United States District Court, E.D. New York
MEMORANDUM AND ORDER
KIYO A. MATSUMOTO, District Judge.
A four-count indictment (the "Indictment"), filed on May 24, 2013, charges defendants Clyde Faltine ("Faltine"), Rashad Glynn ("Glynn"), Justin Jaikaran ("Jaikaran"), and Corey Lee ("Lee") with one count of conspiracy to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846, and 18 U.S.C. § 3551 et seq. It also charges all defendants with one count of possession of cocaine with intent to distribute in violation of, inter alia, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II); one count of possession of cocaine base with intent to distribute in violation of, inter alia, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); and one count of possession of marijuana with intent to distribute in violation of, inter alia, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). (ECF No. 30, Indictment filed 5/24/13 ("Ind't") ¶¶ 1-4.) The Indictment also contains a criminal forfeiture allegation pursuant to 21 U.S.C. §§ 853(a) and (p). (Ind't ¶¶ 5-6.)
Presently before the court are the following pre-trial motions filed by Lee, Faltine, and Jaikaran (collectively, "movants").
Lee moves for (a) suppression of post-arrest statements and physical evidence seized from Lee's residence, (b) dismissal of the indictment, (c) disclosure of grand jury empanelment instructions, (d) a bill of particulars, (e) disclosure of the government's confidential informants and permission to interview the informants, (f) suppression of evidence seized pursuant to a court-authorized wire interception, (g) severance, and (h) permission to join in the motions of his co-defendants. ( See generally ECF No. 72, Lee Am. Omnibus Mot. filed 11/18/13 ("Lee Omnibus Mot.").)
Faltine moves to (a) suppress post-arrest statements based on a lack of Miranda warning, (b) suppress evidence seized from his restaurant, (c) join in his co-defendants' motions, and (d) reserve his rights to move for severance of his trial. ( See generally ECF No. 70, Faltine Mot. to Suppress filed 11/18/13 ("Faltine Mot.").)
Jaikaran moves to (a) join in the motions made on behalf of his co-defendants and (b) reserve his rights to move for severance of his trial. (ECF No. 71, Jaikaran Mot. filed 11/18/13 ("Jaikaran Mot.").)
The government does not oppose Lee's and Faltine's motions to suppress post-arrest statements based on lack of Miranda warnings and indicates that it will not seek to admit those statements, except to impeach Lee or Faltine in the event either defendant testifies, to refresh witnesses' recollection, or at sentencing. (ECF No. 76, Gov't Opposition dated 12/19/13 ("Gov't Opp."), at 34; ECF No. 92, Gov't Post-Hearing Opposition to Motions to Suppress dated 4/21/14 ("Gov't Post-Hr'g Opp."), at 1; ECF No. 86, Gov't Letter Regarding Suppression Hearing filed 4/3/14 ("4/3/14 Gov't Ltr.").) The government opposes all movants' remaining motions. ( See generally Gov't Opp.) The court has carefully reviewed the parties' submissions, and for the reasons set forth below, the movants' remaining motions are granted in part and denied in part.
The allegations in the Indictment, the Complaint, and the government's submissions are as follows:
Between January 2009 and April 2013, defendants allegedly conspired to distribute and possess with intent to distribute five kilograms or more of a substance containing cocaine, 28 grams or more of a substance containing cocaine base, and marijuana. (Ind't ¶ 1.) Defendants are also charged with possession of cocaine, cocaine base, and marijuana with the intent to distribute. (Ind't ¶¶ 2-4.)
The instant charges relate to defendants' alleged involvement in drug trafficking activity led by Fletcher Voisin, who is not charged in this Indictment. (ECF No. 1, Criminal Complaint filed 4/24/13 ("Compl.") ¶¶ 3-9.) In late 2011, the Drug Enforcement Administration ("DEA") began investigating a drug-trafficking organization based in Brooklyn, New York, that was led by Voisin. (Compl. ¶ 3.) In June 2012, agents installed a pole camera outside of a warehouse located at 305 East 89th Street in Brooklyn that was used by the organization. ( Id. ) On July 5, 2012, the Honorable Margo K. Brodie authorized the government to intercept Voisin's telephone communications. ( Id. ) From July 9, 2012, to August 7, 2012, agents intercepted telephone calls between Voisin and defendants Lee, Faltine, and Glynn, that allegedly related to narcotics trafficking. ( See Compl. ¶ 9.) Agents also intercepted calls referring to defendant Jaikaran allegedly regarding narcotics. (Compl. ¶¶ 17-18.)
On August 1, 2012, agents executed a search warrant, issued by the Honorable Joan M. Azrack, on the warehouse. (Compl. ¶ 4.) During the course of their search, agents found seven kilograms of cocaine, approximately 169.7 grams of cocaine base, approximately 150 pounds of marijuana, three loaded firearms, scales, narcotics wrapping material, a bullet-proof vest, approximately $400, 000 in United States currency, a fake identification card, and a ledger that appeared to be a drug ledger. (Compl. ¶¶ 6-7.)
On April 24, 2013, pursuant to the Complaint, the Honorable Ramon E. Reyes signed arrest warrants for Lee, Faltine, Jaikaran, and Glynn. (ECF Nos. 2-5, Arrest Warrants dated 4/24/13.) Judge Reyes also signed a search warrant for Faltine's place of business, "Mr. Taste, " a restaurant located at 5222 Church Avenue, Brooklyn, New York. (Gov't Opp., Ex. C, Search Warrant for 5222 Church Ave., dated 4/24/13 ("5222 Church Ave. Search Warrant").) DEA agents executed the arrest and search warrants for all defendants on April 25, 2013.
DEA agents arrested Lee at his apartment, located at 65101 Terrace Court, Apartment 2, Middle Village, New York. The agents encountered Lee's partner, Toya Cephus,  when they first arrived at the apartment. Agents then entered the apartment and proceeded to the rear bedroom, where they arrested Lee. (Govt' Opp. Br. at 3.) Agents did not provide Lee with a Miranda warning. ( Id. ) After arresting Lee, agents seized United States currency from a safe in the bedroom closet, cell phones, bags of marijuana from the garage, and drug contraband from the kitchen. ( Id. ) The parties dispute whether Lee gave permission to search his apartment.
Agents arrested Faltine at Faltine's restaurant, Mr. Taste, located at 522 Church Avenue in Brooklyn, New York. While executing the search warrant, agents found powder cocaine, cocaine base, marijuana, bundles of United States currency, and scales with cocaine residue. (Gov't Opp. at 4.)
Jaikaran was arrested at his residence. ( Id. at 3-4.) All three movants were arraigned on a criminal complaint before Judge Reyes on April 25, 2013. (ECF No. 7, Minute Entry dated 4/25/13.) On May 24, 2013, a grand jury returned the Indictment charging defendants with the aforementioned counts. (Ind't.) On June 3, 2013, defendants Lee and Faltine were arraigned on the Indictment and entered pleas of not guilty. (ECF No. 36, Minute Entry dated 6/3/13.) On June 4, 2013, Jaikaran was arraigned on the Indictment and pleaded not guilty to all counts. (ECF No. 40, Minute Entry dated 6/4/13.)
I. Motion to Join in Co-Defendants' Motions and to Reserve Motions to Sever
Lee, Faltine, and Jaikaran have moved to join in the motions of their co-defendants. (Lee Omnibus Mot. at 72; Jaikaran Mot. at 1; Faltine Mot. at 1.) The court grants their motions. To the extent that any defendant has requested to reserve his rights to move at a later date, these requests are denied. The court set a briefing schedule for motions, and the parties were expected to adhere to it. ( See Minute Entry dated 10/16/13.) Accordingly, the requests by Jaikaran and Faltine to reserve their rights to move for severance at a later date are denied, and the court shall construe their requests as a motion for severance.
II. Motions for Severance
A. Alleged Grounds for Severance
Each movant moves to sever his trial from that of the other defendants, based on conclusory assertions that a joint trial will result in prejudicial spillover and that the defendants have mutually antagonistic defenses. ( See Lee Omnibus Mot. at 32-33; Jaikaran Mot. at 1-2; Faltine Mot. at 3.) Defendants do not explain how their defenses may be mutually antagonistic. Only Lee has articulated a specific ground for severance based on spillover prejudice, arguing that evidence pertaining to his co-defendants that involve cocaine and cocaine base distribution conspiracies may prejudice him in light of the "scant evidence against him overall" and the "lack of nexus attributable between Mr. Lee and the Cocaine and Crack conspiracies." (Lee Omnibus Mot. at 32-33.)
B. Legal Standard
Under Federal Rule of Criminal Procedure 8(b), multiple defendants who allegedly "participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses" may be charged in a single indictment. Fed. R. Crim. P. 8(b). Federal Rule of Criminal Procedure 14(a) allows a court to "order separate trials of counts, sever the defendants' trials, or provide any other relief that justice so requires" if "the joinder of offenses or defendants in an indictment... appears to prejudice a defendant or the government." Fed. R. Crim. P. 14(a).
The Supreme Court has expressed a strong "preference in the federal system for joint trials of defendants who are indicted together" to promote judicial efficiency and prevent the inequity of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537 (1993). Indeed, "a district court should grant severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilty or innocence." Id. at 539 (emphasis added); United States v. Rittweger, 524 F.3d 171, 179 (2d Cir. 2008).
A defendant who claims there is a risk of prejudicial spillover from a joint trial "bears an extremely heavy burden." United States v. Nerlinger, 862 F.2d 967, 974 (2d Cir. 1998) (internal quotation marks and citation omitted). The defendant must show that "prejudice would be so great as to deprive him of his right to a fair trial." United States v. Bellomo, 954 F.Supp. 630, 649 (S.D.N.Y. 1997) (citing United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989)). The risk of prejudice against a defendant from a joint trial may be heightened where, for example, "many defendants are tried together in a complex case and they have markedly different degrees of culpability." Zafiro, 506 U.S. at 539. Prejudice warranting severance may also be present if "essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial." Id. Whether sufficient prejudice exists is a highly fact-specific determination. Id. In many situations where the risk of prejudice is high, "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice" from a joint trial. Id. Moreover, the decision of whether to sever a trial is committed to the sound discretion of the district court." Id. at 541; United States v. Wilson, 11 F.3d 346, 353-54 (2d Cir. 1993).
Here, the court finds that defendants have failed to meet their heavy burden of establishing that severance is warranted.
First, regarding the risk of prejudicial spillover, Faltine and Jaikaran merely make conclusory assertions of prejudice and do not provide any details whatsoever as to how a joint trial could prejudice them. Lee argues that there is a risk of prejudicial spillover due to the evidence against his co-defendants involving cocaine and cocaine base, the lack of evidence relating to his involvement in any alleged cocaine and cocaine base conspiracies, and the "scant evidence against him overall." (Lee Omnibus Mot. at 33.)
It is well-established that differing levels of culpability and involvement among defendants and disparities in the quantity of evidence "are inevitable in any multidefendant trial, and by themselves do not warrant severance." United States v. Cardascia, 951 F.2d 474, 483 (2d Cir. 1991) (rejecting a "guilt by association" argument for severance); United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir. 1987) (affirming denial of severance where defendants claimed there was only minimal evidence against them compared to evidence against codefendants).
The Second Circuit has held that "joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible." United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993). Moreover, spillover prejudice may be cured by providing careful limiting instructions about the evidence to be considered against each defendant. Id. Therefore, the movants' claims of spillover prejudice are not persuasive, and do not warrant severance.
Furthermore, the movants' claims that their defenses are mutually antagonistic do not require severance. "A simple showing of some antagonism between defendants' theories of defense do not require severance." United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982); Zafiro, 506 U.S. at 438. Antagonistic defenses rise to the level of prejudice requiring severance only "upon a showing that the jury, in order to believe the core of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant." Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990) (internal quotation marks and citation omitted). Here, the movants have failed to articulate any details regarding mutually antagonistic defenses, much less show that the core of one of their defenses conflicts with the defense of a codefendant. Absent any specific showing as to how one defense could conflict with a co-defendant's defense, severance is not warranted.
For these reasons, the motions by Lee, Faltine, and Jaikaran to sever their trials are denied.
III.Motion to Disclose Grand Jury Empanelment Instructions and Dismiss the Indictment
Lee, joined by Jaikaran and Faltine, moves to dismiss the Indictment and to disclose the grand jury empanelment instructions. (Lee Omnibus Mot. at 12-17.) Specifically, Lee argues, based "on information and belief, " that the grand jury was erroneously instructed that it was obligated to indict upon a finding of probable cause and that it could not consider the wisdom of laws enacted by Congress nor possible punishments. Lee moves the court to disclose the grand jury empanelment instructions and to dismiss the Indictment based on these alleged errors in jury instructions, as well as on a lack of probable cause. (Lee Omnibus Mot. at 12.)
A. Legal Standard
Disclosure of grand jury proceedings is permitted "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." Fed. R. Crim. P. 6(e)(3)(C)(ii). There is a baseline presumption against disclosure of grand jury proceedings, and the trial court has broad discretion to decide whether disclosure is appropriate. In re Petition of Craig, 131 F.3d 99, 104 (2d Cir. 1997). The defendant bears the burden of demonstrating a "particularized need" for disclosure of grand jury materials "that outweighs the government's interest in maintaining the continued secrecy of the grand jury proceeding." Anilao v. Spota, 918 F.Supp.2d 157, 173-74 (E.D.N.Y. 2013); United States v. Nunez, No. 00 CR 121, 2001 WL 91708, at *11 (S.D.N.Y. Feb. 1, 2001) (citing United States v. Sells Eng'g, 463 U.S. 418, 443 (1983)).
"[U]nspecific allegations of need or mere speculation are not adequate." Anilao, 918 F.Supp.2d at 174; United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990), abrogated on other grounds by United States v. Marcus, 628 F.3d 36 (2d Cir. 2010) ("A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct."). Moreover, a "defendant is not routinely entitled to grand jury... instructions in order to engage in a fishing expedition in hopes of uncovering an impropriety or defect in the proceeding where he has no basis to conclude that an impropriety or defect exists." United States v. Abounnajah, No. CR-91-00146, 1991 WL 42895, at *2 (E.D.N.Y. Mar. 26, 1991) (citing United States v. Abrams, 539 F.Supp. 378, 389 (S.D.N.Y. 1982)); see also United States v. Stern, No. 03 CR. 81, 2003 WL 22743897, at *3 (S.D.N.Y. Nov. 30, 2003) ("[A]bsent any indication of government impropriety that would defeat that presumption [of regularity], this court has no roving commission to inspect grand jury minutes, and will not fashion one.").
Furthermore, the standard to dismiss an indictment is a high one. "[D]ismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia v. United States, 487 U.S. 250, 256-57 (1988) (internal quotation marks and citation omitted). Thus, in Bank of Nova Scotia, the Supreme Court held that the harmless error standard under Federal Rule of Criminal Procedure 52(a) applies to the dismissal of an indictment. Id. at 255-56. The only "isolated exceptions" to the harmless error standard involve "fundamental" or "structural" errors, which "so compromise" the grand jury proceedings as to render them "fundamentally unfair, allowing the presumption of prejudice." Id. at 256-57 (citing, as examples, racial discrimination in selection of grand jurors). Notably, even if a grand jury was improperly instructed, "that error is not a basis for the defense obtaining the Grand Jury minutes since (absent a showing of prejudice to defendants due to the error) errors in Grand Jury proceedings alone are not a basis for dismissal of an Indictment." United States v. Larson, No. 07 CR 304S, 2012 WL 4112026, at *4 (W.D.N.Y. Sept. 18, 2012) (citing Bank of Nova Scotia, 487 U.S. at 254).
Here, Lee argues that the grand jury minutes should be disclosed and the Indictment be dismissed because of alleged errors in the grand jury empanelment instructions. Specifically, Lee, "upon information and belief, " contends that the grand jury instructions erroneously (1) misled the grand jurors by instructing them that their sole responsibility was to make a probable cause determination and then return an indictment upon a finding of probable cause, and (2) failed to instruct the grand jury of its history power to refuse to indict. (Lee Omnibus Mot. at 14-16.) Lee argues that these alleged errors in the grand jury instructions unconstitutionally usurped the grand jury's independence. ( Id. ) Lee also contends that the Indictment should be dismissed for lack of probable cause. ( Id. at 16.)
It is well-established that the movant bears the burden of demonstrating a particularized need for the disclosure of grand jury minutes, and this particularized need must outweigh the government's interest in maintaining the continued secrecy of the grand jury proceeding. Anilao, 918 F.Supp.2d at 173-74; Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979). Here, Lee has not made any showing of particularized need, nor provided any basis upon which to believe that the grand jury empanelment instructions contained unconstitutional errors. Moreover, Lee's reliance on a footnote from an out-of-circuit opinion, United States v. Alter, 482 F.2d 1016 (9th Cir. 1973), does not support disclosure here, where there is more recent, controlling Second Circuit precedent requiring a particularized need for disclosure. See, e.g., United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978); Torres, 901 F.2d at 233. Absent any showing of particularized need, the court will not allow Lee to "engage in a fishing expedition in hopes of uncovering an impropriety or defect in the proceeding." Abounnajah, 1991 WL 42895, at *2. Accordingly, Lee's motion for disclosure of the grand jury empanelment instructions is denied.
Furthermore, even if disclosure of the grand jury empanelment instructions were warranted, and even if the instructions did in fact contain the alleged errors that Lee posits, there would still be no basis for dismissing the Indictment. Lee raises two alleged errors "on information and belief": (1) instructing the grand jury to indict upon a finding of probable cause, and (2) instructing the grand jury to not consider the wisdom of laws enacted by Congress nor possible punishments. (Lee Omnibus Mot. at 14.) The government points out that Lee appears to base his arguments on the Model Federal Grand Jury Charge. (Gov't Opp. at 5.) Courts have consistently upheld as constitutional the Model Charge, instructions to indict if probable cause is found, and instructions to not consider the wisdom of criminal laws enacted by Congress. See United States v. Bruno, No. 09-CR-29, 2009 WL 2601249, at *5 (N.D.N.Y. Aug. 21, 2009) ("Even if the court were to assume that the Model Charge was used, the Model Charge is constitutional"); United States v. Knight, 490 F.3d 1268, 1271-72 (11th Cir. 2007) (holding that grand jury instructions based on Model Jury Instructions were constitutional and did not deprive grand jury of its independence); United States v. Navarro-Vargas, 408 F.3d 1184, 1205-06 (9th Cir. 2005) (en banc) (holding that grand jury instructions stating, "You cannot judge the wisdom of the criminal laws enacted by Congress" and "you should vote to indict where the evidence presented to you is sufficiently strong to warrant" a finding of probable cause, are both constitutional).
Moreover, even if these alleged errors in the grand jury empanelment instructions were unconstitutional, Lee would still have to show that the errors were prejudicial, and not merely harmless error. Bank of Nova Scotia, 487 U.S. at 254-55.
Lee has made no attempt to meet the harmless error standard under Federal Rule of Civil Procedure 52(a). Instead, Lee claims that the alleged errors were "structural errors." (Lee Omnibus Mot. at 15.) This argument is unavailing. Courts have recognized only a very "limited number of structural errors, all involving the violation of bedrock constitutional rights, such as total deprivation of the right to counsel; exclusion of jurors on the basis of race; and improper closure of a courtroom to the public." United States v. Moran-Toala, 726 F.3d 334, 343-44 (2d Cir. 2013) (internal citations omitted). Significantly, "[t]he category of recognized structural errors with regard to jury instructions is even more limited." Id. Lee does not identify, nor could the court find, any authority supporting the assertion that the two alleged errors in the grand jury empanelment instructions are structural and fundamental. Accordingly, Lee's motion to dismiss the Indictment based on allegedly erroneous grand jury empanelment instructions is denied.
In a final attempt to dismiss the Indictment, Lee asserts that the Indictment was not supported by sufficient evidence or probable cause. (Lee Omnibus Mot. at 16-17.) Lee claims that there is no evidence in any of the discovery relating to his alleged participation in a conspiracy involving cocaine and/or cocaine base, and he notes that only marijuana was found at his residence. ( Id. at 16.)
Lee's motion to dismiss the Indictment on these grounds is also denied. It is "well settled that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). A valid indictment "need do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." Stavroulakis, 952 F.2d at 693 (internal quotation marks and citation omitted). Here, the Indictment against Lee and his co-movants has met this lenient standard. ( See Ind't.) Moreover, a defendant may not challenge a facially valid indictment prior to trial on the basis of insufficient evidence; the proper way to raise evidentiary insufficiency is through a Rule 29 motion before the case is submitted to the jury, or after a jury verdict. United States v. Gambino, 809 F.Supp. 1061, 1079 (S.D.N.Y. 1992); accord United States v. Cafaro, 480 F.Supp. 511, 520 (S.D.N.Y. 1979). Accordingly, the motion to dismiss the Indictment based on insufficient evidence is also denied.
IV. Motion for a Bill of Particulars
Lee, joined by Jaikaran and Faltine, further moves for a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). (Lee Omnibus Mot. at 34.) Lee argues that it is necessary to obtain a bill of particulars regarding his involvement in every count of the indictment to "adequately prepare for trial, " on the grounds that the Indictment's substantive counts "are nebulous and simply recite statutory language." ( Id. at 35.) In particular, Lee seeks, inter alia, the exact acts and dates of acts attributable to him; the basis for the government's belief that he possessed with intent to distribute cocaine and/or cocaine base; the date, time, and place that he allegedly joined the conspiracy; and a full accounting regarding the government's allegation in the forfeiture count of the Indictment. ( Id. at 35.)
A. Legal Standard
The purpose of a bill of particulars is to "provide sufficient information about an offense to permit the defendant to prepare for trial, to avoid unfair surprise, and to preclude a second prosecution for the same offense.'" United States v. Heil, No. 06 CR 00749, 2007 WL 4125124, at *3 (E.D.N.Y. Nov. 16, 2007) (quoting United States v. Mason, No. 06 Cr. 80, 2007 WL 541653, at *5 (S.D.N.Y. Feb. 16, 2007)). It "is not a general tool of discovery, nor is it a device to give the defense a road map to the government's case.'" Id. A bill of particulars "is required only where the charges of the indictment are so general that do they not advise the defendant of the specific acts of which he is accused, " depriving a defendant of the ability to prepare for trial. United States v. Chen, 378 F.3d 151, 162 (2d Cir. 2004) (internal quotation marks and citations omitted). A bill of particulars is "not necessary where the government has made ...