Opinion
05 Cr. 773 (NRB).
August 7, 2006
MEMORANDUM AND ORDER
Currently pending before this Court are the pretrial motions of defendants Wilson De La Cruz ("De La Cruz") and Rafael Martinez ("Martinez"). De La Cruz moves to suppress post-arrest statements and seeks an extensive range of pretrial discovery and disclosures. Martinez moves for additional discovery and pretrial disclosures, a bill of particulars, and requests hearings on the admissibility of wiretap evidence, evidence seized at the time of his arrest and his prior criminal history. Evidentiary hearings were held on July 12 and 13, 2006 to resolve the factual issues presented in De La Cruz's motion to suppress. For the reasons set forth below, the defendants' motions are granted in part and denied in part.
INDICTMENT
The Indictment in this case charges eight defendants with a narcotics conspiracy. Specifically, Count One of the Indictment charges Ahmed Mahmoud, Edwin Perez, Martinez, De La Cruz, Keith Perez, Victor Perez, Elba Perez and Felix Ayala with participating in a conspiracy to distribute one kilogram or more of heroin from July 2004 to July 2005 in the Southern District of New York. See Ind. at ¶¶ 1-2. Count Two of the Indictment charges all of the defendants with conspiring to import heroin during the same time period in the Southern District of New York.See id. at ¶¶ 4-5.
The Indictment also identifies a number of overt acts involving each of the defendants. Martinez is specifically charged with the following overt acts: (1) meeting with co-defendant Felix Ayala and another person in or about July 2004 to discuss transporting narcotics from the Dominican Republic to New York City; (2) hiring another person in or about January 2005 in Manhattan to transport 15 kilograms of heroin from India for distribution in New York City; and (3) hiring another person to transport heroin from the Dominican Republic to New York City on or about June 6, 2005. See id. at ¶¶ 3(a), 3(b), 3(h), 6(a), 6(b), 6(h). De La Cruz is charged with the overt act of placing a call to co-defendant Elba Perez on June 7, 2005 regarding the travel of Edwin Perez, Martinez and a co-conspirator to Santo Domingo, Dominican Republic. See id. at ¶¶ 3(i), 6(i).
The same overt acts support Counts One and Two of the Indictment.
DISCUSSION
I. Failure to Comply with Local Rule 16.1As an initial matter, we note that defense counsel failed to comply with Local Criminal Rule 16.1. In addition to the absence of affidavits required by Rule 16.1, Assistant U.S. Attorney Quinones has specifically represented to this Court that defense counsel failed to confer with him before filing the motions. See Gov't Mem. at 9. On this basis alone, the motions requesting additional discovery and a bill of particulars should be denied. See United States v. Ahmad, 992 F. Supp. 682, 684 (S.D.N.Y. 1998). Nonetheless, we proceed to consider the merits of these motions and conclude that most should be denied.
Local Criminal Rule 16.1 provides that: "No motion addressed to a bill of particulars or answers or to discovery and inspection shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court and has been unable to reach such an agreement. If some of the issues raised by the motion have been resolved by agreement, the affidavit shall specify the issues remaining unresolved."
We find that Judge Kaplan's comments in Ahmad are directly on point in this case and worth repeating. He observed that defense counsel's "non-compliance with Rule 16.1 and use of boilerplate demands bearing relatively little relationship to the specific nature of this case is particularly unfortunate. Every judge of this Court is responsible for hundreds of cases, each of which has a legitimate demand on the judge's attention. It is not too much to ask that counsel at least make an effort to resolve discovery matters among themselves before involving the Court. Nor is it too much to expect that counsel will consider what discovery really is required in each case rather than simply running their word processors to turn out form demands." 922 F. Supp. at 685.
II. Bill of Particulars
Martinez urges this Court to exercise its discretion under Fed.R.Crim.P. 7(f) by requiring the Government to produce a bill of particulars. See Martinez Mem. at 10-11. The purpose of a bill of particulars is to allow a defendant "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense."United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). In order to be entitled to a bill of particulars, a defendant must demonstrate that "the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). A bill of particulars is not intended to function as an investigative tool for the defense, and requests seeking evidentiary detail or a preview of the Government's legal theories must be denied. See, e.g., United States v. Salazar, 485 F.2d 1416, 1277-78 (2d Cir. 1973); United States v. Heatley, 994 F. Supp. 483, 488 (S.D.N.Y. 1998).
Martinez completely fails to make the requisite showing. He contends that a bill of particulars is necessary because "the indictment is silent as to the dates, times and places that the alleged activities occurred, and omits any reference to any other actors and events that were part of the alleged conspiracy." Martinez Mem. at 10. This characterization of the Indictment is grossly inaccurate since it does, in fact, identify relevant dates, places and co-conspirators as well as numerous overt acts involving Martinez. We find that the content of the Indictment is more than sufficient to advise Martinez and the other defendants in this case of the charges against them, to avoid surprise at trial and to enable defendants to interpose pleas of double jeopardy if necessary. Consequently, the motion for a bill of particulars is denied.
III. Discovery Motions
Martinez and De La Cruz have requested a laundry list of pretrial discovery and disclosures. Specifically, Martinez requests that the Government be required to immediately produce: (1) a wide range of information characterized as Brady material; (2) expert reports and summaries of expert testimony; (3) information related to confidential informants; (4) Jencks Act material; and (5) notice of material that the Government intends to introduce at trial under Fed.R.Evid. 404(b). De La Cruz requests over thirty-eight categories of discovery which are set forth in the margin. Defendants' discovery motions are
Citing Fed.R.Crim.P. 16, De La Cruz requests that the Government provide: (1) the substance of oral statements made by any defendant during interrogations by government agents that the Government intends to use at trial; (2) the identity of any person present when such statements were made; (3) any statement "relating to directly or indirectly to the charges in this case, made by any defendant to investigating officers or third parties" and any third party's statements to the Government concerning statements made by defendants; (4) copies of all books, papers, documents and other tangible objects obtained from, or that belong to, any defendant or co-conspirator; (5) identification of all documents which the government intends to use at trial as evidence in its case-in-chief; (6) recordings of conversations involving the defendant; (7) copies of government forms containing statements made by co-conspirators; (8) a list of all property seized from defendant or from any co-conspirator from their residences; (9) copies of all "returns" for search warrants; (10) a statement of whether the Government intends to offer at trial any evidence of prior criminal history or bad acts of the defendant or co-conspirators; (11) information related to the Government's expert witnesses; (12) a list of all property claimed by the Government to be the defendant's property; (13) a list of all seized property; (14) results and reports of physical examinations or tests of witnesses, including polygraph tests; (15) copies of all court documents related to prior criminal charges against any government witness; (16) the Government's witness list; (17) Jencks Act material. See Affidavit of Ellyn I. Bank ("Bank Aff.") at 5-11.
Ostensibly relying on Brady v. Maryland, 373 U.S. 83 (1963), De La Cruz additionally requests: (1) information that would "affect in any way [the] credibility of any and all government witnesses"; (2) exculpatory conversations or statements made by defendants or witnesses; (3) information about the criminal, psychiatric and substance abuse histories of government witnesses; (4) records or information related to prior misconduct, criminal acts or "bad acts" of government witnesses; (5) information about state court criminal cases that involving government witnesses; (6) an opportunity to interview all government witnesses; (7) any consideration or promises given to witnesses by the Government; (8) all statements made by the Government or law enforcement to any prospective witness concerning the outcome of "any government action"; (9) agreements related to witness testimony; (10) any threats or coercion directed against any witness; (11) identification of any prior testimony by government witness; (12) any judicial proceedings in which a government witness has been involved "as a witness, unindicted co-conspirator, co-schemer, aider or abettor, or defendant"; (13) prior false statements made by government witnesses; (14) copies of all medical or psychiatric reports concerning any witness; (15) prior inconsistent statements; (16) requests prepared by the prosecution for permission to grant immunity or leniency to any witness; (17) any exculpatory evidence concerning the defendant; and (18) any information tending to indicate that an individual other than De La Cruz committed the crimes for which he has been indicted. See Bank Aff. at 11-16. De La Cruz also requests that the Government disclose evidence it intends to introduce at trial pursuant to Fed.R.Evid. 404(b).
boilerplate and generally seek materials that either have already been produced by the Government or disclosure of materials to which defendants are not entitled.
The Government objects to these motions and represents that it has produced all discovery required by Fed.R.Crim.P. 16 and will continue to comply with its obligations under Rule 16,Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). See Gov't Mem. at 20. The Government specifically represents that it has produced requested materials such as copies of orders authorizing wiretap interceptions, the wiretap interceptions and corresponding transcripts. Id. This Court has no reason to believe that the Government has not acted reasonably and in good faith to date and is satisfied with the Government's representations. Therefore, defendants' motions related to such materials are denied. See, e.g., United States v. Savarese, 01 Cr. 1121 (AGS), 2002 WL 265153, at *2 (S.D.N.Y. Feb. 22, 2002); United States v. Spy Factory, Inc., 960 F. Supp. 684, 690 (S.D.N.Y. 1997); United States v. Perez, 940 F. Supp. 540, 543 (S.D.N.Y. 1996). Other aspects of the defendants' motions are resolved by the following pretrial schedule.
In limine motions, including the Government's notice of Rule 404(b) material and proposed Bruton redactions, should be submitted to this Court no later than November 6, 2006. Responses to such motions are due on November 13, 2006 and any replies must be submitted by November 17, 2006. The parties will submit proposed voir dire questions and jury charges no later than November 17, 2006. The Government will provide a preliminary exhibit list, including relevant audio and video tapes, and expert disclosures by November 20, 2006. The Government will produce a witness list, Giglio and Jencks Act material for the first week of testimony no later than November 30, 2006, and the presumptive date for additional disclosures will be the Friday before the witness is expected to testify. Trial will commence on December 4, 2006 with jury selection. To the extent that defendants have moved for pretrial disclosures and discovery beyond what is required under this pretrial schedule, the motions are denied.
IV. Motion to Suppress Post-Arrest Statements
The Government may supplement, in good faith, its exhibit list at any time, including trial.
This Court has no authority to order early disclosure of Jencks Act material under 18 U.S.C. § 3500. See United States v. Coppa, 267 F.3d 132, 145-46 (2d Cir. 2001). However, in this case, the Government has agreed to provide disclosure on the Friday preceding the witness' testimony. See Gov't Mem. at 24-25.
While we have not discussed each of the discovery motions individually, we specifically note that defendants have not satisfied the standard needed to justify disclosures concerning confidential informants. See Martinez Mem. at 13-17, De La Cruz Mem. at 17-18. Defendants have not made a specific showing of how the disclosures would be material to their defense. See United States v. Saa, 859 F.2d 1067, 1073-75 (2d Cir. 1988).
De La Cruz moves to suppress his post-arrest statements on the grounds that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 467-471 (1966) and were not voluntary. The Government opposed the motion, but agreed that an evidentiary hearing was appropriate. During the hearings, De La Cruz and two law enforcement officers who participated in the arrest and interrogation on July 27, 2005, Harold Sabater ("Sabater") and Special Agent Susan Gibson ("Gibson"), testified.
We have also considered documentary evidence submitted by the Government and De La Cruz. The exhibits include medical records, letters from medical personnel, reports related to De La Cruz's arrest and interrogation, passports as well as a stipulation between the parties concerning the results of a search of a database tracking travel across the U.S. border.
As an initial matter, we note that certain facts are not disputed. On July 27, 2005, De La Cruz was arrested at St. Joseph's Hospital and Medical Center ("St. Joseph's") in Paterson, New Jersey after several hours of dialysis. Gibson was the officer in charge of the arrest. After De La Cruz completed his treatment and medical personnel at St. Joseph's advised Gibson that De La Cruz was fit to travel, law enforcement officers drove De La Cruz to his residence in New Jersey where Gibson retrieved a cell phone. Thereafter, De La Cruz was taken to New York Downtown Hospital ("Downtown Hospital") so that the officers could obtain a medical determination as to whether De La Cruz was fit for incarceration. Gibson called in Sabater, a Spanish-speaking detective, to assist her in interviewing De La Cruz at Downtown Hospital. During the interview, Sabater asked De La Cruz questions in Spanish and translated his answers to Gibson.
Testimony suggests that two additional officers, Detective Mkwanazi and Investigator Grogan, were also present during the interrogation. See Tr. of 7/13/06 Conf. at 68.
The disputed facts in this case relate to De La Cruz's physical and mental condition following his dialysis treatment and whether De La Cruz was advised of his Miranda rights before he was interrogated at Downtown Hospital. This Court's conclusions on each issue are set forth below.
A. When Was De La Cruz Advised of His Miranda Rights?
It is well-settled that statements must be suppressed if a defendant, while in custody, is interrogated without first being advised of his right to remain silent, that his statements may be used against him, and that he has the right to counsel. See Miranda v. Arizona, 384 U.S. 436, 467-471 (1966); United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998). "Failure to administer Miranda warnings creates a presumption of compulsion, and that presumption is irrebuttable for purposes of the prosecution's case in chief." Mathurin, 148 F.3d at 69 (quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)) (internal quotation marks omitted).
In this case, De La Cruz claims that Sabater advised him of hisMiranda rights at the conclusion of the interrogation at Downtown Hospital after De La Cruz had made various statements.See De La Cruz Aff. at ¶ 17, 19-24; Tr. of 7/13/06 Conf. at 95-97. De La Cruz also claims that once Sabater informed him that his statements could be used against him, he asked to see a judge and the interrogation immediately ended. See Tr. of 7/13/06 Conf. at 95-97. In contrast, Sabater and Gibson testified that Sabater read Miranda warnings to De La Cruz in Spanish before the interrogation at Downtown Hospital commenced, and that De La Cruz waived his rights and proceeded to make various statements voluntarily. Tr. of 7/12/06 Conf. at 13-16, 53, 69-71. Sabater testified that De La Cruz asked for a judge after he questioned De La Cruz about the details of an incident in Pakistan. Id. at 19. Sabater and Gibson discontinued the interview because they interpreted De La Cruz's statement as a request for a lawyer.Id. at 19, 55.
Since no recording of the interview exists and De La Cruz did not sign a written waiver of his Miranda rights, this Court's conclusions about the timing of the Miranda warnings and waiver rest entirely on the credibility of the witnesses' testimony. During the hearings, this Court found that Sabater and Gibson were highly credible and that defendant's version of events was much less believable. One specific is particularly worth noting. The parties agree that the interrogation was immediately discontinued once De La Cruz asked to see a judge. Tr. of 7/12/06 Conf. at 19, 55; Tr. of 7/13/06 Conf. at 95. The agents' prompt termination of the interview demonstrates respect for defendant's Miranda rights that is inconsistent with defendant's claim that only minutes earlier he was interrogated in violation of those same rights. Based on all of the testimony received, this Court concludes that Sabater advised De La Cruz of his Miranda rights in Spanish before De La Cruz made the statements in question and that he waived these rights. Therefore, the motion to suppress on this ground is denied.
B. Were the Post-Arrest Statements Voluntary?
De La Cruz also contends that his post-arrest statements must be suppressed because law enforcement officers "took advantage of his severely weakened and disoriented state by questioning him in the moments and hours immediately following the completion of his dialysis treatment." De La Cruz Mem. at 7. De La Cruz specifically alleges that he was "suffering from severe dizziness, disorientation, weakness, sleepiness, immense thirst" as well as "great physical discomfort" from being restrained in handcuffs when he was questioned on July 27, 2005.Id.; see also De La Cruz Aff. at ¶ 18.
A statement or confession is only admissible if it is obtained voluntarily. United States v. Orlandez-Gamboa, 320 F.3d 328, 332 (2d Cir. 2003). The Government has the burden of proving that the statement was made voluntarily. See, e.g., United States v. Morales, 280 F. Supp. 2d 262, 270 (S.D.N.Y. 2003). In determining whether a statement was made voluntarily, courts must engage in a "careful evaluation of the totality of the surrounding circumstances." Orlandez-Gamboa, 320 F.3d at 332 (quoting Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997)). A defendant's physical condition is certainly a significant factor in this analysis, and courts focus on whether the defendant was significantly disoriented or experiencing "unbearable" physical pain at the time the statement was made.See Mincey v. Arizona, 437 U.S. 385, 399-402 (1978) (concluding that statements of defendant who was questioned in a hospital while he was experiencing "unbearable" pain and on the "edge of consciousness" were involuntary); United States v. Khalil, 214 F.3d 111, 121 (2d Cir. 2000) (upholding district court's determination that defendant with gunshot wounds who was questioned in hospital made statements voluntarily); Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993) (suggesting that statement made by defendant receiving morphine would be voluntary if defendant was "alert and oriented" at the time statement was made).
Circumstances to be considered include: "the characteristics of the accused, such as his experience, background, and education; the conditions of the interrogation; and the conduct of law enforcement officials, notably, whether there was physical abuse, the period of restraint in handcuffs, and use of psychologically coercive tactics." Nelson, 121 F.3d at 833 (citing Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1988)).
In this case, the evidence suggests that De La Cruz was neither disoriented nor experiencing significant pain when he was questioned on July 27, 2005. Medical records at St. Joseph's indicate that De La Cruz was alert and oriented, stable, ambulatory and experiencing no pain after his dialysis treatment.See Gov't Ex. 1A, Def. Ex. D (Letter from Nurse Yoo Hee Song dated July 12, 2006). Medical records and the testimony of both De La Cruz and the agents suggest that De La Cruz repeatedly informed officers and medical personnel after the dialysis that he was feeling "good" and had no physical complaints. See id.; Tr. of 7/12/06 Conf. at 64; Tr. of 7/13/06 Conf. at 90, 114.
While De La Cruz claims that his weakened condition caused him to reply to all of Sabater's questions with a repeated "yes", Sabater and Gibson have credibly testified that De La Cruz was coherent and extremely engaged during the interview, offering detailed responses to their questions. See Tr. of 7/13/06 Conf. at 94, 122-23; Tr. of 7/12/06 Conf. at 17-22, 55. This Court also finds that De La Cruz's awareness of landmarks during his transport to Downtown Hospital and detailed recollection of the interview with Sabater is not consistent with someone who was seriously disoriented or overwhelmed by pain. See Tr. of 7/13/06 Conf. at 91, 116-17, 131-33. After considering all of the evidence related to defendant's physical condition and other circumstances surrounding the interrogation, we conclude that De La Cruz's post-arrest statements were voluntary and therefore deny the motion to suppress.
V. Requests for Evidentiary Hearings
Martinez requests hearings to determine the lawfulness of unspecified wiretaps, the admissibility of evidence seized on the date of his arrest and the admissibility of unspecified prior criminal convictions under Fed.R.Evid. 609. The Government has not responded to these motions, but we nevertheless conclude that the motions must be denied.
Moving papers requesting an evidentiary hearing must be "sufficiently definite, specific, detailed and nonconjectural" as to indicate relevant contested issues of fact. United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (citations and internal quotations omitted). Furthermore, the moving papers should include "an affidavit of an individual with personal knowledge of the relevant facts." United States v. Nelson, 335 F. Supp. 2d 477, 478 (S.D.N.Y. 2004). Martinez has not supported his motions with affidavits and fails to identify any specific facts whatsoever to suggest that a hearing on the admissibility of wiretap evidence or evidence seized on the date of his arrest is necessary. See Martinez Mem. at 9-10, 12. Similarly, defense counsel requests a hearing about evidence that might be introduced against De La Cruz under Fed.R.Evid. 609, but fails to provide any specific details concerning De La Cruz's prior criminal history or why particular evidence should be excluded.See id. at 17-18. While this Court agrees that De La Cruz is entitled to know whether evidence related to his prior criminal history will be introduced by the Government before he makes a decision about testifying at trial, a hearing is premature at this time. We expect the Government to identify any evidence related to De La Cruz's criminal history that may be used for impeachment purposes at the same time it makes Rule 404(b) disclosures on November 6, 2006. This Court will resolve any specific objections defense counsel wishes to make thereafter.
CONCLUSION
For the reasons stated above, the motions requesting a bill of particulars, suppression of De La Cruz's post-arrest statements and hearings concerning the admissibility of wiretap evidence, evidence seized on the date of Martinez's arrest and the evidence related to Martinez's prior criminal convictions are denied. Defendants' motions related to pretrial disclosures and discovery are granted to the extent that they are consistent with the pretrial schedule set forth in this decision and denied in all other respects. Defendants' pro forma motion to join in the motions of co-defendants is granted.
IT IS SO ORDERED.