Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Vasconcellos

September 29, 2009

UNITED STATES OF AMERICA,
v.
CHARLES VASCONCELLOS; SHERWIN MAXWELL; MCKINSEY WILLIAMS; LEE WALLACE; CHRISTINA SANTANA; AND TONY JORDAN, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

Memorandum-Decision and Order

I. Introduction

The six captioned defendants and twenty-one others were indicted for participating in a cocaine trafficking conspiracy during a five-month period in 2007. (See Indictment, Count 1, Dkt. No. 1; see also 21 U.S.C. §§ 846, 841(b)(1)(A).) Nineteen pled guilty, and of the remaining eight, six filed pending pretrial motions. (See Vasconcellos Mot., Dkt. No. 339; Maxwell Mot., Dkt. Nos. 340, 395-96; Williams Mot., Dkt. No. 342; Santana Mot., Dkt. No. 343; Jordan Mot., Dkt. No. 277; Wallace Mot., Dkt. No. 356.) The government filed responses. (See Dkt. Nos. 360, 400.)

The indictment followed a joint local, state, and federal investigation. The government's primary evidence consists of conversations intercepted over state-authorized wiretaps on seventeen cellular telephones, and physical evidence seized during searches that followed the electronic surveillance.

Mounting a multi-faceted wiretap attack, all defendants seek to suppress intercepted conversations, and several seek to suppress physical evidence. Maxwell, Williams, Santana, and Wallace seek to join the motions of others. Jordan seeks to preclude the government's use of uncharged crimes, and Wallace and Santana seek permission to file additional motions. Wallace seeks dismissal of the indictment, further discovery, a bill of particulars, a severance, and an audibility and Franks hearing. See Franks v. Delaware, 438 U.S. 154 (1978).

For the reasons that follow, the motion to join other motions is granted in part, and all remaining motions are denied.

II. Miscellaneous Applications for Omnibus Relief

A. Background

After the defendants' arraignment, the court issued this district's standard Criminal Pretrial Scheduling Order (Order). (See, e.g., Dkt. No. 11.) In United States v. Elliott, 363 F. Supp.2d 439, 442-48 (N.D.N.Y. 2005), familiarity with which is presumed, this court discussed the impact of that Order and the local and federal rules on discovery, other pretrial matters and motion practice. See also United States v. Miller, 382 F. Supp.2d 350, 355, 359-61 (N.D.N.Y. 2005); United States v. DeLouya, No. 1:04-CR-588, 2005 WL 3244173, at *5-7 (N.D.N.Y. Nov. 30, 2005); United States v. Tudoran, 476 F. Supp.2d 205, 216 (N.D.N.Y. 2007) ("The time is ripe to articulate the concept one last time ...."). If nothing else, the defense bar should understand that these decisions mandate the following: those seeking pretrial relief must specifically identify the relief sought, must recite the factual and legal bases for the requests, and must recite the measures employed to obtain relief without judicial intervention.

After the Order issued, the court held a conference and discussed, inter alia, the scope of discovery, discovery deadlines and motion practice. (See, e.g., 6/15/07 Dkt. Entry.) Consistent with the Order and rules, the government began compliance with its discovery obligations beforehand, and submitted a letter cataloguing numerous materials it would disclose. (See Gov't Ltr., Dkt. No. 86; Gov't Disc. Disclosure Statement, Dkt. No. 91.) After the conference, it continued to comply. (See Gov't Disclosure Statement, Dkt. No. 108.)*fn1

Eventually, the court held a final pre-motion conference, (see Dkt. No. 322), and the government stated, without objection, that it had fully satisfied its disclosure obligations. The court also discussed a possible joint wiretap motion. On behalf of Maxwell, Frederick Rench, Esq. said that he would submit a motion containing a multi-pronged wiretap attack, and he suggested that others might wish to join. While some of his brethren concurred, others did not, and most remained silent. The court stated that it favored a joint submission, but never intimated that defendants had unconstrained permission to join all other motions. Moreover, Elliott's mandate remained unaltered.

Regarding discovery, no defendant has filed the certification required by the Order and local rules. (See Order at ¶ II(G),*fn2 Dkt. No. 11; see also L. R. CRIM. P. 14.1(g).) The rationale for this rule is clear: It is the Court's policy to rely on the discovery procedure as set forth in this Order as the sole means of the exchange of discovery in criminal actions ... [and t]his Order is intended to promote the efficient exchange of discovery without altering the rights and obligations of the parties, while at the same time eliminating the practice of routinely filing perfunctory ... discovery motions.

(Id. at ¶ II(A) (emphasis added); see also L. R. CRIM. P. at 14.1(a).) Lastly, the Order and Local Rule 14.1 control the timing and content of the government's disclosures.*fn3 As confirmed by its disclosure statements and repeated written and verbal assurances, the government has fully complied with the rules.

Given this background, the court turns to what it characterizes as miscellaneous requests for relief.

B. Motions to Join

Maxwell, Williams, Santana, and Wallace seek to join the motions of others. Such a pro forma request makes little sense absent the particularization required by Elliott. Otherwise, the court must speculate about the basis for the request and the specific relief sought. Sometimes, joint motions might make sense such as a joint wiretap motion. No such motion was forthcoming.

Nonetheless, and with trepidation because of the escalated complexity caused this decision, the court permits the joining defendants to adopt the specific wiretap arguments of others, at least to the extent that they have standing to do so. Otherwise, the motions are denied.*fn4

C. Indictment Dismissal

Wallace moves to dismiss the indictment. (See Wallace Mot. at ¶ 6, Dkt. No. 356.) In an accompanying twenty-two page affidavit and fifty-two page legal memorandum, he cites no facts or law. The court is not telepathic. The motion is denied.

D. Discovery

Wallace seeks discovery of virtually all things that occupied his stream of consciousness as he prepared his motion, and a companion order compelling the government to scour the world's archives in search of those things. Generically, those things include: (1) items specifically encompassed by Rules 12 and 16 of the Federal Rules of Criminal Procedure (e.g., defendant's statements and prior record; documents and objects; evidence to be used at trial); (2) so-called exculpatory or impeachment material; and (3) non-Rule 16 investigative and trial materials (e.g., a list of government witnesses; a list of anyone who may know something about the case; a list of informants and cooperating defendants; a list of all police officers involved in the investigation; disclosure of all federal, state and local police, military and prison records of all defendants, co-defendants and coconspirators; and grand jury transcripts). (See, e.g., Wallace Mot., Rynkowski Aff. at ¶ 16(a)-(q), Dkt. No. 356.)

Wallace's motion is denied for the following alternative reasons: (1) he has failed to confer and certify as required by the Order and local rules; (2) the government has fully complied with its discovery obligations, and already disclosed most of what Wallace seeks; (3) the government has certified compliance with its current and continuing obligation to disclose exculpatory information, and Wallace has offered no facts suggesting the contrary; (4) despite the incredible breath and scope of his request, Wallace has cited no legal authority beyond a casual reference to Rule 16 and Brady; and (5) he is not legally entitled to the discovery he seeks absent a particularized showing of need.

Although unnecessary given the alternative reasons for denying the motion, the court offers a summary of controlling law. The principles are axiomatic and require no analysis because Wallace has neither recited nor discussed them. The government is not obligated to provide a witness list. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Alessi, 638 F.2d 466, 481 (2d Cir. 1980). The court has discretion to order a witness list, but should do so only on a showing of particularized need and materiality, and subject to the government's right to seek a protective order. See United States v. Cannone, 528 F.2d 296, 300-01 (2d Cir. 1975). Absent a showing of materiality, the government is not required to identify persons it does not intend to call as witnesses, see United States v. Jordan, 399 F.2d 610, 615 (2d Cir. 1968), which is especially true for grand jury witnesses whose identity is protected by rule, see FED. R. CRIM. P. 6(e). The government is not required to provide a detailed accounting of all police investigative work, nor disclose the identity of all police officers who worked in a case. See, e.g., Moore v. Illinois, 408 U.S. 786 (1972).

Defendants have the burden of establishing need for disclosure of informants and cooperators. See Cullen v. Margiotti, 811 F.2d 698, 715-16 (2d Cir. 1987); United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983). To satisfy their burden, they must do more than speculate that disclosure is necessary for the defense. See In re United States, 565 F.2d 19, 23 (2d Cir. 1977). As to statements of trial witnesses, Rule 16 does not apply and the Jencks Act is the exclusive means for disclosure. See In re United States, 834 F.2d 283, 286 (2d Cir. 1987); see also FED. R. CRIM. P. 16 & 26.2.

Certainly, Brady and its progeny circumscribe these principles.

However, the government recognizes its obligation to disclose exculpatory information, and has either already done so or agreed to do so should it receive such information.

E. Bill of Particulars

Citing no authority other than FED. R. CRIM. P. 7(f), Wallace seeks an order compelling the government to file a bill of particulars containing a litany of evidentiary detail. (See Wallace Mot. at ¶ 5(a)-(q), Dkt. No. 356.)

While the court has discretion to order a bill of particulars, see United States v. Chen, 378 F.3d 151, 162-63 (2d Cir. 2004), it should do so only if there is a demonstrated need to prepare a defense or avoid surprise at trial. See United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (citations omitted). Wallace has not shown need, and acquisition of evidentiary detail is not the purpose of a bill of particulars. See id. A bill of particulars is also unnecessary when the government provides extensive discovery or supplemental oral and written disclosures. See Chen, 378 F.3d at 163. The government has done both.

Lastly, when a conspiracy is charged, the government need not disclose the dates defendants are alleged to have joined the conspiracy, other known and unknown coconspirators, precise dates and locations when and where defendants assisted the conspiracy, and the means by which defendants furthered the conspiracy. See United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991).

Accordingly, the motion for a bill of particulars is denied.

F. Severance

Wallace seeks a FED. R. CRIM. P. 14 order severing his case for trial. He claims prejudice because the government's proof will focus on Pinkerton principles of coconspirator liability which will inevitably lead to antagonistic defenses. (See Wallace Mot. at ¶¶ 20-22; see also Pinkerton v. United States, 328 U.S. 640 (1946).) He also argues that multi-defendant drug cases involve varying degrees of proof regarding roles and culpability.

Joinder is proper because these defendants "are alleged to have participated in the same ... series of ... transactions constituting ..." a narcotics conspiracy. FED. R. CRIM. P. 8(b). This rule promotes judicial economy and efficiency by avoiding multiple trials and the possibility of inconsistent verdicts. See Zafiro v. United States, 506 U.S. 534, 537 (1993); Bruton v. United States, 391 U.S. 123, 131 n.6 (1968). As the Ninth Circuit has observed, a joint trial expedites "the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once." Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1969).

While strong public policy reasons favor joinder, the court may sever if the failure to do so will cause substantial prejudice. See FED. R. CRIM. P. 14; see also United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980) (substantial prejudice). The defendant must prove substantial prejudice, and whether he does so is a discretionary decision for the court. See id.; see also United States v. Lane, 474 U.S. 438, 449 n.12 (1986).

That a defendant might have a better chance at acquittal in a separate trial is not prejudice. See United States v. Rucker, 586 F.2d 899, 902 (2d Cir. 1978). That the same evidence is admissible against all defendants militates against prejudice. See United States v. Arroyo-Angulo, 580 F.2d 1137, 1144 (2d Cir. 1978). Even where some evidence may be admissible against one defendant but not others, there is no per se prejudice. See United States v. Rittweger, 524 F.3d 171, 179 (2d Cir. 2008). When, however, evidence is so complex or confusing that jurors cannot make a reliable judgment about guilt or innocence, a severance is warranted. See Zafiro, 506 U.S. at 539; Rittweger, 524 F.3d at 179. Naturally, the court can minimize the risk, as necessary, through limiting and general instructions directing the jury to consider the government's evidence separately as to each defendant. See Rittweger, 524 F.3d at 179-80; United States v. Amato, 540 F.3d 153, 164 (2d Cir. 2008) (limiting instructions). So too, the court has a continuing duty to grant separate trials anytime prejudice develops. See Rittweger, 524 F.3d at 179.

As all parties agree, the culpability of these defendants will primarily hinge on a jury's evaluation of wiretap and seized evidence, all in the context of a conspiratorial agreement to distribute drugs in a confined geographical area over a short period of time. The same evidence would be admissible at separate trials to establish the existence and parameters of the conspiracy, participation in the conspiracy, and accountability for conduct reasonably foreseen in furtherance of the conspiracy. It would be incredibly burdensome on the public and the court to conduct separate trials, especially where the jury's focus is conspiracy and not discrete narcotics sales, and where the evidence at all trials would be cumulative. Because Wallace has failed to establish substantial prejudice, his severance motion is denied.*fn5

G. Prior Bad Acts and Convictions

Jordan moves to preclude the introduction of uncharged drug crimes during the government's direct case. (See Jordan Mot., Dkt. No. 277:1; Memo. of Law at 13, Dkt. No. 277:2.) While he argues that such evidence is inadmissible to prove his character or propensity to commit the charged crime, he acknowledges that such evidence may be admissible for other limited purposes. (See Memo. of Law at 13, Dkt. No. 277:2.)

The government's response accurately recites the controlling legal principles, including those governing whether such evidence is admissible during its direct or rebuttal case. (See Gov't Resp. at 90-92, Dkt. No. 360.) The parties clearly understand the parameters of FED. R. EVID. 404(b), and the court concurs with the government that a ruling must await the development of the trial evidence. Accordingly, the motion is denied with leave to renew.

Wallace requests disclosure of 404(b) evidence which is a different issue than admissibility. Rule 404(b) requires "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown," but the Order generally requires disclosure within fourteen days of arraignment. (See, e.g., Order at II(B)(3), Dkt. No. 11; see also Gov't Resp. at 92 (quoting Rule 404(b), but not the Order).) In any event, the government has already complied and recognizes its continuing obligation to do so. Accordingly, Wallace's motion is denied for the same alternative reasons that his earlier discovery motion was denied.

H. Additional Motions

Wallace and Santana seek permission to file additional motions. The court will permit further motions only for good cause shown should future developments produce new material facts and issues. They will be rejected if they rehash issues, or if they are based on facts and legal arguments which, through the exercise of due diligence, could have been included in the current motions. The court will apply this discretionary standard to future motions. Accordingly, the defendants' motion is denied with leave to renew. See United States v. Russell, No. 5:08-CR-545, 2009 WL 466515, *8 (N.D.N.Y. Feb. 24, 2009).

III. The Wiretaps

A. Background

Between January 22 and April 27, 2007, the Honorable Patrick J. McGrath, then Rensselaer County Court Judge, issued state wiretap warrants and extensions that authorized interceptions over seventeen cellular phones. All warrants and extensions were supported by applications of then Rensselaer County District Attorney Patricia DeAngelis and by affidavits of New York State Police Investigator Robert Missenis. Daniel Hanlon was then the Rensselaer County prosecutor assigned the case, and he is now the prosecuting Assistant U.S. Attorney. The relevant warrants and extensions are as follows:

* "Target Phone 1":*fn6 Eavesdropping warrant issued January 22, 2007, on cell phone number 518-892-0477, used by Anthony Blackmore. This warrant was in effect from January 22, 2007 through February 20, 2007, and the recordings gained thereunder were sealed on February 22, 2007. (See Dkt. No. 360:2, 33.)

* "Target Phone 2": Eavesdropping warrant issued January 22, 2007, on cell phone number 347-401-5532, used by Charles Vasconcellos. This warrant was in effect from January 22, 2007 through February 20, 2007, and the recordings gained thereunder were sealed on February 22, 2007. (See Dkt. No. 360:2, 3, 33.) The warrant's effective date was extended on February 16, 2007, from February 20, 2007 through March 21, 2007, and the recordings gained thereunder were sealed on March 19, 2007. (See Dkt. No. 360:2, 4, 33.)

* "Target Phone 3": Eavesdropping warrant issued February 9, 2007, on cell phone number 518-961-0820, used by Timothy T. Wilson. This warrant was in effect from February 9, 2007 through March 10, 2007, and the recordings gained thereunder were sealed on March 13, 2007. (See Dkt. No. 360:2, 5, 33.) The warrant's effective date was extended on March 9, 2007, from March 9, 2007 through April 7, 2007; on April 5, 2007, from April 5, 2007 through May 4, 2007; and on April 27, 2007, from May 3, 2007 through June 1, 2007. The recordings gained under these extensions were sealed on April 5, 2007, May 3, 2007, and May 30, 2007, respectively. (See Dkt. No. 360:2, 6, 7, 8, 33.)

* "Target Phone 4": Eavesdropping warrant issued February 9, 2007, on cell phone number 718-701-7148, used by McKinsey Williams. This warrant was in effect from February 9, 2007 through March 10, 2007, and the recordings gained thereunder were sealed on March 13, 2007. (See Dkt. No. 360:2, 9, 33.)

* "Target Phone 5": Eavesdropping warrant issued February 9, 2007, on cell phone number 347-952-7520, used by Sherwin Maxwell. This warrant was in effect from February 9, 2007 though March 10, 2007, and the recordings gained thereunder were sealed on March 9, 2007. (See Dkt. No. 360:2,10,33.)

* "Target Phone 6": Eavesdropping warrant issued February 16, 2007, on cell phone number 518-364-2641, used by Timothy T. Wilson. This warrant was in effect from February 16, 2007 through March 16, 2007, and the recordings gained thereunder were sealed on March 19, 2007. (See Dkt. No. 360:2, 11, 33.) The warrant's effective date was extended on March 16, 2007, from March 16, 2007 through April 14, 2007; on April 5, 2007, from April 5, 2007 through May 4, 2007; and on April 27, 2007, from May 3, 2007 through June 1, 2007. The recordings gained under these extensions were sealed on April 5, 2007, May 3, 2007, and May 30, 2007, respectively. (See Dkt. No. 360:2, 12, 13, 14, 33.)

* "Target Phone 8": Eavesdropping warrant issued March 1, 2007, on cell phone number 518-708-1426, used by Sherwin Maxwell. This warrant was in effect from March 1, 2007 through March 30, 2007, and the recordings gained thereunder were sealed on March 30, 2007. (See Dkt. No. 360:2, 15, 33.) The warrant's effective date was extended on March 30, 2007, from March 30, 2007 through April 28, 2007, and on April 27, 2007, from April 27, 2007 through May 26, 2007. The recordings gained under these extensions were sealed on April 27, 2007, and May 30, 2007, respectively. (See Dkt. No. 360:2, 16, 17, 33.)

* "Target Phone 9": Eavesdropping warrant issued March 1, 2007, on cell phone number 917-639-7070, used by William Taylor. This warrant was in effect from March 1, 2007 through March 30, 2007, and the recordings gained thereunder were sealed on March 30, 2007. (See Dkt. No. 360:2, 18, 33.)

* "Target Phone 10": Eavesdropping warrant issued March 9, 2007, on cell phone number 518-630-3904, used by Charles Vasconcellos. This warrant was in effect from March 9, 2007 through April 7, 2007, and the recordings gained thereunder were sealed on April 5, 2007. (See Dkt. No. 360:2, 19, 33.) The warrant's effective date was extended on April 5, 2007, from April 5, 2007 through May 4, 2007, and on April 27, 2007, from May 3, 2007 through June 1, 2007. The recordings gained under these extensions were sealed on May 3, 2007, and May 30, 2007, respectively. (See Dkt. No. 360:2, 20, 21, 33.)

* "Target Phone 12": Eavesdropping warrant issued March 9, 2007, on cell phone number 914-361-0131, used by Sherwin Maxwell. This warrant was in effect from March 9, 2007 through April 7, 2007, and the recordings gained thereunder were sealed on April 5, 2007. (See Dkt. No. 360:2, 22, 33.) The warrant's effective date was extended on April 5, 2007, from April 5, 2007 through May 4, 2007, and on April 27, 2007, from May 3, 2007 through June 1, 2007. The recordings gained under these extensions were sealed on May 3, 2007, and May 30, 2007, respectively. (See Dkt. No. 360:2, 23, 24, 33.)*fn7 Single Missenis affidavits supported multiple original warrants and extensions. Therefore, for the parties, the Circuit, and unlikely readers of this tome who might benefit from a roadmap, the original warrants and extensions are further summarized chronologically by date of the supporting Missenis affidavit, and by target phone user and the moving defendants intercepted:*fn8

* January 22 Missenis Affidavit (See Dkt. No. 360:3)

Target Phone 1 Original Warrant: Blackmore phone; Vasconcellos intercepted.

Target Phone 2 Original Warrant: Vasconcellos phone; Vasconcellos, Williams, and Maxwell intercepted.

* February 9 Missenis Affidavit (See Dkt. No. 360:5)

Target Phone 3 Original Warrant: T. Wilson phone; Wallace intercepted.

Target Phone 4 Original Warrant: Williams phone; Williams and Maxwell intercepted.

Target Phone 5 Original Warrant: Maxwell phone; Maxwell intercepted.

* February 16 Missenis Affidavit (See Dkt. No. 360:4)

Target Phone 2 Extension: Vasconcellos phone; Vasconcellos and Williams intercepted.

Target Phone 6 Original Warrant: T. Wilson phone; Wallace intercepted.

* March 1 Missenis Affidavit (See Dkt. No. 360:15)

Target Phone 8 Original Warrant: Maxwell phone; Maxwell and Santana intercepted.

Target Phone 9 Original Warrant: Taylor phone; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.