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United States v. Parker

August 7, 2009

UNITED STATES OF AMERICA,
v.
DETRON J. PARKER; TRAVIOUS PARKER; AND KEENAN JOHNSON, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this criminal proceeding against Detron J. Parker, Travious Parker, and Keenan Johnson ("Defendants") for conspiracy to provide contraband to Travious Parker while in prison, and providing that contraband, between March 5, 2009 and March 8, 2009, at the Federal Correctional Facility at Ray Brook ("FCI Ray Brook") are eighteen pretrial motions filed by Defendants. The Government has opposed some of Defendants' motions, and not opposed others. For the reasons set forth below, Defendants' motions are granted in part and denied in part.

I. BACKGROUND

Defendant Detron Parker has filed the following thirteen motions: (1) a motion to dismiss the indictment pursuant to Fed. R. Crim. P. 12(b) based on insufficient evidence before the grand jury (Dkt. Nos. 15-16); (2) a motion to inspect the Grand Jury minutes, pursuant to Fed. R. Crim. P. 6(e)(3) (Dkt. Nos. 15-16); (3) a motion for discovery and inspection of various information pursuant to Fed. R. Crim. P. 12(b)(4), and 16 (Dkt. Nos. 15-16); (4) a motion to suppress any and all evidence seized by the Government from the vehicle in which Defendant Detron Parker was an occupant, pursuant to Fed. R. Crim. P. 12(b)(3) (Dkt. Nos. 15-16); (5) a motion to suppress the statements attributed to Detron Parker pursuant to Fed. R. Crim. P. 12(b)(3) and 41 (Dkt. Nos. 15-16); (6) a motion to direct the disclosure all exculpatory material, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (Dkt. Nos. 15-16); (7) a motion to direct the early release of all inculpatory material, pursuant to the Jencks Act (Dkt. Nos. 15-16); (8) a motion to direct the Government to specify what evidence of his prior bad acts, if any, it intends to introduce at trial, pursuant to Fed. R. Evid. 404(b) (Dkt. Nos. 15-16); (9) a motion to direct the Government to instruct the detectives and agents on this case to preserve their original notes (Dkt. Nos. 15-16); (10) a motion to preclude the use of the Government's audio tapes and/or transcripts of those tapes (Dkt. Nos. 15-16); (11) a motion to conduct an individualized voir dire (Dkt. No. 36); (12) a motion to suppress the out-of-court statements of Defendant Detron Parker's indicted or unindicted co-conspirators as hearsay pursuant to Fed. R. Evid. 801(d)(2)(E) (Dkt. No. 41); and (13) a motion, pursuant to Fed. R. Crim. P. 16(a)(1)(G), to direct the Government to disclose a written summary of any expert testimony that it intends to introduce at trial pursuant to Fed. R. Evid. 702, 703 and/or 705 (Dkt. No. 42).*fn1

Defendant Johnson has filed the following five motions: (1) a motion to suppress evidence seized from the vehicle that he was driving, pursuant to Fed. R. Crim P. 12(b)(3) (Dkt. No. 20); (2) a motion to suppress statements made by him to law enforcement officers under Miranda (Dkt. No. 20); (3) a motion to suppress the out-of-court statements of his co-Defendants as hearsay pursuant to Fed. R. Evid. 801(d)(2)(E) (Dkt. No. 27); (4) a motion to direct the Government to disclose information, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), concerning the delivery by two females of contraband to the Ray Brook facility on the date of the arrest (Dkt. No. 27); and (5) a motion to sever his action from the actions against Defendant Johnson's co-Defendants, pursuant to Fed. R. Crim. P. 14(a) (Dkt. No. 27).

II. DEFENDANT DETRON PARKER'S MOTION TO DISMISS

Defendant Detron Parker has filed a motion to dismiss the indictment pursuant to Fed. R. Crim. P. 12(b) based on insufficient evidence before the grand jury. In his motion, he argues that (1) the indictment merely tracks the statutory language, (2) the indictment lacks any factual allegation of either an illegal agreement or the providing of contraband to prisoners, and (3) Detron Parker has not been provided, through discovery, of any evidence that would support the charges against him. (Dkt. No. 16, ¶¶ 5-17.) The Government has opposed the motion.

The Second Circuit has consistently held that "an indictment [which] tracks the statutory language and specifies the nature of the criminal activity... is sufficiently specific to withstand a motion to dismiss." U.S. v. Carr, 582 F.2d 242, 244 (2d Cir. 1978). In addition, the Court has reviewed, and found sufficient, the Grand Jury minutes.

For all these reasons, the Court denies Detron Parker's motion to dismiss the indictment.

III. DEFENDANT DETRON PARKER'S MOTION TO INSPECT THE GRAND JURY MINUTES

Defendant Detron Parker's motion to inspect the Grand Jury minutes, pursuant to Fed. R. Crim. P. 6(e)(3). The Government has not opposed the motion. As a result, Defendant Detron Parker's motion to inspect the Grand Jury minutes is granted.

IV. DEFENDANT DETRON PARKER'S MOTION TO DISCLOSE EXPERT TESTIMONY

Defendant Detron Parker has filed a motion pursuant to Fed. R. Crim. P. 16(a)(1)(G),*fn2 to direct the Government to disclose a written summary of any testimony that it intends to introduce at trial pursuant to Fed. R. Evid. 702, 703 and/or 705. More specifically, it requests that the summary include, but not be limited to, "the identity of the expert witnesses, a description of the opinions of any purported experts (including laboratory personnel and/or law enforcement officers), and the bases and reasons for such opinions, and the qualifications of any such experts." (Dkt. No. 42 at 1-2.) The Government does not oppose the motion. Instead, it states, "The Government intends to call Cindy Vitale, DEA Forensic Chemist, to discuss her chemical analysis of the substance discovered in the Wall-E' balloons." (Dkt. No. 44, at 10.)

As a result, the Court grants Defendant Detron Parker's unopposed motion to direct the disclosure of expert information. The Court directs the Government to, within seven (7) days of the date of this Decision and Order, provide to defense counsel in writing the remaining information requested by Defendant Detron Parker, including a description of the opinions of Ms. Vitale, the bases and reasons for her opinions, and her qualifications.

V. DEFENDANT DETRON PARKER'S SEVERAL OTHER MOTIONS FOR DISCOVERY, INSPECTION, DISCLOSURE AND/OR PRESERVATION

Defendant Detron Parker has made the following other motions for discovery, inspection, disclosure and/or preservation: a motion for discovery and inspection of various information pursuant to Fed. R. Crim. P. 12(b)(4), and 16; a motion to direct the disclosure of all exculpatory material, pursuant to Brady v. Maryland, 373 U.S. 83 (1963); a motion to direct the early release of all inculpatory material, pursuant to the Jencks Act; a motion to direct the Government to specify what evidence of his prior bad acts, if any, it intends to introduce at trial, pursuant to Fed. R. Evid. 404(b); and a motion to direct the Government to instruct the detectives and agents on this case to preserve their original notes.

The Government has responded that certain of the information requested does not exist (e.g., Brady material), that the information that does exist either has been provided to Defendants or is in the process of being provided to Defendants (e.g., photocopies of physical evidence, as well as a surveillance video of the stop). In addition, the Government has indicated that it does not intend to offer evidence of Defendants' prior criminal history.

As a result, these motions are granted in part and denied in part. The Government shall continue to comply with its relevant obligations to preserve and disclose the information at issue (e.g., under the Federal Rules of Criminal Procedure, Brady v. Maryland, and the Jencks Act).

VI. DEFENDANT DETRON PARKER'S MOTION REGARDING THE GOVERNMENT'S AUDIO TAPES

Defendant Detron Parker has filed a motion to preclude the use of the Government's audio tapes and/or transcripts of those tapes. (Dkt. Nos. 15-16.) More specifically, Defendant Detron Parker argues that he has been provided with recordings of conversations which are purported to be of himself. He further argues that portions of the recordings are inaudible. He therefore requests a hearing to determine the admissibility of audio tapes (which are of Defendant Parker speaking with the prisoner co-conspirator), as well as the admissibility of related transcripts proffered by the Government.

Of course, if the tapes are inaudible, they may not be admissible. See United States v. McDonald, No. 98-1697, 1999 WL 753488, at *2 (2d Cir. Sept. 16, 1999) ("A tape recording is not inadmissible merely because portions of it are inaudible."). However, "[u]nless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy[,] the recording is admissible, and the decision should be left to the sound discretion of the judge." McDonald, 1999 WL 753488, at *2. It is important to note that, "[i]f a tape recording is probative, it is preferable to admit it even if parts are inaudible." Id. After carefully listening to the audio tapes at issue in camera, the Court finds that the vast majority of the tapes are audible, and that the inaudible portions do not appear particularly material.

As a result, Defendant Detron Parker's motion regarding the Government's audio tapes is denied. If and when Defendants raise an objection about a specific portion of the Government's transcription of those audio tapes, the Court will consider that objection at that time.

VII. DEFENDANT DETRON PARKER'S MOTION TO CONDUCT AN INDIVIDUALIZED VOIR DIRE

Defendant Detron Parker filed a motion to conduct an individualized voir dire. Upon due consideration, this motion is denied.

VIII. MOTIONS OF DEFENDANTS DETRON PARKER AND KEENAN JOHNSON TO SUPPRESS EVIDENCE SEIZED FROM VEHICLE PURSUANT TO FED. R. CRIM. P. 12(b)(3)

Defendant Detron Parker has requested that the Court suppress any and all evidence seized from the vehicle ("Dodge Vehicle") in which he was an occupant on March 8, 2009, pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure. (Dkt. Nos. 15-16.) Similarly, Defendant Johnson has requested that the Court suppress any and all evidence seized from the Dodge Vehicle that he was driving ...


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