14 F.3d 761 (2nd Cir. 1994), 93, United States v. Miller

Docket Nº:93, 94 and 174, Dockets 93-1048, 93-1049 and 93-1168.
Citation:14 F.3d 761
Party Name:UNITED STATES of America, Appellee, v. Gerald MILLER, and William Graham, Defendants-Appellants.
Case Date:January 24, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 761

14 F.3d 761 (2nd Cir. 1994)

UNITED STATES of America, Appellee,


Gerald MILLER, and William Graham, Defendants-Appellants.

Nos. 93, 94 and 174, Dockets 93-1048, 93-1049 and 93-1168.

United States Court of Appeals, Second Circuit

January 24, 1994

Argued Aug. 31, 1993.

Daniel N. Arshack, New York City (Stephanie T. Knowles, of counsel), for defendant-appellant Gerald Miller.

Leslie R. Caldwell, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Peter A. Norling, Asst. U.S. Atty., Mary Jo White, U.S. Atty., of counsel), for appellee U.S.

William Graham, pro se, filed a brief.

Page 762

Before: FEINBERG, CARDAMONE and ALTIMARI, Circuit Judges.

CARDAMONE, Circuit Judge:

The two appellants before us on this appeal face the prospect of long term federal sentences following convictions for, among other violations, narcotics trafficking and racketeering. Much of the evidence collected against them derived from wiretaps of each of the appellant's home telephones. The state court prosecutions brought prior to the federal prosecutions for the same unlawful activities ended with the dismissals of their indictments. As a result of the state court granting a motion to suppress some of the wiretap evidence in Graham's trial, they both moved to suppress the use of the wiretap evidence at their federal trials. Asserting invasion of their privacy rights, appellants also sought to enjoin the government from presenting this proof at Miller's trial and Miller moved for a stay of his trial in the district court and here. All this proved unsuccessful.

Both appellants have been tried and convicted and the government has moved to dismiss as moot their appeals from the denial of the interlocutory relief they sought before Miller's jury trial was concluded. Appellants complain essentially of developments during the prosecution of the government's case against Miller which, like water passing over the top of a dam, may not be retrieved on these appeals. Because the matters before us are moot, the appeals are dismissed.


  1. State Proceedings

    In March 1990 appellants Gerald Miller and William Graham were indicted in New York State Supreme Court, Queens County, for narcotics trafficking. The indictment was bottomed primarily on evidence intercepted by wiretaps placed on their home telephones. In November 1991 State Supreme Court Justice Finnegan granted Graham's motion to suppress tapes of his conversations intercepted on the Miller wiretap. The motion to suppress was granted because, although the prosecution had probable cause to believe Graham was engaged in the criminal activity under investigation and that his communications would be intercepted on Miller's telephone, the prosecutor had failed to list Graham in the wiretap application or warrant. The state court also suppressed Graham's conversations intercepted on his own telephone because it found that the affidavits filed in support of the intercept application contained false and misleading statements. The state prosecution against Graham was subsequently dismissed.

    Miller then filed a motion to suppress in State Supreme Court urging collateral estoppel because his motion was similar to the one Graham had filed. Justice Finnegan granted this motion to the extent Miller had standing to suppress one conversation to which he was a party intercepted on the Graham wiretap, granted a hearing with respect to evidence derived from conversations intercepted over Graham's telephone, and directed a hearing regarding the validity of the Miller wiretap. Because the state's case against Miller was subsequently dismissed on state statutory speedy trial grounds, the hearings were never held.

  2. Federal Proceedings

    In December 1991 Graham was indicted by a federal grand jury on three counts of narcotics trafficking. He moved in the United States District Court for the Eastern District of New York (Raggi, J.) to suppress the use of the state wiretap evidence in his criminal case, arguing its use was prohibited because the state court had previously ruled it had been unlawfully obtained. Judge Raggi denied his motion, holding that the state court determination of inadmissibility did not bind the federal court. Graham was subsequently convicted at trial and sentenced to 30 years imprisonment. His conviction was affirmed on December 17, 1993.

    In January 1992 Miller was indicted with 11 others by a federal grand jury in the Eastern District of New York and charged with 10 counts that included racketeering, narcotics trafficking and witness intimidation. On May 15, 1992 Miller moved to suppress wiretap evidence obtained pursuant to the state wiretap orders.

    Page 763

    On December 30, 1992 Graham moved in the Eastern District of New York (Dearie, J.) for a temporary restraining order prohibiting the prosecutor from offering into evidence at the Miller trial intercepted conversations to which Graham was a party. Graham asserted that these communications were the subject of a state court suppression order and would violate his right to privacy if admitted into evidence in Miller's trial. By an order dated January 18, 1993 the district court denied the motion and a subsequent motion for a stay. Graham appealed and moved in this court for a stay pending appeal, which was denied on January 29, 1993.

    Miller also moved before Judge Dearie for a temporary restraining order prohibiting the government from using in his federal prosecution the wiretap evidence previously suppressed by the state court, maintaining its use would violate his privacy rights as well as those of his family and friends and that this violation was one that could not be corrected by a successful appeal after conviction. The district court denied the motion and a subsequent application Miller made for a stay pending appeal. Miller then moved in this Court for a stay pending appeal, which was also denied on January 29, 1993.

    By order dated March 2, 1993 Judge Dearie denied Miller's motion to suppress tapes of the intercepted conversations, upholding the validity of the wiretaps on the grounds that the state officials did not seek to deceive the state court or act in a careless manner. He also denied Miller's motion to quash a subpoena issued to his state court attorney for financial records pertaining to Miller's payment of legal fees. Miller appealed these orders.

    On March 31, 1993 Miller moved to consolidate appeals from the denials of (1) his temporary restraining order, (2) the motion to stay his trial, (3) his motion to suppress and (4) his motion to quash the subpoena. He also moved us to stay his...

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