United States v. Jefferys

• Decision Date: 09 October 2019
• Docket Number: 18-CR-359(KAM)
• Parties: UNITED STATES OF AMERICA, v. DEVONE JEFFERYS, Defendant.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA, v. DEVONE JEFFERYS, Defendant.

18-CR-359(KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 9, 2019

MEMORANDUM & ORDER

MATSUMOTO, United States District Judge:

On July 17, 2018, a grand jury returned a three-count indictment against Devone Jefferys (the "defendant"), charging him with (1) conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), (2) attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), and (3) possessing and brandishing a firearm during a crime of violence, specifically, the crime charged in Count Two, in violation of 18 U.S.C. § 924(c) (the "Indictment"). Presently before the court are the parties' pre-trial motions. For the reasons set forth below, the court denies the defendant's motions and grants in part and denies in part the government's motions.

Background

The Indictment alleges that on July 31, 2015, the defendant and his co-conspirators conspired and attempted to steal heroin and United States currency from one or more individuals engaged in narcotics trafficking in Brooklyn, New York. (ECF No. 1, Indictment, at 1-2.) The Indictment further alleges that the defendant and his co-conspirators possessed and brandished a firearm during and in relation to the conspiracy and attempted robbery. (Id. at 2.)

On July 17, 2018, a grand jury sitting in the Eastern District of New York returned a three-count indictment against the defendant. (See generally id.) Count One charges the defendant with conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a).¹ (Id. ¶ 1.) Count Two charges the defendant with attempted Hobbs Act robbery, also in violation of 18 U.S.C. § 1951(a). (Id. ¶ 2.) Count Three charges the defendant with possessing and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A),² with Count Two serving as the predicate "crime of violence" supporting this charge. (Id. ¶ 3.)

On July 19, 2019, following the defendant's arrest, Magistrate Judge Steven M. Gold arraigned the defendant on theIndictment. (ECF No. 5, Minute Entry for Criminal Proceeding.) The defendant entered a plea of not guilty on all counts and was remanded to custody at the Metropolitan Detention Center (the "MDC") in Brooklyn, New York. (Id.)

On August 13, 2019, the defendant appeared before the court and requested a trial date. (ECF Minute Entry, Aug. 13, 2019.) The court scheduled trial for October 11, 2019, and entered a pretrial scheduling order setting forth the timeline for submission of all pre-motions. (ECF No. 11, Scheduling Order.) The instant motions followed.

Discussion

The defendant filed two pre-trial motions. First, the defendant moves to strike what he claims is surplusage - specifically, the alias "Moneybags" - from the face of the Indictment. Second, the defendant moves to dismiss Count Three of the Indictment on the grounds that Count Two's charge of attempted Hobbs Act robbery, in contrast to substantive Hobbs Act robbery, is not a crime of violence within the meaning of § 924(c) and, therefore, cannot serve as the predicate for Count Three's charge of possessing or brandishing a firearm during a crime of violence.

The government filed three motions in limine. First, the government moves to admit evidence of the defendant's alleged sexual assault of a victim during the crimes charged inthe Indictment. Second, the government moves to admit evidence of the defendant's flight after the charged offenses, as proof of the defendant's consciousness of guilt. Finally, the government moves to preclude the defendant from cross-examining certain government witnesses on topics not related to either their credibility or the crimes charged.

For the reasons set forth below, the court denies the defendant's motion to strike and motion to dismiss and the government's motion to admit evidence of the alleged sexual assault. The court grants the government's motion to admit evidence of the defendant's flight and to preclude the defendant from conducting irrelevant cross-examination.

I. The Defendant's Motions

A. Motion to Strike Surplusage from the Indictment

The defendant moves the court to strike the alias "Moneybags" from the face of the Indictment. (ECF No. 14, Def.'s Pretrial Motions ("Def.'s Mots."), Ex. 1, Aff. in Supp., at 1-2.) The defendant does not cite any evidence or present any authority supporting his argument that his alias should be stricken. (See id.) Rather, the defendant conclusorily alleges that if the alias remains in the Indictment, he will be "irreparably harmed by the jury being shown an alias which may be or may not be a correct or similar alias of [the] defendant and which may or may not correspond to the evidence ultimatelyintroduced." (Id.) The government opposes the defendant's motion to strike on the grounds that the alias is relevant to the defendant's identification and that trial evidence, including witness testimony, will provide a sufficient nexus between the defendant and the alias "Moneybags."

Rule 7(d) of the Federal Rules of Criminal Procedure allows a court to "strike surplusage from the indictment" upon a defendant's motion. Fed. R. Crim. P. 7(d). But the district court should not grant a motion to strike surplusage unless "the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001) (quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990)); see also, e.g., United States v. Thompson, 141 F. Supp. 3d 188, 201 (E.D.N.Y. 2015), aff'd, 896 F.3d 155 (2d Cir. 2018). "[E]ven language deemed prejudicial should not be stricken if evidence of the allegation is admissible and relevant to the charge." United States v. Rivera, No. 09-CR-619, 2010 WL 1438787, at *5 (E.D.N.Y. Apr. 7, 2010) (citing Scarpa, 913 F.2d at 1013). "'Given this exacting standard, . . . motions [to strike surplusage from an indictment] are rarely granted.'" Id. (quoting United States v. Coffey, 361 F. Supp. 2d 102, 123 (E.D.N.Y. 2005)).

Courts in the Second Circuit routinely deny motions to strike aliases which are relevant to the crimes charged and notinflammatory or prejudicial. See, e.g., United States v. Thompson, 141 F. Supp. 3d 188, 201 (E.D.N.Y. 2015), aff'd, 896 F.3d 155 (2d Cir. 2018) (denying motion to strike alias where it was "'necessary to understand evidence' such as Facebook posts in which [the defendant] describe[d] illicit activities while referring to it"); United States v. Ahmed, 94 F. Supp. 3d 394, 436 (E.D.N.Y. 2015) (denying motion to strike aliases where the government asserted that several witnesses would testify against the defendant but only knew him by his aliases); United States v. Barrett, 824 F. Supp. 2d 419, 450 (2011) (denying motion to strike where the government contended that use of the aliases was necessary to identify the defendant at trial and because the defendant's aliases were not inflammatory or prejudicial); United States v. Peterson, 168 F. Supp. 2d 51, 56 (E.D.N.Y. 2001) (denying motion to strike alias where the alias would constitute part of the government's proof at trial as witnesses would identify the defendant by the alias); United States v. Rucker, 32 F. Supp. 2d 545, 560-61 (E.D.N.Y. 1999) (denying motion to strike alias where the government represented it would offer proof of alias at trial and because some witnesses claimed to know the defendant only by the alias).

The court's prior ruling in United States v. Barrett, 824 F. Supp. 2d 419 (2011), is instructive. In Barrett, the defendant moved to strike his aliases ("Derrick Brown," "SeanBrown," "Mouthy," "The General" and "Solo") from the indictment. Id. at 449. The defendant argued that these aliases were inflammatory and prejudicial, and that including them in the indictment would deprive him of a fair trial. Id. The government countered that the defendant's aliases were necessary to identify him at trial, because many of the defendant's co-conspirators and witnesses for the government knew him only by his nicknames. Id.

The court denied the defendant's motion. In light of the government's representations that the aliases would comprise part of its evidence at trial, including that several witnesses knew the defendant by his aliases, the court found the aliases relevant and admissible. See, e.g., Rucker, 32 F. Supp. 2d at 560-61 ("Reference to a defendant by his name and alias is permissible if the government intends to offer evidence of that alias as being necessary to identify the defendant in connection with the crimes charged."); Peterson, 168 F. Supp. 2d at 56. The court also rejected the defendant's argument that the aliases were inflammatory or prejudicial - they were far more innocuous than inflammatory nicknames like "Frankie the Beast" and Carmine "The Snake," which a trial court deemed prejudicialin United States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y. 1985).³

The court finds that the defendant's motion must be denied on substantially similar grounds. As an initial matter, the government has represented that it will proffer proof of the defendant's use of this alias. "[A]t least one witness will testify that the witness knew the defendant by the nickname 'Moneybags.'" (ECF No. 18, Gov't's Opp. to Def.'s Pretrial Mots. ("Gov't's Opp."), at 4.) The government also plans to introduce evidence from social media platforms employing the username "Moneybags," or variations of it, which feature photographs of the defendant. (See id.) In light of the relevance of identification evidence, and the nexus between the defendant's alias and other evidence, including at least one witness's testimony, the court deems the alias relevant to the crimes charged. Moreover, the court finds that the alias is not inflammatory or prejudicial, and the defendant has proffered no contrary explanation or argument. There is, therefore, no basis to grant the defendant's motion to strike.

The...