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UNITED STATES v. DIEGO ZULUAGA

December 10, 1986

UNITED STATES OF AMERICA,
v.
DIEGO ZULUAGA, HAROLD GONZALEZ, MARLENE GALINDO, FRANCISCO GOMEZ and PATRICIA MUNOZ, Defendants



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 The investigation of this narcotics case grew out of information provided by an informant. It led to the arrest of five people and the seizure of approximately fifty pounds of cocaine. Three defendants have made motions.

 A. Galindo

 1. Inspection of Grand Jury Minutes and Dismissal of the Indictment

 Defendant Galindo believes that the evidence as to her presented to the grand jury was legally insufficient. She accordingly seeks disclosure of the grand jury minutes, see Fed. R. Crim. P. 6(e)(3)(C)(ii), and ultimately dismissal of the indictment. These requests are based on her assertion that she was hospitalized or bedridden during most of the investigation and that her only nexus to the crimes charged is that she resided in the apartment in which forty-eight pounds of cocaine were discovered.

 It is well settled that grand jury materials will be revealed only upon a showing of "particularized need . . . or . . . some similar compelling necessity," United States v. Abrams, 539 F. Supp. 378, 388 (S.D.N.Y. 1982). "Speculation and surmise as to what occurred before the grand jury is not a substitute for [the] factual basis [that must be] presented to warrant the extraordinary relief of disclosure of grand jury proceedings . . ." United States v. Wilson, 565 F. Supp. 1416, 1436 (S.D.N.Y. 1983).

 Defendant's assertion here that only her residence in the apartment was presented to the grand jury is nothing more than a conclusory or speculative allegation as to what went on in that proceeding. As such, it gives no cause to question the regularity of the grand jury's functioning, see United States v. Gordon, 493 F. Supp. 814, 816-17 (N.D.N.Y. 1980), aff'd, 655 F.2d 478 (2d Cir. 1981), nor does it outweigh the need for secrecy, see United States v. Beatty, 587 F. Supp. 1325, 1334-35 (E.D.N.Y. 1984).

 Moreover, the government possesses more evidence against Galindo than simply her presence in the apartment. Its proffer makes makes clear that the large quantity of cocaine was found in the closet of her minor son and that the other defendants visited her apartment to pick up and deliver narcotics. In these circumstances, neither disclosure of the grand jury minutes nor dismissal of the indictment is appropriate. See Costello v. United States, 350 U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406 (1956) ("An indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for [a] trial on the charge on the merits.").

 2. James Hearing

 Defendant Galino seeks a pretrial hearing to determine the admissibility of co-conspirator hearsay under Fed. R. Evid. 801(d)(2)(E). See United States v. James, 576 F.2d 1121, 1127-32 (5th Cir. 1978), modified in part, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979). It is well settled in this circuit, however, that co-conspirator "declarations that are otherwise hearsay may nonetheless be provisionally admitted pursuant to Rule 801(d)(2)(E))," United States v. Margiotta, 688 F.2d 108, 136 (2d Cir. 1982), cert. denied, 461 U.S. 913, 77 L. Ed. 2d 282, 103 S. Ct. 1891 (1983), "subject to the trial court's determination, made at the end of the government's case, that the non-hearsay evidence is sufficient, as to each conspirator against whom such statements are sought to be introduced, to show that he or she participated in the conspiracy," United States v. Ianniello, 621 F. Supp. 1455, 1478 (S.D.N.Y. 1985) (footnote omitted). This Court will adhere to that procedure. See generally United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 25 L. Ed. 2d 539, 90 S. Ct. 1276 (1970).

 3. Severance

 Galindo seeks to be tried separately, see Fed. R. Crim. P. 14, arguing that because her alleged role is so minor, she will be prejudiced by the volume of evidence against the co-defendants.

 The general rule that jointly indicted persons may be tried together serves several purposes. It permits a comprehensive presentation of the alleged crime and the alleged participation of each defendant; it furthers judicial economy and the convenience and safety of witnesses by avoiding multiple trials; and it prevents, to the benefit of both sides, the delay associated with successive trials. See generally United States v. Lyles, 593 F.2d 182, 191 (2d Cir.), cert. denied, 440 U.S. 972, 59 L. Ed. 2d 789, 99 S. Ct. 1537 (1979); United States v. Persico, 621 F. Supp. 842, 852 (S.D.N.Y. 1985). The presumption in favor of joint trials is strong "[w]here, as here, the crime[s] charged involve[ ] a common scheme or plan." United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 62 L. Ed. 2d 96, 100 S. Ct. 148 (1979). A defendant thus faces a "heavy burden," United States v. Sotomayor, 592 F.2d 1219, 1227 (2d Cir.), cert. denied, 442 U.S. 919, 99 S. Ct. 2842, 61 L. Ed. 2d 286 (1979), of demonstrating "prejudice so substantial as to deny him a fair trial," United States v. Cody, 722 F.2d 1052, 1061 (2d Cir. 1983) (citations omitted), cert. denied, 467 U.S. 1226, 81 L. Ed. 2d 873, 104 S. Ct. 2678 (1984).

 The ultimate question is whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render ...


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