Opinion
S1 06 Cr. 1064 (JFK).
September 28, 2007
OPINION ORDER
BACKGROUND
The defendant, Tyrone Laster ("Laster", or "Defendant"), is charged by superseding indictment with the sole count of being in possession of a firearm that was shipped and transported in interstate commerce after Defendant previously was convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Laster was arrested on September 26, 2006, at an apartment in the Bronx, New York, allegedly in possession of a Raven .25-caliber, semi-automatic handgun. Trial is scheduled to begin on October 22, 2007.
Defendant moved to suppress evidence of the firearm and of a statement allegedly made by Defendant at the time of his arrest. A suppression hearing was held on June 6, 2007. By Order dated June 26, 2007, (ECF Doc. # 19), the Court denied Defendant's motion to suppress the firearm and the statement.
Before the Court are the following pre-trial motions: (1) the Government's motion to preclude Defendant from cross-examining the Government's witness, New York Police Department ("NYPD") Detective David McNamee, regarding a substantiated allegation that McNamee failed to secure prompt medical attention for a suspect in a prior, unrelated case; (2) Defendant's motion to suppress a statement allegedly made by Defendant during the course of a recorded telephone conversation placed by Defendant while he was in custody at the Metropolitan Correction Center ("MCC"); (3) Defendant's motion for reconsideration of the Court's ruling, at a July 26, 2007 conference, that the Government shall be permitted to offer proof of Defendant's multiple prior convictions in the event that Defendant refuses to stipulate to the fact that he was previously convicted of a felony; and (4) Defendant's motion to direct the Government to confirm or deny the existence of transcripts of grand jury proceedings in this case in order to permit the defense to move for the production of such transcripts, if they do in fact exist.
Originally, the Government also moved to introduce evidence, in the form of eyewitness testimony, that Laster allegedly possessed a handgun on September 23, 2006, three days prior to the gun possession charged in this case, during his robbery of a restaurant in Laurel, Mississippi. After the issue was fully briefed, the Government informed the Court, by letter dated September 24, 2007, that it "no longer seeks to introduce any evidence of the Mississippi gun possession in its case in chief" and that the eyewitness therefore will not be called to testify. Gov't Letter, Sept. 24, 2007, at 1. The defense protests that the Government's withdrawal of its offer of evidence from its case in chief does not foreclose the Government from introducing this evidence in its rebuttal case, and that a determination as to the admissibility of the evidence must be made before the Government may use the evidence in rebuttal. If the Government moves to introduce the evidence of Laster's alleged prior gun possession during its rebuttal case, the Court will resolve the issue at that time. At present, however, in light of the Government's recent representation to the Court, the Government's offer of evidence is deemed withdrawn.
With the exception of the defense's motion to direct the Government to confirm or deny the existence of grand jury transcripts, Defendant's applications and opposition to the Government's motion were submitted, in the first instance, through Laster's former Court-appointed counsel, Aubrey Lees, Esq. ("Ms. Lees"). On July 30, 2007, Ms. Lees moved to be relieved as Laster's attorney. On August 6, 2007, following a hearing, the Court granted Ms. Lees's motion to be relieved and directed that Alex K. Oh, Esq. ("Ms. Oh") be appointed to represent Laster. (See Transcript of Aug. 6, 2007 Hearing). The Court gave Ms. Oh the opportunity to review and, as she deemed appropriate, adopt, alter, or expand the scope of Ms. Lees's prior submissions. Ms. Oh subsequently expanded the scope of Defendant's opposition to the Government's motion to limit the cross-examination of Detective McNamee, moved the Court to direct the Government to confirm or deny the existence of grand jury transcripts, and otherwise adopted Ms. Lees's prior submissions.
DISCUSSION
(1) Government's Motion to Limit Cross-Examination of Detective McNamee
The Government moves to preclude the defense from cross-examining Government witness Detective David McNamee ("McNamee") regarding a complaint filed against McNamee with the Civilian Complaint Review Board ("CCRB"), in which it was alleged that on January 3, 2003, McNamee failed to secure prompt medical attention for a suspect whom McNamee had arrested for driving under the influence ("DUI"). The DUI suspect sustained a broken clavicle during a fall as he was being transferred by McNamee and another police officer to a different holding cell. The suspect was not given medical attention until several hours after the fall. On July 1, 2004, the CCRB substantiated the complaint, and the NYPD issued a warning and admonishment to McNamee.
At the time of the incident, McNamee was ranked a police officer with the NYPD.
The Government argues that cross-examination of McNamee relating to the CCRB complaint should be precluded because McNamee's failure to obtain prompt medical attention for a suspect in a prior unrelated case has no bearing on McNamee's credibility and because allowing cross-examination on this issue would "spawn separate mini-proceedings" which would distract the jury. (Gov't Letter, August 3, 2007, at 2.) The Court agrees.
Rule 608(b) of the Federal Rules of Evidence provides that a court may, in its discretion, permit cross-examination of a witness "concerning the witness' character for truthfulness or untruthfulness. . . ." Fed.R.Evid. 608(b). The scope and extent of cross-examination is within the trial court's sound discretion. United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004).
Here, the allegations contained in the CCRB complaint, though substantiated, do not bear on McNamee's character for truthfulness. The CCRB complaint simply alleges that McNamee failed to obtain prompt medical attention for a DUI suspect more than three years prior to the events giving rise to the charges in the instant case, in an entirely unrelated matter. The defense urges that the CCRB complaint's substantiated allegations regarding McNamee's failure to give proper medical attention to a suspect "is directly relevant to the issue of how Mr. Laster was treated by the police on September 26[, 2006] and what level of force may have been used to effectuate Mr. Laster's arrest." (Def. Letter, Sept. 17, 2007, at 8.) The CCRB complaint's allegations and the subsequent proceedings before the CCRB, however, are not relevant to the issue of McNamee's credibility. There is no allegation that McNamee lied about or otherwise attempted to "cover up" his failure to obtain prompt medical attention. Further, there is no indication that the CCRB made any finding whatsoever regarding McNamee's credibility. Thus, there is no basis under Rule 608(b) for the defense to cross-examine McNamee regarding the CCRB complaint, the findings of the CCRB, or the events that underlay the CCRB proceedings.
Accordingly, the defense is precluded from cross-examining McNamee regarding the CCRB complaint and the incident that gave rise to the complaint.
(2) Defendant's Motion to Suppress the Tape-Recorded Statement
The Government intends to introduce a statement made by Defendant during a recorded telephone call placed by Defendant, on February 3, 2007, while he was in custody at the MCC. During the telephone call, Laster allegedly stated, "I had a gun, which is non-violent. You know what I'm saying. They said I had a gun, OK, I'm willing to accept that, I accept the responsibility." (Def. Letter, Jul 31, 2007, at 1-2.) Defendant seeks to suppress the statement on the ground that the telephone call was recorded without Defendant's consent or an order of the Court, in violation of the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. ("Title III"), and the Fourth, Fifth, and Sixth Amendments. Alternatively, Defendant requests a hearing to determine the statement's admissibility.
The tape-recording of Defendant's telephone call from the MCC did not violate Title III and did not violate Defendant's Fourth, Fifth, or Sixth Amendment rights. The defense has presented no contested issue of material fact relating to the recording of Laster's statement, and a hearing is therefore unnecessary.
Title III
"Title III generally prohibits the intentional interception of wire communications, including telephone conversations, in the absence of authorization by court order."United States v. Willoughby, 860 F.2d 15, 19 (2d Cir. 1988) (citing 18 U.S.C. §§ 2510- 2521). This prohibition does not apply, however, when one party to the conversation gives consent to the recording. See 18 U.S.C. § 2511(2)(c) ("It shall not be unlawful for a person acting under color of law to intercept a wire, oral or electronic communication, where . . . one of the parties to the communication has given prior consent to such interception."). Consent may be express or implied. Willoughby, 860 F.2d at 19. Express consent exists when an inmate signs a form stating that he understands that any telephone calls he places from the prison may be recorded. See id. at 20; United States v. Barnett, No. 05 Cr. 1007(JFK), 2006 U.S. Dist. LEXIS 52316, at *2-3 (S.D.N.Y. July 28, 2006). Implied consent exists when an inmate has "received notice of the surveillance and nevertheless use[s] the prison telephones." United States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996). Notice sufficient to permit the inference of implied consent may consist of "a combination of notification at an orientation lecture and signs near the telephones explaining the policy was sufficient to justify the inference of consent by prisoners who used the phones." Id.; see also United States v. Amen, (finding notice sufficient where the Code of Federal Regulations stated that telephone calls were subject to monitoring, prisoners were given an informational handbook setting forth the recording policy, the recording policy was discussed at an orientation lecture, and signs posted near the prison telephones notified prisoners of the monitoring).
The Government states that "all prisoners making calls from the MCC are put on notice that the calls will be recorded" and both expressly and impliedly consent to the recording of their telephone calls. (Gov't Letter, Aug. 1, 2007, at 2.) As proof of Defendant's express consent, the Government has submitted a copy of a Bureau of Prisons form, entitled "Acknowledgment of Inmate", that states as follows:
The Bureau of Prisons reserves the authority to monitor (this includes recording) conversations on any telephone located within its institutions, said monitoring to be done to preserve the security and orderly management of the institution and to protect the public. An inmate's use of institutional telephones constitutes consent to this monitoring.
Immediately above the line for the signature of the inmate, the form included the statement, "I have read . . . the above notification on the monitoring of inmate telephone calls. I understand that telephone calls I make from institution telephones may be monitored and recorded." (Gov't Letter, Aug. 6, 2007, Ex. 1.) Defendant signed the form on November 2, 2006. Thus, it is clear that Defendant expressly consented to the tape-recording of his telephone calls.
The Government also has submitted proof that Laster was placed on notice regarding the MCC's policy of recording and monitoring inmate telephone calls and thus impliedly consented to the recording of his telephone calls. Specifically, the Government represents that it has learned from an employee at MCC that all inmates are informed, during their orientation, that telephone calls will be recorded and monitored and that signs are posted next to each inmate-accessible telephone at the MCC stating that inmates' calls are recorded. In addition, the Government has submitted a copy of the handbook which contains notice of the MCC's recording policy. (See id. Ex. 2.)
In sum, Defendant clearly gave his express and implied consent to the monitoring and tape-recording of the telephone calls he placed from the MCC. Thus, the Government's tape-recording of Defendant's statement and introduction of the statement at trial does not violate Title III.
Fourth, Fifth and Sixth Amendments
Defendant's motion to suppress the statement under the Fourth Amendment also must be denied. Where one party consents to the taping of a telephone conversation, the Fourth Amendment is not violated. See Workman, 80 F.3d at 694 (citing, inter alia, United States v. White, 401 U.S. 745 (1971)). As discussed above, Defendant gave both express and implied consent to the monitoring and taping of his telephone calls. In addition, any residual Fourth Amendment privacy interests maintained by Defendant as a pre-trial detainee, as opposed to a convicted prisoner, must be balanced against the government's need to maintain prison security. See Willoughby, 860 F.2d at 21. The Second Circuit has held that the "MCC's practice of automatically taping and randomly monitoring telephone calls of inmates in the interest of institutional security is not an unreasonable invasion of the privacy rights of pretrial detainees." Id. Thus, the taping of Defendant's telephone call did not violate his Fourth Amendment rights.
Defendant's Fifth Amendment rights also were not violated. Although Defendant does not explain how the recording of his telephone call resulted in a Fifth Amendment violation, the Court assumes that Defendant is asserting a Miranda violation. Under the rule set forth in Miranda, statements made during custodial interrogation are generally inadmissible unless a suspect has first been advised of his rights. Miranda v. Arizona, 384 U.S. 436 (1966). "No Miranda issues arise, however, unless a person is in custody and is subjected to interrogation by law enforcement."United States v. Gotti, 42 F. Supp. 2d 252, 285 (S.D.N.Y. 1999) (citing Illinois v. Perkins, 496 U.S. 292, 297 (1990)). Defendant was not subjected to interrogation by law enforcement during his telephone conversation. There is no suggestion that his interlocutor was a member of or working on the behalf of law enforcement. Defendant voluntarily placed the telephone call and was free to end the call at any time. See Willoughby, 860 F.2d at 24. Thus, Defendant's motion to suppress the statement under the Fifth Amendment is denied.
Finally, Defendant's conclusory Sixth Amendment claim also must be denied. Again, Defendant does not explain how the Sixth Amendment is implicated by Defendant's telephone call to a non-governmental actor. The Court assumes that Defendant is arguing that, since he was represented by counsel at the time he made the statement that was tape-recorded, his Sixth Amendment right to counsel attached. To show that a defendant's Sixth Amendment right to counsel was violated, the defendant must demonstrate that the Government "took some action, beyond merely listening, deliberately designed to elicit incriminating remarks." United States v. Escobar, 842 F. Supp. 1519, 1526 (E.D.N.Y. 1994) (citing Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986)). "[A] defendant's statements which are `spontaneous' are not violative of the Sixth Amendment." Id. Here, as noted, Defendant voluntarily placed the telephone call and there is no indication that the police, or an individual acting on behalf of the police, was a party to the telephone call, or that Defendant's statement was anything other than "spontaneous". Defendant's Sixth Amendment claim therefore fails.
In sum, Defendant has not shown any valid ground for suppression of his telephone call from the MCC. Accordingly, the motion to suppress is denied. Because the defense has not demonstrated that there are any contested issues of fact related to the telephone call, an evidentiary hearing is unnecessary. See United States v. Pena, 961 F.2d 331, 339 (2d Cir. 1992).
(3) Defendant's Motion for Reconsideration of the Court's Ruling Regarding Admissibility of Three Prior Convictions
At the conference on July 26, 2007, I stated that, in the event that Defendant refused to stipulate to the fact that he was convicted of a prior felony, to carry its burden of proving the prior-felony element of section 922(g)(1), the Government would be permitted to "prove that there were other convictions, and three in number, as opposed to one if there was a stipulation." (Tr. of Conference, July 26, 2007, at 6.) Defendant has indicated to the Court that he will not stipulate to the fact that he was convicted of a felony prior to his arrest on September 26, 2006. The defense has moved for reconsideration of my Order of July 26, 2007, and seeks to limit the Government to introducing evidence of only one of Defendant's prior convictions. In the alternative, Defendant moves to bifurcate the trial on the prior felony and gun possession elements of the section 922(g)(1) charge.
It is worth reiterating, as I stated at the July 26 conference, that under no circumstances will the Government be permitted to offer evidence relating to the underlying facts of Defendant's prior convictions. This is because "[t]he underlying facts of the prior conviction . . . are completely irrelevant to § 922(g)(1). The jury has no need to know the nature of the prior conviction; all that it needs to know is that there was a prior conviction sufficient to sustain that element of the crime." United States v. Gilliam, 994 F.2d 97, 103 (2d Cir. 1993). Even if the Defendant refuses to stipulate to the existence of prior convictions, "the government is still not entitled to introduce the facts relating to the prior conviction. Instead, the government can only introduce proof of the prior conviction itself." Id.
Defendant contends that evidence of multiple convictions would result in unfair prejudice and that, in the absence of contrary caselaw in the Second Circuit, the Court should exercise its discretion and limit the Government to proof of one prior conviction. The Government argues that, in the absence of Defendant's stipulation, it should be allowed to present evidence of multiple convictions in order to carry its burden of proving the prior-felony element of the section 922(g)(1) charge.
Although the Second Circuit has not ruled on the issue, several Circuit Courts of Appeal have held that a district court may in its discretion allow the government to introduce evidence of multiple prior felony convictions when a defendant refuses to stipulate to the prior-felony element of a section 922(g)(1) charge. See, e.g., United States v. Timpani, 665 F.2d 1, 6 (1st Cir. 1981); United States v. Jones, 266 F.3d 804 (8th Cir. 2001);United States v. Lloyd, 981 F.2d 1071, 1072 (9th Cir. 1992). The reason that the Government may introduce proof of multiple felony convictions when a defendant refuses to stipulate is "to ensure that the government could satisfy its burden of proof in the event [Defendant] was successful in contesting one or more of the convictions in front of the jury." Jones, 266 F.3d at 812.
Here, although there is no reason to believe that Defendant will be able to cast genuine doubt on the validity of any record of past conviction that the Government will present to the jury, in the absence of a stipulation the Government should not be overly constrained from offering sufficient proof of the prior-felony element of the charge. As the Government states, the "Government does not know, in the absence of a stipulation what challenges the defendant might raise to the Government's evidence of a prior conviction." (Gov't Letter, August 1, 2007, at 2.) Accordingly, I find that, if Defendant continues to insist that the Government prove that he was a convicted felon on or about the date charged in the indictment, the Government may offer testimony and documentary evidence relating to three of Defendant's prior felony convictions.
In the alternative, Defendant requests that the trial be bifurcated on the elements of the section 922(g)(1) charge. Although bifurcation of the elements of a felon-in-possession charge is not error per se, the Second Circuit has warned that "it would be an extraordinarily unusual case in which bifurcation of the elements of a charge under § 922(g)(1) could possibly be appropriate." United States v. Belk, 346 F.3d 305, 311 (2d Cir. 2003). Defendant has not shown how this case is so "extraordinarily unusual" as to warrant bifurcation, and the Court finds no grounds for such a ruling. See United States v. Cruz, 343 F. Supp. 2d 226, 234 (S.D.N.Y. 2004). Defendant's request therefore must be denied.
(4) Defendant's Motion to Direct the Government to Confirm or Deny the Existence of Previously Undisclosed Grand Jury Transcripts
The defense requests that the Court "direct the Government to provide information as to the existence of any grand jury transcripts in this case that have not already been disclosed. . . ." (Def. Letter, Sept. 24, 2007, at 9.) In the event that the Court so directs the Government, and the Government confirms the existence of such transcripts, the defense also requests that the Court grant Defendant additional time in which to file a motion to inspect or compel the Government to produce the transcripts. The defense states that it has made several requests of the Government to confirm whether previously undisclosed grand jury transcripts exist but the Government has failed to respond beyond stating that it has disclosed all materials that it is required to disclose and advising defense counsel to consult Rule 6(e) of the Federal Rules of Criminal Procedure. The defense protests that the Government's refusal to confirm whether additional grand jury transcripts actually exist may force Defendant to file a motion to compel production of materials that do not in fact exist, and thus "expend valuable resources preparing a motion that is moot." (Id.)
The Government states that it is prohibited, under Federal Rule of Criminal Procedure 6(e), from disclosing any information regarding grand jury proceedings except as otherwise required by law. The Government further represents that it is aware of its responsibilities to disclose evidence "under the constitution, 18 U.S.C. § 3500, and Rule 16 [of the Federal Rules of Criminal Procedure] and it has repeatedly assured defense counsel that it is in compliance with those responsibilities." (Gov't Letter, Sept. 24, 2007, at 4.)
The defense cites no authority for the proposition that the Government is obligated to inform a defendant of the existence or non-existence of grand jury transcripts. As the Government correctly points out, Rule 6(e)(2)(B)(vi) explicitly prohibits "an attorney for the Government" from disclosing any "matter occurring before the grand jury." The issue of whether transcripts of grand jury testimony exist is a "matter occurring before the grand jury," and thus falls within Rule 6's prohibitive ambit. As the Government notes, disclosure of grand jury matters by a government attorney in violation of Rule 6(e) is an offense punishable by contempt of court. See United States v. Alexander, 860 F.2d 508, 512 (2d Cir. 1988). The defense has shown no reason why the Court should direct the Government's attorney to disclose matters relating to grand jury proceedings and thus violate federal law. There is no indication that the grand jury proceedings in this case were marred by impropriety or that the Government has failed to abide by its discovery obligations. Accordingly, I decline to direct the government to provide Defendant with any information concerning the existence or non-existence of grand jury transcripts.
Defendant, of course, may petition the Court to authorize disclosure of grand jury transcripts. See Fed.R.Crim.P. 6(e)(3)(E), (F). The defense requests that it be given additional time to file "any supplemental motions concerning the missing grand jury transcripts." (Def. Letter, Sept. 26, 2007, at 2.) The defense may file its motions to inspect or compel production of grand jury transcripts no later than October 5, 2007. The Government's response is due no later October 12, 2007.
CONCLUSION
For the foregoing reasons, the Government's motion to preclude the defense from cross-examining the Government's witness, Detective McNamee, regarding the CCRB complaint is GRANTED.
Defendant's motion to suppress evidence of the statement that was recorded during the course of Defendant's telephone call from the MCC is DENIED.
Defendant's motion to preclude the Government from introducing evidence of more than one of Defendant's prior felony convictions is DENIED, except that the Government is not permitted to introduce evidence of more than three of Defendant's prior felony convictions.
Defendant's motion to direct the Government to confirm or deny the existence of previously undisclosed transcripts of grand jury proceedings in this case is DENIED. Defendant, however, may file a motion relating to the production of grand jury transcripts no later than October 5, 2007. The Government's response is due no later than October 12, 2007.