U.S. v. Livoti
| Decision Date | 25 March 1998 |
| Docket Number | No. 98 Cr. 25(SAS).,98 Cr. 25(SAS). |
| Citation | 8 F.Supp.2d 246 |
| Parties | UNITED STATES of America v. Francis X. LIVOTI, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Andrew S. Dember, Serene K. Nakano, New York City, for Plaintiff.
Stuart London, White Plains, NY, for Defendant.
Defendant Francis Livoti moves (1) to dismiss the Indictment against him on the ground that this prosecution is barred by the double jeopardy clause of the Fifth Amendment of the United States Constitution; (2) for a pre-voir dire change of situs and change of venue; (3) for a bill of particulars pursuant to Fed.R.Crim.P. 7(f); (4) to compel the Government to disclose "as soon as possible" whether it intends to offer evidence at trial pursuant to Fed.R.Evid. 404(b); and (5) to compel the Government to disclose all material with which it may seek to impeach the Defendant at trial pursuant to Fed.R.Evid. 608 and 609. I will address each motion in turn.
The Indictment in this case, which was filed on January 13, 1998, charges Livoti with violating the civil rights of Anthony Baez, in violation of 18 U.S.C. § 242. Specifically, Livoti is charged in his former capacity as a New York City Police Officer with willfully assaulting Anthony Baez, resulting in bodily injury to Baez and thereby willfully depriving him of a right secured and protected by the Constitution and the laws of the United States, namely the right to be secure in his person free from the use of unreasonable force by one making an arrest under color of law.
Before this Indictment was filed, Livoti was charged in New York State Supreme Court in Bronx County with the crime of criminally negligent homicide in violation of New York Penal Law § 125.10. That case was based on the same incident that serves as the basis for this Indictment. Livoti was found not guilty in the state case, following a non-jury trial in October 1996.
Defendant argues that the federal Indictment charging him with violating § 242 violates the double jeopardy clause because he was previously charged with and acquitted of criminally negligent homicide in state court.
Criminal offenses under two statutory provisions are different for purposes of double jeopardy if "each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Liller, 999 F.2d 61, 62-63 (2d Cir.1993). Title 18 U.S.C. § 242 requires proof of at least two elements that are not required by N.Y. Penal Law § 125.10:(1) that the defendant acted under color of law; and (2) that in so doing, he willfully deprived another person of a right secured and protected by the Constitution and laws of the United States. 18 U.S.C. § 242; United States v. Langer, 958 F.2d 522, 523-24 (2d Cir.1992); United States v. Schatzle, 901 F.2d 252, 257 (2d Cir.1990); 1 L. Sand, et al., Modern Federal Jury Instructions, ¶ 17.01 at 17-4 (1997).
Similarly, § 125.10 requires proof of elements that are not required by § 242:(1) that the defendant committed an act creating a substantial and unjustifiable risk of death to another person; (2) that at the time the defendant acted, he failed to perceive the substantial and unjustifiable risk of the other person's death; (3) that the defendant's failure to perceive this risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation; and (4) that the defendant's act caused the other person's death. N.Y. Penal Law § 15.05; § 125.10; People v. Boutin, 75 N.Y.2d 692, 696, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990); People v. Galle, 77 N.Y.2d 953, 955-56, 570 N.Y.S.2d 481, 573 N.E.2d 569 (1991).
Accordingly, the Indictment charges Livoti with violating a federal statute which, under the Blockburger test, is different than the state statute under which he was previously prosecuted.
Moreover, even if the two statutes were the "same" under Blockburger, the doctrine of "dual sovereignty" would defeat Livoti's double jeopardy claim. It is well-established that "under the dual sovereignty doctrine a federal indictment charging conduct that was previously the subject of a state prosecution simply does not implicate the double jeopardy clause." United States v. Giovanelli, 945 F.2d 479, 492 (2d Cir.1991). Accord Heath v. Alabama, 474 U.S. 82, 88-89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); United States v. Davis, 906 F.2d 829, 831 (2d Cir.1990). Thus, Livoti's motion to dismiss the Indictment as violative of the double jeopardy clause is denied.
Livoti moves to have the situs of this trial changed from the Foley Square courthouse in Manhattan to the Southern District of New York courthouse in White Plains, or in the alternative, to have this action transferred to the Northern District of New York. Livoti asserts that these transfers are justified because (1) "the greater metropolitan area has been inundated with massive pre-trial publicity and unprecedented news coverage concerning this case"; and (2) "community hostility toward the defendant undoubtedly exists." Defendant Livoti's Memorandum of Law (Def.'s Mem.) at 8.
Fed.R.Crim.P. 18 authorizes a district court to grant or deny a transfer within a federal judicial district "with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice." One basis for granting an intradistrict transfer is to prevent prejudice against the defendant. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir.1990).
Rather than arguing that White Plains is a more convenient location, Livoti asserts only that the transfer to White Plains would alleviate the prejudicial effect of pretrial publicity. This assertion is puzzling. The jurors who serve the White Plains courthouse read the same newspapers and are exposed to the same television news programming as jurors serving the Foley Square courthouse.1 Livoti's pre-voir dire motion for an intradistrict change of situs to the White Plains courthouse is, therefore, denied.
Under Fed.R.Crim.P. 21(a), a transfer of venue is appropriate if, in the district where the prosecution is pending, there exists "so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district." "[T]o prevail on a motion under Rule 21(a), the defendant must show a `reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.'" United States v. Maldonado-Rivera, 922 F.2d 934, 966-67 (2d Cir. 1990) (quoting Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). A change of venue is warranted where the defendant can show either (1) that the setting or atmosphere of the trial is inherently prejudicial, or (2) that answers provided in voir dire allow an inference that the panel of prospective jurors are actually prejudiced. See Murphy v. Florida, 421 U.S. 794, 801-03, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States v. Sherwood, 98 F.3d 402, 410 (9th Cir.1996); United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.1990). Because Livoti moves for a change of venue before voir dire, I need only determine whether the trial setting is inherently prejudicial.
Without providing any specific citations, Livoti's motion refers to editorials in one newspaper, The Daily News, which "prais[e] this new indictment and call[ ] for jail time for Livoti." Def.'s Mem. at 12. Livoti's other "evidence" of widespread community prejudice consists of general references to unidentified "articles" and "[t]he press." Id. Few of these references reveal the dates of publication. The incident alleged in the indictment occurred on December 22, 1994. Livoti was acquitted on October 7, 1996. Jury selection in this action is scheduled to occur in June 1998. Based on the evidence presented to date, there is no "reasonable likelihood" that the pretrial publicity has created "so great a prejudice" that the Defendant cannot obtain a fair trial before an impartial jury.
Moreover, even if the "evidence" to which Livoti refers included current media coverage, he has failed to show that an impartial jury cannot be selected following careful voir dire questioning. Indeed, "[i]n a large metropolitan area such as [Manhattan and the Bronx], with [their] millions of potential jurors, it is unlikely that searching questions of prospective jurors ... to screen out those with fixed opinions as to guilt or innocence' and `the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court,' will fail to produce an unbiased jury." Associated Press v. United States Dist. Court for the Cent. Dist. of California, 705 F.2d 1143, 1146 (9th Cir.1983) () (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 564, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)).
Finally, the Second Circuit has noted that a "transfer from a metropolitan area to a smaller city may result in more rather than less intensive publicity." United States v. Dioguardi, 428 F.2d 1033, 1039 (2d Cir.1970). It is likely here that the transfer of this case to Albany would result in at least as intense media coverage there as the case has received here. Accordingly, Livoti's motion for change of venue to the Northern District of New York is denied.
Livoti moves for a bill of particulars which identifies (1) the alleged manner in which Anthony Baez was assaulted; (2) the bodily injury Anthony Baez allegedly suffered; and (3) the unreasonable force allegedly used to make the...
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