Filed: Oct. 03, 2018
Latest Update: Oct. 03, 2018
Summary: SHORT FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on October 29, 2018. Defendant Krivoi has filed an omnibus motion in limine, ("Krivoi Mot.") dkt. 45; defendant Reizin has filed a motion to sever and to suppress, ("Reizin Mot.") dkt. 46. Both are opposed by the government, ("Govt. Opp'n"), dkt. 52. Seeking relief of its own, the government has filed a motion in limine, ("Govt. Mot"), dkt. 48, which Krivoi opposes ("Kriv
Summary: SHORT FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on October 29, 2018. Defendant Krivoi has filed an omnibus motion in limine, ("Krivoi Mot.") dkt. 45; defendant Reizin has filed a motion to sever and to suppress, ("Reizin Mot.") dkt. 46. Both are opposed by the government, ("Govt. Opp'n"), dkt. 52. Seeking relief of its own, the government has filed a motion in limine, ("Govt. Mot"), dkt. 48, which Krivoi opposes ("Krivo..
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SHORT FORM MEMORANDUM & ORDER
ERIC N. VITALIANO, District Judge.
Jury selection in this case is scheduled to start on October 29, 2018. Defendant Krivoi has filed an omnibus motion in limine, ("Krivoi Mot.") dkt. 45; defendant Reizin has filed a motion to sever and to suppress, ("Reizin Mot.") dkt. 46. Both are opposed by the government, ("Govt. Opp'n"), dkt. 52. Seeking relief of its own, the government has filed a motion in limine, ("Govt. Mot"), dkt. 48, which Krivoi opposes ("Krivoi Opp'n"), dkt. 50, joined by Reizin at oral argument. Having considered the submissions of the parties, and argument having been heard on September 27, 2018, see Minute Entry for Oral Argument on September 27, 2018, the motions are resolved in the manner and for the reasons as set forth below.1
Motion Ruling
Defendants' Shared Requests
(A) Pursuant to Federal Rule of (A) In light of the long-standing preference for joint
Criminal Procedure 14, defendants trials of defendants who are indicted together, a court
move to sever the trial, arguing should only grant severance "if there is a serious risk that
that a joint trial will prejudice a joint trial would compromise a specific trial right of
Reizin in light of proffer one of the defendants, or prevent the jury from making a
statements made by Krivoi. reliable judgment about guilt or innocence." Zafiro v.
Reizin Mot. at 3-4; Krivoi Mot. at United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d 317
2. Defendants argue that the (1993). While courts take into account
admission of proffer statements various factors, "the ultimate question is whether the jury
will violate Bruton v. United can . . . render a fair and impartial verdict as to each
States, 391 U.S. 123, 88 S. Ct. 1620, defendant." United States v. Ramos, 2013 WL 1932110,
20 L. Ed. 2d 476 (1968), in at *5 (S.D.N.Y. May 8, 2013) (citation omitted) (denying
which the Supreme Court held that motion for severance). Applying Bruton, the Second
the admission of a co-defendant's Circuit has held that co-defendant confessions are
unredacted confession that admissible where redacted to avoid explicit identification
inculpates the non-confessing of the non-confessor based on the statement alone, and
defendant violates the where a limiting instruction is given to the jury. United
Confrontation Clause, even where States v. Jass, 569 F.3d 47, 64 (2d Cir. 2009); cf. Gray v.
the jury is instructed not to Maryland, 523 U.S. 185, 186, 118 S. Ct. 1151, 140 L. Ed. 2d 294
consider the statement as to the (1998) ("statements redacted to leave a blank
non-confessor. or some other similarly obvious alteration . . . point
directly to, and accuse, the nonconfessing codefendant").
Redaction need not be so extensive as to prevent
identification of the co-defendant in light of other
evidence presented at trial. Jass, 569 F.3d at 64.
Dispositively, defendants fail to demonstrate why any
prejudice from the admission of Krivoi's proffer
statements could not be prevented through proper
redaction and a limiting instruction. The risk of a Bruton
violation is further reduced where, as the government
intends to do here, the statements in question, to the
extent otherwise admissible against Krivoi, would be
admitted through the testimony of a witness prepared not
to identify the non-confessing defendant, thus
minimizing "the risk of clumsy redactions." United
States v. Rivera, 89 F. Supp. 3d 376, 399 (E.D.N.Y.
2015). The motion to sever is denied. In aid of this
ruling, though, the government is directed to file a
"Brutonized" proffer statement and proposed limiting
instructions for the Court's review by October 15, 2018.
(B) Defendants move to suppress (B) The government advised that it obtained a search
cell-site location evidence warrant for the cell-site data post-Carpenter, and its
obtained through a court order application for that warrant "did not rely on data it
under 18 U.S.C. § 2703(d), obtained through the Rule 2703(d) order" secured prior
because Carpenter v. United to its warrant application. Govt. Opp'n at 5. In light of
States, 138 S. Ct. 2206 (2018), the government's representation, the motion to suppress
requires a search warrant to obtain was withdrawn on the record during oral argument.
such information. Reizin Mot. at Motion withdrawn.
2; Krivoi Mot. at 2. Defendants
also seek to suppress any evidence
derived from the cell-site
evidence. Reizin Mot. at 2.
Krivoi Motions
(C) Krivoi seeks to dismiss Count (C) Generally, in criminal cases, challenges to the
One in the indictment, sufficiency of evidence are reserved for acquittal motions
Kidnapping, arguing that the made after the close of the government's case-in-chief or
evidence presented to the grand post-trial. See Fed. R. Crim. P. 29; see also United
jury was legally insufficient and States v. Alfonso, 143 F.3d 772, 777 (2d Cir. 1998) ("the
that the victim was in Krivoi's car sufficiency of the evidence is not appropriately addressed
for an insufficient amount of time on a pretrial motion to dismiss an indictment"). Count
to constitute kidnapping. Krivoi One provides "a plain, concise, and definite written
Mot. at 2. Krivoi also indicates he statement of the essential facts constituting the offense
intends to bring a post-trial motion charged," see Fed. R. Crim. P. 7(c)(1), and the elements
for judgment of acquittal. Krivoi of the kidnapping charge do not include any temporal
Reply at 6, Dkt. 54. requirement, see 18 U.S.C. § 1201(a). This is not a
charge based on an "overly literal interpretation" of the
kidnapping statute where the defendant allegedly
committed "different offenses, of which temporary
seizure or detention played an incidental part", such as
robbery. Govt. of V.I. v. Berry, 604 F.2d 221, 226 (3d
Cir. 1979).2 Although case law applying the predecessor
federal kidnapping statute observes that "holding a
kidnapped person . . . implies an unlawful physical or
mental restraint for an appreciable period," Chatwin v.
United States, 326 U.S. 455, 460, 66 S. Ct. 233, 90 L. Ed. 198
(1946), it does not require any minimum
"appreciable period." Furthermore, as Krivoi
acknowledges, the Second Circuit observed in Rodriguez
that a period of less than 15 minutes could be considered
"appreciable" where the victim was physically injured or
threatened with injury, as the government charges here.
United States v. Rodriguez, 587 F.3d 573, 581 (2d Cir.
2009) (applying Chatwin to Hostage Taking Act). The
motion to dismiss Count One is denied, but, of course,
without prejudice to its renewal on a Rule 29 motion at
the close of the government's case.
(D) Krivoi moves to preclude (D) The government does not seek to admit Rule 609
impeachment based on prior evidence in its case-in-chief, Govt. Opp'n at 4, or for
convictions under Federal Rule of impeachment on cross-examination, see Govt. Mot. The
Evidence 609(a). Krivoi Mot. at request is moot, and denied on that ground.
3.
(E) Pursuant to Federal Rule of (E) The government does not intend to admit 404(b)
Evidence 404(b), Krivoi demands evidence in its case-in-chief, Govt. Opp'n at 4, and has
notice of any "bad acts" the already given notice of the "bad acts" it seeks to admit
government seeks to introduce at for impeachment purposes through its own motion. This
trial. Krivoi Mot. at 4. request is moot, and the motion is denied on that ground.
See part (O), infra, regarding the government's motion in
limine to use such evidence to impeach Krivoi should he
elect to testify.
(F) Pursuant to Rule 6, Krivoi (F) Krivoi presents no argument as to why he should
seeks the release of grand jury receive grand jury information. There is no general
testimony, specifically asking for helpfulness exception to the "long-established policy that
"the names of all witnesses" 30 maintains the secrecy of the grand jury proceedings in
days before trial to "help enable the federal courts," which must only be broken "where
Mr. Krivoi to prepare his defense." there is a compelling necessity" shown "with
Krivoi Mot. at 4. particularity." United States v. Procter & Gamble Co.,
356 U.S. 677, 681, 78 S. Ct. 983, 2 L. Ed. 2d 1077
(1958). Krivoi's admission that he knows "who the
alleged `victim' is in this case" and has thus far made
"no attempt to obstruct justice" is not, as peculiar a
statement it may be, a compelling reason to order
disclosure. The request is denied.
(G) Pursuant to Rule 801(d)(2)(D), (G) According to the government, Krivoi seeks to admit
Krivoi seeks admission of a statement that does not exist, because the government
statements made by the did not call him "a minor participant" at Reizin's bail
government at Reizin's bail hearing, instead stating to the presiding Magistrate
hearing, allegedly referring to Judge, "[a]s you can tell from the complaint, Krivoi's
Krivoi as "a `minor' participant" involvement is more limited." Govt. Opp'n at 19
in the charged extortion (emphasis added). While the Second Circuit has
conspiracy. Krivoi Mot. at 4-5. observed that "there is no absolute rule preventing use of
an earlier opening statement by counsel as an admission
against a criminal defendant in a subsequent trial,"
United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984),
Krivoi submits no precedent for the admission of prior
statements made at bail hearings under the party-opponent
exception to the hearsay rule. See United
States v. Aleynikov, 785 F. Supp. 2d 46, 63 (S.D.N.Y.
2011) (denying admission of government statements
made during bail hearing), rev'd on other grounds, 476 F. App'x 473
(2d Cir. 2012). Furthermore, even had
such statements been made in argument to a jury on the
ultimate issues as opposed to at a bail proceeding, prior
jury argument may only be admitted under the party-opponent
rule where it "involves an assertion of fact
inconsistent with similar assertions in a subsequent trial,"
where the inconsistency is "clear and of a quality which
obviates any need for the trier of fact to explore other
events at the prior trial," and where the district court has
determined by a preponderance of the evidence that the
proposed inference "is a fair one and that an innocent
explanation for the inconsistency does not exist."
McKeon, 738 F.2d at 33. The statement actually made at
the bail hearing is an opinion about a matter immaterial
to guilt or innocence, not a fact, and the government does
not intend to offer any theory inconsistent with the
characterization that Krivoi's involvement was "more
limited" than Reizin's, Govt. Opp'n at 21. By the very
nature of conspiracy, conspirators have various roles to
play, some more limited than others. But, all who
knowingly join a conspiracy are equally criminally liable
regardless the specific role they played. Role limitation
is a matter appropriately considered in setting bail, or
imposing a sentence, but not for any other purpose. The
motion is denied.
(H) Krivoi asks the Court to rule (H) Rule 801(d)(2)(E) permits the admission of a
in advance on the admissibility of statement made by a coconspirator during and in
"any out-of-court statements by furtherance of the conspiracy. Because Krivoi has not
alleged co-conspirator Reizin" that identified any specific potential statement, instead
might be offered pursuant to Rule merely asking the Court to "carefully" review any
801(d)(2)(E), requiring "the statement at the time it is presented for admission, Krivoi
government to meet its burden Mot. at 5, this request is premature. Ruling will be
pre-trial" so as to avoid a mistrial. reserved to the time of trial should Krivoi object to any
Krivoi Mot. at 5. such proffer on that basis.
(I) Pursuant to Rule 7(f), Krivoi (I) Rule 7(f) permits courts to order the government to
asks the government to state file a bill of particulars, which the defendant may request
whether it is proceeding against "before or within 14 days after arraignment or at a later
him as a principal, or an aider and time if the court permits." Because the government does
abettor. Krivoi Mot. at 5. not oppose this request, it is granted.
(J) Krivoi asks for an order to (J) Since the government affirms it "has produced the
direct the government to disclose bulk of discovery, and will continue to produce
evidence subject to disclosure discoverable materials on a rolling basis," Govt. Opp'n
under Rules 12(b)(4) and 16, "if at 5, n. 2, the request for production is unnecessary, and
not already provided." Krivoi is denied on that basis. As to the request for
Mot. at 5-6. He also requests that identification of case-in-chief evidence, the purpose of
the government specifically Rule 12(b)(4) is to give a defendant an opportunity to
identify its case-in-chief evidence move to suppress evidence. See Rule 12(b)(4)(B). This
"separate and apart from any items provision is not a tool "to aid the defendant in
ascertaining the Government's trial strategy." United
of other discovery" produced States v. Koschtschuk, 2010 WL 584018, at *10
under Rule 16. Id. at 6. (W.D.N.Y. Feb. 16, 2010) (denying request for
specification of case-in-chief evidence); see also United
States v. Barret, 824 F. Supp. 2d 419, 459-60 (E.D.N.Y.
2011) (same). Krivoi provides no proper reason for the
government to specifically distinguish its case-in-chief
evidence from other discovery and thereby preview its
trial strategy. This request is denied.
(K) Krivoi asks the Court to order (K) The government confirms it is in compliance with its
the government "to produce all obligation to produce exculpatory materials. Govt.
evidence that would be admissible Opp'n at 5-6. Because it is moot, the motion is denied.
to attack the credibility of non-testifying
co-conspirator
declarants," pursuant to Brady and
Federal Rule of Evidence 806.
Krivoi Mot. at 7.
(L) Pursuant to Rules 12(b)(4) and (L) The government may generally withhold the identity
16(a)(1)(A) as well as the Fifth, of informants. United States v. Ordaz-Gallardo, 520 F. Supp. 2d 516, 520
Sixth, and Eighth Amendments, (S.D.N.Y. 2007). Disclosure "is not
Krivoi seeks disclosure of all required unless the informant's testimony is shown to be
"contact between government material to the defense." United States v. Saa, 859 F.2d 1067, 1073
agents or prosecutors and potential (2d Cir. 1988). A defendant bears the burden
informants incarcerated with" of "demonstrating the need for disclosure of an
either defendant. Krivoi Mot. at 8. informant's identity" and showing "that without such
He similarly requests "the names, disclosure, [defendant] will be deprived of the right to a
addresses and present locations of fair trial." Ordaz-Gallardo, 520 F. Supp. 2d at 520.
each and every informant and Krivoi makes no such showing of any kind. He merely
cooperating witness," making 39 argues, in general terms, that disclosure is needed as "a
specific requests for information safeguard" because informant testimony is "inherently
as to each witness or informant. unreliable." Krivoi Mot. at 8; see also id. at 12-15. The
Id. at 12-16. argument is wrong as a matter of fact and as a matter of
law. The request, which rests upon it, is denied.
(M) Krivoi seeks immediate (M) In light of the government's affirmation of its
disclosure of Giglio and Brady ongoing compliance with these obligations and
materials, and requests specific agreement to disclose any Brady materials "as soon as it
categories of exculpatory becomes aware of any", Govt. Opp'n at 6, this request is
evidence. Krivoi Mot. at 8-11. moot. See also Sept. 12, 2018 Govt. Letter Regarding
Discovery, Dkt. 53. Of course, as with any other defense
request denied on this basis, should the government fail
to make a promised production, the request may be
seasonally renewed.
(N) Krivoi seeks disclosures of (N) The Jencks Act requires the government to produce
government witness statements, its witness statements after their direct testimony. 18
pursuant to the Jencks Act, thirty U.S.C. § 3500. Courts have "no inherent power to
days before trial. Krivoi Mot. at 9. modify or amend the provisions of [the Jencks] Act."
In re U.S., 834 F.2d 283, 287 (2d Cir. 1987); see also
United States v. Ordaz-Gallardo, 520 F. Supp. 2d 516, 523
(S.D.N.Y. 2007) (denying request for early
disclosure of Jencks Act materials). Nonetheless, the
government has agreed to disclose Jencks Act materials a
week before jury selection. Govt. Opp'n at 6. The
request is formally denied, but relief is granted by and to
the extent of the government's agreement.
Government Motion in Limine
(O) Pursuant to Rule 608(b), the (O) Rule 608(b) permits cross-examination of a witness,
government moves to cross-examine including a defendant in a criminal case, on extrinsic
Krivoi on the following evidence probative of the witness's character for
six categories of prior false truthfulness. But, Rule 403 permits the exclusion of such
statements: 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." The district court has "wide
discretion to impose limitations on the cross-examination
of witnesses," especially where such evidence is not
especially probative of truthfulness. United States v.
Flaharty, 295 F.3d 182, 190 (2d Cir. 2002). In assessing
proposed 608(b) evidence, a trial court may consider
whether the prior conduct constituted an act of deceit,
occurred years in the past, was highly inflammatory in
nature, and whether there is opportunity to impeach on
other grounds. See United States v. Devery, 935 F. Supp. 393, 408
(S.D.N.Y. 1996) (precluding cross-examination
as to defendant's alleged prior sexual abuse of step-daughter).
In order to avoid prejudice, wasted time, and
cumulativeness, the government's requests will be
considered individually and together as a group:
(1) Krivoi's false statements made (1) Krivoi's statements to Pre-Trial Services are
to Pre-Trial Services, concerning admissible for impeachment purposes. See United States
his brother's residence, v. Griffith, 385 F.3d 124, 126 (2d Cir. 2004). The
international trips taken in 2016 government's request to cross-examine on this basis is
and 2017, and his income, assets, granted.
and certain funds received from
his mother-in-law, Govt. Mot. at
5-6;
(2) Krivoi's "misrepresentations (2) Especially given the greater than average impact of a
about service of legal process" and judge's comment on the credibility of a witness, even
a civil court's finding that his though in another case, the Rule 403 balancing test must
testimony was "truly incredulous" be scrupulously applied. See United States v. Cedeno,
in a prior civil litigation with his 644 F.3d 79, 83 (2d Cir. 2011) (setting forth 7-factor
condominium association, Govt. test). Significantly, the government does not point to any
Mot. at 6; specific false statements made by Krivoi, but wants to
suggest that the judge found him not to be credible
overall in another case. The subject matter—a dispute
with a condominium association—is not similar to his
criminal prosecution. Krivoi's testimony then was
presumably under oath. But, it stops there. The
government does not identify false statements made
"about a matter that was significant." Cedeno, 644 F.3d at 83.
It could take a mini-trial to figure it out.
Furthermore, over six years have passed since the civil
suit, though neither party points to any intervening
credibility determinations. The motive for any lie in that
case—raising a successful defense—certainly exists
here. Krivoi's explanation that the unfavorable
credibility assessment was based on his "arguably weak
counterclaims" that were interposed "for negotiation
leverage" is plausible. Krivoi Opp'n at 6. Considering
these factors, especially the great potential for prejudice,
the resulting entanglements with entirely unconnected
civil litigation, and the cumulative effect of such
evidence, the evidence will be precluded on Rule 403
grounds.
(3) Krivoi's false sworn (3) Under Rule 608(b), it is "appropriate to introduce
statements in documents false statements, especially false sworn statements" for
transferring real estate to his credibility purposes. United States v. Triumph Capital
daughter, including his failure to Grp., Inc., 237 F. App'x 625, 629 (2d Cir. 2007); see
disclose that the transfer was also Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993)
between relatives, and his (false statements in tax returns and failure to file taxes
compliance with the relevant tax are admissible as to credibility), abrogated on other
reporting requirements, Govt. grounds, Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923,
Mot. at 6-7; 135 L. Ed. 2d 337 (1996). The government's third in
limine request is granted.
(4) Krivoi's alleged intimidation (4) In this request, the government seeks to impeach
of witness Michael Stern during Krivoi by inquiring about his alleged witness tampering
Krivoi's brother's 2007 trial for in relation to a murder trial. Any such inquiry would be
murder, Govt. Mot. at 7-8; highly prejudicial and could confuse the jury by
suggesting Krivoi has a propensity for intimidation. The
alleged incident took place over a decade ago to boot.
Moreover, the government will be permitted to introduce
ample evidence of untruthfulness through several of its
other requests. This request is denied as unduly
prejudicial and cumulative.
(5) Krivoi's alleged promotion of (5) The allegations of a fraudulent business venture
a fraudulent business venture with would be prejudicial to co-defendant Reizin, creating a
Reizin, in which they induced a separate set of problems that would make the trial more
third party to pay $100,000-$250,000 complex. Nonetheless, putting these concerns to the
towards "an apparently side, in any event, the proffer would still lead to jury
non-existent business", Govt. Mot. confusion with respect to either or both defendants that
at 8-9; they have a propensity for targeting third parties for
financial gain. In addition, the government has not
adequately explained the relevant facts establishing
untruthfulness. This request is denied as prejudicial to
Reizin, and as to both defendants, as confusing and
cumulative.
(6) Krivoi's reporting of a false (6) Krivoi does not dispute that he provided a false
residential address to his car address to his insurance company. See Krivoi Opp'n at
insurance provider, Govt. Mot. at 10. Such false statements are admissible for
9. impeachment purposes. Triumph Capital Grp., 237 F. App'x at 629.
This request is granted.
So Ordered.
