The opinion of the court was delivered by: Matsumoto, United States District Judge
Defendant Sauri Morel ("defendant" or "Morel") is charged with knowingly and intentionally importing into the United States five kilograms or more of a substance containing cocaine, and knowingly and intentionally attempting to distribute and possess with intent to distribute five kilograms or more of a substance containing cocaine, in violation of Title 21 U.S.C. Sections 952(a), 960(a)(1), 960(b)(1)(B)(ii), 841(a)(1), 846, and 841(b)(1)(A)(ii)(II) and Title 18 U.S.C. Sections 2 and 3551 et seq. (See ECF No. 7, Indictment ("Ind't").) The government filed a motion in limine seeking to preclude the defense from presenting at trial (1) the court's findings and decision on defendant's motion to suppress, as set forth in a Memorandum & Order dated June 18, 2010 (see ECF No. 40, Order Granting in Part and Denying in Part Mot. to Suppress ("Suppression Order")), and (2) the government's initial declination of prosecution of the defendant and declinations of prosecution of four other individuals, one of whom was arrested with the defendant, and three of whom were also arrested at the John F. Kennedy International Airport ("JFK") on the same day as the defendant. (See ECF No. 48, Gov. Mot. in Limine ("Gov. Mot.") at 1.) As discussed herein, the parties made the following submissions in connection with the government's motion, all of which have been considered by the court. The government filed the motion in limine now before the court on July 9, 2010. (See Gov. Mot.) Thereafter, defendant filed a response in opposition on August 16, 2010 (see ECF No. 60, Def. Resp. in Opp'n to Mot. in Limine ("Def. Resp.")), and the government replied on August 20, 2010 (see ECF No. 62, Gov. Reply to Def. Resp. to Mot. in Limine ("Gov. Reply")). During a pretrial conference held on August 24, 2010, the court gave the parties an opportunity to file additional submissions regarding the pending motion. (See ECF Minute Entry dated 8/25/10.) Defendant then filed a supplemental response letter on September 20, 2010, stating his current position on the motion. (See ECF No. 65, Def. Supplemental Resp. to Mot. in Limine ("Def. Supp. Resp.").) The government filed a final response on September 27, 2010. (See ECF No. 67, Gov. Supplemental Reply to Def. Resp. to Motion in Limine ("Gov. Supp. Reply").)
Morel initially opposed the government's motion in its entirety, arguing that preclusion of the evidence "[would] deprive [him] of his opportunity to present a defense." (Def. Resp. at 1.) After the August 24, 2010 pretrial conference, during which the parties clarified their positions, the court permitted Morel to submit a supplemental response to the government's motion in limine. (See ECF Minute Entry dated 8/25/10.) In his supplemental submission dated September 20, 2010, the defense modified its position. (Def. Supp. Resp. at 1.) The defense still opposes the government's motion in limine with respect to the declinations of prosecution, arguing that the declinations form part of the circumstances surrounding Morel's interrogation and show that the agents had a motive to fabricate or exaggerate the evidence against Morel. (See id. at 1-2, 4-5.) However, the modified defense position regarding the suppressed statement is that Morel "does not anticipate offering into evidence the suppressed statement, the Court's ruling, or the facts surrounding the continued interrogation of Mr. Morel after he invoked his right to counsel." (Id. at 1.) Instead, the defense argues that it is entitled to attack the credibility of government witnesses regarding defendant's admissible statements by presenting evidence of the circumstances under which Morel made the admissible statements. (See id. at 2-3.)
The court, therefore, construes defendant's September 20, 2010 supplemental submission as a withdrawal of the defendant's previous opposition to the government's motion to preclude evidence of the Suppression Order, and further construes defendant's submission as a defense motion in limine to present evidence of the circumstances surrounding the taking of defendant's admissible statements. Based on the defense's representation that it does not anticipate offering into the evidence defendant's suppressed statements, the Suppression Order, or the circumstances surrounding the continued interrogation of Morel after he invoked his right to counsel (see id. at 1), the court grants the government's motion in limine to preclude this evidence from trial.
The remaining issues for decision regarding the parties' motions in limine are whether (1) the defense may present evidence of the circumstances surrounding defendant's admissible statements, and (2) the defendant is precluded from offering or otherwise referencing the initial declination of prosecution of Morel and the declinations of prosecution of the other four individuals arrested at JFK on the same day as the defendant in connection with the cocaine shipments. For the reasons that follow, the court finds that the defendant may attack the credibility of the government witnesses regarding defendant's admissible statements by presenting evidence of the circumstances surrounding the taking of such statements. The defense is also entitled to reference the fact that Morel is the only individual facing prosecution for the instant offense among the four other individuals arrested at JFK on the same day as the defendant in connection with the cocaine shipments. However, the defense is precluded from referring to any declination of prosecution, including the initial declination of prosecution of Morel.
According to the Complaint, Indictment, and other government submissions, the instant charges stem from events which occurred at JFK on June 21, 2009 ("June 21, 2009 events") and thereafter. (See generally Ind't; ECF No. 1, Complaint ("Compl."); Gov. Mot. at 1-2.) Customs and Border Protection agents at JFK seized two shipments arriving from the Dominican Republic on an American Airlines flight and containing over 300 kilograms of cocaine hidden among breadfruit. (See Gov. Mot. at 1; see also Compl. at 2.) Immigration and Customs Enforcement agents thereafter set up surveillance at the American Airlines warehouse at JFK. (See id.) Morel and another individual, Henry Acosta, arrived at JFK later that day to pick up one of the shipments from the American Airlines warehouse and began loading the shipment into a van. (See Gov. Mot. at 1-2; see also Compl. at 2-3.) Morel and Acosta were arrested. (See Gov. Mot. at 2; see also Compl. at 3.) Three other individuals were also arrested that day after they attempted to claim the second shipment from the American Airlines warehouse. (See Gov. Mot. at 2, 5.) According to the government, Henry Acosta and the three other arrested individuals (collectively "co-arrestees") were interviewed, and all denied knowing that the shipments contained narcotics. (See id.) The government declined to prosecute the co-arrestees and they were released. (See id.)
The government asserts that, after his arrest, Morel was twice advised of his Miranda rights, which he waived, and consented to a search of his cell phones. (See Compl. at 3; Gov. Mot. at 2.) Morel at first denied any knowledge that the shipments contained narcotics, and thus the government initially declined to prosecute him. (See Gov. Mot. at 2.) However, the government claims that Morel subsequently confessed to knowing that the packages contained narcotics. (See Compl. at 3; Gov. Mot. at 2.) The government deferred prosecution and released Morel later that night based on his alleged stated willingness to cooperate with agents. (See Gov. Mot. at 2.) Two days later, on June 23, 2009, Morel attended a meeting with agents during which he purportedly recanted his previous confession. (See id.) The government then proceeded with Morel's prosecution, and Morel was indicted in July 2009. (See Ind't.)
The defense filed a motion on March 19, 2010 to suppress (1) Morel's post-arrest statements on the grounds that they were elicited in violation of his constitutional rights; and (2) any fruits of the searches of his cell phones on the grounds that his consent to the search was not freely and voluntarily made. (See ECF No. 23, Mot. to Suppress Statements and Cell Phone Evidence Seized; ECF No. 23-1, Mem. of Law in Supp. of Mot. to Suppress; ECF No. 27, Def. Affirmation in Supp. of Mot. to Suppress.) The court held a Suppression Hearing on April 19 and 22, 2010 (see ECF Minute Entries dated 4/19/10 and 4/22/10), and received post-hearing submissions from the parties (see ECF No. 34, Def. Post-Hearing Ltr.; ECF No. 38, Gov. Post-Hearing Ltr.).
By an Order dated June 18, 2010, the court granted in part and denied in part defendant's motion to suppress. (See Suppression Order.) Specifically, the court suppressed Morel's admission on June 21, 2009, after Morel received Miranda warnings and then invoked his right to counsel, that he knew that the shipment in question contained narcotics. (See id.) The court found that agents continued to question Morel without an attorney present after Morel requested counsel, in violation of his Fifth Amendment right, and thus suppressed the alleged confession. (See id.) The court denied the motion to suppress the remaining post-arrest statements and evidence, finding that
(1) any post-arrest statements made prior to the invocation of counsel on June 21, 2009 were made after Morel knowingly and voluntarily waived his Miranda rights; (2) the evidence from the search of Morel's cell phones was obtained pursuant to Morel's voluntary consent to the searches on June 21, 2009; and (3) any post-arrest statements made on June 23, 2009 occurred while Morel was not in custody. (See id.) The admissible post-arrest statements include Morel's alleged admission that he was paid $5,000 to pick up the shipment from JFK. (See id.)
The court now considers the parties' motions in limine.
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984) (explaining that the motion in limine is used to "to exclude anticipated prejudicial evidence before the evidence is actually offered"); see also Palmieri v. Defaria et al., 88 F.3d 136, 141 (2d Cir. 1996) ("The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." (citation and internal quotation marks omitted)); Nat'l. Union Fire Ins. Co. v. L.E. Myers Co. Group et al., 937 F. Supp. 276, 283 (S.D.N.Y. 1996) (same). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5220, 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998); Nat'l Union Fire Ins. Co., 937 F. Supp. at 287. Courts considering a motion in limine may reserve judgment until trial so that the motion is placed in the appropriate factual context. See Nat'l. ...