United States v. Bourne, 08-CR-888 (NGG) (VVP)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtNICHOLAS G. GARAUFIS
Docket Number08-CR-888 (NGG) (VVP)
Decision Date23 September 2011


08-CR-888 (NGG) (VVP)


Dated: September 23, 2011


NICHOLAS G. GARAUFIS, United States District Judge.

Defendant Victor D'Acosta Bourne ("Bourne") is charged in a superseding indictment with various crimes stemming from his alleged participation in a Drug Trafficking Organization ("DTO" or the "Bourne Organization"), and Defendant Marie Alleyne ("Alleyne") is charged with various crimes related to her alleged involvement in money laundering and structuring the proceeds of the DTO. (See S-5 Superseding Indictment ("S-5 Indictment") (Docket Entry # 228).) The parties have made numerous pretrial motions,1 and the court heard argument on several of these motions on August 26, 2011 (see Pretrial Mot. Hearing Tr.) and September 13, 2011 (see Suppression Hearing Tr.). On September 13, 2011, the court also held a suppression

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hearing related to Alleyne's Motion to Suppress. (Suppression Hearing Tr.; Alleyne Notice of Mot. to Suppress (Docket Entry # 179).) As set forth below, the parties' pretrial motions are granted in part and denied in part.


The Fifth Superseding Indictment ("S-5 Indictment") charges that Bourne, while employed as a fleet service clerk for American Airlines at John F. Kennedy International Airport ("JFK"), "was the principal leader of a narcotics trafficking organization and continuing criminal enterprise operating in the New York metropolitan area and the Caribbean," (the "Bourne Organization"). (S-5 Indictment ¶ 6.) The Government alleges that between 2000 and 2009, the Bourne Organization smuggled over 150 kilograms of cocaine into the United States from destinations in the Caribbean by hiding it aboard American Airlines flights to JFK. (Id. ¶¶ 8-10.) It further alleges that the Bourne organization distributed cocaine and over 5,000 kilograms of marijuana both domestically and internationally, and that distribution occurred in part through a footwear business in Brooklyn, New York and another business in Barbados. (Id. ¶ 8, 11.) The S-5 Indictment charges that Alleyne conspired with Bourne to structure transactions with financial institutions, and to engage in monetary transactions designed to conceal the proceeds of the Bourne Organization's drug trafficking. (Id. ¶¶ 12-13.)

Bourne is charged with the following crimes: engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848;2 one count of cocaine importation conspiracy, in violation of 21 U.S.C. §§ 963, 960(a)(1), 960(b)(1)(B)(ii); one count of conspiracy to distribute

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cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II); four counts of cocaine importation, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(B)(ii); two counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II); two counts of attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II); one count of international marijuana distribution conspiracy, in violation of 21 U.S.C. §§ 963, 959(c), 960(b)(1)(G); one count of attempted international marijuana distribution conspiracy, in violation of 21 U.S.C. §§ 963, 959, 960(b)(2)(G); and, one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(vii). Both Bourne and Alleyne are charged with: one count of money laundering conspiracy, in violation of 18 U.S.C. § 1956(h); and, one count of structuring conspiracy, in violation of 31 U.S.C. § 5324(d)(2). Alleyne is charge with six counts of structuring, in violation of 31 U.S.C. §§ 5324(a)(3), (d)(1).


A. Alleyne's Motion to Sever

Alleyne moved to sever the charges against her from those against Bourne. (Alleyne Mem. (Docket Entry # 179-4) at 2-5.) Alleyne argues that she will suffer spillover prejudice from the evidence introduced against Bourne because whereas she is charged with money laundering and structuring charges, he faces narcotics trafficking charges. (Id. at 2-4.) Alleyne contends that the jury will not be able to separate out the allegations against her from the "veritable mountain of evidence having nothing whatever to do with [her] finance type charges," and that "the sheer number of conspiracies" charged will confuse the jury. (Id. at 4.)

At the August 26, 2011 hearing, the court denied Alleyne's Motion to Sever. (Pretrial Mot. Hearing Tr. at 28.) This decision is because the court "should grant a motion for severance

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only if there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Miller, 116 F.3d 641, 679 (2d Cir. 1997) (quotation marks omitted); see also Fed. R. Crim. Pro. 14(a) (district court may sever defendants' trials where joinder "appears to prejudice a defendant or the government"). Although cases may arise "in which the sheer volume and magnitude of the evidence against one defendant so dwarfs the proof presented against his co-defendant that a severance is required to prevent unacceptable spillover prejudice," United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003), "differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials," United States v. Carson, 702 F.2d 351, 366-67 (2d Cir. 1983).

Here, what Alleyne characterizes as spillover prejudice is actually direct evidence of the money laundering charge against her. The S-5 Indictment charges that Alleyne conspired with Bourne to structure financial transactions and launder the proceeds of Bourne's alleged drug trafficking conspiracy. (S-5 Indictment ¶¶ 55, 57-58.) Because the Government must prove that Alleyne conspired to conceal the proceeds of drug trafficking, see 18 U.S.C. § 1956(a)(1),3 much of the drug evidence against her coconspirator, Bourne, will be directly admissible against her. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993) ("Evidence at the joint trial of alleged coconspirators that, because of the alleged conspiratorial nature of the illegal activity, would have been admissible at a separate trial of the moving defendant is neither spillover nor prejudicial."); Spinelli, 352 F.3d at 55 ("Joint trials are often particularly appropriate in

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circumstances where the defendants are charged with participating in the same criminal conspiracy."). Additionally, even if some evidence admissible against Bourne would be inadmissible against Alleyne, Alleyne has not identified any specific evidence that will cause her substantial prejudice if it is introduced against Bourne at trial. Carson, 702 F.2d at 367 ("[T]he fact that evidence may be admissible against one defendant but not another does not necessarily require a severance."); Spinelli, 352 F.3d at 55 (holding that a defendant must demonstrate that she suffered substantial prejudice from the introduction of evidence against a co-defendant that would be inadmissible against her). Moreover, the court will be able to remedy any spillover prejudice by instructing the jury to consider the charges and evidence against each defendant separately. See Miller, 116 F.3d at 679. Alleyne may supplement her proposed jury instructions with an instruction to this effect.

B. Alleyne's Motion to Suppress Evidence Obtained From Her Residence

Alleyne moves to suppress the fruits of the search of her residence at 848 Linden Boulevard, Brooklyn, New York, which occurred on the morning of October 14, 2010.4 (Alleyne Mem. at 6-10.) Alleyne contends that, after arresting her outside of her home, agents conducted an unlawful warrantless search of her residence, and relied on information obtained through that search to later obtain a search warrant. (Id.) In support of her position, Alleyne submits a sworn affidavit, which describes the events surrounding the search as follows:

3. On October 14, 2010, at approximately 8:00 a.m., I returned to my home after taking my daughter Ashlyn to school. Law enforcement agents were waiting for me outside my home. One of the agents pulled me by the arm and insisted on entering my home without my permission or consent. Once inside, the

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agents started searching for evidence. During their search the agents read through my records and documents before labeling some of them and then placing them in a plastic bag. When I protested to the agents that they did not have a warrant to search my home and take the documents, one of them told me that they didn't need a search warrant because the documents were in "plain view."
4. Several hours after taking the documents from my home without a search warrant, the agents returned to my home with a search warrant and took other items including additional records and documents.

(Alleyne Affidavit (Docket Entry # 179-3 Exh. B) at ¶¶ 3-4.)

The Government opposes this motion, arguing (1) that Alleyne consented to the agents accompanying her into her home after her arrest, and (2) that once the agents were inside the residence, the incriminating evidence that formed the basis for their warrant application was in plain view.5 (Gov't Opp. Alleyne (Docket...

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