U.S. v. Cantoni, 18-cr-562 (ENV). (2019)
Court: District Court, E.D. New York
Number: infdco20190411936
Visitors: 23
Filed: Mar. 19, 2019
Latest Update: Mar. 19, 2019
Summary: SHORT FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on April 1, 2019. The government has filed a motion in limine, and defendant has cross-moved and raised several issues in opposition. Having considered the submissions of the parties and the arguments of counsel at the hearing on March 15, 2019, the motions are resolved in the manner and for the reasons set forth below. Motion R
Summary: SHORT FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on April 1, 2019. The government has filed a motion in limine, and defendant has cross-moved and raised several issues in opposition. Having considered the submissions of the parties and the arguments of counsel at the hearing on March 15, 2019, the motions are resolved in the manner and for the reasons set forth below. Motion Ru..
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SHORT FORM MEMORANDUM & ORDER
ERIC N. VITALIANO, District Judge.
Jury selection in this case is scheduled to start on April 1, 2019. The government has filed a motion in limine, and defendant has cross-moved and raised several issues in opposition. Having considered the submissions of the parties and the arguments of counsel at the hearing on March 15, 2019, the motions are resolved in the manner and for the reasons set forth below.
Motion Ruling
Defendant's Motion in Limine
(A) Cantoni moves to preclude the (A) The government has provided notice that it intends to
government from presenting call two New York Police Department ("NYPD")
handwriting evidence to the jury handwriting experts to testify that the writing on several
or arguing to the jury that the demand notes that Cantoni allegedly produced during the
handwriting in the demand notes is charged robberies came from a common source. Cantoni
similar or from a common source. argues that this testimony should be excluded because
the government's Rule 16(a)(1)(G) disclosures are
inadequate, the testimony threatens to mislead or confuse
the jury, in contravention of Rule 403 of the Federal
Rules of Evidence, and the experts' methods fail to meet
the requirements of Rule 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). Defendant's motion is
granted, and the testimony will be excluded, pursuant to
Rule 403, which permits the Court to "exclude relevant
evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence," Fed. R. Evid. 403. The Court
does not reach the question of the adequacy of the
government's disclosures or the proffered testimony's
compliance with Rule 702 and Daubert.
The government indicates that its experts will testify
only that the demand notes came from a common source;
they will not testify that Cantoni was the author of the
notes. This limitation is necessary because the
government never obtained a sample of Cantoni's
handwriting and, consequently, never compared his
handwriting to the writing on the notes. Notwithstanding
this limitation, the clear thrust of the testimony is to
suggest that Cantoni was the author of the notes and,
thereby, to label him as the perpetrator of the robberies.
Assuming arguendo that the government's disclosures
were adequate and that the experts' analysis satisfies
Rule 702 and Daubert, the record makes clear that the
government had scientifically inadequate evidence to
determine that Cantoni was the author of the notes. The
jury, however, is likely to be misled into believing that
the government reached this conclusion or, in the
alternative, to reach this conclusion independently on the
basis of evidence the government itself found
insufficient. Cantoni will be substantially prejudiced if
the jury is led to believe that an expert placed him as the
author of the demand notes, when no expert did so.
Because the risk that the jury will be misled or confused
and that the defendant will be unfairly prejudiced
substantially outweighs the probative value of testimony
that the notes were written by the same person, the handwriting expert testimony will be excluded.
(B) Cantoni moves to preclude the (B) NYPD used a license plate reader ("LPR") to
government from introducing identify Cantoni's vehicle on Fort Hamilton Parkway in
evidence of license plate reader Brooklyn, approximately one block away from the
results, which he believes the August 5, 2018 robbery of a TD Bank branch. (Gov't's
government may offer to show Reply at 3, ECF No. 35). Cantoni moves to exclude this
that his car was parked near TD evidence on the grounds that LPRs make errors, that
Bank at the time of the alleged technology may have been used to magnify the image of
robbery. Cantoni's license plate, and that the LPR evidence is
subject to, and fails, Daubert analysis. To the extent that
defendant has concerns about the technology and its use
in this case, he may explore them on cross-examination.
Any concerns about the manipulation of the license plate
image may similarly be explored in examining the
custodian of the LPR results.
Cantoni's concerns about Rule 702 and Daubert are
without foundation because the evidence generated from
LPR technology, a technology in common and
widespread use for homeland defense, is not expert
opinion subject to gatekeeping by the Court. Although
an analyst, like a photographer, may have used some
technological skill to magnify the image of Cantoni's
license plate, an image is not an opinion, and no
scientific training or special qualifications are required to
attest to the number on a photographed license plate.
Moreover, as the government notes, the LPR photograph
it seeks to offer does not suffer from the same defects as
the photograph at issue in Green v. City and County of
San Francisco, which was taken when "[i]t was late and
dark outside, which rendered the photograph blurry and
illegible," 751 F.3d 1039, 1042 (9th Cir. 2014). The
LPR photograph here was taken during broad daylight,
and Cantoni's reliance on Green is, therefore, misplaced.
In support of a related motion to exclude cell phone
location data, a matter decided in a separate order issued
today, Cantoni notes that he gave his license plate
number and a description of his car to an FBI agent after
he had invoked his right to counsel. (Def.'s Reply at 12,
ECF No. 46). He suggests that any statement regarding
his car should, therefore, be excluded. However, his
statement was routine booking information exempt from
the requirements of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966). See Pennsylvania v. Muniz, 496
U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528
(1990); Rosa v. McCray, 396 F.3d 210, 221 (2d Cir.
2005). Discovery makes clear that this information was
recorded on the United States Marshals Service's
standard USM-312 intake form.
Moreover, Cantoni himself notes that the government
already "knew that License Plate Reader data had linked
a car near the scene of at least one of the robberies to Mr.
Cantoni when [the FBI agent] asked Mr. Cantoni for a
description of his car." (Def.'s Reply at 12). Cantoni's
statement, apparently, was cumulative of information the
government already possessed. Additionally, the
government easily could have determined Cantoni's
license plate number and received a description of his car
by searching government records. "[T]he independent
source doctrine allows trial courts to admit evidence"
that would otherwise be barred by the exclusionary rule
"if officers independently acquired it from a separate,
independent source." Utah v. Strieff, 136 S. Ct. 2056,
2061 (2016) (citing Murray v. United States, 487 U.S.
533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)).
Similarly, "the inevitable discovery doctrine allows for
admission of evidence that would have been discovered
even without the unconstitutional source." Id. (citing Nix
v. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 81 L.
Ed. 2d 377 (1984)). Under either of these doctrines, any
Miranda violation would not preclude the use of
Cantoni's statement of his license plate number or
description of his car.
Regardless, not to lose sight of the forest for the trees, no
Miranda violation took place because of the exception
for routine booking and pedigree questions. Cantoni's
motion to preclude the LPR evidence is denied.
Government's Motion in Limine
(A) The government moves to (A) "In prosecutions for crimes whose purpose is
admit evidence of Cantoni's pecuniary gain . . . evidence of substantial indebtedness
financial motive to commit the is relevant to prove the motive for committing such
charged offenses. In particular, it crimes." 2 Weinstein's Federal Evidence § 401.08[5].
seeks to admit evidence that Specifically, the government seeks to admit this evidence
Cantoni opened three lines of as "other acts" evidence to prove motive, pursuant to
credit that he had no ability to pay Rule 404(b). The Second Circuit has recognized that
while simultaneously starting the evidence of a criminal defendant's debt is admissible for
first of the three charged bank this purpose. United States v. Reed, 639 F.2d 896, 907
robberies. (2d Cir. 1981). Indeed, more generally, "[t]he Second
Circuit has adopted an `inclusionary' approach to other
act evidence under Rule 404(b), which allows such
evidence to be admitted for any purpose other than to
demonstrate criminal propensity." United States v.
LaFlam, 369 F.3d 153, 156 (2d Cir. 2004).
Consequently, the government may present evidence of
Cantoni's financial hardships to prove motive to commit
bank robbery.
Cantoni accepts that evidence of financial difficulties
may be admissible but contends that it should be limited
to evidence of those financial difficulties that arose prior
to the commission of the charged robberies. Keying
focus on the government's proffer of evidence that
Cantoni's credit card accounts were past due in
December 2018 — three months after the last robbery on
September 10, 2018 — Cantoni argues that this evidence
is irrelevant to his motive at the time of the charged
robberies and threatens to mislead the jury, particularly
in light of the fact that Cantoni has been incarcerated
since September 20, 2018. (Def.'s Resp. at 5, ECF No.
28). Presenting this evidence, Cantoni claims, would
require him either to disclose to the jury that he was
incarcerated or to allow the jury to speculate as to why
his accounts were past due. At oral argument, the
government agreed to limit its evidence of financial
motive to lines of credit, debts, and defaults that arose
prior to Cantoni's incarceration. With this concession,
therefore, the government's motion is granted, subject to
its proffered limitation.
(B) The government moves to (B) "It is well established that when a jury has no
preclude evidence and argument sentencing function, it should be admonished to `reach
concerning Cantoni's possible its verdict without regard to what sentence might be
punishment. imposed.'" Shannon v. United States, 512 U.S. 573, 579,
114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994) (quoting
Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091,
45 L. Ed. 2d 1 (1975)). In light of this rule, evidence
regarding Cantoni's possible punishment does not make
any "more or less probable . . . [any] fact [that] is of
consequence in determining the action," Fed. R. Evid.
401. Such evidence is, therefore, "[i]rrelevant" and "not
admissible," id. Although defendant represents that he
does not intend to offer evidence of his potential
punishment at trial, (Def.'s Resp. at 1), in line with the
"well-established precedent that jurors should not be
informed about the possible consequences of their
verdict," United States v. Watts, 934 F. Supp. 2d 451,
464-65 (E.D.N.Y. 2013), the Court grants the
government's motion to preclude defendant from
offering evidence of his potential imprisonment.
To the extent that Cantoni seeks to "reserve the more
general right to argue that the government's evidence is
not sufficiently reliable to send a man to jail," (Def.'s
Resp. at 2), the Court permits him to do so. This
argument is little more than a general attack on the
government's case and statement of the government's
heavy burden of proof, each of which is eminently
appropriate argument by a criminal defendant.
Moreover, the government does not appear to oppose this
request.
The government argues that, "to the extent that defendant
exercises his right to testify, the government should be
permitted to cross-examine him regarding the potential
consequences of conviction that he faces because, then, it
is relevant to the defendant's credibility as a witness."
(Gov't Mot. at 6, ECF No. 27). Cantoni responds that,
while this may represent an appropriate form of
impeachment for non-defendant witnesses, it is not an
appropriate way to impeach a defendant witness,
although he cites no law in support of this proposition.
The government makes no reply to Cantoni's argument.
The Court concludes that, under Rule 403, this form of
cross-examination must be precluded. Evidence of the
possible consequences of conviction is of limited
probative value, as the jury will already be aware that the
defendant is on trial. However, the risk that this
evidence will mislead the jury into considering the
possible punishment is substantial.
So Ordered.
Source: Leagle
