United States v. Woodberry

546 F.Supp.3d 180

UNITED STATES of America,

v.Gerod WOODBERRY, Defendant.

20-cr-00031 (DLI)

United States District Court, E.D. New York.

Signed July 1, 2021

Jack Dennehy, Government Attorney, United States Attorneys Office, Brooklyn, NY, for United States of America.

Samuel Jacobson, Public Defender, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, United States District Judge:

By an indictment filed on January 23, 2020, Defendant Gerod Woodberry ("Defendant") is charged with three counts of bank robbery and three counts of attempted bank robbery in violation of 18 U.S.C. § 2113(a). See , Indictment, Dkt. Entry No. 8. Defendant moved to dismiss the indictment on the basis that statements made by the U.S. Attorney's Office ("USAO") for the Eastern District of New York ("EDNY") violated applicable pretrial publicity rules and compromised Defendant's right to a fair grand jury process or, alternatively, either for an order disclosing the grand jury transcript or for a change of venue. See , Mot. to Dismiss ("MTD"), Dkt. Entry No. 19; Def.’s Mem. of Law in Supp. of MTD ("Def. Mem."), Dkt. Entry No. 19-1. The Government opposed the motion. See , Gov't’s Mem. of Law in Opp'n to MTD ("Opp'n"), Dkt. Entry No. 24. Defendant replied. See , Def.’s Reply in Supp. of MTD ("Reply"), Dkt. Entry No. 26. For the reasons set forth below, the motion to dismiss the indictment is denied in its entirety, as is Defendant's alternative request for either disclosure of the grand jury transcript or a change of venue.

BACKGROUND

The Court presumes the parties’ familiarity with the facts and circumstances of this case, which are set forth in the complaint and other supporting documents filed on the case docket. Between December 30, 2019 and January 8, 2020, Defendant allegedly committed two bank robberies and attempted to commit two bank robberies at various Chase Bank locations within the Southern District of New York ("SDNY"). See , Indictment at ¶¶ 1-4. On January 8, 2020, Defendant was arrested by the New York City Police Department for these offenses and, on January 9, 2020, he was charged by a complaint filed in New York County Criminal Court. See , Opp'n at 3. Based on New York State's then recently enacted bail reform laws, which went into effect on January 1, 2020, Defendant was released without bail on January 10, 2020. Id. ; See also , New York State Fiscal Year (SFY) Budget for 2019-20 (Apr. 1, 2019). Immediately, upon his release from custody, Defendant allegedly committed a bank robbery in the EDNY and attempted to commit a bank robbery in the SDNY on January 10 and 14, 2020, respectively. See , Indictment at ¶¶ 5-6.

On January 14, 2020, the Government filed a complaint under seal against Defendant for the alleged January 10, 2020 robbery committed in violation of 18 U.S.C. § 2113(a). See , Sealed Compl. and Aff. in Supp. of an Arrest Warrant ("Compl."), Dkt. Entry No. 1. On the same day, the Honorable Ramon E. Reyes, Jr., United States Magistrate Judge, issued an arrest warrant for Defendant, based on the Complaint. See , Warrant for Arrest, Dkt. Entry No. 2.

On January 17, 2020, knowing that he was the suspect in a series of bank robberies, Defendant surrendered at the New York County Criminal Court. See , Def. Mem. at 2. Defendant was arrested by federal agents and interviewed at the Federal Bureau of Investigation's New York office. See , Gov't’s Mem. of Law in Opp'n to Def.’s Mot. to Suppress, Dkt. Entry No. 23, at 4-7. Defendant waived his Miranda rights, signed a waiver form to that effect, and spoke to federal agents about the alleged robberies. Id. at 4-7.¹

On January 17, 2020, the Government filed on the public docket a memorandum seeking a permanent order of detention. See , Detention Mem., Dkt. Entry No. 4. To support its contention that Defendant's detention was necessary because he was a danger to the community and posed a significant flight risk, the Government described Defendant's robberies and attempted robberies committed in the two-week span between December 30, 2019 and January 14, 2020. Id. at 1-3. On January 17, 2020, Magistrate Judge Reyes ordered the complaint and arrest warrant unsealed. See , Order to Unseal Case, Dkt. Entry No. 3.

Later on January 17, 2020, the USAO for the EDNY issued a press release (the "Press Release"), which began, "A criminal complaint was unsealed today in federal court in Brooklyn charging Gerod Woodberry with the robbery of a Chase Bank in downtown Brooklyn on January 10, 2020." See , Gerod Woodberry Arrested for Bank Robbery (Jan. 17, 2020), https://www.justice.gov/usao-edny/pr/gerod-woodberry-arrested-bank-robbery, Ex. A to MTD, Dkt. Entry No. 19-2. The Press Release stated that "United States Attorney Donoghue issued a statement today noting some of the facts of the case," and reiterated certain allegations "detailed in court filings." Id. The Press Release further noted, "The charge in the complaint is an allegation, and the defendant is presumed innocent unless and until proven guilty." Id.

Later that day, the USAO issued a statement entitled "Statement by United States Attorney Richard P. Donoghue" (the "Statement"). See , Statement by United States Attorney Richard P. Donoghue (Jan. 17, 2020), https://www.justice.gov/usao-edny/pr/statement-united-states-attorney-richard-p-donoghue-0, Ex. B to MTD, Dkt. Entry No. 19-3. The Statement announced that Defendant had surrendered, adding that, "As alleged in court documents, Gerod Woodberry robbed or attempted to rob six New York City banks in 16 days.... This robbery spree is unprecedented and it is made all the more so by the fact that he was actually arrested and released in the midst of his crimes." Id. The Statement continued:

No sound, rational and fair criminal justice system requires the pre-trial release of criminal defendants who demonstrate such determination to continuously commit serious crimes. Prior to the recently-enacted reforms, New York judges weighing pre-trial release could consider the flight risk, but not the dangerousness, posed by a charged defendant. The recent reforms have made a bad situation worse by entirely excluding classes of purportedly ‘non-violent’ felonies – like the bank robberies here – from pre-trial confinement eligibility. Preventing judges from considering the danger a charged defendant poses to the public when making a pre-trial confinement decision defies common sense and endangers all New Yorkers.

The recently-enacted bail reforms have dramatically altered the New York criminal justice system and even more dramatic criminal justice proposals are under consideration in New York and across the country. While we must ensure that all criminal justice systems are open to scrutiny and reform, we must also guard against the outright dismantling of criminal justice systems masquerading as criminal justice reform.

Id. The Statement contained a footnote that stated, "The charges in the complaint are allegations, the defendant is presumed innocent unless and until proven guilty." Id. n.1.

On January 23, 2020, a federal grand jury sitting in this district returned the instant indictment, charging Defendant with six counts, each in violation of 18 U.S.C. § 2113(a) : robbery of a Chase Bank located at 839 Ninth Avenue, New York, New York on December 30, 2019 (Count One), attempted robbery of a Chase Bank located at 2438 Broadway, New York, New York on January 3, 2020 (Count Two), robbery of a Chase Bank located at 340 Avenue of the Americas, New York, New York on January 6, 2020 (Count Three), attempted robbery of a Chase Bank located at 260 Columbus Avenue, New York, New York on January 8, 2020 (Count Four), robbery of a Chase Bank located at 20 Flatbush Avenue, Brooklyn, New York on January 10, 2020 (Count Five), and attempted robbery of a Citibank located at 800 Third Avenue, New York, New York on January 14, 2020 (Count Six). See , Indictment at ¶¶ 1-6.

Between January 17, 2020 and the filing of the indictment on January 23, 2020, the Statement was disseminated by the media. The New York Times, New York Daily News and NBC New York , among others, quoted from the Statement, and the New York Post quoted or referenced the Statement in three articles on three consecutive days.²

Defendant moved for dismissal of the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3) contending that: (1) the Press Release and Statement violated applicable pretrial publicity rules; (2) the Press Release and Statement compromised Defendant's right to a fair grand jury process and are part of a pattern of inappropriate pretrial publicity; (3) in the alternative, the Court either should (a) order the grand jury transcript disclosed or (b) grant a change of venue pursuant to Federal Rule of Criminal Procedure 21(a). See , generally , Def. Mem.

The Government countered that dismissal is not appropriate here because: (1) the Press Release and Statement do not violate the "clear rules" that ensure the integrity of the grand jury's functions; (2) the Press Release and Statement do not opine on Defendant's guilt or otherwise violate the publicity rules; and (3) Defendant cannot establish that he was prejudiced by the Press Release or the Statement. See , generally , Opp'n. Defendant replied, contending that the Government misapplied legal standards in its argument and dismissal is warranted because the pretrial publicity originated from the USAO. See , generally , Reply.

LEGAL STANDARD

Pursuant to Federal Rule of Criminal Procedure 12(b)(3), a defendant may move to dismiss an indictment for various defects in "instituting the prosecution," including "selective or vindictive prosecution" and "an error in the grand-jury proceeding or preliminary hearing." Fed. R. Crim. P. 12(b)(3)(A)(iv)-(v). "A motion to dismiss an indictment must satisfy a high standard." United States v. Brooks , 2009 WL 3644122, at *2 (E.D.N.Y. Oct. 27, 2009) (citation and internal quotations...