). Under that strict standard, reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 256 (2d Cir. 1995). A motion for reconsideration is not an opportunity to relitigate issues already decided by the Court, and the moving party may not use the motion to advance new facts, issues, or arguments not previously presented to the Court. Id. at 257.

II. Double Jeopardy Motion

Gunn's reconsideration motion on the double jeopardy defense raises no legal or factual matters that the Court overlooked. The motion does not contest that the Court applied the correct test, as set forth in United States v. Korfant, 771 F.2d 660 (2d Cir. 1992), to determine whether the current charged conspiracy is the same conspiracy to which Gunn previously pled guilty. Gunn argues that the Court erred in its application of the Korfant factors for two reasons:

(1) the Court erroneously identified salient dissimilarities-that is, the fact that not all of the robberies charged in United States v. Robles, (04 Cr. 1036 (GEL)), involved police impersonations and that the robbery-homicides charged in this Indictment were byproducts and not objects of the conspiracy; and (2) the Court erred in finding that the robberies were not interdependent, given that one of the robbery crews in Robles was offered the Elmont job before Davis' crew, on trial in this case, took the job.

The Court previously considered these factual issues in denying the double jeopardy motion. Upon re-examination, we continue to find the arguments unpersuasive. With respect to Gunn's first argument, the Court found that the robberies charged in the Information and Indictment had distinctive modes of operation-most (though not all) of the robberies charged in the Information involved entry through the use of police impersonation, while neither of the robberies in this case involved police impersonation. Gunn's own pre-plea statements confirmed that at least five out of six robberies charged in the Information involved police impersonation (Pre-Plea Statements, Ex. to Gov't Br. Opp'n Reconsideration.) In contrast, neither the Wickham nor the Elmont robberies involved police impersonations; rather, Davis used brute force in threatening and killing victims at both Wickham and Elmont. Additionally, Gunn's contention that the Court erroneously characterized the murders as a distinguishing feature of the robberies is without merit. Regardless of whether the murders were the premeditated object of the Wickham and Elmont robberies, the fact that murders were committed by Davis establishes two salient differences between the conspiracies charged in Information and the Indictment: first, the particular modes employed to further the two conspiracies were distinct, and second, Davis was the critical non-overlapping participant. See United States v. Macchia, 35 F.3d 662, 670 (2d Cir. 1994).

With respect to Gunn's second argument on interdependence, we find his factual distinction to be inapposite. Gunn attempts to impermissibly relitigate the question of whether Needham's similar role in both conspiracies demonstrated interdependence. As discussed above and more extensively in our previous Order, the Court finds Davis to be the relevant co- conspirator in the double jeopardy analysis. Although Needham may have passed information to the robbery crews in both cases, Davis' role as a co-conspirator resulted in the murders charged in the Indictment. Regardless of whether the availability of the Wickham and Elmont robberies rested on the first refusal of Needham's preferred Puerto Rican robbery crew, the success of the robberies charged in the Information did not have a determinative effect on the outcome of the robberies attempted by Davis' crew.

Gunn does not challenge the Court's analysis with respect to the distinct time frames, the absence of prosecutorial misconduct, and Gunn's attempt to shield himself from any liability by bootstrapping his previous plea agreement (which he violated by withholding critical information) to the larger conspiracy later charged in Robles. Rather than challenging the Court's analysis of the array of factors set forth in Korfant, 771 F.2d at 662, Gunn's brief isolates a favorable set of facts that, if viewed alone, better support his claim of double jeopardy. We find the two conspiracies to be distinct when the facts are viewed in the aggregate and evaluated "with the lively awareness that no dominant factor or single touchstone" controls the analysis. United States v. Macchia, 35 F.3d 662, 668 (2d Cir. 1994). Thus, the Court finds the factual issues raised in Gunn's brief unpersuasive and denies the motion for reconsideration.

Gunn's reconsideration motion also seeks a fact-finding hearing to establish an appropriate record to test the double jeopardy claim. It is undisputed that after Gunn raises a non-frivolous claim of double jeopardy, the Government has the burden of proving that the conspiracies do not constitute the same offense. United States v. Estrada, 320 F.3d 173, 181 (2d Cir. 2003). In its previous Order, the Court found that the Government had satisfied its burden. Gunn now relies on the Third Circuit's reasoning in United States v. Inmon for his request that the Court hold a pretrial proceeding "in which an appropriate record may be made to test a double jeopardy claim." 568 F.2d 326 (3d Cir. 1977). Thorough review of the detailed record submitted with the original double jeopardy motion satisfied the Court that the Government had properly charged two distinct conspiracies in the Information and Indictment. We decline to hold an evidentiary hearing based on Defendant's speculation that the Government may possess other evidence that would materially alter our decision on the double jeopardy issue.

Gunn's reliance on Inmon, which considered the burden of proof in a pretrial claim of former jeopardy, does not alter our conclusion.*fn2 The Court finds Inmon inapplicable for two reasons. First, Gunn has not referenced any factual disputes that, if further explored through a pretrial hearing, would materially influence the Court's decision.*fn3 He merely contends that the Government possesses "undisclosed evidence that undermines the court's conclusion of separate conspiracies." (Double Jeopardy Reconsideration Br. at 5.) This generalized assertion does not provide the Court with guidance as to what evidence Gunn hopes to uncover at a pretrial hearing.

Second, the court in Inmon had only the two charging documents on which to base its review. In contrast, this Court has been presented with and reviewed a detailed record that includes not only the Information and Indictment but also Gunn's plea documents, notes from Gunn's pre- and post-plea sessions, the transcript from the United States v. Robles case, 04 Cr. 1036 (GEL), and the transcript of the plea hearing before Judge Pauley, 03 Cr. 1277 (WHP). Moreover, the charges in the Information and Indictment are not so complex or far-reaching as to prevent the Court from making a double jeopardy determination on the record before us. See United States v. Stricklin, 591 F.2d 1112, 1117 (5th Cir. 1979) (reviewing court may decide double jeopardy issue "where the indictments and the record from the previous trial are sufficiently explicit to provide for clear-cut determination of the double jeopardy claim"). Nor does the present case necessitate clarification of ambiguities resulting from a vague indictment, since Counts One and Eight of the Indictment clearly set forth the time period of the conspiracy as well as the co-conspirators and overt acts charged by the Government. See id. at 1118 (reasoning that because "the government controls the particularity of an indictment, it should bear the responsibility for any ambiguities resulting in its vagueness"). The Court had sufficient information to evaluate the claim of double jeopardy and finds ...

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