Opinion
00 CR. 447 (DLC).
November 17, 2000.
Marc A. Weinstein, Assistant United States Attorney, Office of the United States Attorney, New York, NY.
Barry H. Berke, KRAMER LEVIN NAFTALIS FRANKEL LLP, New York, New York, Counsel for the defendant.
OPINION and ORDER
Defendant Esteban Gonzalez ("Gonzalez") has filed a motion to dismiss the indictment based on unreasonable pre-indictment delay in violation of the Due Process Clause of the Fifth Amendment. Fourteen months passed between the crime — Gonzalez is alleged to have stabbed a fellow inmate at the Metropolitan Correctional Center with intent to commit murder — and the filing of the indictment. Gonzalez has also moved to suppress photographs that prison officials took of his body following the stabbing. For the reasons set forth below, the motions are denied.
A. Pre-indictment Delay
The Second Circuit requires application of a two-pronged test to claims of delay in indictment. A defendant must demonstrate that he suffered actual or substantial prejudice to his ability to present his defense and "`that the delay was an intentional device to gain [a] tactical advantage over the accused.'" United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (quotingUnited States v. Marion, 404 U.S. 307, 324 (1971)). Thus, proof of prejudice is a necessary but not sufficient element of a due process claim. See United States v. Lovasco, 431 U.S. 783, 796 (1977) (even if defendant was "somewhat prejudiced" by 18-month lapse of time, there was no due process violation); see also Marion, 404 U.S. 307, 324 (1971) (noting that due process inquiry must consider reasons for delay as well as prejudice to accused). The primary guarantee against bringing overly stale criminal charges remains the applicable statute of limitations.See Cornielle, 171 F.3d at 751 (citing Marion, 404 U.S. 307). There is a "strong presumption" that an indictment filed within the statute of limitations is valid. Id. at 752. In pursuing a due process claim, a defendant bears the "heavy burden" of proving actual prejudice and improper purpose. See id. (citing United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990); United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987)).
Gonzalez argues that he can satisfy the second prong of the test by showing prosecutorial delay in "reckless disregard" of circumstances. Gonzalez relies on a footnote in United States v. Lovasco, 431 U.S. 783 (1977), quoting the Government's argument in that case. See id. at 795 n. 17. In United States v. King, 560 F.2d 122 (2d Cir. 1977), the Second Circuit notedLovasco's implication that reckless disregard for a defendant's rights could constitute a due process violation.Id. at 129. Neither the Supreme Court nor the Second Circuit, however, has adopted this alternative standard. Since that time, both courts have reiterated the standard as requiring deliberate or intentional delay to gain a tactical advantage. See, e.g., United States v. Gouveia, 467 U.S. 180, 192 (citing Marion and Lovasco without mention of a recklessness standard);Cornielle 171 F.3d at 752; United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987).
Relying on case law from other circuits, Gonzalez argues that the burden in this case has shifted to the prosecution to show that the testimony of the absent witnesses would not be exculpatory (since the delay has resulted in witnesses' unavailability), and to show that the delay was justified (since he asserts that he has shown prejudice). See United States v. Solomon, 688 F.2d 1171, 1179 (7th Cir. 1982); United States v. Comosona, 614 F.2d 695, 696-97 (10th Cir. 1980); United States v. Barket, 530 F.2d 189, 196 (8th Cir. 1976). The law of this Circuit places the burden on the defendant. In any event, since the defendant has failed to carry any initial burden of showing prejudice or intentional misconduct, there is no reason in this case to consider whether it would be appropriate in some circumstances to shift the burden that controlling precedent places on the defendant.
Gonzalez asserts that he suffered actual prejudice because the Government's delay has created a considerable impediment to his location of potentially favorable witnesses, in that some of the inmates who may have witnessed the stabbing have been relocated since the stabbing. Gonzalez further alleges that the delay gave the victim the opportunity to intimidate or influence the general inmate population in a manner detrimental to the defendant' s interests.
The standard for actual prejudice is "fairly stringent." See United States v. Wallace, No. 97 Cr. 975 (RWS), 1998 WL 401534 at *12 (S.D.N.Y. 1998). To sustain his burden of proof, a defendant must "demonstrate how [the loss of evidence] is prejudicial" to him. United States v. Birney, 686 F.2d 102, 106 (2d Cir. 1982) (internal quotation omitted). "Without definite proof as to this essential element no due process claim has been stated."Id. (emphasis added).
Gonzalez has offered speculation in place of proof. Regarding the inaccessibility of witnesses due to the delay, Gonzalez states simply that this has harmed his opportunity to prepare a defense and enabled the Government selectively to choose its own witnesses. Although the Supreme Court has noted the possibility of real prejudice if "`memories . . . dim, witnesses become inaccessible, and evidence [is] lost,'" Cornielle, 171 F.3d at 752 (quoting Marion, 404 U.S. at 325-26), the same Court stated that "these possibilities" are not in themselves enough to constitute actual prejudice. Marion, 404 U.S. at 326. Gonzalez must demonstrate with greater specificity both the actual loss of witnesses and how that loss has been prejudicial. See Wallace, 1998 WL 401534 at *12 (noting defendant's failure to name a single exculpatory witness that became unavailable as a result of delay). Similarly, the due process claim cannot be based on the speculation that the victim might have used the interval between the crime and the indictment to influence potentially favorable witnesses.
Gonzalez has also failed to demonstrate that the Government intentionally delayed the indictment to gain a tactical advantage over him. The Lovasco Court distinguished between investigative delay and delay undertaken by the Government solely "to gain tactical advantage over the accused," identifying only the latter as a basis for a claim under the Due Process Clause of the Fifth Amendment. Lovasco, 431 U.S. at 795. The indictment was returned within days of the victim's entering a guilty plea in the case pending against him, and thereby becoming available as a witness to the parties in this case.
The Supreme Court has recognized the detrimental effect on both defendants and prosecutors of a standard that hurries prosecutions, Lovasco, 431 U.S. at 791-95, and has noted that "`actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution.'" Id. at 789 (quotingMarion, 404 U.S. at 324-25).
B. Suppression of Photographs
Gonzalez argues that certain photographs taken of him following the stabbing must be suppressed because they were taken without a warrant in violation of his Fourth Amendment rights. Gonzalez claims that after the incident, he and the other inmates in the dorm room were ordered to strip. No photographs were taken at that point. Then, he claims that he dressed and was transported with a few other inmates to a different area of the prison. Gonzalez was taken to the Special Housing Unit and placed in the "law library cage," which is visible from most cells in the unit. There, Special Investigative Agents of the Bureau of Prisons ordered him to strip to his underwear, and photographed him. The Government disputes Gonzalez' version of those events that occurred in the dorm room, but does not disagree with Gonzalez' description of events in the Special Housing Unit. The Government asserts that Gonzalez was photographed pursuant to Bureau of Prisons procedures that apply when there has been an assault. In this case, the photographs were taken to record the bruises on Gonzalez' body since Gonzalez was a suspect in the assault.
Although Gonzalez says the officers took pictures of his "naked" body, he does not dispute that the officers allowed him to wear his underwear while photographed.
Because the Court accepts Gonzalez' description of the facts as true for purposes of this analysis, there is no need to hold an evidentiary hearing.
The Fourth Amendment requires that searches be reasonable. The determination of whether a search is reasonable "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). A search can be unreasonable under the Fourth Amendment only if it intrudes upon a realm where there is a reasonable expectation of privacy. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); see also Lauro v. Charles, 219 F.3d 202, 211-12 (2d Cir. 2000) (discussing reasonable expectation of privacy in context of staged "perp walk"). This inquiry involves a subjective and an objective component: an individual claiming that a search was unreasonable must show first that he exhibited an actual expectation of privacy, and second that his expectation was one that society would recognize as reasonable. See Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 1465 (2000). An inmate's reasonable expectation of privacy is extraordinarily circumscribed, because his interest in privacy must be balanced against "the interest of society in the security of its penal institutions." Hudson v. Palmer, 468 U.S. 517, 527 (1984). Thus, the Supreme Court has held that a convicted prisoner has no legitimate expectation of privacy in his cell. Id. at 525-26, 530. In Covino, the Second Circuit held that while "inmates do retain a limited right to bodily privacy," Covino, 967 F.2d at 78, random visual body-cavity searches of inmates do not violate the Fourth Amendment because they are reasonably related to the state's legitimate interest in maintaining prison security, id. at 79-80.
Even "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Due to the "special needs" of a prison setting, the constitutional rights of inmates "are subject to restrictions dictated by concerns for institutional security, order, and discipline." Roe v. Marcotte, 193 F.3d 72, 78 (2d Cir. 1999). Consequently, when searches are conducted in a prison they are not governed by the requirement that there be probable cause for the search "so long as the searches meet reasonable legislative or administrative standards." Id. at 79 (internal quotation omitted). To meet these requirements, "there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 89 (internal quotation omitted). A court must also consider whether there are other means of exercising the constitutional right at issue available to inmates; the impact accommodation of the right would have on guards, other inmates, and on the allocation of prison resources in general; and what alternatives to the regulation are available. See id. at 89-91; Nichols v. Miller, 189 F.3d 191, 194 (2d Cir. 1999). In weighing these factors, however, a court must give due deference to the discretion of corrections officials. Id.
1. Reasonable Expectation of Privacy
Gonzalez has not shown that he had a reasonable expectation of privacy here. He has not presented any evidence that he articulated or otherwise exhibited to the prison officials any actual expectation of privacy when they asked him to disrobe.Compare Bond, 120 S.Ct. at 1465; Covino, 967 F.2d at 78. He merely asserts in conclusory form that the officers ordered him to undress "against my wishes and without my consent." Wholly apart from his failure to exhibit any actual expectation of privacy, Gonzalez has not established that he had any reasonable expectation of privacy in having male guards view or photograph his body in the aftermath of the stabbing of a cell mate and while dressed in his underwear. Because Gonzalez was required to strip only to his underwear, the invasion of Gonzalez' privacy was much less severe than in Covino, where the search involved a visual inspection of body cavities. Accordingly, the Supreme Court's observation regarding the particular invasiveness of visual body cavity searches, see Bell v. Wolfish, 441 U.S. at 558, is inapplicable here. Similarly, cases such as Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir. 1992), are distinguishable. See id. at 916-17 (outdoor full strip search of male inmates observed by female corrections officers).
2. Reasonableness of the Intrusion
Even if Gonzalez had a reasonable expectation of privacy in not being photographed or seen in prison while wearing his underwear, the taking of photographs was reasonable because it was "reasonably related to legitimate penological interests."Turner, 482 U.S. at 89. Special Investigative Agent John J. Feeney has submitted a declaration stating that the federal prison system's routine administrative investigation procedures, following any prison fight or assault, include reporting any injuries that may have resulted from the incident. By identifying possible participants, this procedure allows the facility to segregate inmates who may have been involved in the incident from the general prison population, which may be necessary for security reasons. A Bureau of Prisons manual shows that photographing the victim and suspects to record injuries and the lack of injuries is part of routine procedure.
An excerpt from this confidential manual has been reviewed by counsel for the defendant and submitted to the Court for filing under seal.
Applying the Turner factors, this policy is reasonable. First, the Feeney declaration shows a "valid, rational connection" between the taking of the photographs and the prison's interest in identifying and, if necessary, segregating suspected participants in an assault. Second, although it is conceivable that the search could have been conducted out of the view of other inmates, such a policy would only slightly ameliorate what is already at most a minimally invasive search, and would place an additional burden on corrections officials. In light of the deference given to prison administrators in these matters, the second, third and fourth Turner factors do not weigh heavily in favor of the defendant here. As the Supreme Court has held, a prisoner's expectation of privacy always yields "to what must be considered the paramount interest in institutional security."Hudson, 468 U.S. at 528.
3. Prosecutorial Purpose
Gonzalez argues that the photographs were improper because they were taken for prosecutorial purposes, rather than in the interest of prison security. Gonzalez relies principally onUnited States v. Cohen, 796 F.2d 20 (2d Cir. 1986), where the Second Circuit, distinguishing Hudson, invalidated a cell search that it found was "intended solely to bolster the prosecution's case against a pre-trial detainee." Id. at 23. There, the Court noted that the record "clearly reveal[ed]" that the search
was initiated by the prosecution, not prison officials. The decision to search for contraband was not made by those officials in the best position to evaluate the security needs of the institution, nor was the search even colorably motivated by institutional security concerns.Id.
Here, by contrast, not only was the search conducted by prison officials, but there also is not a scintilla of evidence that the search was conducted at the direction of prosecutors, or for prosecutorial purposes. Taken together, the Feeney Declaration and Bureau of Prisons manual show that the photographing of inmates following a prison fight or assault is part of the federal prison system's routine administrative response to such incidents. Because this procedure is reasonably related to legitimate concerns of prison security, Gonzalez was not subjected to an unconstitutional search and seizure. The fact that the photographs taken pursuant to prison policy and procedure may later be used for law enforcement purposes does not alter this conclusion. See Marcotte, 193 F.3d at 79-80.
CONCLUSION
For the reasons stated, the defendant's motions to dismiss the indictment and to suppress evidence are denied.
SO ORDERED: