Opinion
13-CR-149(KAM)
05-07-2015
UNITED STATES OF AMERICA v. PAUL RIVERA, MICHAEL GARRETT, Defendants.
ORDER MATSUMOTO, United States District Judge:
Defendants Michael Garrett ("Mr. Garrett") and Paul Rivera ("Mr. Rivera" and collectively, "defendants") are charged with various racketeering and conspiracy offenses between January 2007 and April 2013, as well as sex trafficking, drug possession with intent to distribute, murder, using and possessing firearms, money laundering, witness tampering, and attempted obstruction of justice in a third superseding indictment filed on April 28, 2014. (See generally ECF No. 94, Superseding Indictment ("Indictment").) Pending before the court is the government's letter motion to preclude cross-examination of government witnesses Ferman Parker ("Mr. Parker") and Vincent Fearon ("Mr. Fearon") about certain arrests, complaints and summonses, none of which resulted in convictions. (Gov't Letter dated 4/24/2015 at 1, ECF No. 303.) The government also moves to preclude cross-examination regarding Mr. Parker's juvenile conviction for Unauthorized Use of a Vehicle. (Id. at 3.) For the reasons set forth below, the court grants the government's motion in its entirety.
Background
The court assumes familiarity with defendants' charged conduct as described in its prior Memoranda and Orders. (See, e.g., Mem. and Order dated 2/13/15, ECF No. 179; Mem. and Order dated 2/5/15, ECF No. 177.)
The government expects that Mr. Parker will testify as a cooperating witness at trial in the government's case-in-chief. (Id.) The government seeks to preclude cross-examination of Mr. Parker's juvenile conviction in March 1999, shortly after his fifteenth birthday, for Unauthorized Use of a Vehicle. (Id.) The government also moves to preclude Mr. Parker's following arrests, complaints and summonses, none of which resulted in convictions:
• February 1, 1999 arrest for Unauthorized Use of a Vehicle in the First Degree and complaint for Stolen Property in the Second Degree;
• February 25, 1999 arrest for Grand Larceny in the Third Degree and complaint for Stolen Property - Motor Vehicle in the Second Degree;
• March 19, 1999 arrest for Robbery in the Second Degree;
• September 24, 1999 arrest for Grand Larceny in the Fourth Degree and Grand Larceny;
• February 5, 2000 complaint for Stolen Property - Motor Vehicle in the Second Degree;
• March 8, 2000 arrest for a Family Court Act Offense;
• May 14, 2003 summons for Disorderly Conduct;
• June 17, 2003 summons for Bicycle on Sidewalk;
• December 26, 2003 arrest for Assault in the Third Degree;
• May 8, 2004 summons for Violating Park Regulations;
• June 25, 2004 summons for Loitering;
• August 19, 2004 arrest for Criminal Possession of a Weapon;
• October 12, 2004 arrest for a Cigarette Tax Violation;
• November 3, 2004 arrest for Loitering;
• May 28, 2006 summons for Disorderly Conduct;
• February 22, 2007 summons for Disorderly Conduct;
• April 15, 2008 summons for a Bicycle Infraction;
• September 15, 2008 summons for Possessing a Knife in Public View;
• March 12, 2009 arrest for Rape in the First Degree;
• July 2, 2009 arrest for Grand Larceny in the Fourth Degree;
• October 16, 2009 arrest for Unauthorized Use of a Vehicle in the First Degree;
• March 17, 2011 arrest for Grand Larceny in the Fourth Degree;
The government asserts that Mr. Parker's arrests and complaints from February 1999 to February 2000 resulted from riding in stolen cars with his sister's boyfriend when he was fourteen to fifteen years old and that Mr. Parker did not steal the cars himself. (Gov't Letter dated 5/1/2015 ("Gov't Reply") at 3, ECF No. 319.) The government asserts that Mr. Parker was arrested in July 2009 for Grand Larceny in the Fourth Degree, because the father of Mr. Parker's girlfriend reported her car stolen, purportedly because the father did not approve of Mr. Parker's relationship with his daughter. (Id.) Mr. Parker does not recall the circumstances of his October 2009 arrest. (Id.) According to the government, Mr. Parker was arrested in March 2011 for Grand Larceny in the Fourth Degree for driving a friend's rental car, which the friend had not returned on time and the rental company had reported as stolen. (Id.)
Mr. Fearon is also expected to testify as a cooperating witness at trial in the government's case-in-chief. (Gov't Letter dated 4/24/15 at 6.) The government moves to preclude cross-examination regarding the following three arrests, none of which resulted in conviction:
In its opening motion, the government also moved to preclude Mr. Fearon's December 24, 2009 arrest in Scranton, PA, for aggravated assault, resisting arrest, criminal mischief, possession of drug paraphernalia, tampering with evidence and resisting arrest. (Gov't Letter dated 4/24/15 at 7.) The government represents that the charges against Mr. Fearon were dismissed on October 31, 2011, but that the Probation Department was not able to determine the facts of the underlying offense, including why one of the charges against Mr. Fearon was tampering with evidence. (Gov't Reply at 4-5.) The government represented in its reply that it "anticipates eliciting information from Fearon on direct examination regarding the circumstances of [the December 24, 2009] arrest, and Garrett may thus inquire on cross-examination within the scope of the direct examination." (Id. at 5.) In light of the government's representation that it intends to question Mr. Fearon regarding his December 24, 2009 arrest on direct examination and acknowledgement that the door will be open to cross-examination on this arrest, the court considers the government's request to preclude cross-examination of Mr. Fearon's December 24, 2009 arrest in its opening motion as withdrawn.
• December 7, 1999 arrest in Scranton, PA, for receiving stolen property and unauthorized use of a vehicle. The government represents that this arrest resulted in no disposition. (Gov't Letter dated 4/24/15 at 6.)
• June 6, 2005 arrest in Hackensack, NJ for loitering and distribution of heroin and cocaine. The government represents that the charges against Mr. Fearon were dismissed on October 4, 2005, because it was subsequently determined that Mr. Fearon had no connection to the drugs that were seized from another individual with whom Mr. Fearon was arrested. (Gov't Letter dated 4/24/15 at 6; Gov't Reply at 4.)
• February 2, 2006 arrest in Paterson, NJ for being a fugitive from justice. The government represents that the charges against Mr. Fearon resulted from a misunderstanding wherein Mr. Fearon's parole officer mistakenly thought Mr. Fearon had not reported as required. Subsequently, the charges against Mr. Fearon were dismissed on February 14, 2006. (Gov't Letter dated 4/24/15 at 6; Gov't Reply at 4.)
Mr. Garrett opposes the government's motion to preclude cross-examination of Mr. Parker and Mr. Fearon. (Garrett Letter dated 4/27/15 ("Garrett Opp."), ECF No. 309; Garrett Letter dated 5/2/15 ("Garrett Surreply"), ECF No. 324.) Mr. Garrett contends that the government has not offered "satisfactory proof" of the resolution of Mr. Parker's 22 arrests, complaints, and summons that the government seeks to preclude, and posits that "it is unprecedented for criminal cases to remain open in New York for years without disposition, making it reasonable to assume that some of these cases were resolved, potentially resulting in convictions." (Garrett Opp. at 2.) Mr. Garrett requests a hearing at which "the government should specify the nature of all the arrests in Parker's criminal history and their disposition." (Id. at 3.) Mr. Garrett also argues that defendants should be permitted to cross-examine Mr. Parker regarding Mr. Parker's juvenile conviction and 22 arrests, complaints, and summons to impeach Mr. Parker's New York State grand jury testimony on August 31, 2011 that he had "never been in any type of trouble." (Id.) Mr. Garrett further argues that Mr. Parker's theft-related charges are proper fodder for cross-examination, because they bear on a witness's propensity to testify truthfully. (Id.)
Mr. Garrett also opposes the government's motion to preclude Mr. Fearon's theft-related arrests on the ground that they are relevant to his credibility. (Id. at 4.) Mr. Garrett seeks more information about Mr. Fearon's June 6, 2005 and February 2, 2006 arrests. (Id.)
Legal Standard
The Confrontation Clause guarantees defendants the right to cross-examine government witnesses at trial. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). Within the mandates of the Confrontation Clause, the court "may impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is . . . only marginally relevant." United States v. Figueroa, 548 F.3d 222, 227 (2d Cir. 2008) (citations and quotations omitted). "A district court is afforded broad discretion in controlling the extent and scope of cross-examination." United States v. Wilkerson, 361 F.3d 717, 745 (2d Cir. 2004) (citations and quotations omitted).
Where evidence of specific acts is offered to attack the witness's character for truthfulness, its admission is governed by Rule 608(b). United States v. Patterson, 808 F.2d 969, 973-74 (2d Cir. 1987). Federal Rule of Evidence 608(b) ("Rule 608(b)") states in relevant part:
Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:Fed. R. Evid. 608(b).
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
"Under Federal Rule of Evidence 608(b), the district court may restrict cross-examination about specific instances of prior conduct if it finds that the conduct is not probative of truthfulness." United States v. Flaharty, 295 F.3d 182, 191 (2d Cir.), cert. denied, 537 U.S. 936 (2002) and cert. denied sub nom. Johnson v. United States, 538 U.S. 915 (2003). "Rule 608(b) is intended to be restrictive" and "does not authorize inquiry on cross-examination into instances of conduct that do not actually indicate a lack of truthfulness." Nelson, 365 F. Supp. 2d at 386 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein's Fed. Evid. § 608.22[2][c][i]).
Impeachment by evidence of a criminal conviction is governed by Federal Rule of Evidence 609 ("Rule 609"). Rule 609(a) provides the general rules for attacking a witness's character for truthfulness by evidence of a criminal conviction. Rule 609(a) provides, in relevant part:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil or criminal case in which the witness is not a defendant; and . . .
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement.
Pursuant to Rule 609(b), when "more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later," evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
Pursuant to Rule 609(d), juvenile adjudications are admissible only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
Application
A. Mr. Parker's Prior Bad Acts
1. March 1999 Juvenile Conviction
The government seeks to preclude cross-examination of Mr. Parker's juvenile conviction in March 1999 for Unauthorized Use of a Vehicle for which Mr. Parker was sentenced to eighteen months in a juvenile facility. (Gov't letter dated 4/24/15 at 3.) Pursuant to Rule 609(d), which governs the admissibility of juvenile adjudications, the court precludes cross-examination regarding Mr. Parker's juvenile conviction, which occurred more than sixteen years ago, shortly after his fifteenth birthday. Mr. Parker's juvenile conviction does not satisfy the requirements of Rule 609(d)(3) and (d)(4). An adult's conviction for Unauthorized Use of a Vehicle, without some proof that dishonesty was involved in the commission of the crime, would not be admissible to attack the adult's credibility. Cf. United States v. Estrada, 430 F.3d 606, 614-615 (2d Cir. 2005) (upholding district court's exclusion of witness's larceny convictions because they "did not involve falsity or deceit"). Additionally, Mr. Parker's juvenile conviction for conduct that occurred over sixteen years ago and "long before" he became acquainted with the defendants (Gov't Letter dated 4/24/15 at 4) can hardly be said to "necessary to fairly determine" the guilt or innocence of the defendants under Rule 609(d)(4).
2. Arrests, Complaints and Summonses that Did Not Result in Convictions
The court grants the government's motion to preclude cross-examination about Mr. Parker's 22 arrests, complaints and summonses described above. Prior arrests or charges that did not result in convictions are less probative than convictions, because they are merely allegations that have not been proven in a court of law. See, e.g., United States v. Toner, 728 F.2d 115, 122 (2d Cir. 1984) ("As to [witness's] 1953 arrest for grand larceny and his 1973 arrest for forgery and possession of stolen property, both matters would have been excludable under Fed. R. Evid. 609, had they resulted in convictions, because they antedated the ten year time limit set forth in that rule; as 'mere' arrests, it was clearly appropriate for the court to exclude the evidence."); United States v. Agostini, 280 F. Supp. 2d 260, 262 (S.D.N.Y. 2003) ("In addition to the Second Circuit's inclination to preclude the discussion of a witness's prior commission of violent crimes because of such crimes' lack of relevance to the issue of the witness's veracity, the Court notes that the Arrests are at this stage merely allegations, and have not yet been proven by New York State.")
In the absence of any evidence to the contrary, the court does not have any reason to question the accuracy of Mr. Parker's criminal history records and the government's contention that the 22 specified arrests, complaints and summonses did not result in conviction.
Additionally, charges and convictions involving crimes of violence, unlawful sexual conduct, unlawful weapons possession, and disorderly conduct are generally not considered to be probative of honesty or veracity. See, e.g., United States v. Salameh, 152 F.3d 88, 131 (2d Cir.1998) (finding that convictions for assault, robbery, and sodomy are not probative of truthfulness or untruthfulness); United States v. Flaharty, 295 F.3d 182, 190-91 (2d Cir. 2002) (finding that a witness's involvement in a murder can be precluded from cross-examination because "[m]urder generally is not a crime of dishonesty, and nothing about the . . . murder suggested that it would in any way reflect on [the witness's] truthfulness."); United States v. Joe, No. 07 Cr. 734, 2008 WL 2810169, at *4 (S.D.N.Y. July 21, 2008) (finding that disorderly conduct is not a crime that is punishable by imprisonment in excess of one year and does not involve dishonesty or false statements).
With respect to the theft-related crimes, the Second Circuit has held that it "will look beyond the elements of the offense to determine whether the conviction rested upon facts establishing dishonesty or false statement." United States v. Payton, 159 F.3d 49, 57 (2d Cir. 1998). In United States v. Estrada, 430 F.3d at 614-15, the Second Circuit upheld a district court's ruling that the witness's larceny convictions did not involve falsity or deceit so as to fall within the ambit of Rule 609(a)(2), because the larceny convictions were for shoplifting and the witness had taken elusive action to avoid detection.
As an initial matter, because Mr. Parker's arrests, complaints and summons more than ten years prior would be inadmissible under Rule 609(b) had they resulted in convictions, the court precludes any cross-examination under Rule 608 regarding Mr. Parker's bad acts that occurred before May 2005. See Toner, 728 F.2d at 115 (excluding arrests more than ten years old that would have been excluded as convictions under Rule 609). The remaining eight arrests and summonses for disorderly conduct, a bicycle infraction, possessing a knife in public view, rape, grand larceny, and unauthorized use of a vehicle are not probative of Mr. Parker's character for truthfulness or untruthfulness under Rule 608(b). Based on the government's representations of the circumstances of Mr. Parker's arrests for larceny on July 2, 2009 and March 17, 2011, the court does not find that Mr. Parker's arrests establish dishonesty or false statement under the standard for larceny convictions articulated in Estrada. Defendants have not proffered any evidence to contest the government's asserted facts surrounding Mr. Parker's 2009 and 2011 larceny arrests. Consequently, based on the current record, the court denies Mr. Garrett's request for a hearing and precludes cross-examination regarding Mr. Parker's arrests, complaints and summonses.
3. Grand Jury Testimony
The court addresses Mr. Garrett's argument that defendants should be permitted to cross-examine Mr. Parker regarding his entire criminal record, including various arrests, complaints and summonses that did not result in convictions, to impeach his grand jury testimony on August 31, 2011 that he had "never been in any trouble." (Garrett Opp. at 3.) The government has represented that it does not move to preclude cross-examination regarding Mr. Parker's ten narcotics-related arrests and complaints which occurred prior to his grand jury testimony, thus permitting defendants to probe the veracity of Mr. Parker's grand jury testimony using the narcotics-related offenses. (Gov't Reply at 4.) The government also indicates that it intends to elicit testimony from Mr. Parker on direct examination that Mr. Parker lied during his grand jury testimony in August 2011. (Id.)
In his surreply Mr. Garrett counts only four drug-related arrests. (Garrett Surreply at 1.) The court attributes the numerical disparity between the parties to Mr. Garrett's exclusion arrests and complaints described as "CPCS" on his criminal history report, which the court understands to be an abbreviation for Criminal Possession of Controlled Substances. ( See 3500-FP-9B.)
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The court finds unavailing Mr. Garrett's argument that he be permitted to cross-examine Mr. Parker regarding his entire criminal history. The defendants are permitted to undermine Mr. Parker's credibility by questioning Mr. Parker about his numerous narcotics-related arrests and complaints which occurred prior to his grand jury testimony and his grand jury testimony in August 2011 that he had "never been in any type of trouble." The defendants' use of Mr. Parker's grand jury testimony for impeachment, however, is circumscribed by Rules 608 and 609. Thus, the court's decision to preclude cross-examination about Mr. Parker's juvenile conviction and the above specified arrests, complaints and summonses under Rules 608 and 609 remains undisturbed.
B. Mr. Fearon's Prior Bad Acts
The government moves to preclude cross-examination regarding Mr. Fearon's arrests for receiving stolen property in 1999, for loitering and distribution of heroin and cocaine in 2005, and for being a fugitive from justice in 2006. (Gov't Letter dated 4/24/15.) The government does not seek to preclude cross-examination about Mr. Fearon's eight convictions for crimes ranging from assault to the sale of controlled substances. (Id. at 6.) For substantially similar reasons as applied to the cross-examination of Mr. Parker, defendants are precluded from cross-examining Mr. Fearon about his prior arrests in 1999, 2005, and 2006. Mr. Fearon's 1999 arrest for receiving stolen property occurred more than sixteeen years ago, and the crimes with which he was charged in 2005 and 2006 are not probative of his "character for truthfulness or untruthfulness" under Rule 608, and they are, therefore, precluded. See supra Part A.2; cf. 4 Weinstein's Federal Evidence § 609.03[2][b] [iii], at 609-16 (1997) ("Convictions for narcotic offenses are usually not considered to involve dishonesty or false statement.").
SO ORDERED. Dated: May 7, 2015
Brooklyn, New York
/s/_________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York