United States v. Marquez

979 F. Supp. 2d 326, 2013 WL 5566101
CourtDistrict Court, E.D. New York
DecidedOctober 8, 2013
DocketNo. 12-cr-0376 (WFK)(VVP)
StatusPublished

This text of 979 F. Supp. 2d 326 (United States v. Marquez) is published on Counsel Stack Legal Research, covering District Court, E.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. Marquez, 979 F. Supp. 2d 326, 2013 WL 5566101 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ, II, District Judge.

Following a bench trial before the Honorable Magistrate Judge Viktor V. Pohorelsky, Edwin Marquez (“Defendant”) was convicted of (1) disorderly conduct, in violation of 36 C.F.R. § 2.34(a)(1); and (2) interfering, threatening, resisting, or intimidating a government employee or agent engaged in an official duty, in viola[329]*329tion of 36 C.F.R. § 2.32(a)(1).1 Magistrate Judge Pohorelsky sentenced Defendant to a fine of $100 and a special assessment of $10 for each count.

On appeal, Defendant argues the evidence was insufficient to support a guilty verdict on the disorderly conduct charge because the Government failed to prove Defendant’s conduct took place in public or that Defendant had the requisite mens rea. Defendant also argues the Government failed to prove he had the mens rea necessary to support a guilty verdict on the interference charge. Finally, Defendant contends that several of Magistrate Judge Pohorelsky’s evidentiary rulings constituted reversible error. This Court rejects all of Defendant’s arguments, and AFFIRMS both convictions.

FACTUAL AND PROCEDURAL BACKGROUND

On appeal from a judgment of conviction, this Court reviews the convicting court’s factual determinations in the light most favorable to the government. United States v. Gandia, 424 F.3d 255, 261 (2d Cir.2005).

I. Events at Canarsie Pier

At about 2:00 a.m. on May 30, 2011, United States Parks Police Officer Steven Etzel (“Officer Etzel”) announced through his vehicle’s public address system that Canarsie Pier was closing and directed all vehicles to exit the pier. Tr. at 14:8-10, 19:6-19:15, 20:14-21:10, 56:25-57:11, 199:1-8. At the time, there were about thirty vehicles in the parking lot. Id. at 19:16— 17, 21:4-5, 56:22-24, 199:9-10. All but one of the vehicles left the parking lot within fifteen minutes of Officer Etzel’s announcement. Id. at 19:1618, 21:1115, 57:1221, 199:1114. Officer Etzel also saw three fishermen on the southeast corner of the pier, although their precise location and distance from the Officer are not evident from the record. Id. at 21:16-18, 104:3-7,199:14-15.

Officer Etzel drove his unmarked vehicle across the parking lot and parked near the remaining car. Id. at 19:18-19, 20:25-21:1, 21:19-21, 57:25-58:5, 199:16-18. Officer Etzel, who was dressed in uniform, exited his vehicle and walked toward the remaining ear with a flashlight. Id. at 19:1920, 21:2123, 199:1819. As he approached the vehicle, Officer Etzel noticed that the car was running, its lights were on, its windows were down, the air conditioner was operating full blast, and the radio was playing loudly. Id. at 19:20-23, 199:21-23. Inside the vehicle, a man wearing sunglasses and sweating profusely “appeared to be sleeping” in the reclined driver’s seat. Id. at 19:23-25, 21:22-23, 199:19-21.

Officer Etzel announced twice that he was with the police, that the parking lot was closed, and that the man in the vehicle needed to leave. However, Officer Etzel received no response to either announcement. Id. at 20:12, 21:2422:18, 199:2425. Officer Etzel then reached in to the vehicle and conducted a sternum rub on the man to wake him up. Id. at 22:20-23, 199:25-200:3. When that failed to awaken the man, Officer Etzel conducted a second, harder sternum rub, finally awakening the man. Id. at 22:2325, 200:34.

Once the man was awake, Officer Etzel explained that he was with the police and that the pier was closed. Id. at 23:46, 200:1011. Officer Etzel asked the man for identification, and the man handed him a driver’s license, which identified him as [330]*330Defendant Edwin Marquez. Id. at 23:7-9, 24:122, 200:78. Believing Defendant to be under the influence of alcohol or drugs, Officer Etzel asked Defendant if there was someone who could pick him up or if he had money for a taxi. Id. at 26:20-23, 29:2431:5, 200:1114. Defendant’s response to that question is not in the record. See id. at 31:623.

Shortly thereafter, Defendant offered to allow Officer Etzel to search his vehicle and stepped out of the car. Id. at 32:18-23, 200:14-16. Officer Etzel looked down and saw what he believed to be a partially smoked marijuana cigarette on the vehicle’s step. Id. at 32:23-25, 200:1720. As Officer Etzel reached for the cigarette, Defendant said “Don’t throw that shit in my car. It’s not mine,” or words to that effect. Id. at 33: 413, 200:2021. Defendant grabbed Officer Etzel’s wrist, causing Officer Etzel to drop the cigarette and Defendant’s driver’s license. Id. at 33:1314, 37:1112, 76:213, 200:2123. Officer Etzel pulled away, grabbed Defendant’s right arm, and tried to get his handcuffs out so he could arrest Defendant for assault. Id. at 33:17-20, 37:12-15, 80:1-9, 200:23-25.

Defendant pulled away from Officer Etzel, ran to the back of Defendant’s vehicle, opened the rear hatch, and reached into the back of the vehicle with both hands. Id. at 34:2-7, 37:1416, 39:1840:1, 80:1082:6, 200:25201:4. Officer Etzel grabbed his taser and yelled three times, “Get on the ground. Get on the ground or you’re going to get tased.” Id. at 34:4-9, 37:1620, 40:67, 201:57. After the second or third command, Defendant got down into a “pushup position” with arms extended and one leg bent “like a sprinter.” Id. at 34:1013, 37:1722, 40:1417, 201:78. Immediately thereafter, Defendant got up and ran toward the driver’s door of his vehicle. Id. at 34:15-16, 37:23-25, 41:5-6, 201:8-9. Officer Etzel tased Defendant in the back, but the taser malfunctioned and had no effect. Id. at 34:1618, 37:2538:3, 41:68, 201:911. Defendant jumped into the open front door of his vehicle and drove out of the pier and onto the Belt Parkway with the door and trunk of his vehicle still open. Id. at 34:19, 36:57, 41:20-25, 42:2-6, 55:8-11, 201:12-13.

Officer Etzel started to pursue Defendant, but chose not to follow Defendant onto the parkway because he feared a car chase with a potentially intoxicated driver might endanger the public and because he knew he could track down Defendant through his license and vehicle plate number. Id. at 42:2-16, 201:14-16. Officer Etzel returned to the pier and retrieved Defendant’s license from the ground. Id. at 43:1-10, 201:16-18.

Defendant went to the police station days a few days later, at which time he was given three violation notices for 1) interfering, threatening, resisting, or intimidating an officer; 2) disorderly conduct; and 3) violation of closure limit restrictions. Id. at 83:15-85:4, 108:3-6; Dkt. No. 1 (violation notices).

II. Trial

On April 30, 2012, Magistrate Judge Viktor V. Pohorelsky held a bench trial to determine whether Defendant was guilty of (1) disorderly conduct, in violation of 36 C.F.R. § 2

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979 F. Supp. 2d 326, 2013 WL 5566101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marquez-nyed-2013.