United States v. Liyoti

8 F. Supp. 2d 246
CourtDistrict Court, S.D. New York
DecidedMarch 25, 1998
DocketNo. 98 Cr. 25(SAS)
StatusPublished
Cited by1 cases

This text of 8 F. Supp. 2d 246 (United States v. Liyoti) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Liyoti, 8 F. Supp. 2d 246 (S.D.N.Y. 1998).

Opinion

OPINION AND ORDER

SCHEINDLIN, District Judge.

Defendant Francis Livoti moves (1) to dismiss the Indictment against him on the ground that this prosecution is barred by the double jeopardy clause of the Fifth Amendment of the United States Constitution; (2) for a pre-voir dire change of situs and change of venue; (3) for a bill of particulars pursuant to Fed.R.Crim.P. 7(f); (4) to compel the Government to disclose “as soon as possible” whether it intends to offer evidence at trial pursuant to Fed.R.Evid. 404(b); and (5) to compel the Government to disclose all material with which it may seek to impeach the Defendant at trial pursuant to Fed.R.Evid. 608 and 609. I will address each motion in turn,

I. Motion to Dismiss the Indictment

A. Factual Background

The Indictment, in this ■ case, which was filed on January 13,1998, charges Livoti with violating the civil rights of Anthony Baez, in violation of 18 U.S.C. § 242. Specifically, Livoti is charged in his former capacity as a New York City Police Officer with willfully assaulting Anthony Baez, resulting in bodily injury to Baez and thereby willfully depriving him of a right secured and protected by the Constitution and the laws of the United States, namely the right to be secure in his person free from the use of unreasonable force by one making an arrest under color of law.

Before this Indictment was filed, Livoti was charged in New York State Supreme Court in Bronx County with the crime of criminally negligent homicide in violation of New York Penal Law § 125.10. That case was based on the same incident that serves as the basis for this Indictment. Livoti was found not guilty in the state case, following a non-jury trial in October 1996.

B. Discussion

Defendant argues that the federal Indictment charging him with violating § 242 violates the double jeopardy clause because he was previously charged with and acquitted of criminally negligent homicide in state court.

1. The Blockburger Test

Criminal offenses under two statutory provisions are different for purposes of double jeopardy if “each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Liller, 999 F.2d 61, 62-63 (2d Cir.1993). Title 18 U.S.C. § 242 requires proof of at least two elements that are not required by N.Y. Penal Law § 125.10:(1) that the defendant acted under color of law; and (2) that in so doing, he willfully deprived [248]*248another person of a right secured and protected by the Constitution and laws of the United States. 18 U.S.C. § 242; United States v. Langer, 958 F.2d 522, 523-24 (2d Cir.1992); United States v. Schatzle, 901 F.2d 252, 257 (2d Cir.1990); 1 L. Sand, et al., Modern Federal Jury Instructions, ¶ 17.01 at 17-4 (1997).

Similarly, § 125.10 requires proof of elements that are not required by § 242:(1) that the defendant committed an act creating a substantial and unjustifiable risk of death to another' person; (2) that at the time the defendant acted,, he failed to perceive the substantial and unjustifiable risk of the other person’s death; (3) that the defendant’s failure to perceive this risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation; and (4) that the defendant’s act caused the other person’s death. N.Y. Penal Law § 15.05; § 125.10; People v. Boutin, 75 N.Y.2d 692, 696, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990); People v. Galle, 77 N.Y.2d 953, 955-56, 570 N.Y.S.2d 481, 573 N.E.2d 569 (1991).

Accordingly, the Indictment charges Livoti with violating a federal statute which, under the Blockburger test, is different than the state, statute under which he was previously prosecuted.

2. The Doctrine of Dual Sovereignty

Moreover, even if the two statutes were the “same” under Blockburger, the doctrine of “dual sovereignty” would defeat Li-voti’s double jeopardy claim. It is well-established that “under- the dual sovereignty doctrine a federal indictment charging conduct that was previously the subject of a state prosecution simply does not implicate the double jeopardy clause.” United States v. Giovanelli, 945 F.2d 479, 492 (2d Cir.1991). Accord Heath v. Alabama, 474 U.S. 82, 88-89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); United States v. Davis, 906 F.2d 829, 831 (2d Cir.1990). Thus, Livoti’s motion to dismiss the Indictment as violative of the double jeopardy clause is denied.

II. Motions for Change of Situs and Change of Venue

Livoti moves to have the situs of this trial changed from the Foley Square courthouse in Manhattan to the Southern District of New York courthouse in White Plains, or in the alternative, to have this action transferred to the Northern District of New York. Livoti asserts that these transfers are justified because (1) “the greater metropolitan area has been inundated with massive pretrial publicity and unprecedented news coverage concerning this case”; and (2) “community hostility toward the defendant undoubtedly exists.” Defendant Livoti’s Memorandum of Law (Def.’s Mem.) at 8.

A. Motion for Change of Situs to White Plains

Fed.R.Crim.P. 18 authorizes a district court to grant or deny a transfer within a federal judicial district “with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.” One basis for granting an intradis-trict transfer is to prevent prejudice against the defendant. See United States v. Duncan,

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Related

United States v. Livoti
8 F. Supp. 2d 246 (S.D. New York, 1998)

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Bluebook (online)
8 F. Supp. 2d 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-liyoti-nysd-1998.