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UNITED STATES v. RESTREPO-CRUZ

July 9, 1982

UNITED STATES of America,
v.
Adolfo RESTREPO-CRUZ and Joyce Tahany, Defendants



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

 LOWE, District Judge.

 The defendants Adolfo Restrepo-Cruz ("Restrepo") and Joyce Tahany ("Tahany") are charged in an indictment with the crimes of conspiracy to distribute and possess valium in violation of 21 U.S.C. § 846 and distribution and possession of eleven valium pills in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (2). The defendant Restrepo is also charged with possession of.3 grams of cocaine in violation of 21 U.S.C. § 844(a).

 The defendant Restrepo moved the Court to suppress various items seized by the Federal Express Company ("FEC") from the mails, other items seized by Drug Enforcement Administration ("DEA") Special Agents from his home and statements made to Assistant United States Attorney Richard A. Martin ("AUSA Martin"). The defendant Tahany moved to suppress statements made to DEA Special Agents.

 BACKGROUND

 I.

 Events Prior to Arrest

 On April 2, 1981, DEA Special Agent John Reape was informed by the FEC that an employee had made a search of four small boxes, insured for $20,000. The boxes were considered suspicious because of their small size in comparison to the amount of insurance. The search revealed that the boxes contained a quantity of white pills, marked "Lemmon 714," and $16,700 cash. The boxes were addressed to Adolfo Restrepo, 324 East 77th Street, Apartment 1-D, New York, New York, and were sent from Barry J. Andre, c/o Sun Song Productions, 11 Massie Avenue, Providence, Rhode Island.

 Special Agent Reape was also informed by an employee of FEC that on April 2 a caller, who gave the name Joyce Tahany, phoned his office several times inquiring about the boxes addressed to Restrepo, which she said contained watches and important papers. The FEC employee told the caller that the packages were lost. The caller left a phone number where she could be reached when they were found. That number was listed in Restrepo's name.

 Special Agent Reape and another agent went to the FEC office, took possession of the boxes and cash and returned to the DEA office where the boxes were restuffed with paper, eleven of the original pills and aspirin. Special Agent Reape went to the office of AUSA Martin the next day and told him of the preceding day's events. *fn1" AUSA Martin authorized a controlled deliverance. With his assistance, Agent Reape filed a complaint and secured arrest warrants for Restrepo and Tahany.

 Special Agent Reape then went to the FEC office, obtained a uniform, an FEC van and a driver. He returned to the DEA office where he was joined by DEA Special Agents Ruth Higgs, Camille Colon, Fred Sandler and Robert Joura. They proceeded to 324 East 77th Street. Special Agent Reape pressed the outside buzzer, announced a Federal Express delivery, was let into the building and rang the bell to apartment 1D. A male in pajamas answered the door and said he was Restrepo and was expecting the delivery. Special Agent Reape handed Restrepo the packages and obtained his signature. While standing at the open door, Reape observed a female, later identified as Joyce Tahany, lying across a couch and overheard her saying "they're here now" into a telephone.

 Special Agent Reape left the apartment and joined the other agents outside. About ten minutes later, he returned to the apartment building and again buzzed. The woman whom he had previously observed opened the vestibule door. Reape told her that Restrepo's signature did not come through on his receipt. Special Agents Joura and Sandler then entered the hallway. When Tahany asked if she could help them, the agents identified themselves, drew their guns and informed Tahany that she was under arrest and that they had an arrest warrant for her and Restrepo. About this time Special Agents Higgs and Colon entered the hallway and took custody of Tahany, who was then handcuffed.

 Special Agent Joura asked Tahany for the door key. When she said she didn't have it, Joura knocked on the door and said, "Police, open up." When he got no response, he knocked on the door again and said, "Open up or else I'll break the door down." Tahany then yelled, "Open up, Adolfo, it's the police." *fn2"

 II.

 Events Inside the Apartment

 Restrepo opened the door, still in his pajamas. Special Agents Reape, Joura, Sandler and four other agents entered the apartment with guns drawn. As Reape was telling Restrepo he had an arrest warrant for him, Joura went to the back of the one-room apartment, and looked in the bathroom, kitchen area and closets. Special Agent Reape testified that he observed the FEC packages he had previously delivered, open and with some of the contents on a table. Reape took possession of those packages.

 The government contends Restrepo voluntarily consented to a search of the apartment which resulted in the seizure of other incriminating evidence. The government further contends that both defendants waived their Miranda rights and made incriminatory statements. The defendants contest these claims.

 III.

 Testimony Concerning Defendants' Fourth and Fifth Amendment Claims

 Special Agent Reape testified that after entering the apartment he went over to a table and examined the FEC boxes. Tr. 108, 112. He observed Restrepo and Tahany seated on a couch nearby. Tr. 111. Special Agent Joura asked defendants if they understood English. Tr. 116. They said "yes." Then Special Agent Sandler began giving them the Miranda warnings. According to Reape at the first hearing, Special Agent Sandler asked "if they elected to waive the right to have counsel present, the right to remain silent, the right to an attorney . . . ." Tr. 118. Mr. Restrepo answered, according to Reape, "no, he did not wish to waive a right." Tr. 118. Reape further testified:

 
Q And what did Miss Tahany say?
 
A She said no, she did not wish to waive her rights.
 
Q Then what happened?
 
A They were asked if they wanted to answer any questions . . . .
 
. . .
 
A Mr. Restrepo said he would cooperate at that point.
 
A He said "I'll answer questions." [sic]
 
Q What did Miss Tahany say, to your knowledge?
 
A Miss Tahany said she didn't know what this was all about.

 Tr. 118-20.

 After the hearing concluded, this Court examined the extensive transcript and exhibits. The Court reopened the hearing because the Court wished to take further testimony from AUSA Martin and to call Magistrate Raby, who presided at the arraignment. At the conclusion of the testimony of these witnesses, AUSA Levander made an application to recall Agent Reape "to ask Agent Reape about what the government suggests to your Honor was a slip." Transcript of Supplemental Hearing at 43 (hereinafter "Supp. Tr. "). AUSA Levander explained:

 
The point of the misstatement, the only things I allege that are misstatements are the two statements I read to the Court on page 118 in which Agent Reape, in all due respect, misstates himself and says they said -- talking about each one individually -- he did not wish to waive his rights and she did not wish to waive her rights. That is the misstatement we are talking agout. [sic]

 Supp. Tr. 53-54.

 Over objection of both defense counsel, the Court permitted the government to recall Agent Reape. The witness testified that at the end of his testimony at the prior hearing, he returned to AUSA Levander's office, and that Mr. Levander asked the witness if he was aware he had testified that the defendants did not waive their rights at the time they were arrested. The witness testified that he then told Mr. Levander that that was a misstatement.

 During that same week Agent Reape had a further discussion with AUSA Levander concerning his testimony. When asked about the substance of that conversation, the witness replied:

 
Basically the same thing -- that there was an inconsistency with the fact that I said that the defendants did not elect to waive their rights, as opposed to electing to waive their rights.

 Supp. Tr. 73. The witness further testified that he went over the transcript of his former testimony with AUSA Levander on two occasions prior to testifying at the supplemental hearing.

 Agent Reape concluded his testimony as follows:

 
THE WITNESS: As I can recall, Agent Sandler asked Mr. Restrepo and Ms. Tahany --
 
THE COURT: Together you told us.
 
THE WITNESS: He asked them together, and they answered separately, if they understand that they had a right to remain silent. Mr. Restrepo indicated or said that he did. Ms. Tahany said she did understand the rights. Agent Sandler in substance asked if they understood they had a right to an attorney, and Mr. Restrepo said that he understood. Ms. Tahany indicated that she understood or said she understood.
 
They also were told by Agent Sandler that if they could not afford an attorney one would be appointed for them by the Court. Mr. Restrepo said that he understood and Ms. Tahany said that she understood.
 
THE COURT: Anything else you recall?
 
THE WITNESS: Not that I can recall, your Honor? [sic]
 
THE COURT: Anything at all? You just take your time.
 
THE WITNESS: They were asked about waiving their rights by Agent Sandler.
 
THE COURT: I want you to tell me what you recall.
 
THE WITNESS: What I recall is that Mr. Restrepo said that he would answer questions and that Ms. Tahany said she didn't know what this was about.
 
THE COURT: Anything else that you can possibly recall? Take your time.
 
THE WITNESS: That is as far as I can recall, your Honor.
 
THE COURT: You are certain you have exhausted your memory?
 
THE WITNESS: That is as much as I can recall at this point, your Honor.
 
THE COURT: Any other questions, Mr. Levander?
 
MR. LEVANDER: Not on this topic, your Honor.
 
THE COURT: Any further questions, Mr. Joy?
 
MR. JOY: No questions, your Honor.
 
THE COURT: Mr. Villoni?
 
MR. VILLONI: No questions, Judge.

 Supp. Tr. 104-105.

 In the first hearing, Special Agent Sandler testified that after he advised Restrepo of his rights:

 
I asked him would he like to waive his rights and talk to us at that time and cooperate with us, and he said yes, he would like to cooperate. He wanted to know what we wanted to know.

 Tr. 196. Special Agent Sandler further testified that he then went over to Tahany, who was seated on a bed, and advised her of her rights.

 
I then asked her if she would like to waive her rights and talk to us, and she said yes.
 
Q Did you have any further conversation with Ms. Tahany at that time?
 
A No, I did not.

 Tr. 200.

 Special Agent Colon, who had custody of Tahany, testified:

 
Then the conversation between Ms. Tahany and Agt. Sandler took place. Then --
 
THE COURT: Where were you at the time of this conversation?
 
THE WITNESS: Standing next to the chair in which Ms. Tahany had been seated.
 
THE COURT: Now, what did you hear being said?
 
THE WITNESS: I heard Agt. Sandler give Ms. Tahany what I believe to be the Miranda warnings.
 
THE COURT: Well, you were standing right there. What did you hear said? What did he say?
 
. . .
 
THE WITNESS: I recall Ms. Tahany in response to some of Agt. Sandler's statements say, "Yes, I understand," "Yes, I understand."
 
THE COURT: Do you recall anything else she may have said?
 
THE WITNESS: At that time, no.
 
THE COURT: Then what happened next?
 
THE WITNESS: Then Agt. Sandler turned to Mr. Restrepo and gave him his rights. Mr. Restrepo had responses of "Yes, I understand," and "Yes," and "Yes, I do."

 Tr. 343-44, dated November 19, 1981. Special Agent Joura testified:

 
A. Well, as I entered the apartment and went past Mr. Restrepo and then went towards the bathroom, I heard Agt. Sandler advising --
 
. . .
 
Q. Do you remember the substance of what was said at that time?
 
A. Yes. Agt. Sandler was advising someone -- and since my back was to him I don't know who it was -- of their rights.
 
Q. By "rights," do you remember what that was?
 
A. The Miranda warnings.
 
THE COURT: Did you hear any responses from ...

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