United States v. Serrano

Citations: 192 F. Supp. 3d 407; 2016 U.S. Dist. LEXIS 94288; 2016 WL 3742129Docket: 16-cr-169 (WHP)

Court: District Court, S.D. New York; June 14, 2016; Federal District Court

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In a Memorandum and Order dated June 9, 2016, the court reserved judgment on several motions in limine, leading to the Defendant filing additional motions and a renewed motion to suppress evidence on June 12, 2016. During the final pretrial conference on June 13, 2016, the parties presented further arguments and supplemented the record. The court granted some motions in limine while denying others, and also granted the Defendant's request for a suppression hearing, which will occur before Officer Cortes’s testimony at trial.

The renewed suppression motion concerns the search warrant issued for an apartment on October 30, 2015, based on information provided by NYPD Officer Cortes, who conducted a follow-up visit to the apartment. During this visit, she heard Shalaysia Centry inside and inquired about a gun, leading to an arrow drawn by the Government's attorneys indicating "not there." The court noted that a warrant may be deemed stale if the evidence supporting it is not timely linked to the issuance of the warrant. Factors for assessing this include the age of the information and the nature of the alleged conduct.

The affidavit for the search warrant indicated that the Defendant had previously threatened Centry with a gun and subsequently cleaned it. The warrant authorized a comprehensive search for firearms and ammunition throughout the apartment. The court clarified that the absence of the gun in one area does not render the warrant stale, but acknowledged the need for a hearing to explore the scope of the search conducted by Centry at Officer Cortes’s direction, particularly in light of the length of the phone call and prior instructions regarding a safe.

Additionally, the court dismissed Count II of the Indictment concerning the Defendant's possession of a bulletproof vest, as the government does not plan to supersede the indictment. Consequently, the Defendant seeks to exclude evidence related to the bulletproof vest under Federal Rules of Evidence 401, 403, and 404(b).

Count II's dismissal renders the bulletproof vest largely irrelevant to the remaining issue of whether Serrano knowingly possessed ammunition, as it was discovered in a different location. Evidence related to the vest could mislead the jury into associating Serrano with violent crime due to his prior felony conviction, thus presenting a significant risk of unfair prejudice under Federal Rule of Evidence 403. 

Serrano's motion in limine seeks to prevent the Government from using his 1996 robbery conviction to challenge his truthfulness if he testifies. Since more than ten years have passed since his release, such impeachment is only permissible if its probative value outweighs its prejudicial effect, as outlined in Fed. R. Evid. 609(b)(1). The Government's attempt to introduce evidence of Serrano’s alias in connection with the robbery falls under Rule 608(b), which permits inquiry into a witness's conduct if it relates to their truthfulness. 

The prejudicial nature of discussing his robbery conviction, particularly since it involved the display of a firearm, could improperly lead the jury to draw parallels between that case and the current charges. While the jury will be aware of Serrano's felony conviction due to Count I, extensive cross-examination would exacerbate its prejudicial impact compared to a straightforward acknowledgment. 

The Government has not demonstrated that the probative value of discussing the robbery conviction significantly outweighs the potential prejudice, and while theft crimes can suggest dishonest tendencies, they are not automatically admissible under Rule 609(a)(2). The Second Circuit tends to exclude evidence of violent crimes when assessing a witness's credibility, as these crimes may not significantly correlate with truthfulness. Consequently, Serrano's request to bar cross-examination on the specifics of his robbery conviction is granted under Rule 609(b). However, Rule 608 remains applicable for cross-examination regarding the use of false identities, a topic that courts in the Second Circuit have deemed appropriate for inquiry.

A witness's use of false names or identities is permissible for cross-examination under Rule 608, leading to the denial of Serrano’s motion to preclude such questioning. While cross-examination can reference an alias related to a previous crime, details of that crime cannot be explored. 

The Government seeks to exclude statements made by Andy Serrano during two written confessions to NYPD officers on August 1, 2012, arguing they are inadmissible hearsay. The defense claims these statements are against penal interest and thus admissible, as the declarant is unavailable due to invoking the Fifth Amendment. 

Serrano’s confessions reveal he committed armed robbery and possessed a firearm, potentially exposing him to criminal liability. However, admitting the robbery confession would violate Rule 403 due to its inflammatory nature and limited relevance to the current case. 

The court must assess whether the remaining statement regarding firearm possession is trustworthy. It must demonstrate clear indicia of reliability, with the court needing to ensure the statement is truly self-inculpatory. The confession to firearm possession is deemed credible, as it does not implicate others and is self-damaging, aligning with the principle that individuals typically do not make false self-incriminating statements.

The statement in question is supported by Andy Serrano's prior statements during the suppression hearing and at Rikers Island, with no identified unfair prejudice outweighing its probative value for the third-party culpability defense, according to Federal Rule of Evidence 403. The Government fails to clarify why Serrano would implicate himself and asserts the unreliability of his statement, despite acknowledging that a declarant's credibility impacts the statement's probative value. Concerns about reliability arise when a hearsay declarant alters their narrative. The Government mainly cites Judge Duffy’s assessment of Serrano as "generally non-credible" regarding the expectation of privacy in a companion's purse, which does not directly discredit Serrano's confessions. Judge Duffy affirmed that Serrano's confession was voluntary, with a valid waiver of his Miranda rights, and that he was not coerced by law enforcement, considering his familiarity with the justice system.

Defendant intends to present Serrano's statements from the suppression hearing. The Government contends these are not statements against interest under Federal Rule of Evidence 804(b)(3) because testimony in support of a motion to suppress cannot be used against a defendant at trial. However, the analysis under Rule 804(b)(3) is unnecessary as Serrano's statements are admissible as former testimony under Rule 804(b)(1), which allows for testimonies from unavailable witnesses given in prior proceedings. The Government's claim of lacking opportunity and motive to develop this testimony is countered by the standard of similarity of motive, which requires a substantial overlap in interests across proceedings. Relevant factors for determining similarity include the nature of the proceedings, stakes involved, burden of proof, and prior cross-examination, although these factors are not conclusive.

At the suppression hearing, the Government aimed to prove that Andy Serrano did not own the purse in question and therefore had no reasonable expectation of privacy regarding it. Andy testified that the purse was kept in his parents’ closet and used for transporting a firearm, which gave the Government grounds to cross-examine him about his ownership claims. Consequently, the motion to exclude his suppression hearing testimony was denied. 

Defendant sought to introduce Andy Serrano's 2005 and 2012 firearms conviction judgments, asserting their relevance to support the theory that Andy possessed the ammunition linked to the charges against Pedro Serrano. Although the convictions occurred before the events in question, their evidentiary value was not substantially outweighed by the potential for jury confusion, provided they were presented alongside other non-speculative evidence. Criminal judgments qualify as public records under Rule 803(8) and can be admissible when used for purposes other than to establish the facts of the convictions.

The court granted in part and denied in part the motions in limine, allowing for a suppression hearing and directing the Clerk of Court to terminate all pending motions. Pedro Serrano also expressed intent to introduce recorded calls from Rikers Island after the Government's case. The court reserved judgment on this and other issues, including testimony regarding cell-site surveys. Serrano aimed to show that the ammunition belonged to his brother Andy, asserting his right to establish innocence by indicating an alternative perpetrator. The Government had indicated that the ammunition was found in a gray plastic container in a closet, where Andy’s statements suggested he used women's purses for transporting firearms, establishing a connection between the alleged crime and the alternative perpetrator. Defendant acknowledged that the accompanying criminal complaints were inadmissible hearsay.