U.S. v. Washington, 14-CR-266 (S-1) (ENV). (2019)
Court: District Court, E.D. New York
Number: infdco20190122816
Visitors: 21
Filed: Jan. 15, 2019
Latest Update: Jan. 15, 2019
Summary: SHORT FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on January 22, 2019. In addition to defendant Nicholas Washington's pre-trial motions for severance and suppression, the government has filed a motion in limine. Having considered the submissions of the parties and the arguments of counsel at the hearing on January 11, 2019, the motions are resolved in the manner and for the reasons set forth below. Motion
Summary: SHORT FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on January 22, 2019. In addition to defendant Nicholas Washington's pre-trial motions for severance and suppression, the government has filed a motion in limine. Having considered the submissions of the parties and the arguments of counsel at the hearing on January 11, 2019, the motions are resolved in the manner and for the reasons set forth below. Motion ..
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SHORT FORM MEMORANDUM & ORDER
ERIC N. VITALIANO, District Judge.
Jury selection in this case is scheduled to start on January 22, 2019. In addition to defendant Nicholas Washington's pre-trial motions for severance and suppression, the government has filed a motion in limine. Having considered the submissions of the parties and the arguments of counsel at the hearing on January 11, 2019, the motions are resolved in the manner and for the reasons set forth below.
Motion Ruling
Defendant's Pre-Trial Motions
(A) Pursuant to Federal Rule of (A) Rule 14(a) empowers courts to order separate trials,
Criminal Procedure 14(a),1 "or provide any other relief that justice requires," when
defendant moves to sever Counts "consolidation for trial appears to prejudice a defendant
Five (felon in possession of or the government." The burden for a Rule 14(a)
ammunition) and Six (attempted severance is heavy; a defendant seeking to sever counts
obstruction of an official that are properly joined under Rule 8(a) must prove that
proceeding) (collectively, the "the prejudice to him from joinder is sufficiently severe
"non-murder counts") from to outweigh the judicial economy that would be realized
Counts One through Four (the by avoiding multiple lengthy trials." United States v.
"murder counts"), essentially Page, 657 F.3d 126, 129 (2d Cir. 2011). Put another
making a spillover prejudice way, "[a] defendant seeking severance under Rule 14
argument. Defendant contends bears an extremely difficult burden of proving . . . that
that the six counts are not alleged the prejudice would be so great as to deprive him of his
to be a part of a series of acts or right to a fair trial." United States v. Rivera, 89 F. Supp.
transactions connected together in 3d 376, 398 (E.D.N.Y. 2015) (citations and internal
a common scheme or plan, or of quotation marks omitted). Determining whether such
the same or similar character, and, prejudice exists "is highly fact-specific and must be
therefore, together improperly evaluated on a case-by-case basis." Id. (citation
joined or, at least, that, if proper, omitted). That said, "the decision of whether to sever a
joinder is unfairly prejudicial. trial is committed to the sound discretion of the district
Def. Mot. at 3. He further argues court." Id. (citing United States v. Wilson, 11 F.3d 346,
that, although the indictment 353 (2d Cir. 1993)). Additionally, the Second Circuit
charges that the underlying has "rejected the notion that the fact of a prior felony
racketeering enterprise was still conviction is so prejudicial that it necessarily precludes a
continuing, joinder is prejudicial fair trial." United States v. Page, 657 F.3d 126, 129-30
because the murder counts relate (2d Cir. 2011) (affirming district court's denial of
to events occurring at least ten severance of felon in possession of firearm count from
years before the events relating to
the non-murder counts, Def. Mot. narcotics counts).
at 4, and that the jury will "carry[]
over the murder evidence" to the This is especially true for RICO cases, like the instant
other two counts "and vice versa." action, where evidence of patterns or practices of
Def. Mot. at 7. criminal conduct are required to prove the existence of a
racketeering enterprise. There is thus an inexorable link
here between the murder counts and both the felon in
possession of ammunition count, which conduct tends to
prove the existence of the RICO enterprise, and the
attempted obstruction count, which relates to the grand
jury investigation of the murder counts.
As to Count Five, much of the same evidence the
government expects to introduce — the testimony of a
police officer and detective and defendant's post-arrest
statements — is also admissible to prove Count Six.
Gov't Opp. at 11. And proof of defendant's prior
convictions is admissible to prove the existence of the
enterprise that underpins the murder counts. Cf. United
States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008)
(discussing Second Circuit's "inclusionary approach" to
admitting prior act evidence, including to show the
existence of a RICO enterprise).
As to Count Six, defendant is alleged to have attempted
to obstruct the grand jury proceeding that returned the
murder counts. Gov't Opp. at 9. Severance of that count
from the remaining counts is therefore unwarranted here.
See United States v. Vertuccio, Dkt. No. 111, No. 15-cr-174
(ENV) (citing United States v. Potamitis, 739 F.2d
784, 791 (2d Cir. 1984) ("The law in this circuit clearly
supports the joinder of underlying substantive crimes
with perjury counts where, as here, the false declarations
concern the substantive offenses.")) (obstruction charges
appropriately included in indictment when alleged
interference related to grand jury investigation of the
indictment's other charges); see also United States v.
Butler, No. S104 CR.340(GEL), 2004 WL 2274751, at
*4 (S.D.N.Y. Oct. 7, 2004) ("Courts have repeatedly
recognized the appropriateness of trying perjury or
obstruction charges together with the underlying crimes
to which the perjury relates, where proof of the alleged
perjury requires proof of knowledge of the underlying
crime.").
Perhaps most important, evidence of the ongoing
enterprise is directly relevant to both counts. The
existence and operation of the enterprise bears not only
on the murders, but also on a continuing practice of
criminal conduct that included, inter alia, the unlawful
possession of ammunition and the attempted obstruction
of a grand jury proceeding. That distinguishes this case
from United States v. Jones, 16 F.3d 487 (2d Cir. 1994),
which defendant cites and in which the sole purpose for
the government's introduction of a prior felony
conviction was to satisfy that element of being a felon in
possession of a firearm. Here, based on the
government's presentations, the Court agrees that
evidence relating to the felon in possession of
ammunition count is admissible as proof of the existence
of the enterprise.
Nor is it required that the government alter its case
presentment by accepting a proposed stipulation with
respect to Count 5, as proposed by Washington. See
United States v. Gilliam, 994 F.2d 97, 101 (2d Cir. 1993)
("Where the potentially prejudicial evidence directly
establishes an element in the case, we have not allowed
the defendant to stipulate to that element in order to bar
the evidence."); United States v. Gantzer, 810 F.2d 349,
351 (2d Cir. 1987) ("A party is not obliged to accept an
adversary's `judicial admission' in lieu of proving the
fact, particularly in the context of a criminal prosecution
where the accused seeks to stipulate to an element of the
crime charged.") (internal citation omitted).
Accordingly, joinder of the six counts is proper.
Washington's motion to sever, therefore, is denied.
(B) Washington moves to suppress (B) "A defendant may not baldly request a Wade
the out-of-court and in-court hearing; rather he must allege facts supporting his
identifications of him by a contention that the [challenged] identification procedures
witness. Relatedly, he requests a used were impermissibly suggestive." United States v.
Wade hearing to determine if the Berganza, No. S(4) 03 CR. 987(DAB), 2005 WL
out-of-court lineup was unduly 372045, at *10 (S.D.N.Y. Feb. 16, 2005).
suggestive.
Faltering at the starting gate, Washington offers nothing
more than a naked and completely unsubstantiated
allegation of impropriety. Other than his complaint that
the lineup procedures were "unduly suggestive," Def.
Mot. at 14, defendant offers not a shred of proof that
anything impermissible occurred. Instead, Washington
merely contends that "the police officer who presented
the lineup" knew of him and that this was improper.
Def. Mot. at 12. His inability to articulate how the
lineup was suggestive is especially deafening, given that
he was provided with the photographs of the lineup and a
record of the procedures that guided it. Gov't Opp. at
19. In the absence of a rudimentary showing that the
lineup was unduly suggestive, Washington's motion to
suppress and for a Wade hearing is denied. Any issue as
to the accuracy or credibility of the identifications can be
raised at trial through cross-examination.
Government's Motion in Limine
(C) The government moves to (C) "[E]vidence of uncharged crimes committed by
admit evidence of certain members of [a racketeering] enterprise" may be admitted
categories of defendant's prior to prove "the existence of a criminal enterprise in which
criminal conduct on the ground the defendants participated." United States v. Mejia, 545
that they prove the existence of the F.3d 179, 206 (2d Cir. 2008). Additionally, "evidence of
racketeering enterprise and drug uncharged criminal activity is not considered other
trafficking conspiracy that crimes evidence under Fed. R. Evid. 404(b) if it arose out
underpin the murder counts, or of the same transaction or series of transactions as the
alternatively, to introduce them as charged offense, if it is inextricably intertwined with the
"crimes, wrongs, or other acts" evidence regarding the charged offense, or if it is
pursuant to Federal Rule of necessary to complete the story of the crime on trial."
Evidence 404(b). United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000).
Separately, Federal Rule of Evidence 404(b) permits the
introduction of uncharged crimes or other acts for
purposes such as "proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of
mistake, or lack of accident."
At the same time, Federal Rule of Evidence 403 permits
the Court to exclude such admissible evidence "if its
probative value is substantially outweighed by a danger
of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence."
(1) Evidence other than recorded (1) Acts of other criminal conduct may be admitted for
telephone calls, including the purpose of proving the existence of the racketeering
evidence of assaults, conspiracy to enterprise and drug trafficking conspiracy that form the
murder, drug trafficking and basis of the murder counts. Defendant raises questions
firearms, as well as prior criminal as to whether all of these acts relate to either the
convictions existence of enterprise or defendant's membership in the
enterprise, see Def. Opp. at 4, but the government has
sufficiently linked each category of prior criminal
conduct with the operations of the charged enterprise.
See generally Gov't Mot. at 1-10. Likewise, all of these
acts are "inextricably intertwined" with the enterprise
that underpins the murder counts. See United States v.
Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997). As a result,
they are not "other acts" subject to Rule 404(b) but rather
direct evidence of the crimes charged in the indictment.
Additionally, evidence of defendant's prior criminal
convictions is admissible to prove the existence of the
racketeering enterprise at the heart of this prosecution.
The convictions are relevant to prove the elements of
Count Five and are "inextricably intertwined with the
evidence regarding" the remaining counts; namely, the
existence of the enterprise and defendant's alleged
membership in the enterprise. Carboni, 204 F.3d at 44.
Any prejudice to defendant does not "substantially
outweigh" the probative value of the convictions'
introduction into evidence. See Fed. R. Evid. 403;
United States v. Brennan, 798 F.2d 581, 589 (2d Cir.
1986) (evidence of prior crimes admissible "to complete
the story of the crimes charged").
Washington's only legitimate objection concerns
whether the proposed evidence will be cumulative. At
this point, based on the parties' filings and oral
argument, and in light of the representation that the vast
majority of the government's proposed evidence is
confined to acts occurring between 2004 and 2006,
cumulativeness is not readily apparent but is still not
beyond the pale. Any ruling on cumulativeness,
therefore, is reserved for trial.
(2) Ten recorded telephone calls (2) In a series of 10 recorded telephone conversations (all
between defendant and a occurring after the murders charged in the indictment),
cooperating witness defendant and a cooperating witness make several
admissions and statements relating to the operations of
the enterprise. In short, the government has the recorded
testimony of an individual who, at the time, had an
interest in the topic of conversation because he was then
still a member of the charged enterprise. The
conversations tend to prove that a racketeering enterprise
existed and continued and that both defendant and the
cooperating witness were members of the enterprise.
The calls, plainly, are admissible as an exception or
exclusion to the general prohibition against hearsay.
Washington's statements are admissible as an opposing
party statement. See Fed. R. Evid. 801(d)(1)(A). The
cooperating witness' statements are admissible as those
of a co-conspirator whose statements were made "in
furtherance of the conspiracy." See Fed. R. Evid.
801(d)(2)(E). For this latter exception to apply, "the
court must find (1) that there was a conspiracy, (2) that
its members included the declarant and the party against
whom the statement is offered, and (3) that the statement
was made both (a) during the course of and (b) in
furtherance of the conspiracy." United States v. Tracy,
12 F.3d 1186, 1196 (2d Cir. 1993). The government's
reply submission and the attached telephone call
transcripts demonstrate, by a preponderance of the
evidence, that all of these elements are satisfied. Calls
one through four "clearly demonstrate the ongoing nature
of the[ ] drug-trafficking conspiracy," and calls five
through ten include statements that are evidence of
defendant's consciousness of guilt. Gov't Reply at 3. In
any event, regardless of the status of the other party to a
conversation containing an admission, that party's
statements are admissible to provide completeness and
context to the admission, see United States v. Barone,
913 F.2d 46, 49 (2d Cir. 1990), and thus Rule
801(d)(2)(A) likewise applies to the cooperating witness'
statements. Finally, statements in the telephone calls
concerning the status of the government's investigation
go to the heart of the attempted obstruction count. See
United States v. Martinez, 862 F.3d 223, 237 (2d Cir.
2017) ("[T]he government must prove that such a
proceeding was reasonably foreseeable to the
defendant.").
Defendant has, once again, failed to demonstrate that the
prejudice he would suffer through introduction of these
phone calls would substantially outweigh the statements'
probative value.
Accordingly, to the extent indicated in this short form
order, the government's motion for the admission of
these conversations and other evidence proffered in
limine is granted.2
So Ordered.
FootNotes
1. The motion is purportedly brought pursuant to Rule 12(b)(3)(B)(iv) but seeks the type of relief afforded by Rule 14(a).
2. At oral argument, counsel referenced the likely need for cautionary instructions as evidence is admitted at trial. To date, none have been submitted. If either party is seeking such an instruction, they are directed to submit their proposed instruction, identifying the evidence to which it is intended to apply, by the close of business on January 18, 2019.
Source: Leagle
