The opinion of the court was delivered by: Hurley, Senior District Judge
Presently before the Court is the reconsideration motion of Timothy Faison ("Faison" or "defendant") targeting the April 13, 2012 decision which denied his application under Rules 29, 33 and 34 of the Federal Rules of Criminal Procedure for the vacatur of the jury's verdict of September 21, 2011 or, alternatively, for a new trial.
Defendant's motion for reconsideration is granted to the extent that I have reviewed the challenged portions of the April 13, 2012 Memorandum and Order but, having done so, I adhere to the original decision denying the requested post-verdict relief.
Grounds Advanced in Seeking Reconsideration Defendant posits that a perusal of the April 13, 2012 decision demonstrates that the "Court didn't consider [his] arguments reasonably . . . . [and that its] assertions regarding certain events during the course of the trial are not accurate." (Mot. For Recons. at 1.) Although the moving papers fall short of being a model of clarity, the gravamen of Faison's complaint appears to be: (1) the federal prosecution was undertaken absent jurisdiction as to Counts One, Three and Four, (2) that Nassau County Detectives Stephen Hoefenkrieg ("Hoefenkrieg") and Daniel DeCastro ("DeCastro") testified as to the nature and weight of the controlled substances charged in those three counts notwithstanding the government's pretrial representation that it did "not intend to introduce any of the laboratory results from Nassau County at trial," (id. at 4), and contrary to this Court's statement in its April 13th decision that the testimony of those witnesses pertained solely to "chain of custody" issues, (id.), (3) because Hoefenkrieg and DeCastro testified about their analyses of the drugs, Faison contends that the government violated its obligations under "Brady for not providing the qualifications and curriculum vitae of [those] two detectives . . . [as] requested by the defendant [in his discovery demand] dated . . . July 15, 2011," (id.), and (4) I violated my obligations under Federal Rules of Evidence 104(a) and 702 by permitting the two detectives to testify as experts without proper foundations being laid. (Id.)
1. Jurisdictional Argument
Faison has questioned the legitimacy of this prosecution from its outset. He moved pretrial to dismiss the indictment on numerous grounds including that the federal prosecution constituted double jeopardy. That effort was unsuccessful. (See Mar. 25, 2011 Tr., 2-11.) And after his conviction, as we know, he sought to have the jury's verdict set aside, with one of the positions advanced being a reconfiguration of his earlier double jeopardy argument, this time presented under the guise of collateral estoppel. Given that the State of New York and the United States are separate sovereigns, i.e. not "the same parties," that argument was also rejected in the Court's April 13, 2012 decision. The current motion for reconsideration followed.
In asking the Court to revisit my determination in April of this year, Faison insists that members of federal law enforcement controlled, or were otherwise actively involved in the Glen Cove Police Department investigation underlying three counts in the present indictment. Thus, or so the argument continues, defendant's collateral estoppel argument is germane in law and fact, and bars the instant federal prosecution. That argument is flawed because of the absence of evidence to suggest, no less establish, that members of federal law enforcement were working in conjunction with their state counterparts with respect to Faison vis-a-vis Counts One, Three and Four. Indeed, the existing evidence is precisely to the contrary. By way of example, Special Agent Knox credibly, and without contradiction, testified that the federal agents investigating Faison were unaware that he was also being investigated by members of the Glen Cove Police Department until after Faison's arrest by the state officials on June 18, 2010. (See, e.g., Sept. 14, 2011 Tr., 219:2-220:7.)
In sum, defendant's jurisdictional arguments in their various permutations have been addressed and rejected on several earlier occasions. However, I did not previously specifically address defendant's "joint-operation" argument and, as a result, the collateral estoppel issue has been revisited, albeit unsuccessfully from defendant's perspective, for that limited purpose.
2. Testimony of Nassau County Detectives Hoefenkrieg and DeCastro
In order to place the challenged testimony of Detectives Hoefenkrieg and DeCastro in context, it is necessary to underscore Faison's extraordinary focus at trial on the government's proof as to chain of custody of the drugs implicated in Counts One, Three and Four.
(a) Central Role That Chain of Custody
Defendant's opening statement to the jury was succinct and one-dimensional. After explaining to the jury "that the burden of proof lies with the government," he proffered that "the defendant is prepared to show through the course of this trial that what the government wants to introduce as evidence didn't come from Mr. Faison." (Sept. 13, 2011 Tr., 87:8-12.) Efforts to elicit testimony in support of that theme pervaded Faison's cross-examination of those government witnesses who had any physical contact with the subject controlled substances. And in ...