U.S. v. Morales, S6 02 CR. 583(WHP).

• Decision Date: 08 September 2003
• Docket Number: No. S6 02 CR. 583(WHP).,S6 02 CR. 583(WHP).
• Citation: 280 F.Supp.2d 262
• Parties: UNITED STATES of America v. William MORALES, Defendant.
• Court: U.S. District Court — Southern District of New York

280 F.Supp.2d 262

UNITED STATES of America v. William MORALES, Defendant.

No. S6 02 CR. 583(WHP).

United States District Court, S.D. New York.

September 8, 2003.

COPYRIGHT MATERIAL OMITTED

Laurie A. Korenbaum, Assistant United States Attorney, New York City, Gary G. Becker, Gerald B. Lefcourt, P.C., New York City, for Defendant Morales.

MEMORANDUM AND ORDER

PAULEY, District Judge.

By omnibus pre-trial motion, defendant William Morales ("Morales") moves: (1) to dismiss Count One of the First Superseding Indictment as duplicitous, or in the alternative, to sever the alleged schemes; (2) to suppress the evidence seized from 735 Walton Avenue, Apt. E12, Bronx, New York (the "Walton Avenue Apartment"); (3) to suppress his post-arrest statements because they were obtained in violation of Miranda; (4) to obtain disclosure of the identities of the Government's confidential sources; (5) to dismiss Count Five of the First Superseding Indictment because Morales did not possess a "firearm" as that term is defined in 18 U.S.C. § 921(a)(3); and (6) to obtain a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure and grand jury materials, as well as discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the Jencks Act, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). For the reasons set forth below, defendant's motions are denied.

PROCEDURAL HISTORY

On April 11, 2003, this Court heard oral argument on Morales' motions. At the conclusion of that argument, this Court ordered a two-pronged evidentiary hearing: (1) pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine whether the Government knowingly or with reckless disregard for the truth made material false statements in, or omitted material information from, their search warrant affidavit; and (2) to determine whether to suppress Morales' post-arrest statements.

In a letter to the Court the day before the hearing, defendant advanced a new argument, not raised in his earlier briefs. Namely, Morales asserted that Counts Two and Five of the First Superseding Indictment were multiplicitous because they charged two distinct violations of 18 U.S.C. § 924(c). (Letter to the Court from Gary G. Becker, dated April 10, 2003 ("April 10 Letter").) Defendant argued that courts in the Second Circuit have held that a defendant who uses multiple firearms in connection with a single drug trafficking crime may not be charged with more than one violation of § 924(c). (April 10 Letter at 1.) This contention was discussed briefly at oral argument on April 11, but given the date of defendant's submission, the Court afforded the Government time to respond. (Transcript of Hearing, dated April 11, 2003 ("April 11 Tr.") at 4-5.) In its response dated April 25, 2003, the Government disputed defendant's interpretation of Second Circuit precedent. However, "in an abundance of caution, and to avoid unnecessary litigation on this subject," the Government indicated that it would seek a "superseding indictment charging only one Section 924(c) count in connection with the narcotics conspiracy." (Letter to Court from Assistant United States Attorney Laurie A. Korenbaum, dated April 25, 2003, at 1-2.)

Over the course of the action, there were several superseders filed by the Government that do not bear on the issues raised by Morales. On May 6, 2003, one day prior to the scheduled evidentiary hearing, the Government obtained the Sixth Superseding Indictment in this case. Count Two of the Sixth Superseding Indictment charges a single violation of § 924(c), combining the two offenses formerly alleged in Counts Two and Five of the First Superseding Indictment. (Sixth Superseding Indictment ¶ 5.) However, since Count Two of the Sixth Superseding Indictment still charges Morales with possession of, inter alia, the "9 mm semi-automatic weapon" that is the subject of his § 921(a)(3) motion, Morales' motion to dismiss Count Five of the First Superseding Indictment is converted by this Court to a motion to dismiss those portions of Count Two of the Sixth Superseding Indictment concerning the "9 mm semi-automatic weapon." (Sixth Superseding Indictment ¶ 5.) Further, any of Morales' motions that specifically reference a prior indictment will be interpreted by this Court to refer to the corresponding portions of the Sixth Superseding Indictment.

BACKGROUND

Over several days in May and June 2003, this Court conducted the aforementioned evidentiary hearing. Testifying for the Government over the course of the hearing were New York Police Department ("NYPD") Sergeant David S. Glassberg ("Sgt. Glassberg"), formerly of the 40^th Precinct in the Bronx, New York, and Drug Enforcement Agency ("DEA") Special Agent Donald S. Waddell ("Special Agent Waddell"). The defendant offered no witnesses, but comprehensively cross-examined both of the Government's witnesses. After evaluating the demeanor and credibility of the witnesses, and evaluating the exhibits, the Court makes the following findings of fact.

I. Morales' Arrest and Post-Arrest Statements

On April 2, 2002, DEA agents obtained a warrant for Morales' arrest based on a sealed complaint alleging that Morales, along with his brother and another individual, ran a heroin distribution "spot" that operated in the vicinity of St. Ann's and Cypress Avenues between 138^th and 140^th Streets in the Bronx, New York (the "Distribution Spot"). (Complaint, dated April 2, 2002 ("Compl.") ¶¶ 3-6; Transcript of Evidentiary Hearing, dated May 7, 2003 ("May 7 Tr."), at 9.) Morales was arrested on April 9, 2002, when he exited the building at 735 Walton Avenue. (May 7 Tr. at 31-32, 43-44; Government's Exhibit ("GX") 3501-A: Search Warrant Affidavit of Special Agent Waddell, dated April 9, 2002 ("Waddell Aff.") ¶ 11.) While seated in a police car, Morales was read his Miranda rights by DEA Special Agent Mike Williams. (Transcript of Evidentiary Hearing, dated June 24, 2003 ("June 24 Tr.") at 12-14, 40-41; GX 3501-1: NYPD Complaint Form Details ¶ 1.)

A short time thereafter, Morales was brought to the 40^th Precinct and placed in the "juvenile room." (June 24 Tr. at 15.) As Morales sat in the juvenile room, Sgt. Glassberg entered and asked him whether he wanted to remove his expensive-looking shirt prior to leaving the precinct. (June 24 Tr. at 19-20.) Morales told Sgt. Glassberg that he would just bring it with him to "central booking," at which point Sgt. Glassberg told Morales' that he was not going to "central booking," but instead was being transported to "federal court in Manhattan, down to the Southern District." (June 24 Tr. at 21.) Upon learning that he would be transferred to federal custody, Morales became visibly ill, and Sgt. Glassberg brought him to the precinct bathroom. (June 24 Tr. at 21-22.)

After "dry heaving" in the precinct bathroom, Morales made certain unsolicited oral statements to Sgt. Glassberg. (June 24 Tr. at 22-26.) Morales stated, in sum and substance, that "he knew [the authorities] were watching him and thought that he would have been arrested the night before." (GX 3501-1 ¶¶ 2-3; June 24 Tr. at 22, 24-25.) Further, Morales made statements to the effect that "his crew has no violence in it and he will only do five years." (GX 3501-1 ¶ 3; June 24 Tr. at 24-25.) Finally, Morales indicated that "he knew he would be finally caught. He stated that he was in the game and knew it would end someday, the same as Bloody Rich and Andy." (GX 3501-1 ¶ 3; June 24 Tr. at 24-25.) Sgt. Glassberg "jotted down" the substance of Morales' oral statements on a piece of paper immediately after leaving the bathroom, and gave those notes to another officer. (June 24 Tr. at 26-27.) Since then, they have been misplaced. (June 24 Tr. at 27.) Sgt. Glassberg soon thereafter prepared an NYPD Complaint form that contained his characterizations of Morales' oral statements. (GX 3501-1; Tr. at 27-29.)

Although the testimony at the evidentiary hearing established that Morales made the foregoing statements in the 40^th Precinct bathroom (June 24 Tr. at 21-26, 31 33, 35, 61), the NYPD Complaint form indicates that Morales made the statements in the juvenile room. (GX 3501-1, Details ¶ 2.) Sgt. Glassberg attributed this discrepancy to a simple error on his part while hastily preparing the report. (June 24 Tr. at 31-32, 98.)

II. The Search Of The Walton Avenue Apartment

Also on April 9, 2003, Special Agent Waddell obtained a warrant to search the Walton Avenue Apartment. (May 7 Tr. at 5; GX 3501-A ¶ 4 & Attachment A.) In his affidavit supporting the application, Special Agent Waddell made the following representations: (1) that he has significant training and experience concerning narcotics investigations and searches (Waddell Aff. ¶¶ 2, 15); (2) he was personally involved in the investigation of Morales for distribution of narcotics (Waddell Aff. ¶¶ 3, 8); (3) on March 18, 2002, Morales was arrested at the Distribution Spot and charged in connection with the sale of heroin to an undercover NYPD officer (Waddell Aff. ¶ 9); (4) he spoke with another officer who had performed surveillance on Morales on April 8, 2002, and that Morales had been observed entering 735 Walton Avenue and leaving the next morning, at which time he was arrested (Waddell Aff. ¶ 11); (5) he reviewed Morales' arrest records and determined that Morales gave the Walton Avenue Apartment as at least one of his addresses (Waddell Aff. ¶ 12); (6) he personally observed, and had been informed that other officers had observed, Morales enter and leave 735 Walton Avenue "on a regular basis for the past several months, during the course of this investigation" (Waddell Aff. ¶ 12); and (7) Morales resides at the Walton Avenue Apartment (GX 3501-A ¶¶ 12, 15).

Special Agent Waddell based his representation concerning...