U.S. v. Zahrey

• Decision Date: 29 April 1997
• Docket Number: No. 96 CR 0910(NG)(JMA).,96 CR 0910(NG)(JMA).
• Citation: 963 F.Supp. 1273
• Parties: UNITED STATES of America, Plaintiff, v. Zaher ZAHREY, Lyndell Ingram, Eric Sandoval, and Javier Mercado, Defendants.
• Court: U.S. District Court — Eastern District of New York

963 F.Supp. 1273

UNITED STATES of America, Plaintiff, v. Zaher ZAHREY, Lyndell Ingram, Eric Sandoval, and Javier Mercado, Defendants.

No. 96 CR 0910(NG)(JMA).

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

April 29, 1997.

COPYRIGHT MATERIAL OMITTED

Zachary Carter, United States Attorney, E.D. of N.Y., by Martin E. Coffey, Assistant United States Attorney, Brooklyn, NY, for U.S.

Joel B. Rudin, New York City, for Zaher Zahrey.

Frank T. Geoly, Brooklyn, NY, for Lyndell Ingram.

Alan M. Nelson, Lake Success, NY, for Eric Sandoval.

Donald D. duBoulay, New York City, for Javier Mercado.

ORDER

GERSHON, District Judge:

Defendants' pre-trial motions to suppress certain statements were referred to the Honorable Joan M. Azrack, Magistrate Judge, for report and recommendation. Defendants Zahrey, Sandoval and Mercado have filed objections to Judge Azrack's report, dated April 1, 1996, which recommended denial of all motions. Review under 28 U.S.C. § 636(b)(1)(B) is de novo. See United States v. Rosa, 11 F.3d 315, 328 (2d Cir.1995).

I now adopt Judge Azrack's factual findings and legal conclusions. Her reports sets forth the facts with admirable clarity, and it comprehensively, and accurately, applies the applicable law to the facts. The motions to suppress are denied for the reasons set forth in the report, which is appended.

Finally, defendant Mercado now argues that evidence regarding his physical responses to a question, even if not suppressed, should be excluded under Rule 403 of the Federal Rules of Evidence. That application is denied. The evidence is not unfairly prejudicial within the meaning of Rule 403.

SO ORDERED.

REPORT AND RECOMMENDATION

AZRACK, United States Magistrate Judge:

Defendants' pre-trial motions to suppress certain statements were referred to the undersigned for report and recommendation. I presided over hearings in this matter on December 13 and 18, 1996 and on February 5, 1997. Because the factual background of each defendant's disputed statements differs, this Report and Recommendation will address each defendant's motion separately.

DISCUSSION

1. Burden and Standard of Proof

The Government bears the burden of establishing the voluntariness of defendants' statements by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986); U.S. v. Diaz, 891 F.2d 1057, 1060 (2d Cir.1989) (citing Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972)); U.S. v. Burger, 739 F.2d 805, 809 (2d Cir. 1984) (government bears burden of proving voluntariness of confession and waiver of right to remain silent); U.S. v. Mastrangelo, 693 F.2d 269, 273 (2d Cir.1982) (government bears burden of proof of waiver by a preponderance); United States v. Hackley, 636 F.2d 493, 500 (D.C.Cir.1980) (waiver of the right to remain silent must be established by preponderance of the evidence). Thus, with respect to each defendant, the Government bears the burden of proving that the statements should not be suppressed.

2. Defendant Zaher Zahrey

According to New York City Police Lieutenant Robert Boyce, the Internal Affairs Bureau (IAB) opened an investigation of former police detective Zaher Zahrey on March 23, 1994. (Tr. 9.)¹ The investigation stemmed from information that Zahrey was involved with a robbery gang whose members included the other defendants in this case. (Tr. 9-10.) On August 10, 1995, IAB officers were instructed to follow Zahrey and stop him in order to perform a procedure known as a "modification," whereby the subject officer's gun, shield and identification card are removed and the officer is placed on modified assignment. (Tr. 14.) When a police officer is modified, he remains a member of the police department but is removed from active duty. (Tr. 14-15.) Boyce testified that modifications are, at times, performed in the field, rather than by calling the subject officer into the precinct, out of concern for the safety of the officer and the public. The fear of the Police Department is that after learning that he is to be modified, the officer will harm himself or others with his gun. (Tr. 15-16.) In the case of defendant Zahrey, Captain Welsome made the decision that Zahrey was to be approached in the field to commence modification. (Tr. 17.)

Thus, on August 10, 1995, acting under Captain Welsome's directive, Lieutenant Carley, Sergeant Vasquez and Captain Welsome observed defendant Zahrey waiting inside a bank. (Tr. 202.) Lieutenant Carley approached Zahrey in the bank and ordered him to accompany Carley outside to see the Internal Affairs Captain. (Tr. 202-03, 222.) Sergeant Vasquez testified that Lieutenant Carley was not physically holding or touching Zahrey as they entered the lobby. (Tr. 222.) In the lobby, Captain Welsome informed Zahrey that he was being placed on modified assignment. (Tr. 203.) According to Welsome, Zahrey asked, "Is this about the deli?" and Welsome responded that Zahrey was to be modified in the best interests of the Department. (Tr. 205-06.) Welsome testified that Zahrey expressed embarrassment at having a confrontation in public and asked to go across the street to the 81st Precinct. (Tr. 203.) After obtaining permission to use the Administrative Lieutenant's office in that Precinct house, Officers Carley, Vasquez, Welsome, and defendant Zahrey went into the office to begin the modification. (Tr. 203-204.) Welsome then left the office to speak with the commanding officer of the Precinct. (Tr. 209.) During his absence, the other officers informed Zahrey that they were required to take his guns. (Tr. 209-210, 224-25.) It is undisputed that Zahrey was required to turn in his weapons and that he would face suspension if he did not comply. (Tr. 65-67.) In the conversation that ensued, Zahrey advised the officers that one of his guns was not in his possession, and would have to be retrieved from his brother-in-law. (Tr. 209-210, 224-25.)

Shortly after the modification began, Lieutenant Boyce arrived at the 81st Precinct and entered the Administrative Lieutenant's office. (Tr. 22, 210, 225.) According to Boyce, when Zahrey saw him enter the room, Zahrey said, "Oh, this is about Supreme, this is why you are here." (Tr. 23.) It was apparent to Boyce that Zahrey recognized him from two encounters that took place shortly after the murder of William "Supreme" Rivera.² (Tr. 22-23, 53-57.) Boyce testified that he may have said, "good morning" before Zahrey made the statement about Supreme, but that he had not asked Zahrey any questions prior to the statement. (Tr. 23.) Boyce stated that Zahrey was seated at the time that he made the statement and that he was not handcuffed or restrained in any way. (Tr. 24.) Boyce testified that he responded to Zahrey that he "would not tell him the nature of the investigation, only of its serious gravity and it was a criminal investigation and that he was being placed on modified assignment." (Tr. 24.) According to Boyce, Zahrey then became physically agitated and said "something to the effect that they are lying about me, they are all out to get me because I'm a cop." (Tr. 24.)

Captain Welsome testified that upon his return to the office, Zahrey asked a number of questions about the nature of the modification. (Tr. 211.) Specifically, Welsome stated that Zahrey said that "he was a hard-working individual, he hadn't done anything wrong. He wanted to know why we were there, what was this all about ..." (Tr. 211.) Welsome stated that after Boyce arrived, Zahrey "was much more animated and he was talking about people lying about him, and that there were people who hated him and he felt he was being — the reason I recall this is because he directed it at me — that I was modifying him based on the work of some mutts." (Tr. 214.) Captain Welsome did not recall hearing Zahrey mention the name Supreme. (Tr. 214, 216.) Welsome stated that he later learned of the comment about Supreme when Boyce made reference to the comment and asked Welsome, "Weren't you there when he said that?" (Tr. 215.)

According to Boyce, after Zahrey made the statements, the conversation returned to the subject of retrieval of Zahrey's weapons. (Tr. 25.) Upon entering the office, Boyce learned that Zahrey had already surrendered at least one gun, (Tr. 67, 69), but that one of Zahrey's guns was unaccounted for. (Tr. 68.) Defendant Zahrey then made a series of phone calls in an effort to locate the gun. (Tr. 69-72.) Then, after asking more questions about the nature of his modification, (Tr. 25), defendant Zahrey stated that he would not say more without an attorney present. (Tr. 27, 78.) Boyce credibly testified that the conversation stopped at that point, (Tr. 28), and Boyce informed Zahrey that he must accompany Boyce to Zahrey's brother-in-law's house, where the unaccounted for gun was presumed to be. (Tr. 81.) It is undisputed that Zahrey faced suspension if he refused to accompany Boyce to retrieve the gun. (Tr. 81, 82.) The two men agreed to go in Zahrey's car. (Tr. 82.) Boyce testified that the car ride took approximately one hour, (Tr. 29, 84), and that during that time they conversed about a variety of subjects, including Zahrey's "Arab descent," his arranged marriage, and his job history with the Police Department. (Tr. 85.) Zahrey told Boyce during the conversation that he had previously worked undercover on the Brooklyn North Narcotics Division and that he currently was working at the field operations desk where he was responsible for taking notifications about alleged criminal activity. (Tr. 86.) In addition, Zahrey asked Boyce, "What did that [or this] nigger Lenny say about me?" (Tr. 29, 88),³ and "Did that prick Guggi say anything about me?" (Tr. 29, 90.) According to Boyce, "Lenny" referred to Zahrey's co-defendant Lyndell Ingram, (Tr. 31-32), and "Guggi" referred to Alex Vasquez, who also was known to the investigating officers and had been involved in the murder of William Rivera. (Tr. 119,...