United States v. Steele

216 F. Supp. 3d 317, 2016 WL 6563087
CourtDistrict Court, S.D. New York
DecidedOctober 20, 2016
Docket15 Cr. 836
StatusPublished
Cited by5 cases

This text of 216 F. Supp. 3d 317 (United States v. Steele) 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. Steele, 216 F. Supp. 3d 317, 2016 WL 6563087 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge

By superseding indictment dated February 19, 2016 (“Indictment,” Dkt. No. 15), a grand jury charged defendant Joseph Steele (“Steele”) with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Trial is scheduled to begin before this Court on October 24, 2016.

On October 7, 2016, the Government filed motions in limine seeking admission or preclusion of certain evidence at trial. (“Motions,” Dkt. No. 50.) Specifically, the Government seeks: (1) admission of a 911 call reporting a shooting on the day Steele was arrested; (2) admission of evidence regarding Steele’s prior robbery conviction if Steele disclaims knowledge, intent or opportunity to possess firearms; (3) [321]*321preclusion of evidence of the mandatory minimum sentence; (4) preclusion of cross examination of a New York Police Department (“NYPD”) Officer regarding two Civilian Complaint Review Board (“CCRB”) complaints (the “CCRB Complaints”); and (5) in the event he chooses to testify in his defense, cross-examination of Steele regarding his three prior felony convictions. (See id.)

Steele responded to the Government’s Motions. (“Response,” Dkt. No. 53.) Steele opposes the two motions seeking admission of the 911 call and preclusion of the CCRB Complaints. (See id. at 2-5, 6-12.) Steele asserts that he does not intend to disclaim knowledge, intent or opportunity to possess a firearm, and therefore opposes the Government’s request for admission during its direct case of evidence regarding Steele’s prior robbery conviction. (See id. at 5-6.) Steele does not oppose the motion to preclude evidence of the mandatory minimum sentence that would apply were he to be convicted. (See id. at 6.) Steele further requests that the Court defer ruling on the motion to permit cross examination of Steele regarding his prior felony convictions until such time as Steele decides to testify. (See id. at 12-13.)

For the reasons set forth below, the Government’s Motions are GRANTED in part and DENIED in part.

I. 911 CALL

The Government seeks admission at trial of a recording of a 911 call that reported a shooting as an excited utterance or a present sense impression. The Government argues that the 911 call is admissible under Rule 803 of the Federal Rules of Evidence (“Rule 803”) because: (1) a shooting did take place in front of 1674 Macomb Avenue as evidenced by video recording footage and a recovered easing; (2) the 911 caller was still under the stress of excitement from seeing the firearm and hearing the shooting; and (3) the statements on the 911 call related to the shooting. (See Motion, Dkt. No. 50, at 4-7.)

Steele opposes admission of the 911 call, arguing that: (1) forensic evidence failed to connect Steele to the shooting and could not establish when the bullet recovered was discharged; (2) the 911 caller did not witness the shooting, and instead only heard the shot; (3) there is no evidence that the 911 caller was excited or startled; (4) admission of evidence of the 911 call would be prejudicial and would have little probative value and should therefore be excluded under Federal Rule of Evidence 403 (“Rule 403”); (5) the 911 call was placed after the caller purportedly saw the weapon; and (6) in any event, the report of the gunshot should not be admitted because the caller did not see it and therefore lacks personal knowledge as to who was the shooter. (See Response, Dkt. No. 53, at 1-5.)

1. APPLICABLE LAW

Although a recording of a telephone call is hearsay, Rule 803 provides exceptions to the hearsay rule that apply regardless of whether the declarant is available as a witness. See Fed. R. Evid. 803.

Rule 803(1) provides an exception to the hearsay rule for “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Fed. R. Evid. 803(1). A present sense impression is “considered to be trustworthy because the contemporaneity of the event and its description limits the possibility for intentional deception or failure of memory.” United States v. Jones, 299 F.3d 103, 112 (2d Cir. 2002).

“For statements to qualify as present sense impressions, precise contem[322]*322poraneity is not required.” United States v. Ibanez, 328 Fed.Appx. 673, 675 (2d Cir. 2009); see Fed. R. Evid. 803 advisory committee’s note (“in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable”). A statement made during a 911 call within minutes of the caller’s observation of the reported events is sufficiently contemporaneous to qualify as a present sense impression. See United States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007) (admitting 911 call made one or two minutes following event); United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995) (911 call made within seven minutes of the event sufficiently contemporaneous to be a present sense impression), vacated on other grounds, 516 U.S. 1168, 116 S.Ct. 1257, 134 L.Ed.2d 206 (1996). Even where a longer time has passed between the events and the statement describing them, admission under Rule 803(1) can be “buttressed by the intrinsic reliability of the statements.” United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991); see United States v. Mejia-Valez, 855 F.Supp. 607, 614 (E.D.N.Y. 1994) (admitting 911 call made 16 minutes after the first call reporting the events because call was “made without any motivation for fabrication” and because it “was consistent with [the declarant’s] first call and with the other testimony in the case”).

Rule 803(2) provides an exception to the hearsay rule for “[a] statement relating to a startling event or condition, made while a declarant was under the stress of excitement that it caused.” Fed. R. Evid. 803(2). “The rationale for this hearsay exception is that the excitement of the event limits the declarant’s capacity to fabricate a statement and thereby offers some guarantee of its reliability.” United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998). “Thus while the hearsay exception for present sense impressions focuses on contemporaneity as the guarantor of reliability, and requires that the hearsay statement ‘describe or explain’ the contemporaneous event or condition ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rahman v. Lee
S.D. New York, 2024
Donovan v. Butler
D. Connecticut, 2024
United States v. White
312 F. Supp. 3d 355 (E.D. New York, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
216 F. Supp. 3d 317, 2016 WL 6563087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steele-nysd-2016.