Opinion
01 Cr. 848 (SWK)
February 27, 2003
OPINION
Defendant Jose Luis Perez moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) and a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons set forth below, Perez's motion is denied.
I. BACKGROUND
On August 30, 2001, a grand jury returned an indictment charging Jose Luis Perez with conspiracy to distribute narcotics and possession of five kilograms of narcotics. Count one of the indictment charged Perez with conspiracy to distribute narcotics from 1995 through September 1999. Count two charged Perez with possession with intent to distribute five kilograms or more of cocaine in or about April 1999. On August 15, 2002, a grand jury returned a superseding indictment virtually identical to the first, only differing in its descriptions of the overt acts alleged to have been committed in furtherance of the conspiracy charged in count one. On October 8, 2002, the Government obtained a second superseding indictment that also only differed from the previous indictment in its description of the overt acts alleged to have been committed in furtherance of the alleged conspiracy. After a three week trial in October 2002, a jury returned a verdict of guilty on both counts.
At trial, witnesses for the Government testified that Perez was seen in the area of 152nd Street and Broadway in Manhattan, a known drug-trafficking area. Beginning in 1998, in response to a tip from an informant that a man who drove a green van was a drug dealer in that area, agents conducting surveillance of the area noticed Perez, who fit that description. Over the course of the next several years, agents continued to gather evidence of Perez's drug dealing activities. On December 1, 1998, Perez was stopped by agents and $91,000 in cash was seized from a car he was driving. An officer testified that a dog alerted to the presence of narcotics on the seized currency. On September 15, 1999, agents conducted a consent search of Perez's home and seized, among other items, a handgun, a shotgun, and a bulletproof vest. Four cooperating witnesses also testified that Perez was the man with whom they had conducted drug deals of several kilograms of cocaine during the late 1990's. Specifically, Daniel Castro testified that notebooks containing numerical figures and names were in fact drug ledgers that recorded several drug transactions with a man named "PJ", a nickname used by the defendant. Mr. Castro also testified that the plastic wrappers seized from an apartment in Manhattan in April 1999 previously contained the contents of five kilograms of cocaine he had purchased from the defendant earlier that day. Tests conducted by a senior forensic chemist for the Government confirmed the presence of cocaine on those wrappers. Finally, as the last witness called by the Government, Sugeilis Gutierrez testified that Perez paid her to relate a false story to an investigator hired by defense counsel, a story that contradicted the prior testimony given by the investigating agents and police officers at the suppression hearings held in this case.
Perez called several witnesses regarding the amount of cash collected at his grocery stores, character witnesses to testify as to his good character in the community, one of his former attorneys to give details regarding real estate transactions conducted on his behalf, a tenant in his building who testified that the bulletproof vest seized during the search of Perez's home did not belong to the defendant, and tenants of the building on 152nd Street and Broadway who testified that they had not witnessed drug dealing at that location. The defendant chose not to testify.
II. RULE 29 MOTION
Rule 29 of the Federal Rules of Criminal Procedure provides, in pertinent part, that "[a]fter the Government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). A defendant bears a heavy burden in challenging a conviction based on insufficient evidence. See United States v. Soto, 959 F.2d 1181, 1185 (2d Cir. 1992). "A conviction must be upheld if, after viewing the evidence in the light most favorable to the government, and drawing all reasonable inferences in its favor, `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Medina, 944 F.2d 60, 66 (2d Cir. 1991) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979)). Thus, "[a] jury's verdict will be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir. 1987). The task of choosing among the permissible competing inferences that can be drawn from the evidence is for the jury, not the court, see United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998), and the Government "need not `exclude every reasonable hypothesis other than that of guilt.'" United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (quoting Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127 (1954)).
On October 25, 2002, at the close of the Government's evidence, the defendant moved for a Rule 29 judgment of acquittal arguing that the evidence was insufficient to sustain a verdict on count two of the indictment, possession of a controlled substance with the intent to distribute. The Court denied the motion. See Tr. at 832-834.
The abbreviation "Tr." refers to the trial transcript.
In order to support a conviction for possession of narcotics under 21 U.S.C. § 841, the following essential elements of the crime must have been found beyond a reasonable doubt by the jury: (1) that the defendant distributed or possessed with the intent to distribute five kilograms or more of a controlled substance, namely cocaine, in or about April 1999; and (2) that the defendant did so unlawfully, intentionally and knowingly.
The Court has reviewed the trial transcript and the evidence presented and finds that there was sufficient evidence at trial to support a verdict of guilty on count two of the indictment. One of the Government's cooperating witnesses, Daniel Castro, testified that on April 22, 1999, he received five kilograms of cocaine from the defendant and an additional kilogram of cocaine from an associate of the defendant, and recorded this transaction on a piece of paper the Government introduced into evidence. See Tr. at 418-422; Gov't Ex. 15-C. The Government also introduced five clear plastic wrappers seized on April 22, 1999 from an apartment at 3675 Broadway. See Tr. at 327-328; Gov't Ex. 20. Mr. Castro further testified that those wrappers previously contained five of the six kilograms of cocaine he purchased from the defendant and his associate earlier that day. See Tr. at 421-421. This testimony and evidence was sufficient for the jury to find that in or about April 1999 Perez possessed five kilograms or more of cocaine. Therefore, Perez's Rule 29 motion as to count two of the indictment is denied.
III. RULE 33 MOTION
Perez moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure based upon several alleged procedural errors during his trial. Each alleged error is discussed separately below.
Under Rule 33, a motion for a new trial may be granted "if the interests of justice so require." Fed.R.Crim.P. 33. By its terms, Rule 33 "gives the trial court `broad discretion to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.'" United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)). The burden of proving the necessity of a new trial is on a defendant making such a motion. See United States v. Baljit, 202 F. Supp.2d 196, 200 (S.D.N.Y. 2002). "In considering a Rule 33 motion, the district court must strike a balance between weighing the evidence and the credibility of witnesses and not `wholly usurping' the role of the jury." Id. "Because a court generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, `[i]t is only where exceptional circumstances can be demonstrated' that a trial judge may intrude upon a jury's factual determinations." Id. (quoting United States v. Sanchez, 969 F.2d at 1414).
Generally, a trial court has broader discretion to grant a new trial under Rule 33 than it does to grant a motion for acquittal under Rule 29. Unlike the standard governing a Rule 29 motion, under Rule 33 the court is not required to view the evidence in the light most favorable to the Government. See id. It is well settled, however, that "motions for new trials are not favored and should be granted only with great caution." United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958); see also United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993).
A. IDENTIFICATION PROCEDURES
Perez argues that the procedures used by the Government with regard to an identification made by Alonso Caicedo prior to trial were impermissibly suggestive and violated his constitutional rights. Prior to trial, three Government witnesses, William Serna, Alonso Caicedo and Daniel Castro were shown photographs of the defendant. Mr. Serna and Mr. Castro viewed multi-photo arrays, while Mr. Caicedo was shown a single photograph of Perez. Prior to trial, counsel for Perez filed a motion to suppress each of these identifications. This motion was later withdrawn. Perez now argues that the one-photo array shown to Mr. Caicedo prior to trial was impermissibly suggestive, and his prior counsel would not have waived the issue had he been informed that the identification was made from a single photo.
Counsel for Perez withdrew this motion prior to the suppression hearing held in February and March 2002, "[b]ased upon the Government's representation that all of the individuals who were shown the photo array were long time acquaintances of the defendant, we believe that it would be impossible to argue to any impropriety in the identification procedure would have created a substantial likelihood of misidentification." Letter from David J. Goldstein, Esq., to the Court, dated January 29, 2002.
At trial, Mr. Caicedo was unable to identify the defendant as the man with whom he had previously conducted drug transactions. Tr. at 230-32. The Government then introduced evidence that Mr. Caicedo had previously identified the defendant from a photograph. Tr. at 248; Gov't Ex. 35.
Due process may be violated by an identification procedure only when it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967 (1968). The constitutional validity of identification testimony is analyzed according to a two-step process. First, the court must determine whether the procedure by which the initial identification was obtained was impermissibly suggestive. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994). "If pretrial procedures were impermissibly suggestive, due process requires that the identification testimony be excluded unless a threshold level of reliability can be established through evidence that is independent of the suggestive procedure." Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998). If the procedure was impermissibly suggestive, the admission of the evidence will nevertheless satisfy constitutional standards if the identification was independently reliable. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2248 (1977); Dunnigan v. Keane, 137 F.3d at 128. Factors the court should consider in determining whether identification testimony is independently reliable include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See Manson v. Brathwaite, 432 U.S. at 114; see also Neil v. Biggers, 409 U.S. 188, 199-200 (1972). These factors are to be analyzed through the totality of the circumstances, see Neil v. Biggers, 409 U.S. at 199, and weighed against the corrupting effect of the suggestive identification. See Manson v. Brathwaite, 432 U.S. at 114. "Short of th[e] point" at which the court must conclude, after considering these factors, "that under all the circumstances of th[e] case, there is a very substantial likelihood of irreparable misidentification," the presence of some element of untrustworthiness goes only to the weight of the identification, not its admissibility. Manson v. Brathwaite, 432 U.S. at 116.
A single-photo array is impermissibly suggestive. See United States v. Lumpkin, 192 F.3d 280, 288 (2d Cir. 1999). However, an in-court identification may still be made if the witness has an independently reliable basis upon which to make such an identification of the defendant. See id.
Although Mr. Caicedo was shown an unduly suggestive single-photo array of the defendant, his identification of Perez as the man with whom he had sold drugs was independently reliable. Mr. Caicedo testified that he had numerous meetings over several years with a man he called "P.J." Tr. 252-260; 263-270. These meetings and drug transactions with P.J. occurred at several locations around New York City. See Tr. at 252-70. Overall, the level of contact Mr. Caicedo had with P.J. was sufficient to provide an independently reliable basis for his identification. Therefore, the Court finds that no error existed in the identification procedures used by the Government with respect to Mr. Caicedo.
B. INTRODUCTION OF WITNESS BRIBERY SCHEME
Perez next asserts that the Court erroneously allowed evidence of a witness bribery scheme to be presented at trial. Sugeilis Gutierrez testified that she met with the defendant four times prior to trial and, each time they met, he asked her to give a false statement regarding the events of September 15, 1999 to an investigator hired by his defense counsel. On that evening, Perez had an encounter with police in the Bronx, which resulted in a consensual search of his home and the seizure of a handgun, a shotgun and a bulletproof vest. Ms. Gutierrez agreed to tell the investigator that she had witnessed the encounter and that it did not occur as the police had previously testified. Instead, Ms. Gutierrez was to tell the investigator that guns were drawn, Mr. Perez was handcuffed, and his keys were forcibly removed from his pocket. The investigator recorded his conversation with Ms. Gutierrez without her knowledge. This tape was later turned over to the defendant's attorneys and then to the United States Attorney's Office. Once the Government had possession of the tape, they attempted to interview Ms. Gutierrez about the story, at which point she admitted her statements were false and that she had been paid by the defendant to participate in this scheme. These events took place shortly before trial in this action.
The events of that evening are detailed in the Court's prior opinion at 2002 WL 1835601, *8-10 (S.D.N.Y. Aug. 8, 2002).
Mr. Perez now argues that because the witness bribery scheme did not result in "false testimony" before the Court, it should not have been admitted at trial. The Court permitted Ms. Gutierrez's testimony for the limited purpose of showing consciousness of guilt on the part of the defendant only after concluding that its probative value outweighed any prejudice that might result from its introduction.
Evidence such as attempted witness or jury tampering is admissible as probative of a defendant's consciousness of guilt. See United States v. Macklin, 926 F.2d 1323, 1329 (2d Cir. 1991). Such evidence may be admitted after the court determines that: (1) the evidence is offered for a "purpose other than to prove the defendant's bad character or criminal propensity;" (2) the evidence is relevant under Federal Rules of Evidence 401 and 402; and (3) provides an appropriate limiting instruction to the jury, if one is requested. Id. at 1328-29 (quoting United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989)); see also United States v. Ortiz, 857 F.2d 900, 903 (2d Cir. 1988); Huddleston v. United States, 485 U.S. 681, 691-92 (1988).
In the instant case, the Court found this evidence to be offered for an admissible purpose, namely for showing consciousness of guilt, and that it was relevant under Rules 401 and 402 as the false statements concerned the events of the evening of September 15, 1999, including the search of Mr. Perez's home and the evidence seized therefrom. Mr. Perez put a plan into motion whereby Ms. Gutierrez's false statements could have led to the wrongful suppression of that evidence and affected the outcome of this case. Further, the Court provided a limiting instruction to the jury at the conclusion of Ms. Gutierrez's testimony and again at the conclusion of the parties' summations. Tr. at 829, 1169-70. Although Perez argues that this attempt to influence Ms. Gutierrez did not lead to actual false testimony in court, this attempt was probative of his state of mind. Perez's actions were designed to influence the course of the criminal charges pending against him, specifically to attempt to have those charges dismissed on the basis of Ms. Gutierrez's story. These actions, which are exactly the type which evince consciousness of guilt on the part of a defendant, are relevant and were properly admitted. See United States v. Padilla, 203 F.3d 156, 162 (2d Cir. 2000).
C. EVIDENTIARY RULINGS LIMITATIONS ON CROSS-EXAMINATION
Perez argues that several rulings by the Court impermissibly limited his right to cross-examine witnesses. Each allegation is discussed separately below.
The Confrontation Clause of the Sixth Amendment guarantees the defendant in a criminal prosecution the right to confront witnesses against him. This "`means more than being allowed to confront the witness physically,' for `[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" United States v. Maldonado-Rivera, 922 F.2d 934, 955 (2d Cir. 1990) (citations omitted). However, the Confrontation Clause does not deprive the court of all discretion in setting limits on cross-examination. It is well established that the Court has broad discretion to limit the scope of cross-examination. United States v. Cambindo Valencia, 609 F.2d 603, 630 (2d Cir. 1979) (citing United States v. Green, 523 F.2d 229, 237 (2d Cir. 1975)). "[T]he trial judge has `wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, . . . interrogation that is repetitive or only marginally relevant.'" United States v. Maldonado-Rivera, 922 F.2d at 956 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431 (1986)); see also United States v. Rahme, 813 F.2d 31, 37 (2d Cir. 1987) (scope and extent of cross-examination are within sound discretion of trial court); United States v. Pedroza, 750 F.2d 187, 195 (2d Cir. 1984).
1. Questions Regarding Guns and a Bulletproof Vest Found at the Defendant's Home
Perez argues that the Court abused its discretion in preventing defense counsel from questioning Detective Wroblewski and Detective Doheny about whether they had ever witnessed Perez with weapons or a bulletproof vest. Two guns and a bulletproof vest were seized when the police legally searched Perez's home on the night of September 15, 1999. The Government was permitted to introduce these items at trial on the basis that such items were routinely kept by those in the narcotics business and the presence of those items in Perez's home was circumstantial evidence that supported the charges contained in the indictment. The Second Circuit has recognized that "to substantial dealers in narcotics," firearms are "tools of the trade." United States v. Oates, 560 F.2d at 45, 62 (2d Cir. 1977) (quoting United States v. Weiner, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66 (1976)).
There was no testimony at trial by either detective, or anyone else, that Perez was ever seen either carrying those guns or wearing the bulletproof vest. The Government did not allege in either its opening or closing arguments that Mr. Perez used a weapon or wore a bulletproof vest during the commission of any crime alleged in the indictment. Defense counsel was afforded a full and fair opportunity to cross-examine witnesses on topics addressed in their direct testimony. See United States v. Pedroza, 750 F.2d at 196. As such, the Court did not abuse its discretion in limiting the cross-examination to topics addressed in direct testimony and limiting questions only marginally relevant to the charges at hand. See Maldonado-Rivera, 922 F.2d at 955.
2. Questions Regarding the Resolution of a Civil Settlement Between the Defendant and the Government
Perez next argues that the Court abused its discretion in sustaining Government objections to questions regarding the ultimate disposition of $91,000 in cash seized from the defendant on December 1, 1998. Prior to trial, the Court ruled as inadmissible evidence of the Government's return of approximately $45,000 of the seized currency to Perez pursuant to a settlement agreement reached in a civil matter. At the time the settlement agreement was entered into, the Government's investigation of Perez was on-going and the agreement in the civil matter did not, contrary to defendant's assertions, give rise to an inference that the Government returned the money because it could not prove the currency was proceeds of illegal activity.
At trial, defense counsel was permitted to extensively cross-examine Detective Wroblewski about the money that was seized from the car the defendant was driving on the night of December 1, 1998. The Government's objections to defense counsel's subsequent open-ended questions to the witness, such as "what happened to that money after?" were properly sustained because the answer given by the witness may have infringed upon the Court's pre-trial ruling that the civil settlement between the Government and the defendant was inadmissible. Tr. at 114. Defense counsel was permitted wide latitude in questioning witnesses regarding the circumstances surrounding the seizure of the money. The defendant's Sixth Amendment right to confront witnesses was not infringed by the Court's limitation of certain open-ended questions during cross-examination on this topic.
3. Questions Regarding Whether a Detective Knew Money the Defendant Exchanged With Another Individual Was U.S. Currency
The defendant also argues that the Court unconstitutionally limited his right to cross-examine witnesses by preventing a witness from answering his counsel's line of questioning regarding whether money the defendant exchanged with another person on the street was actually U.S. Currency. On direct examination, Detective William Doheny testified that on December 1, 1998, while conducting surveillance in the area of 152nd Street and Broadway in Manhattan, he saw an individual named T.J. hand the defendant a bundle of money. Tr. at 41. During cross-examination of Detective Doheny, defense counsel asked numerous questions about this transaction, including "Do you know how much money T.J. handed Mr. Perez?" "Do you know how many bills there were?" and "Do you know what the denominations were of the bills?" Tr. at 80-81. Each of these questions was answered by the Detective in the negative. It was obvious from his testimony that Detective Doheny never had possession of that money nor did he have had first-hand knowledge of what ultimately happened to it. It was also apparent from his testimony that Detective Doheny was observing these events from a parked car and was not standing close enough to the defendant to give specific details about the amount or type of currency exchanged. Therefore, defense counsel's repeated questions regarding whether the currency was in fact U.S. Currency were duplicative and unnecessary. The defendant's Sixth Amendment rights were not violated by the Court's decision to limit cross-examination on this topic after several questions had been asked and answered by the witness. See United States v. Maldonado-Rivera, 922 F.2d at 956.
The Court notes that the Government's objection to this question was overruled and the Detective was instructed to answer. See Tr. at 80.
4. Cross-examination of William Serna
William Serna testified for the Government pursuant to a cooperation agreement. Cross-examination of Mr. Serna lasted for several hours, on topics ranging from his prior drug dealing with the defendant, the charges he pled guilty to, and the possible penalties he faced. Mr. Serna was also extensively questioned on the cooperation agreement he signed with the Government and the potential benefits he hoped to gain through his cooperation. Tr. at 194-96. A provision in Mr. Serna's cooperation agreement stated that he would not commit any further crimes, and Mr. Serna had been incarcerated since the time of his arrest in August 1999. Defense counsel extensively questioned Mr. Serna as to whether he made a profit from drug dealing in each of the years 1991 through 1999, and when Mr. Serna replied that he made approximately $25,000 each year, defense counsel asked whether he had filed tax returns in each of those years. Tr. at 190. After Mr. Serna answered that he had not, defense counsel attempted to begin a new line of questioning as to whether Mr. Serna had in fact been prevented from filing tax returns while he was incarcerated or whether he had committed other tax-related crimes subsequent to signing the cooperation agreement. Tr. at 190-91. Perez asserts that the Court's limitation on this line of questioning violated his 6th Amendment right to confront the witness.
Whether Mr. Serna violated his cooperation agreement with the Government is a matter for the Government, not the defendant, to decide. Extensive cross-examination was allowed about Mr. Serna's failure to file a tax return for tax year 1999, a fact only marginally relevant to his testimony regarding Perez's drug dealing activities. The Court's decision to limit that line of questioning after several questions had been asked and answered was completely within the Court's discretion and was warranted given the length of time that had already passed with this line of questioning. See United States v. Maldonado-Rivera, 922 F.2d at 956.
Additionally, Perez argues that the Court's limitation of questions regarding Mr. Serna's understanding of INS regulations regarding deportation for convicted criminals was an unconstitutional limitation of the his right to cross-examine the witness. Mr. Serna was specifically asked whether he understood "that one of the factors that the [INS] looks at when they determine whether or not to deport somebody is whether or not that person is cooperating with the government?" Tr. at 194. The objection was sustained by the Court and counsel was instructed to continue with his cross-examination of the witness. Tr. at 194. Mr. Serna has no knowledge of INS regulations and the decision whether or not to deport him is entirely up to the INS. Therefore, any response to that question would have been hearsay and the objection was properly sustained. Moreover, as had already been demonstrated during Mr. Serna's direct examination, Mr. Serna was in this country illegally and admitted that he knew he was subject to deportation following sentencing in his criminal case. Tr. at 150, 194. Mr. Serna also testified that he wanted to stay in the United States because his wife resides here. Tr. at 194. Further questions regarding his deportation status were cumulative and unnecessary. See United States v. Maldonado-Rivera, 922 F.2d at 956.
5. Cross-examination of Daniel Castro
As with William Serna, above, Daniel Castro also testified for the Government pursuant to a plea agreement. Mr. Castro was also subject to several hours of cross-examination by defense counsel. During cross-examination, Mr. Castro was asked several questions regarding the scope of his plea agreement with the Government, the federal charges to which he pled guilty, and the possible penalties he faced. Tr. at 383-87. The subject of Mr. Castro's prior plea agreement in regard to New York state drug charges was also discussed. Tr. at 386. The Court did not permit defense counsel to question Mr. Castro as to the potential illegality of the prior plea bargain he had made with state authorities. The defendant now argues that this limitation of cross-examination was a violation of his right to confront the witness and the potential illegality of Mr. Castro's state plea bargain was relevant to his testimony.
While the fact that Mr. Castro entered into a plea bargain on prior state drug charges was potentially relevant to his testimony in this case, the potential illegality of that plea bargain, which was apparently approved by a New York judge, is a matter for a New York state court. This Court is not prepared to pass on the illegality of a plea bargain approved by a New York court, and the supposed illegality of that agreement has no bearing on the testimony of Mr. Castro as to his drug dealing activities with Mr. Perez. The Court was well within its discretion in limiting cross-examination on a topic irrelevant to the charges at hand.
6. Cross-examination of Jose Duran
Perez asserts that his right to cross-examine Jose Duran was improperly limited because the Court sustain objections to (1) a question regarding Mr. Duran's drunken firing of a gun into the air and (2) an extremely argumentative question asking Mr. Duran if he knew he was "getting away with . . . murder" in exchange for his testimony at trial. Tr. at 561. Mr. Duran testified about his drug dealing activities with the defendant, the criminal charges he pled guilty to, the potential penalties he faced, and his cooperation agreement with the Government. Tr. at 484-85, 501-04. Mr. Duran also testified about the murder of a man named Jose Jiminez ("Paca"), and how he allowed money belonging to him (as a partner in a drug business run by Abraham Castro) to be used to have Mr. Jiminez killed. Tr. at 486-88. The murder of Mr. Jiminez was charged as an overt act of the narcotics conspiracy Mr. Duran pled guilty to, and the facts and details of Mr. Jiminez's murder were discussed during Mr. Duran's testimony. Tr. at 486-88, 501-02, 557-61.
The Court sustained the Government's relevancy objection to defense counsel's question "Did you fire a .357 with a long barrel in the air on the corner of 153rd Street and Broadway when you were drunk?" Tr. at 555. Mr. Duran had already answered several prior questions regarding the drug organization's ownership of that weapon. Whether Mr. Duran used that weapon to shoot up into the air while drunk one night was not relevant to his testimony regarding his drug dealing activities with the defendant. Nor, as the defense suggests, is that information relevant to Mr. Duran's credibility. Mr. Duran already testified that he was involved in a murder and that he sold drugs on a very large scale. Mr. Duran's "willingness to put his own-self-interest before that of the community" was already apparent to the jury. Def. Mem. at. 13. The Court's decision to sustain the objection to that question was not an impermissible limitation of Perez's right to cross-examine Mr. Duran.
7. Cross-examination of Juan Checo
The defendant argues that cross-examination of Detective Juan Checo was impermissibly limited because "[p]ermitting the government to have Detective Checo explain his stop of Mr. Perez without giving Mr. Perez the corresponding opportunity to have Detective Checo explain the circumstances surrounding the stop and the information he had available to him when he made the stop tended to leave the jury with the incorrect impression about the incident." Def. Mem. at 14.
Juan Checo is an NYPD Detective who was involved in an encounter with the defendant in the Bronx on the evening of September 15, 1999. Detective Checo testified that earlier that evening he had been conducting surveillance on 152nd Street and Broadway in Manhattan and heard a radio call regarding a stop of a car on the Triborough Bridge. Tr. at 594. Detective Checo was not present at the scene of the stop on the bridge. The Court sustained the Government's hearsay objection to a question regarding Detective Checo's understanding of that stop. Tr. at 594-595. Defense counsel was permitted to extensively cross-examine Detective Checo on all of the other events leading to the defendant's encounter with the police later that night in the Bronx.
The Court's decision to limit cross-examination of Detective Checo to events he had actual knowledge of was proper. Other witnesses to the car stop on the Triborough Bridge were available to testify as to that event and Detective Checo had no first-hand knowledge of the circumstances surrounding that stop. Any testimony he would have given regarding that stop would have been hearsay. See F. Rule Evid. 801.
8. Cross-examination of Detective William Kelly
Detective William Kelly, the lead investigator on this case, was called at trial as a Government witness for a brief direct examination. The defense conducted a lengthy cross-examination of Detective Kelly on topics ranging far beyond that testified to on direct. Moreover, the defense's request to recall Detective Kelly to the stand during its case was granted. However, the defendant chose not to recall Detective Kelly at trial. As such, the defendant is now prevented from arguing that his right to question Detective Kelly was impermissibly limited during cross-examination. The defendant had an opportunity to recall Detective Kelly to the stand to ask further questions and chose not to do so.
9. Cross-examination of Sugeilis Gutierrez
The defendant raises two claims of alleged Constitutional error with regard to the cross-examination of Ms. Gutierrez: (1) that the Court wrongly prevented Ms. Gutierrez from answering the question "Is it accurate to say that Rick lied to you about his relationship with Felicia?" and (2) that the Court improperly sustained an objection when the defense tried to question Ms. Gutierrez about her brother's term of supervised release. Tr. at 791, 817.
The defendant argues that the question whether Rick lied to Ms. Gutierrez about a relationship with one of her friends was relevant because it supports the defense theory that Rick lied to both Ms. Gutierrez and Perez about whether Ms. Gutierrez was actually present at the scene of the September 15, 1999 encounter between Perez and the police. The Defense argues that Perez was duped into believing Rick's story that Ms. Gutierrez was present at the stop and did not himself orchestrate the witness bribery scheme. The defense was free to make that argument at trial. However, given Ms. Gutierrez's testimony that she personally met with the defendant at least four times, and that the defendant handed her a prepared statement to memorize, extensive questioning regarding Rick's relationship with Ms. Gutierrez's friend was not relevant to her testimony regarding the witness bribery scheme.
As to the second argument raised by the defendant, that the Court improperly sustained an objection to a question regarding Ms. Gutierrez's brother's supervised release, the objection to that question was properly sustained. Ms. Gutierrez's brother's criminal record may not be used to impeach her credibility. Moreover, there was no evidence that Ms. Gutierrez was testifying at trial in order to curry favor with the Government to help her brother. Ms. Gutierrez herself was under the threat of prosecution from the Government, and subsequently signed an agreement under which she would not be prosecuted if she testified truthfully at trial and turned over the money the defendant had paid her. Tr. at 734-735. Without any evidence to support the defense theory that Ms. Gutierrez was attempting to curry favor with the Government for her brother, objections to those questions on cross-examination were properly sustained as irrelevant and possibly prejudicial.
D. ALLEGED PROCEDURAL VIOLATIONS
The Defendant alleges several procedural violations in support of his motion for a new trial. First, the defendant claims that the Court's treatment of trial spectators violated his due process rights. Additionally, the defendant claims that the Court mistreated defense counsel. Neither of these claims has merit.
1. The Court Did Not Mistreat Spectators
Attendance during trial of this matter was very heavy from the first day forward. The courtroom was often at or near capacity. Many of the spectators came in support of the defendant, but many appeared to be neutral onlookers or other Government attorneys. Although the Court expressed surprise at the number of spectators in attendance every day, this comment was not made in the presence of the jury. The Court requested the presence of two court officers to provide crowd control functions and to also help the jury enter and leave the courtroom and enter and leave the floor during breaks in testimony. Lines for the elevators were long and, in order to prevent the jury from coming into contact with attorneys, witnesses, and spectators, the Court felt that the presence of two court officers would be appropriate. More than two officers may have been in the courtroom at any one time, but their presence was necessary and appropriate. Further, the Court witnessed some spectators making gestures that could be interpreted as threatening toward a witness during his testimony. "[T]he courtroom and courthouse premises are subject to the control of the court." Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507 (1966); see also Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985) (noting judge's responsibility for security during trial), judgment vacated as moot, 800 F.2d 230 (10th Cir. 1986); Snow v. Oklahoma, 489 F.2d 278, 280 (10th Cir. 1973) (relegating type and necessity of security precautions to judge's discretion); United States v. Bell, 457 F.2d 1231, 1235-36 (5th Cir. 1972) (search of spectators as they entered courtroom did not create an inference for the jury that the defendant was a dangerous man or that there was an association or connection between the defendant and the spectators, and measures were justified by rumors of possibility of courthouse escape attempt). In addition, "[t]he district court has broad discretion to take such steps as may be necessary and appropriate to permit the jury to concentrate on trial proceedings and to evaluate the evidence in an atmosphere free from apparent threat or danger, so long as those steps do not violate the defendant's fundamental rights." United States v. Maldonado-Rivera, 922 F.2d at 971. In the present case, the defendant's fundamental rights were not infringed by the Court's decision to place extra security officers in the courtroom.
2. The Court Did Not Mistreat Defense Counsel
Although the defendant argues that the Court's alleged mistreatment of defense counsel merits a new trial, the record at trial shows otherwise. Defense counsel assumed an extremely argumentative position from the first day of proceedings forward and displayed an unacceptable level of arrogance and disrespect toward this Court. On several occasions, defense counsel did not respect the Court's rulings on evidentiary matters, calling one ruling "absurd" in open court. Tr. at 889. Further, defense counsel raised his voice at a sidebar conference, accusing the Government of "trying to hide the truth" at a level everyone in the courtroom could clearly hear. Tr. at 215. While the Court admonished defense counsel for his remarks, such admonishments were made outside of the presence of the jury and, therefore, did not impinge upon the defendant's right to a fair trial. "[A] judge's reprimand of counsel furnishes no basis for reversal if made outside of the jury's presence." United States v. DiTommaso, 817 F.2d 201, 221 (2d Cir. 1987) (citing cases); see also United States v. Mickens, 926 F.2d 1323, 1327 (2d Cir. 1991) ("It must be noted that [the court's] remarks were provoked to some extent by one defense counsel's despicable verbal assault on the court"). Moreover, a cautionary instruction was given to the jury at the end of testimony in the trial:
The fact that rulings have been made by the court during the trial is not to be taken as any indication that I have any view as to what your decision should be as to the guilt or lack of guilt of the defendant. The rulings on objections to evidence and other rulings made by the court dealt with matters of the law with which the jury has no concern, and these rulings are not to be considered by you in any respect. Similarly, any statements made by counsel in your presence while arguing as to the admissibility of evidence are not evidence and may not be considered by you.
Tr. at 1153-54. Later, the Court reiterated that statement,
The fact that rulings have been made by me during the trial is not to be taken as any indication of any views by me as to what your decision should be. I have no opinion as to what your decision should be, and even if I did, it would be irrelevant. You, the members of the jury, are to determine the facts from the evidence.
Tr. at 1162. Any possible prejudice to defendant was cured by such cautionary instructions. See United States v. Mickens, 926 F.2d at 1327-28, n. 1.
E. ALLEGED DUE PROCESS VIOLATIONS
The defendant also argues that several due process violations occurred during the trial. These alleged errors, even if occurred as described by the defendant, do not rise to the level necessary for a new trial.
1. The Picture of "Rick" Was Properly Admitted
During the trial, the Government offered, and the Court admitted, a picture of "Rick", who Ms. Gutierrez testified was present when Perez met with her to pay her for giving a false statement regarding this case. This picture was a mug shot of a man named Rick Garces, who had previously been arrested in an unrelated matter. This picture was admitted in order to lay a foundation for testimony that Rick's fingerprints had been identified on the piece of paper containing the false statement and a map. However, once defense counsel stipulated to the fact that the defendant had drawn the map on that sheet of paper, such testimony became unnecessary. Although admission of this picture was not relevant in light of the subsequent stipulation by defense counsel, admission of this evidence did not result in an error necessitating a new trial.
2. Testimony by the Government that a Tape Was Turned Over by Defense Counsel Was Not Improper
Perez next argues that during redirect examination of Ms. Gutierrez, "the prosecutor, in effect, testified regarding that fact that Mr. Perez's counsel had turned an audiotape over to the prosecution." Def. Mem. at 19-20.
On direct examination, Ms. Gutierrez authenticated the tape of her conversation with the defense investigator as a recording she first heard on October 20, 2002, and that exhibit was admitted into evidence with no objection from the defense. Tr. at 759. Ms. Gutierrez did not know that her conversation was being recorded by the investigator until Rick later told her he had a copy of that tape. Tr. at 758. Although the Assistant asked Ms. Gutierrez "Do you know when the defense gave that statement to the government?" Tr. at 827, the jury was later instructed that comments and questions by the lawyers should not be regarded as evidence. Tr. at 1153. "Such instructions can cure an error unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions and a strong likelihood that the effect of the evidence would be `devastating' to the defendant." Yu v. United States, No. 97 Civ. 2816, 1998 WL 160964, *8 (S.D.N.Y. April 7, 1998) (citing United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993)). Allowing Ms. Gutierrez to answer the question as posed by the Assistant was not an error rising to the level requiring a new trial. The Assistant's statement that the defense turned over the tape to the Government, even if accepted by the jury as a fact was not the type of statement that would have a devastating effect.
3. The Government's Comment to a Witness Does Not Warrant a New Trial
Perez's argument that a comment made by the Assistant during cross-examination of a defense witness was a prejudicial comment also fails to meet the standard required for a new trial. After Judith Nadal, a defense witness, characterized her omission of information from a statement made to the Government as "not false," the Assistant replied with "That is how you would characterize it." Tr. at 888-889. While the Assistant's statement may have been improper, it was made out of frustration in dealing with a witness who was not very forthcoming in her answers. Although the remark was not phrased as a question, the Court's decision not to strike that remark from the record was not erroneous. "A prosecutor's statements amount to prosecutorial misconduct if the `remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'" Yu v. United States, 1998 WL 160964 at *9 (quoting Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986)). However, such remarks "must be examined within the context of the trial to determine whether the prosecutor's behavior amount to prejudicial error." United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1044 (1985). This single, isolated comment does not amount to prejudice; it was brief and superficial, and the harm or prejudicial impact of the comment in light of the totality of the evidence presented at trial is insignificant. See Yu v. United States, 1998 WL 160946 at *10.; see also United States v. Von Foelkel, 136 F.3d 339, 341 (2d Cir. 1998); United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995) (the severity of the prosecutor's remark was "mitigated somewhat in this case because the remark appears to have been an aberration in an otherwise fair proceeding"); cf. United States v. Richter, 826 F.2d 206, 209-10 (2d Cir. 1987) (new trial granted on basis of cumulative effect of several comments by prosecutor and government strategy of compelling defendant to state law enforcement officers lied in their testimony). Although defense counsel's request to strike the comment from the record was overruled, the Court's instruction to the jury that statements or questions by either the Government or defense counsel were not to be taken as evidence was sufficient to correct any error and did not result in a violation of Mr. Perez's rights.
Ms. Nadal rarely answered the question posed to her the first time, requiring the Assistant to repeat or rephrase his questions. For example, when asked whether she knew if the bulletproof vest entered as an exhibit at trial could have been the defendant's, Ms. Nadal answered "What is it that you are asking me?" in a defensive tone not reflected in the transcript. Tr. at 877.
4. Objections Made During Defense Counsel's Summation Were Not Improper
Perez also argues that the Court violated his due process rights by "interrupting his counsel during closing arguments when counsel was making a good-faith argument based upon the evidence." Def. Mem. at 20. The Court did not interrupt defense counsel sua sponte; the Government raised an objection after defense counsel characterized Police Officer Thomas Hering's testimony as follows, "Presumably, he thinks that it is not indicative of criminality, but presumably, the people that he is talking to are white people who are flying out of the airport." Tr. At 1089. Earlier at trial, Officer Hering testified that the dog he trained quite often would alert to the presence of large quantities of cash on "businessmen flying out [of the airport]." Tr. at 132. Officer Hering did not, at any time, testify as to the ethnicity of those businessmen, nor was he ever asked to give a physical description of any of those businessmen. Defense counsel's mischaracterization of Officer Hering's testimony was unwarranted and prejudicial and the objection was properly sustained. See Francolino v. Kuhlman, 224 F. Supp.2d 615, 654 (S.D.N.Y. 2002) (objection appropriate where counsel's summation at time of interruption was improper).
Moreover, Perez's argument that the Government's objection to defense counsel's use of an aid during summation was improper is also denied. Defense counsel attempted to use an enlarged transcript of Detective Kelly's grand jury testimony during summation, and the Government objected. Tr. at 1110-11. This particular demonstrative aid had not been entered into evidence during the trial. Counsel was free to make arguments regarding Detective Kelly's grand jury testimony during his summation, the Court merely precluded the use of that particular aid. The defendant's ability to receive a fair trial was not in any way compromised by the Court's action.
5. The Court's Refusal to Assist Defense Counsel in Obtaining Witnesses Was Not Improper
The Court's refusal to assist the defense in obtaining witnesses was proper and did not prejudice the defendant's right to a fair trial. The Court ruled that the testimony of Special Agent Mecurio of the Drug Enforcement Administration would be cumulative. Tr. at 840. Therefore, the Court's refusal to assist defense counsel in obtaining him as a witness was not improper.
Additionally, as to Agent Cody of the Federal Bureau of Investigation, the defense raised the issue of requiring the Court's assistance in securing his testimony at trial, but failed to make a formal request. Tr. at 839-40. The defense apparently elected to close its case without calling Agent Cody, a decision not attributable to Court error.
Finally, in regard to Richard Herlihy, an NYPD fingerprint expert, it was not error for the Court to deny Perez's request for assistance in obtaining his testimony. The Government chose not to call Mr. Herlihy to testify after the defense stipulated that the defendant drew a map that had been provided to Ms. Gutierrez as part of the witness bribery scheme. At that point, it was no longer necessary to hear the testimony of fingerprint and handwriting experts regarding the documents. Tr. at 830-32. Mr. Herlihy's testimony regarding fingerprints on a document that the defendant conceded he had drawn would have been cumulative and unnecessary. Moreover, through the testimony of Detective Robert Otero, the defense established that the fingerprint analysis conducted on the documents submitted to the lab by the United States Attorney's Office did not reveal any fingerprints belonging to the defendant. Tr. at 948-54. Therefore, there was no error in the Court's refusal to assist in securing those witnesses for trial, and the defendant suffered no prejudice as a result.
6. There Was No Error In Jury Selection
As a final basis for his Rule 33 motion, Perez argues that a potential juror was improperly removed for cause. Potential juror #7, an attorney and current applicant to the Court's CJA Panel in the Southern District of New York, was excused for cause after the Court inquired as to the extent of his criminal defense background. Tr. at 75-77. The prospective juror had represented pro bono clients in criminal cases in New Jersey state courts and had recently completed a course in federal criminal practice through the New York County Lawyers Association. Tr. at 74, 76-77. Although this prospective juror stated that he felt he could be a fair and impartial juror, the court has the "authority and responsibility, either sua sponte or upon counsel's motion, to dismiss prospective jurors for cause." United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997). The trial judge has broad discretion in the questioning of potential jurors, see Mu'Min v. Virginia, 500 U.S. 415, 423-24, 111 S.Ct. 1899, 1904-05 (1991), and is in the "best position to evaluate the juror's demeanor and to determine, by the juror's answers to the judge's questions, whether he could fairly and impartially hear the case and return a verdict based solely on the evidence presented in court." United States v. Ploof, 464 F.2d 116, 118 (2d Cir. 1972). Indeed, it is possible for the Court to dismiss a potential juror on the basis of bias "even in a situation where, when specifically asked, the juror professes that he or she could be impartial." United States v. Torres, 128 F.3d at 44, n. 6. Accordingly, it was not error for the Court to dismiss potential juror number 7.
IV. CONCLUSION
Therefore, for the reasons set forth above, Perez's motion for a new trial is denied. Sentencing shall take place on Wednesday, May 7, 2003 at 2:00 p.m.
SO ORDERED.