USA v. Johnson
Criminal

LETTER MOTION addressed to Judge Paul G. Gardephe from USA dated February 17, 2019 re: Court's Order dated February 16, 2019 to Provide Additional Information Regarding Certain Civil Lawsuits. Document filed by USA as to Latique Johnson, Brandon Green, Donnell Murray.

Southern District of New York, nysd-1:2016-cr-00281-456390

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U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 February 17, 2019 BY ECF The Honorable Paul G. Gardephe United States District Judge Southern District of New York 40 Foley Square New York, New York 10007 Re: United States v. Latique Johnson, et al., S5 16 Cr. 281 (PGG) Dear Judge Gardephe: The Government respectfully writes in response to the Court's Order of February 16, 2019 directing the Government to: (1) provide additional information regarding the nature of lawsuits that have been filed against Jeffrey Sisco, Abraham Villavizar, Michael Dougherty, 1 and Edward Wilkowski; and (2) explain why cross-examination concerning these lawsuits is not appropriate. Cross-Examination Regarding Unrelated Civil Lawsuits Should Be Precluded The Government moved in limine to preclude cross-examination about civil lawsuits filed against law enforcement officers expected to testify at trial. The civil lawsuits discussed here are factually unrelated to this criminal case or to these defendants. None of these lawsuits resulted in adverse credibility findings against the law enforcement officers. Cross-examination regarding these factually unrelated lawsuits should be excluded because (i) mere allegations in lawsuits have no bearing on the officers' credibility; and (ii) cross-examination regarding those unrelated factual allegations will confuse the issues for trial, waste time, and could result in unfair prejudice. See LSSi Data Corp. v. Time Warner Cable, Inc., 892 F. Supp. 2d 489, 502 (S.D.N.Y. 2012) (J. Engelmayer) (allegations in a civil complaint have no evidentiary value) (collecting cases); Saldarriaga v. United States, No. 99 Civ. 4487 (WK), 2002 WL 449651, at *4 (S.D.N.Y. Mar. 21, 2002) ("Unsubstantiated civil rights allegations made against [the witness] would have no bearing on his 'character for truthfulness.' Any cross-examination regarding such 1 After reaching a stipulation between the parties, the Government no longer intends to call Officer Michael Dougherty as a witness at trial. This letter addresses lawsuits filed against Jeffrey Sisco, Abraham Villavizar, and Edward Wilkowski. allegations would have been irrelevant and improper under the Federal Rules of Evidence."); Dicks v. United States, 2010 WL 11484356, at *5-*6 (E.D. Pa. Sept. 8, 2010) (finding that "civil lawsuits were only allegations at the time of trial, and never resulted in any finding of misconduct; accordingly, the probative value was minimal in comparison to the grave risk of unfair prejudice") (collecting cases); United States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996) (finding that district court did not abuse its discretion in ruling that "the mere filing of a complaint is not probative of truthfulness or untruthfulness, regardless of whether the allegations in the complaint, if true, would seriously undermine the witness' credibility" (emphasis in original)). NYPD Officer Jeffrey Sisco 2 The Government expects Officer Sisco to testify about arresting defendant Brandon Green in August 2010 following a traffic stop. Officer Sisco seized about 30 grams of cocaine from Green during that arrest. From conversations with Officer Sisco and a review of publicly available documents, the Government is aware of the following lawsuits. Four were dismissed, one of which is on appeal, and one resulted in a no-fault settlement. None of the unsubstantiated allegations in these lawsuits have any bearing on Officer Sisco's truthfulness or untruthfulness, and allowing the defense to cross-examine him on these unrelated allegations would waste time, cause juror confusion, and run the risk of unfairly prejudicing his testimony. • Mednick v. City of New York, 15 Civ. 498 (VEC): Plaintiff sued the City of New York ("NYC"), the New York City Police Department ("NYPD"), and Sisco related to a search Sisco conducted of her residence on January 26, 2012. The claims included false arrest, illegal imprisonment. No fault settlement was reached. • Maldonado v. City of New York, 15 Civ. 2861 (AJN): Plaintiff sued NYC, NYPD, Sisco and other officers related to a February 1, 2014 search of plaintiff's home. Claims were false arrest, excessive force, illegal search, fabrication of evidence. Case was dismissed without prejudice. • Goetz v. City of New York, Bronx County Supreme Court, Index No. 306086-2013: Plaintiff sued NYC, NYPD, Sisco and other officers related to May 9, 2013 arrest. Claims included illegal seizure, false arrest, excessive force. Claims were dismissed on summary judgment, plaintiff appealed in Nov. 2018. • Maryann Rivera v. City of New York, Bronx County Supreme Court, Index No. 307191-2012: Plaintiffs sued NYC, NYPD, Sisco, and other officers related to an April 13, 2012 arrest. Claims were false arrest, excessive force, malicious prosecution. Case was dismissed with prejudice. • Jose Cruz v. City of New York, Bronx County Supreme Court, Index No. 24850-2014: Plaintiff sued NYC, NYPD, Sisco, and other officers. Claims were unlawful seizure, excessive force. Case was dismissed upon motion of the defendants. 2 The Government has separately moved to limit cross-examination of Officer Sisco regarding unsubstantiated allegations in a lawsuit brought by defendant Brandon Green. The Government's argument regarding this lawsuit, which arose from the August 3, 2010 seizure of cocaine from Green, is set forth in the Government's reply brief (Dkt. 495) at pp. 8-12. 2 • Quintesha Diaz v. City of New York: A search of the Bronx County Supreme Court docket and the federal docket did not return any results for this lawsuit. Officer Sisco thinks that this lawsuit was related to a search warrant that Sisco executed. NYPD Officer Abraham Villavizar The Government expects Officer Villavizar to testify about arresting defendant Donnell Murray in August 2010 following a traffic stop. Officer Villavizar conducted an inventory search of Murray's vehicle and recovered a loaded firearm. From conversations with Officer Villavizar and a review of publicly available documents, the Government is aware of one unrelated lawsuit, which was dismissed. Allowing the defense to cross-examine him on unrelated, unsubstantiated allegations of false arrest, false imprisonment, and assault and battery would be unfairly prejudicial and would waste time and cause juror confusion. • Jordan McPherson v. City of New York, Bronx County Supreme Court, Index No. 304035-2013, 260720-2012: Plaintiff sued NYC, NYPD, Villavizar and other officers related to May 2, 2012 arrest. Claims were false arrest, false imprisonment, assault and battery, malicious prosecution. Case was dismissed on stipulation of the parties. NYPD Officer Edward Wilkowski The Government intends to call Officer Wilkowski solely as a chain-of-custody witness. He is expected to testify that in January 2017, along with other law enforcement agents, he traveled to Delaware State Police barracks to take possession of narcotics and other items recovered from defendant Donnell Murray's Delaware residence. Officer Wilkowski vouchered the narcotics using an NYPD invoice number and transferred the narcotics to the NYPD Police Laboratory for testing and analysis. The defense should be precluded from cross-examining Officer Wilkowski on the allegations in an unrelated malicious prosecution lawsuit. These claims have no relevance to Officer Wilkowski's testimony, do not bear on his truthfulness, and risk unfairly prejudicing his testimony. • Himen Ross v. City of New York; 16 Civ. 813 (E.D.N.Y.) (NGG-JO): Plaintiff Himen Ross sued NYD, NYPD, Wilkowski, and other officers related to arrest and prosecution for murder, which resulted in an acquittal after trial. Claims were malicious prosecution, deprivation of right to a speedy trial, denial of right to a fair trial, violation of constitutional rights under Fourth Amendment, Fifth Amendment, and Sixth Amendment, and violation of right against cruel and unusual punishment. Case was settled and dismissed with prejudice upon stipulation of the parties. For the reasons stated above, as well as in the Government's motions in limine and its reply brief (both of which the Government hereby incorporates by reference), the Government respectfully submits that cross-examination of law enforcement witnesses regarding the allegations in these civil lawsuits should be precluded. The unsubstantiated allegations in the civil lawsuits are not probative of the credibility of the witnesses, have no connection to their testimony in this case, and did not result in any adverse credibility findings. As a result, the allegations in these civil lawsuits would only serve to distract the jury, confuse the issues at trial, 3 and create mini-trials regarding the allegations in each of these civil lawsuits. (See Dkt. 469 at 49-54; Dkt. 495 at 12-13). As a result, the Government respectfully requests a ruling that precludes the defendants from cross-examining the witnesses regarding these lawsuits. Additional Issues In addition to the forgoing, the Government also respectfully renews its requests for rulings on the following outstanding motions in limine: (1) Its motion to preclude cross-examination regarding extortionate threats to CW-7 and regarding CW-7's health issues, filed under seal on January 11, 2019; (2) Its ex parte motion to preclude cross-examination regarding the nature of CW-4's health condition, filed under seal on January 14, 2019; (3) Its motion to limit cross-examination of NYPD Officer Jeffrey Sisco regarding defendant Brandon Green's prior civil lawsuit, filed in the Government's Reply Brief in support of its Motions in Limine on January 30, 2019 (Dkt. 459); (4) Its motion to preclude defense questioning and argument regarding inflammatory political topics, filed in its Reply Brief; (5) Its motion to allow CW-1 to testify regarding Johnson's sales of suboxone in prison, filed February 12, 2019 (Dkt. 515); and (6) Its motion to preclude cross-examination on certain of CW-5's sealed arrests, filed February 12, 2019 (Dkt. 515). Respectfully submitted, GEOFFREY S. BERMAN United States Attorney By: /s/ Jessica K. Feinstein Allison Nichols Andrew K. Chan Assistant United States Attorneys (212) 637-2366 Cc: All defense counsel, via ECF 4