650 F.Supp.3d 182
S.D.N.Y.2023Background
- FBI and Peekskill PD investigated the Gorilla Stone (a "Bloods" gang) for racketeering, narcotics trafficking, and violence; multiple wiretaps and location/pen-register warrants were obtained in mid–2020.
- Wiretaps challenged: 2100 (Austin), 5480 (Walker), and 8755 (Erskine); the 8755 application relied on the McGann affidavit (which incorporated other affidavits/exhibits).
- S-6 Superseding Indictment charges 14 defendants with RICO, murder, narcotics, wire fraud (COVID-relief and nonprofit), firearms offenses, and related counts.
- Erskine sought suppression under Franks (alleging material falsehoods/omissions in the McGann affidavit), a chain-of-custody hearing over limited unsealing of tapes, a bill of particulars, severance, and pretrial disclosure relief; Walker and others joined various aspects.
- Court denied suppression (no substantial Franks showing; probable cause and necessity upheld), denied chain-of-custody hearing (issues go to weight), denied bill of particulars (procedural defect and sufficiency of indictment/discovery), denied severance (joinder proper for conspiracy), granted unopposed request to produce Rule 404(b) 60 days before trial, and left Brady/Giglio timing to existing Rule 5(f) orders and the pretrial schedule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression of wiretap (Franks; probable cause; necessity) | McGann affidavit contained materially false statements and omissions that vitiate probable cause and necessity | Affidavit contained reasonable interpretations; omitted facts would have strengthened the affidavit; issuing judge had substantial basis | Denied — no substantial preliminary Franks showing; probable cause and necessity sustained |
| Chain of custody / authentication of tapes | Limited unsealing created risk of tampering; requests evidentiary hearing and chain proof now | Any alleged breaks affect weight/authenticity, not admissibility; no present basis for hearing | Denied without prejudice to renewal at trial (goes to weight) |
| Bill of particulars (wire fraud, narcotics) | Indictment too general; needs specifics to prepare and avoid surprise | Indictment sets overt acts/dates/drug types; extensive discovery provided; procedural noncompliance with Local Crim. R. 16.1 | Denied (procedural defect and meritless given discovery/indictment detail) |
| Severance from co-defendants | Joinder with violent co-defendants will cause severe prejudice to Erskine | Single conspiracy allegation supports joinder; evidence admissible against co-conspirators; limiting instructions can mitigate | Denied — heavy burden not met; joinder appropriate for conspiracy case |
| Pretrial disclosure deadlines (404(b), Brady, Giglio) | Move for 404(b) 60 days and immediate Brady/Giglio | Government agreed to 404(b) 60 days; Brady/Giglio to be produced per Rule 5(f) and pretrial schedule | 404(b) 60 days granted as unopposed; immediate Brady/Giglio denied; timing set by Rule 5(f) orders / pretrial schedule |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (standards for challenging affidavit truthfulness and requirement for a substantial preliminary showing to obtain a Franks hearing)
- United States v. Rajaratnam, 719 F.3d 139 (2d Cir. 2013) (Franks framework applied to wiretap affidavits)
- United States v. Kirk Tang Yuk, 885 F.3d 57 (2d Cir. 2018) (wiretap probable cause and necessity requirements)
- United States v. Concepcion, 579 F.3d 214 (2d Cir. 2009) (Government not required to exhaust all investigative techniques before wiretapping)
- Zafiro v. United States, 506 U.S. 534 (1993) (Rule 14—severance not required; limiting instructions can cure prejudice)
- United States v. Applins, 637 F.3d 59 (2d Cir. 2011) (RICO evidence can include gang leadership, member activities, and support such as paying bail)
- United States v. Wozniak, 126 F.3d 105 (2d Cir. 1997) (definition/usage of "eight-ball" in drug investigations)
- United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) (timing for production of Brady/Giglio material depends on materiality and case circumstances)