US v. Millan-Colon

• Decision Date: 15 November 1993
• Docket Number: No. S9 91 Cr. 685 (SWK).,S9 91 Cr. 685 (SWK).
• Citation: 836 F. Supp. 1007
• Parties: UNITED STATES of America v. Eric MILLAN-COLON, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

836 F. Supp. 1007

UNITED STATES of America v. Eric MILLAN-COLON, et al., Defendants.

No. S9 91 Cr. 685 (SWK).

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

November 15, 1993.

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Mary Jo White, U.S. Atty., S.D.N.Y., New York City by Dietrich L. Snell, Roland G. Riopelle, Asst. U.S. Attys., for U.S.

Gino Josh Singer, New York City, for defendant Eric Millan-Colon.

Benjamin Brafman, New York City, for defendant Vincent Basciano.

Maurice H. Sercarz, New York City, for defendant Alfred Bottone.

David Breitbart, New York City, for defendant Alfred Bottone, Jr.

Frank A. Lopez, New York City, for defendant Anthony Bottone.

John Burke, Brooklyn, NY, for defendant John O'Rourke.

Thomas White, New York City, for defendant Ralph Rivera.

Sanford M. Katz, New York City, for defendant Larry Weinstein.

David Greenfield, New York City, for defendant Myles Coker.

Roger J. Schwarz, New York City, for defendant Jose Colon.

Valerie Amsterdam, New York City, for defendant Carmen Mendoza.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Pursuant to the Court's September 22, 1993 Order, the Government moves to modify the Court's March 29, 1993 Order (the "March 29th Order") permitting the defendants limited cross-examination of Government witnesses concerning the misconduct of Investigator Robert Robles ("Robles"), Detective Jeffrey Beck ("Beck") and Sergeant Joseph Termini ("Termini"). The Government submits that the Court should now preclude any reference to Robles, Beck, Termini, or any other individual implicated in the Government's investigation of corruption by New York Drug Enforcement Task Force members (the "Task Force"), during the cross-examination of Government witnesses, as well as during the defendants' opening statements.

In addition, the Government submits that the Court should reaffirm its prior rulings concerning: (1) the inadmissibility of evidence concerning the allegation of rape made against Anthony Damiani, a Government witness; (2) the admissibility of the audiotapes of the wiretapped telephone conversations through the testimony of summary witnesses; (3) the admissibility of drug records seized from Edward Margiotta at the time of his arrest on January 8, 1986 and the admissibility of drug records seized from the residence of Myles Coker on August 1, 1991; (4) the admissibility of the pen register information printed at the top of the telephone conversation transcripts once the pen register tapes have been admitted and testimony is given describing how the information on the transcripts is taken from the pen register tapes; (5) the inadmissibility of evidence concerning various unrelated Bivens actions commenced against certain Task Force members; (6) the denial of a limiting instruction with regard to evidence seized from Myles Coker's residence; and (7) the Government's ability to recall law enforcement witnesses, including co-case agent David Dongilli, as necessary during the case. The Government also moves for reconsideration of the Court's October 8, 1993 Memorandum Opinion and Order (the "October 8th decision") directing the Government to provide evidence that defendant Eric Millan ("Millan") has sufficient funds, other than those restrained under the federal forfeiture statute, to retain private counsel.

Defendants Alfred Bottone, Sr., Alfred Bottone, Jr., Anthony Bottone, Jose Colon, Vincent Basciano, Myles Coker, Ralph Rivera, and John O'Rourke oppose that portion of the Government's motion that seeks an order (1) precluding cross-examination of witnesses concerning Robles, Termini and Beck, and the corruption investigation; and (2) admitting documents seized from Edward Margiotta and the home of Myles Coker. The defendants also seek re-affirmation of the Court's ruling precluding the introduction of testimony regarding a "dog sniff" test performed on evidence seized from the Bottone residence.¹ Millan also opposes the Government's request for reconsideration of the Court's October 8th decision.

DISCUSSION

I. Precluding Cross-Examination and References in the Defendants' Opening Statements regarding Robles, Beck, Termini and the Corruption Investigation

By Order dated March 29, 1993, 817 F.Supp. 1072, the Court ruled that the defendants should be permitted to cross-examine the Government's witnesses regarding corruption allegations against Robles, Beck and Termini, but limited cross-examination to the time period of the Blue Thunder investigation and to the witnesses' personal knowledge regarding the arrests of Robles, Beck and Termini. 817 F.Supp. at 1083-84. The Court emphasized that this limited cross-examination would enable the defendants to rebut any implied endorsement of Robles's credibility in the Government's opening statement. Id. at 1083. Due to the prejudicial effect of the Government's opening, the Court found that the probative value of such cross-examination outweighed the danger of unfair prejudice to the Government, under Fed.R.Evid. 403. Id. at 1083.

At this time, the Government indicates that it does not intend to repeat its opening of March 9, 1993 at the upcoming trial and does not intend to make any mention of Robles, Beck, Termini or the corruption investigation. In addition, the Government intends to move to dismiss Counts Two, Three, Four and Five of the Indictment, as those counts involve Robles's undercover purchases of heroin from the Blue Thunder organization. Moreover, the Government does not intend to elicit testimony from any of its witnesses concerning those undercover purchases, and does not intend to offer at trial any evidence seized during a search or arrest performed by Robles, Beck, or Termini. Nor does the Government intend to call either Robles, Beck, or Termini as witnesses. See Letter from A.U.S.A. Dietrich L. Snell to the Honorable Shirley Wohl Kram of 10/15/93, at 2.

Accordingly, the Government moves, pursuant to Fed.R.Evid. 611(b) and 403, to preclude cross-examination of any of the Government's witnesses concerning the malfeasance of Robles, Beck and Termini, and to preclude the parties from referring to any aspect of the corruption investigation in their openings, on the grounds that: (1) such testimony would only confuse and mislead the jury because it would not tend to prove that the evidence offered by the Government is incomplete or improperly seized, and because it would not tend to undermine the credibility of any witness; (2) such cross-examination would be beyond the scope of any direct examination of the Government's witnesses; and (3) any offer of evidence of corruption would be solely for the improper purpose of inciting the jury's anger at the misconduct of law enforcement personnel in connection with matters collateral to the issues the jury must decide in this case. The Government also requests that the Court order all parties to refrain from referring to any aspect of the corruption investigation during opening statements on the grounds that: (1) the officers' corruption is entirely collateral and irrelevant to the issues that will be decided by the jury in this case; and (2) such evidence is inadmissible at trial.

The defendants oppose the Government's motion on the grounds that (1) the corruption at issue was widespread, and "calls into question the entire system of preserving and vouchering the evidence seized on August 1, 1990 sic," see Letter from Maurice Sercarz to the Honorable Shirley Wohl Kram of 10/22/93 (the "Sercarz Letter"), at 2; (2) members of the Task Force, who were implicated by Robles and Termini in various crimes, participated in monitoring the wiretaps in this case, and thus, must be cross-examined concerning the possibility that improper monitoring may have occurred, id. at 3; (3) as the testimony of the Government's witnesses, specifically the case agents, may be based to some extent on hearsay provided by Beck, Robles, or Termini, the defendants have the right to attack the credibility of Robles, Termini and Beck, id. at 4; and (4) that the defendants may want to call Robles, Beck or Termini as witnesses in their case.

A. Standard of Law

The purpose of cross-examination is to impeach credibility and expose a witness's biases or possible motives for testifying. United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir.1992). Although it is well established that the Court may, in its discretion, limit the scope and extent of cross-examination, see United States v. Concepcion, 983 F.2d 369, 391 (2d Cir.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993), it is also recognized that "wide latitude should be allowed, ... when a government witness in a criminal case is being cross-examined by the defendant, ... and the trial judge's discretion `cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony....'" United States v. Reindeau, 947 F.2d 32, 35 (2d Cir.1991) (quoting United States v. Pedroza, 750 F.2d 187, 195-96 (2d Cir.1984)). However, "cross examination is not improperly curtailed if the jury is in possession of facts sufficient to make a `discriminating appraisal' of the particular witness's credibility." United States v. Caming, 968 F.2d 232, 237 (2d Cir.1992) (quoting United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397, 113 L.Ed.2d 453 (1991)), cert. denied, ___ U.S. ___, 113 S.Ct. 416, 121 L.Ed.2d 339 (1992). Moreover, under Rule 403, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury...." Fed.R.Evid. 403. Thus, the trial judge has "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, ... prejudice, confusion of the issues ... or...