Opinion
No. S1 04 Cr. 1277 (NRB).
October 21, 2005
MEMORANDUM AND ORDER
Defendant John Watts is charged in five counts with gun and narcotics offenses stemming from separate incidents on June 1, 2004 and October 8, 2004. Defendant has moved for suppression of evidence seized on both dates; severance of the June 1, 2004 charges from the October 8, 2004 charges; severance of one gun charge from all other charges, or alternatively, bifurcation of evidence related to defendant's prior convictions; and additional discovery. For the reasons set forth below, defendant's omnibus motion is denied, with the exception that evidence related to defendant's prior convictions will be presented after evidence for all other charges.
BACKGROUND
As set forth in the Superceding Indictment ("Indictment"), defendant is charged in three counts for offenses arising out of an incident on October 8, 2004. Count One charges defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922 (g) (1) and 924 (e). Count Two alleges that on that date, defendant also possessed heroin with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841 (a) (1), 841 (b) (1) (C) and 18 U.S.C. § 2. Count Three charges defendant with possessing a gun in relation to a drug trafficking crime on that date, in violation of 18 U.S.C. §§ 924 (c) (1) (A) (i) and 924(c) (2). Counts Four and Five charge defendant with possessing with intent to distribute heroin and crack cocaine, respectively, on June 1, 2004, in violation of 21 U.S.C. §§ 812, 841 (a) (1), 841 (b) (1) (C) and 18 U.S.C. § 2.
The foregoing discussion is based on the charges as set forth in the Indictment. We understand that the government will be reordering the Indictment for purposes of trial so as to ensure that evidence related to Count One is properly bifurcated.
I. Events of June 1, 2004
According to the criminal complaint, on June 1, 2004, a New York City Police Department ("NYPD") officer observed defendant engage in what appeared to be a hand to hand drug transaction in front of 2301 Creston Avenue in the Bronx, New York. Bx. Compl. at 1. Defendant was observed giving another individual small objects in exchange for money. Id. at 1. Both individuals were then arrested, and a bag containing a white, rocklike substance believed to be crack cocaine and a slab containing a white, powdery substance stamped "Sick Call" and believed to be heroin, were recovered from the other individual. Id. at 1. Defendant was also searched, and forty-three clear bags each containing a white, rocklike substance believed to be crack cocaine and two slabs containing a white powdery substance stamped "Sick Call" and believed to be heroin, were recovered from his pants pocket.Id. at 1.
II. Events of October 8, 2004
The federal complaint alleges that on October 8, 2004, parole officers and NYPD police officers conducted a home visit at 2301 Creston Avenue, defendant's residence. Fed. Compl. at ¶ 5(b). Defendant, who at the time was on parole since his release on May 1, 2003, had earlier signed a Certificate of Release to Parole Supervision ("Release") permitting such searches. Defendant had been selected for a visit after his supervising parole officer learned of his June 1, 2004 arrest. During the search, officers recovered from defendant's bedroom approximately 80 bags containing what was later determined to be heroin, as well as a loaded Colt .45 caliber handgun. Id. at ¶¶ 6(b), 7.
DISCUSSION
I. Motion for Suppression
Defendant has moved to suppress the evidence recovered on both June 1, 2004 and October 8, 2004. An evidentiary hearing on a motion to suppress ordinarily is necessary if "the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question." United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (citations omitted). In short, "the defendant must show `that disputed issues of material fact exist before an evidentiary hearing is required.'" United States v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y. 1989) (quoting United States v. Castellano, 610 F. Supp. 1359, 1439 (S.D.N.Y. 1985); see also United States v. Jailall, No. 00 Cr 069 (RWS), 2000 WL 1368055, *8 (S.D.N.Y. Sept. 20, 2000). This showing "must be made by an affidavit of someone with personal knowledge of the underlying facts." Jailall, 2000 WL 1368055 at *8; see United States v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967) (finding insufficient an affidavit submitted by defendant's attorney which alleged no personal knowledge on his part); United States v. Ruggiero, 824 F. Supp. 39, 393 (S.D.N.Y. 1993) (noting that attorney's affidavit alleging facts upon information and belief was "completely inadequate" to raise factual issue justifying hearing). "A hearing is not required if the defendant's statements are general, conclusory or based on conjecture."Viscioso, 711 F. Supp. at 745.
A. June 1, 2004
In support of the motion to suppress evidence obtained on June 1, 2004, defense counsel has submitted only his own affirmation "upon information and belief." Rubin Affirm. at ¶ 1. Defense counsel affirms that defendant "denies that he participated in a drug transaction" and "claims that he was not involved in any illegal activity; that he was merely standing on a public street engaged in lawful activity." Id. at ¶¶ 5, 6. The affirmation of defense counsel is not made with the requisite personal knowledge. Even if his statements were considered, however, they are at best conclusory. Weighed against the sworn testimony of the NYPD officer, which establishes a lawful predicate for the search, this affirmation is insufficient. Therefore, defendant's motion for suppression of evidence recovered on June 1, 2004 is denied.
B. October 8, 2004
In support of the motion to suppress evidence recovered on October 8, 2004, defense counsel affirms that "there was no legal basis for law enforcement to engage in a search" of defendant's residence. Id. at ¶ 8. Rather, defendant asserts that he was searched solely because he was a parolee. It is well established that "operation of a parole system . . . presents special needs justifying a departure from the traditional Fourth Amendment warrant requirement." United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004). Parolees are therefore subject to "a degree of impingement upon privacy that would not be constitutional if applied to the public at large." Id. at 665 (quoting Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)). In addition, parolees who sign certificates consenting to searches have "a severely diminished expectation of privacy." United States v. Reyes, 283 F.3d 446, 461 (2d Cir. 2002); see Newton, 369 F.3d at 665. However, such certificates authorizing searches do not constitute "an unrestricted consent to any and all searches whatsoever." People v. Huntley, 43 N.Y.2d 175, 182, 371 N.E.2d 794, 798 (N.Y. 1977). Ultimately, "a parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when his apartment is searched, without a search warrant, by his parole officer if the latter's conduct is rationally and reasonably related to the performance of his duty as a parole officer." Id. at 179, 371 N.E.2d at 796; see Newton, 369 F.3d at 665. Courts have often found a reasonable relation where parole or probation officers conducted a search after learning of some potential violation by the parolee. See, e.g., Newton, 369 F.3d at 666 (finding reasonable relationship requirement met where search conducted after parole officers received information that parolee had gun and threatened family members).
Defendant's counsel has supplemented his affirmation with a transcript of testimony given by New York State Parole Officer Rhodes during defendant's parole revocation hearing. Though Officer Rhodes, who participated in the search of defendant's bedroom, may have personal knowledge of the search itself, he has no knowledge of how defendant was selected to be searched. By contrast, the government has submitted an affidavit of defendant's supervising parole officer, Officer Gardiner, in which she states that she became aware of defendant's June 1, 2004 arrest and notified her supervisor of that arrest by June 16, 2004. After she had notified her supervisor of defendant's arrest, Officer Gardiner was informed by her supervisor that defendant had been selected for a home visit, which would include a search of his living space.
Officer Rhodes' testimony makes this clear:
Mr. Duboulay: So Mr. Watts was randomly selected?
Parole Officer Rhodes: From my estimation. All I know is that they had a list and we go and search.
Mr. Duboulay: So you have no personal information on who directed you to that apartment on that day?
Parole Officer Rhodes: No.
Parole Tr. at 12.
In light of Officer Gardiner's affidavit, Officer Rhodes' testimony fails to raise any disputed issues of material fact. The government's affidavit establishes that parole officers searched defendant's bedroom as a direct result of his June 1, 2004, arrest. Such information provided a valid basis for the search. See Newton, 369 F.3d at 666. In addition, defendant does not contest that he signed the Release, which explicitly grants consent to the search of his residence. Accordingly, the search on October 8, 2004 was valid, and defendant's motion for suppression of evidence recovered on October 8, 2004 is also denied.
II. Motion for Severance
Defendant also moves for severance of the June 1, 2004 charges from the October 8, 2004 charges. Joinder of two or more offenses is appropriate "if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed.R.Crim.P. 8(a). Even if joinder is permitted under Fed.R.Crim.P. 8(a) ("Rule 8(a)"), however, a court has discretion to grant severance where joinder would be prejudicial.See Fed.R.Crim.P. 14(a).
Such prejudice must be "substantial." See United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004). While prejudice to the defendant may arise where he "wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence," id. at 191 (quoting Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964)), "a mere unexplicated assertion" of such a desire to testify is not enough. United States v. Werner, 620 F.2d 922, 930 (2d Cir. 1980). This is especially true where evidence of one crime would have been admissible at a trial of the other crime. See id. at 930.
Defendant argues that the counts relating to his June 1, 2004 arrest (Counts Four and Five) should be severed from those relating to his October 8, 2004 arrest (Counts One, Two and Three). Noting that joinder would cause "great prejudice," he cites the four-month separation of time between the events and asserts that there is no evidence that the events were related or fell into a series of related transactions. He also states that different witnesses will be called with respect to the separate events, thus negating any considerations of judicial economy. He argues that joinder of these cases was "clearly done for tactical reasons" and that the prosecution is fusing two weak cases in an attempt to show that he is "simply a bad guy." Def. Mem. at 10. Finally, he argues that he "may wish to testify as to one case and not the other," which would be impossible if the cases were tried together. Id. at 10.
In this case, joinder of the June 1 and October 8, 2004 charges is permissible under Rule 8(a), given the similar character of the offenses. See Werner, 620 F.2d at 926 (noting that "general likeness" is sufficient). We also decline to exercise our discretion to sever the counts under Fed.R.Crim.P. 14 ("Rule 14"). Evidence relating to the June 1, 2004 charges would be admissible in a trial of the October 8, 2004 charges andvice versa. See Fed.R.Evid. 404(b). As such, the defendant is not exposed to undue prejudice by their joinder. See United States v. Zackson, 6 F.3d 911, 922 (2d Cir. 1993). Therefore, we find that joinder in this case is proper, and defendant's motion for severance is denied.
Although this issue is not dispositive to the Court's holding, we are skeptical of defendant's claim that he would ever have chosen to testify in either case, given that he would have been subject to cross-examination regarding his prior convictions.
III. Motion for Bifurcation
Defendant also moves for severance of Count One (felon in possession of a firearm) from all other charges, or alternatively, bifurcation of evidence related to defendant's prior convictions. The government has agreed to bifurcate the presentation of evidence related to this charge, and we agree that this would be appropriate given the potential "spillover effect" occasioned by reference to defendant's prior record without his having taken the stand. See United States v. Jones, 16 F.3d 487, 492 (2d Cir. 1994). Defendant's motion requesting bifurcation therefore is granted. The government will present evidence of the defendant's prior felony convictions only after the jury has been charged with determining whether he possessed a firearm.
IV. Motion for Additional Discovery
Finally, defendant moves for additional discovery of items under Fed.R.Crim.P. 16(a) ("Rule 16"), Brady materials and Giglio materials. The government asserts that defendant has received all Rule 16 discovery material in the government's possession. In light of the government's representation, we deny defendant's motion as to Rule 16 materials.
Exculpatory evidence, as referred to by Brady v. Maryland, 373 U.S. 83 (1963).
Impeachment evidence, as referred to by Giglio v. United States, 405 U.S. 150 (1972).
With respect to defendant's request for production of Brady materials, the government represents that it is unaware of anyBrady material in this case, that it is aware of its continuing obligations under Brady and that, if such material is discovered in the future, it will provide timely disclosure of that material. We accept the government's representations and note that the government must abide by its continuing obligations to provide any Brady material to defendant in sufficient time for its effective use at trial. See United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001). Therefore defendants' motion as to Brady materials is denied.
Finally, with respect to Giglio material, there is no general right of pre-trial discovery because such material "ripen[s] into evidentiary material for purposes of impeachment only if and when the witness testifies at trial." United States v. Cuthbertson, 630 F.2d 139, 144 (3d Cir. 1980); see United States v. Nixon, 418 U.S. 683, 701 (1974) ("Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial."). Nevertheless, the Government states that it intends to follow its customary practice of providing Giglio material not later than "the Friday before the trial begins." Gov. Mem. at 9. Therefore, we deny defendant's motion seeking disclosure of Giglio material prior to the timeframe just discussed.
CONCLUSION
For the reasons set forth above, defendant's omnibus motion is denied, except as it relates to the bifurcation of evidence pertaining to Count One.
SO ORDERED.