Opinion
18-CR-100 (ENV)
10-02-2018
UNITED STATES OF AMERICA, v. RUSLAN REIZIN and MARK KRIVOI, Defendants.
SHORT FORM MEMORANDUM & ORDER
Jury selection in this case is scheduled to start on October 29, 2018. Defendant Krivoi has filed an omnibus motion in limine, ("Krivoi Mot.") dkt. 45; defendant Reizin has filed a motion to sever and to suppress, ("Reizin Mot.") dkt. 46. Both are opposed by the government, ("Govt. Opp'n"), dkt. 52. Seeking relief of its own, the government has filed a motion in limine, ("Govt. Mot."), dkt. 48, which Krivoi opposes ("Krivoi Opp'n"), dkt. 50, joined by Reizin at oral argument. Having considered the submissions of the parties, and argument having been heard on September 27, 2018, see Minute Entry for Oral Argument on September 27, 2018, the motions are resolved in the manner and for the reasons as set forth below.
During oral argument, counsel for defendant Krivoi raised a potential objection to certain recordings of telephone conversations the government intends to use at trial. If the parties are unable to reach an agreement as to these recordings, Krivoi may file a supplemental motion to resolve the issue prior to trial.
| Motion | Ruling |
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| Defendants' Shared Requests | |
| (A) Pursuant to Federal Rule ofCriminal Procedure 14, defendants | (A) In light of the long-standing preference for jointtrials of defendants who are indicted together, a court |
| move to sever the trial, arguingthat a joint trial will prejudiceReizin in light of profferstatements made by Krivoi.Reizin Mot. at 3-4; Krivoi Mot. at2. Defendants argue that theadmission of proffer statementswill violate Bruton v. UnitedStates, 391 U.S. 123, 88 S. Ct.1620, 20 L. Ed. 2d 476 (1968), inwhich the Supreme Court held thatthe admission of a co-defendant'sunredacted confession thatinculpates the non-confessingdefendant violates theConfrontation Clause, even wherethe jury is instructed not toconsider the statement as to thenon-confessor. | should only grant severance "if there is a serious risk thata joint trial would compromise a specific trial right ofone of the defendants, or prevent the jury from making areliable judgment about guilt or innocence." Zafiro v.United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L.Ed. 2d 317 (1993). While courts take into accountvarious factors, "the ultimate question is whether the jurycan . . . render a fair and impartial verdict as to eachdefendant." United States v. Ramos, 2013 WL 1932110,at *5 (S.D.N.Y. May 8, 2013) (citation omitted) (denyingmotion for severance). Applying Bruton, the SecondCircuit has held that co-defendant confessions areadmissible where redacted to avoid explicit identificationof the non-confessor based on the statement alone, andwhere a limiting instruction is given to the jury. UnitedStates v. Jass, 569 F.3d 47, 64 (2d Cir. 2009); cf. Gray v.Maryland, 523 U.S. 185, 186, 118 S. Ct. 1151, 140 L.Ed. 2d 294 (1998) ("statements redacted to leave a blankor some other similarly obvious alteration . . . pointdirectly to, and accuse, the nonconfessing codefendant").Redaction need not be so extensive as to preventidentification of the co-defendant in light of otherevidence presented at trial. Jass, 569 F.3d at 64. |
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| Dispositively, defendants fail to demonstrate why anyprejudice from the admission of Krivoi's profferstatements could not be prevented through properredaction and a limiting instruction. The risk of a Brutonviolation is further reduced where, as the governmentintends to do here, the statements in question, to theextent otherwise admissible against Krivoi, would beadmitted through the testimony of a witness prepared notto identify the non-confessing defendant, thusminimizing "the risk of clumsy redactions." UnitedStates v. Rivera, 89 F. Supp. 3d 376, 399 (E.D.N.Y.2015). The motion to sever is denied. In aid of thisruling, though, the government is directed to file a"Brutonized" proffer statement and proposed limitinginstructions for the Court's review by October 15, 2018. | |
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| (B) Defendants move to suppresscell-site location evidenceobtained through a court orderunder 18 U.S.C. § 2703(d),because Carpenter v. UnitedStates, 138 S. Ct. 2206 (2018),requires a search warrant to obtainsuch information. Reizin Mot. at | (B) The government advised that it obtained a searchwarrant for the cell-site data post-Carpenter, and itsapplication for that warrant "did not rely on data itobtained through the Rule 2703(d) order" secured priorto its warrant application. Govt. Opp'n at 5. In light ofthe government's representation, the motion to suppresswas withdrawn on the record during oral argument.Motion withdrawn. |
| 2; Krivoi Mot. at 2. Defendantsalso seek to suppress any evidencederived from the cell-siteevidence. Reizin Mot. at 2. | |
| Krivoi Motions | |
| (C) Krivoi seeks to dismiss CountOne in the indictment,Kidnapping, arguing that theevidence presented to the grandjury was legally insufficient andthat the victim was in Krivoi's carfor an insufficient amount of timeto constitute kidnapping. KrivoiMot. at 2. Krivoi also indicates heintends to bring a post-trial motionfor judgment of acquittal. KrivoiReply at 6, Dkt. 54. | (C) Generally, in criminal cases, challenges to thesufficiency of evidence are reserved for acquittal motionsmade after the close of the government's case-in-chief orpost-trial. See Fed. R. Crim. P. 29; see also UnitedStates v. Alfonso, 143 F.3d 772, 777 (2d Cir. 1998) ("thesufficiency of the evidence is not appropriately addressedon a pretrial motion to dismiss an indictment"). CountOne provides "a plain, concise, and definite writtenstatement of the essential facts constituting the offensecharged," see Fed. R. Crim. P. 7(c)(1), and the elementsof the kidnapping charge do not include any temporalrequirement, see 18 U.S.C. § 1201(a). This is not acharge based on an "overly literal interpretation" of thekidnapping statute where the defendant allegedlycommitted "different offenses, of which temporaryseizure or detention played an incidental part", such asrobbery. Govt. of V.I. v. Berry, 604 F.2d 221, 226 (3d |
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| Cir. 1979). Although case law applying the predecessorfederal kidnapping statute observes that "holding akidnapped person . . . implies an unlawful physical ormental restraint for an appreciable period," Chatwin v.United States, 326 U.S. 455, 460, 66 S. Ct. 233, 90 L.Ed. 198 (1946), it does not require any minimum"appreciable period." Furthermore, as Krivoiacknowledges, the Second Circuit observed in Rodriguezthat a period of less than 15 minutes could be considered"appreciable" where the victim was physically injured orthreatened with injury, as the government charges here.United States v. Rodriguez, 587 F.3d 573, 581 (2d Cir.2009) (applying Chatwin to Hostage Taking Act). Themotion to dismiss Count One is denied, but, of course,without prejudice to its renewal on a Rule 29 motion atthe close of the government's case. | |
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| (D) Krivoi moves to precludeimpeachment based on prior | (D) The government does not seek to admit Rule 609evidence in its case-in-chief, Govt. Opp'n at 4, or for |
| convictions under Federal Rule ofEvidence 609(a). Krivoi Mot. at3. | impeachment on cross-examination, see Govt. Mot. Therequest is moot, and denied on that ground. |
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| (E) Pursuant to Federal Rule ofEvidence 404(b), Krivoi demandsnotice of any "bad acts" thegovernment seeks to introduce attrial. Krivoi Mot. at 4. | (E) The government does not intend to admit 404(b)evidence in its case-in-chief, Govt. Opp'n at 4, and hasalready given notice of the "bad acts" it seeks to admitfor impeachment purposes through its own motion. Thisrequest is moot, and the motion is denied on that ground.See part (O), infra, regarding the government's motion inlimine to use such evidence to impeach Krivoi should heelect to testify. |
| (F) Pursuant to Rule 6, Krivoiseeks the release of grand jurytestimony, specifically asking for"the names of all witnesses" 30days before trial to "help enableMr. Krivoi to prepare his defense."Krivoi Mot. at 4. | (F) Krivoi presents no argument as to why he shouldreceive grand jury information. There is no generalhelpfulness exception to the "long-established policy thatmaintains the secrecy of the grand jury proceedings inthe federal courts," which must only be broken "wherethere is a compelling necessity" shown "withparticularity." United States v. Procter & Gamble Co.,356 U.S. 677, 681, 78 S. Ct. 983, 2 L. Ed. 2d 1077(1958). Krivoi's admission that he knows "who thealleged 'victim' is in this case" and has thus far made"no attempt to obstruct justice" is not, as peculiar a |
| statement it may be, a compelling reason to orderdisclosure. The request is denied. | |
| (G) Pursuant to Rule 801(d)(2)(D),Krivoi seeks admission ofstatements made by thegovernment at Reizin's bailhearing, allegedly referring toKrivoi as "a 'minor' participant"in the charged extortionconspiracy. Krivoi Mot. at 4-5. | (G) According to the government, Krivoi seeks to admita statement that does not exist, because the governmentdid not call him "a minor participant" at Reizin's bailhearing, instead stating to the presiding MagistrateJudge, "[a]s you can tell from the complaint, Krivoi'sinvolvement is more limited." Govt. Opp'n at 19(emphasis added). While the Second Circuit hasobserved that "there is no absolute rule preventing use ofan earlier opening statement by counsel as an admissionagainst a criminal defendant in a subsequent trial,"United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984),Krivoi submits no precedent for the admission of priorstatements made at bail hearings under the party-opponent exception to the hearsay rule. See UnitedStates v. Aleynikov, 785 F. Supp. 2d 46, 63 (S.D.N.Y.2011) (denying admission of government statementsmade during bail hearing), rev'd on other grounds, 476F. App'x 473 (2d Cir. 2012). Furthermore, even hadsuch statements been made in argument to a jury on theultimate issues as opposed to at a bail proceeding, priorjury argument may only be admitted under the party- |
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| opponent rule where it "involves an assertion of factinconsistent with similar assertions in a subsequent trial,"where the inconsistency is "clear and of a quality whichobviates any need for the trier of fact to explore otherevents at the prior trial," and where the district court hasdetermined by a preponderance of the evidence that theproposed inference "is a fair one and that an innocentexplanation for the inconsistency does not exist."McKeon, 738 F.2d at 33. The statement actually made atthe bail hearing is an opinion about a matter immaterialto guilt or innocence, not a fact, and the government doesnot intend to offer any theory inconsistent with thecharacterization that Krivoi's involvement was "morelimited" than Reizin's, Govt. Opp'n at 21. By the verynature of conspiracy, conspirators have various roles toplay, some more limited than others. But, all whoknowingly join a conspiracy are equally criminally liableregardless the specific role they played. Role limitationis a matter appropriately considered in setting bail, orimposing a sentence, but not for any other purpose. Themotion is denied. | |
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| (H) Krivoi asks the Court to rulein advance on the admissibility of | (H) Rule 801(d)(2)(E) permits the admission of astatement made by a coconspirator during and in |
| "any out-of-court statements byalleged co-conspirator Reizin" thatmight be offered pursuant to Rule801(d)(2)(E), requiring "thegovernment to meet its burdenpre-trial" so as to avoid a mistrial.Krivoi Mot. at 5. | furtherance of the conspiracy. Because Krivoi has notidentified any specific potential statement, insteadmerely asking the Court to "carefully" review anystatement at the time it is presented for admission, KrivoiMot. at 5, this request is premature. Ruling will bereserved to the time of trial should Krivoi object to anysuch proffer on that basis. |
| (I) Pursuant to Rule 7(f), Krivoiasks the government to statewhether it is proceeding againsthim as a principal, or an aider andabettor. Krivoi Mot. at 5. | (I) Rule 7(f) permits courts to order the government tofile a bill of particulars, which the defendant may request"before or within 14 days after arraignment or at a latertime if the court permits." Because the government doesnot oppose this request, it is granted. |
| (J) Krivoi asks for an order todirect the government to discloseevidence subject to disclosureunder Rules 12(b)(4) and 16, "ifnot already provided." KrivoiMot. at 5-6. He also requests thatthe government specificallyidentify its case-in-chief evidence"separate and apart from any items | (J) Since the government affirms it "has produced thebulk of discovery, and will continue to producediscoverable materials on a rolling basis," Govt. Opp'nat 5, n. 2, the request for production is unnecessary, andis denied on that basis. As to the request foridentification of case-in-chief evidence, the purpose ofRule 12(b)(4) is to give a defendant an opportunity tomove to suppress evidence. See Rule 12(b)(4)(B). Thisprovision is not a tool "to aid the defendant inascertaining the Government's trial strategy." United |
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| of other discovery" producedunder Rule 16. Id. at 6. | States v. Koschtschuk, 2010 WL 584018, at *10(W.D.N.Y. Feb. 16, 2010) (denying request forspecification of case-in-chief evidence); see also UnitedStates v. Barret, 824 F. Supp. 2d 419, 459-60 (E.D.N.Y.2011) (same). Krivoi provides no proper reason for thegovernment to specifically distinguish its case-in-chiefevidence from other discovery and thereby preview itstrial strategy. This request is denied. |
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| (K) Krivoi asks the Court to orderthe government "to produce allevidence that would be admissibleto attack the credibility of non-testifying co-conspiratordeclarants," pursuant to Brady andFederal Rule of Evidence 806.Krivoi Mot. at 7. | (K) The government confirms it is in compliance with itsobligation to produce exculpatory materials. Govt.Opp'n at 5-6. Because it is moot, the motion is denied. |
| (L) Pursuant to Rules 12(b)(4) and16(a)(1)(A) as well as the Fifth,Sixth, and Eighth Amendments,Krivoi seeks disclosure of all"contact between governmentagents or prosecutors and potential | (L) The government may generally withhold the identityof informants. United States v. Ordaz-Gallardo, 520 F.Supp. 2d 516, 520 (S.D.N.Y. 2007). Disclosure "is notrequired unless the informant's testimony is shown to bematerial to the defense." United States v. Saa, 859 F.2d1067, 1073 (2d Cir. 1988). A defendant bears the burden |
| informants incarcerated with"either defendant. Krivoi Mot. at 8.He similarly requests "the names,addresses and present locations ofeach and every informant andcooperating witness," making 39specific requests for informationas to each witness or informant.Id. at 12-16. | of "demonstrating the need for disclosure of aninformant's identity" and showing "that without suchdisclosure, [defendant] will be deprived of the right to afair trial." Ordaz-Gallardo, 520 F. Supp. 2d at 520.Krivoi makes no such showing of any kind. He merelyargues, in general terms, that disclosure is needed as "asafeguard" because informant testimony is "inherentlyunreliable." Krivoi Mot. at 8; see also id. at 12-15. Theargument is wrong as a matter of fact and as a matter oflaw. The request, which rests upon it, is denied. |
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| (M) Krivoi seeks immediatedisclosure of Giglio and Bradymaterials, and requests specificcategories of exculpatoryevidence. Krivoi Mot. at 8-11. | (M) In light of the government's affirmation of itsongoing compliance with these obligations andagreement to disclose any Brady materials "as soon as itbecomes aware of any", Govt. Opp'n at 6, this request ismoot. See also Sept. 12, 2018 Govt. Letter RegardingDiscovery, Dkt. 53. Of course, as with any other defenserequest denied on this basis, should the government failto make a promised production, the request may beseasonally renewed. |
| (N) Krivoi seeks disclosures ofgovernment witness statements, | (N) The Jencks Act requires the government to produceits witness statements after their direct testimony. 18 |
| pursuant to the Jencks Act, thirtydays before trial. Krivoi Mot. at 9. | U.S.C. § 3500. Courts have "no inherent power tomodify or amend the provisions of [the Jencks] Act."In re U.S., 834 F.2d 283, 287 (2d Cir. 1987); see alsoUnited States v. Ordaz-Gallardo, 520 F. Supp. 2d 516,523 (S.D.N.Y. 2007) (denying request for earlydisclosure of Jencks Act materials). Nonetheless, thegovernment has agreed to disclose Jencks Act materials aweek before jury selection. Govt. Opp'n at 6. Therequest is formally denied, but relief is granted by and tothe extent of the government's agreement. |
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| Government Motion in Limine | |
| (O) Pursuant to Rule 608(b), thegovernment moves to cross-examine Krivoi on the followingsix categories of prior falsestatements: | (O) Rule 608(b) permits cross-examination of a witness,including a defendant in a criminal case, on extrinsicevidence probative of the witness's character fortruthfulness. But, Rule 403 permits the exclusion of suchadmissible evidence "if its probative value issubstantially outweighed by a danger of . . . unfairprejudice, confusing the issues, misleading the jury,undue delay, wasting time, or needlessly presentingcumulative evidence." The district court has "widediscretion to impose limitations on the cross-examinationof witnesses," especially where such evidence is not |
| (1) Krivoi's false statements madeto Pre-Trial Services, concerninghis brother's residence,international trips taken in 2016and 2017, and his income, assets,and certain funds received fromhis mother-in-law, Govt. Mot. at5-6; | especially probative of truthfulness. United States v.Flaharty, 295 F.3d 182, 190 (2d Cir. 2002). In assessingproposed 608(b) evidence, a trial court may considerwhether the prior conduct constituted an act of deceit,occurred years in the past, was highly inflammatory innature, and whether there is opportunity to impeach onother grounds. See United States v. Devery, 935 F. Supp.393, 408 (S.D.N.Y. 1996) (precluding cross-examinationas to defendant's alleged prior sexual abuse of step-daughter). In order to avoid prejudice, wasted time, andcumulativeness, the government's requests will beconsidered individually and together as a group:(1) Krivoi's statements to Pre-Trial Services areadmissible for impeachment purposes. See United Statesv. Griffith, 385 F.3d 124, 126 (2d Cir. 2004). Thegovernment's request to cross-examine on this basis isgranted. |
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| (2) Krivoi's "misrepresentationsabout service of legal process" anda civil court's finding that histestimony was "truly incredulous"in a prior civil litigation with hiscondominium association, Govt.Mot. at 6; | (2) Especially given the greater than average impact of ajudge's comment on the credibility of a witness, eventhough in another case, the Rule 403 balancing test mustbe scrupulously applied. See United States v. Cedeno,644 F.3d 79, 83 (2d Cir. 2011) (setting forth 7-factortest). Significantly, the government does not point to anyspecific false statements made by Krivoi, but wants tosuggest that the judge found him not to be credibleoverall in another case. The subject matter—a disputewith a condominium association—is not similar to hiscriminal prosecution. Krivoi's testimony then waspresumably under oath. But, it stops there. Thegovernment does not identify false statements made"about a matter that was significant." Cedeno, 644 F.3dat 83. It could take a mini-trial to figure it out.Furthermore, over six years have passed since the civilsuit, though neither party points to any interveningcredibility determinations. The motive for any lie in thatcase—raising a successful defense—certainly existshere. Krivoi's explanation that the unfavorablecredibility assessment was based on his "arguably weakcounterclaims" that were interposed "for negotiationleverage" is plausible. Krivoi Opp'n at 6. Considering |
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| (3) Krivoi's false swornstatements in documentstransferring real estate to hisdaughter, including his failure todisclose that the transfer wasbetween relatives, and hiscompliance with the relevant taxreporting requirements, Govt.Mot. at 6-7;(4) Krivoi's alleged intimidationof witness Michael Stern duringKrivoi's brother's 2007 trial formurder, Govt. Mot. at 7-8; | these factors, especially the great potential for prejudice,the resulting entanglements with entirely unconnectedcivil litigation, and the cumulative effect of suchevidence, the evidence will be precluded on Rule 403grounds.(3) Under Rule 608(b), it is "appropriate to introducefalse statements, especially false sworn statements" forcredibility purposes. United States v. Triumph CapitalGrp., Inc., 237 F. App'x 625, 629 (2d Cir. 2007); seealso Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993)(false statements in tax returns and failure to file taxesare admissible as to credibility), abrogated on othergrounds, Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923,135 L. Ed. 2d 337 (1996). The government's third inlimine request is granted.(4) In this request, the government seeks to impeachKrivoi by inquiring about his alleged witness tamperingin relation to a murder trial. Any such inquiry would behighly prejudicial and could confuse the jury by |
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| (5) Krivoi's alleged promotion ofa fraudulent business venture withReizin, in which they induced athird party to pay $100,000-$250,000 towards "an apparentlynon-existent business", Govt. Mot.at 8-9; | suggesting Krivoi has a propensity for intimidation. Thealleged incident took place over a decade ago to boot.Moreover, the government will be permitted to introduceample evidence of untruthfulness through several of itsother requests. This request is denied as undulyprejudicial and cumulative.(5) The allegations of a fraudulent business venturewould be prejudicial to co-defendant Reizin, creating aseparate set of problems that would make the trial morecomplex. Nonetheless, putting these concerns to theside, in any event, the proffer would still lead to juryconfusion with respect to either or both defendants thatthey have a propensity for targeting third parties forfinancial gain. In addition, the government has notadequately explained the relevant facts establishinguntruthfulness. This request is denied as prejudicial toReizin, and as to both defendants, as confusing andcumulative. |
| (6) Krivoi's reporting of a falseresidential address to his carinsurance provider, Govt. Mot. at9. | (6) Krivoi does not dispute that he provided a falseaddress to his insurance company. See Krivoi Opp'n at10. Such false statements are admissible forimpeachment purposes. Triumph Capital Grp., 237 F.App'x at 629. This request is granted. |
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The merger doctrine argument advanced by Krivoi on reply relies on cases applying state law, not the statute charged here. See Krivoi Reply at 2. The only federal case he cites for support resulted in the denial of a state prisoner's habeas petition challenging his conviction for violating a state kidnapping statute based on the alleged insufficiency of evidence. See Burkhardt v. Bradt, 2016 WL 7017363, at *7-8 (E.D.N.Y. Dec. 1, 2016). --------
So Ordered. Dated: Brooklyn, New York
October 2, 2018
/s/ Hon. Eric Vitaliano
ERIC N. VITALIANO
United States District Judge