apartment with the white bag. Later, Carrillo left the house,
carrying a package wrapped in foil. He drove back to 210th
Street, and picked up Cots. They drove to 1595 Metropolitan
Avenue, where another stash pad was located. They entered the
stash pad, with Cots carrying the package. Later, defendants
Noel Aguero and El Negro entered the stash pad. After a
half-hour, Aguero and El Negro left the stash pad, carrying a
large white plastic bag.
Based on the informant's statements and the physical
surveillance, Agent Hannan stated that a search of Carrillo's
residence would likely produce evidence of narcotics
Carrillo argues that the surveillance did not establish
probable cause to search his apartment. He claims that there
was no evidence that he "cooked" in his apartment, or that he
stored contraband there, and there was nothing to indicate
that the bags he carried into the apartment contained illegal
items. He also argues that the probable cause for the warrant
was stale. He states that the warrant was issued on July 21,
1989, one week after he was seen entering his apartment with
the plastic bag, and assuming that the bag contained cocaine,
"the drugs would have been cooked and removed for sale
quickly." (Carrillo's memo in support, at ¶ 36).
Carrillo's arguments lack merit. The confidential
informant's statement that Carrillo was the primary cooker for
the organization and the physical surveillance of Carrillo
showed that he was involved in the conspiracy. That Carrillo
entered his apartment carrying a large white plastic bag and
then exited with a small package wrapped in foil, by itself,
seems innocuous. However, it must be remembered that Carrillo
entered his apartment after coming from the direction of a
stash pad, accompanied by Cots (another alleged cooker for the
organization), and that he exited his apartment and brought
the small package to another stash pad, again accompanied by
Cots. This transforms otherwise innocuous behavior into
suspicious behavior. Thus, the magistrate was justified in
concluding that there was a fair probability that Carrillo was
using his apartment to engage in narcotics related activities.
Carrillo's argument that the determination of probable cause
was stale because he would have cooked the cocaine quickly
ignores the probability that if he was using his apartment to
cook cocaine, there was likely to be other evidence of
narcotics trafficking there. Moreover, the investigation of
the organization uncovered evidence of a large-scale ongoing
drug trafficking conspiracy. Thus, the evidence would not have
become stale after a mere seven day hiatus. See U.S. v. Fama,
758 F.2d 834, 838 (2d Cir. 1985) ("Although the search warrant
issued thirty-five days after the Caffe Palermo incident, it
was sought at the culmination of a major investigation into
ongoing, long-term criminal activity. Such a time lag under
these circumstances will generally not affect probable
cause."), citing U.S. v. Foster, 711 F.2d 871, 878-879 (9th
Cir. 1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80
L.Ed.2d 132 (1984); U.S. v. Martino, 664 F.2d 860, 867 (2d Cir.
1981) (three week time lag does not make probable cause stale
when there is ongoing drug conspiracy), cert. denied,
458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982).
Accordingly, Manuel Carrillo's motion to suppress evidence
obtained from the search of his apartment is denied.
(b) Nelson Noa
With respect to Nelson Noa, Agent Hannan stated that a
confidential informant had identified Noa's apartment as one
of the organization's stash pads. Noa's apartment was located
at 743 Hunts Point Avenue, # 4-E. The informant was a manager
of the organization's retail outlet, but was arrested on drug
charges in March 1989. Before his arrest the informant had
been to Noa's apartment, where he saw crack being packaged by
Noa and others. After his arrest, the informant had spoken
with another worker in the organization, who confirmed that
Noa's apartment was still being used to store and package
On July 11, 1989 DEA Agents seized $63,200 from the trunk of
Evaristo Valentin's car. The next day Roberto Rodriguez
called defendant Juan Carrero, a real estate agent, and told
him to get rid of apartment # 2-F,*fn13 but that he would
keep apartment # 4-E.
Noa attacks the confidential informant's statements as
insufficient to support a determination of probable cause. He
claims that: (1) there is no information that the informant's
statement was valid at the time of the warrant; (2) the
informant's reliability had not been sufficiently
demonstrated; and (3) the informant's statement that he had
seen Noa packaging crack in the apartment was not
The confidential informant's statements were sufficient to
support the determination of probable cause. He had a concrete
basis for making the statements, having been a manager of the
organization's retail outlet, and having been in Noa's
apartment. His statements were not stale, having spoken with
another member of the organization who confirmed that Noa's
apartment was still being used to store and package cocaine.
The informant's reliability had been established because his
statements with respect to other aspects of the organization's
drug trafficking had been verified by physical surveillance
and the wiretaps. Although Rodriguez's statement about
apartment # 4-E was not the strongest corroboration, it
provided another piece of evidence that Noa's apartment was
being used for criminal activity. Under the totality of the
circumstances, there was probable cause to issue the search
Accordingly, Nelson Noa's motion to suppress evidence
obtained from the search of his apartment is denied.
(c) Nelson Garcia
With respect to Nelson Garcia, Agent Hannan averred*fn14
that wiretaps on the telephones at the Imperio Cafe showed the
On June 28, 1989 defendant Earl Garner called Garcia at the
Imperio Cafe. Garcia stated that he would be ready tomorrow,
and told Garner to come with "ninety." Garner responded that
he did not want to bring money because police at an airport
had once taken money from him. Garcia told Garner that he was
prepared to give him "16" and a "few," but that he needed the
money. Garcia stated that if he gave Garner "that" first, he
would need the money within an hour or two. Garcia told Garner
that he wanted to "make some points" with "these people"
because they are new, and that "you got 90, 100, okay, I let
you get away with 30, 40, 50. . . . I could give you a little
On June 29, 1989 someone called Garcia and told him that
Garner had called, and that he would be arriving at Newark
Airport at 4:00 p.m. that day. At 7:00 p.m. Garcia was seen
with a man believed to be Garner leaving the Imperio Cafe, and
driving to Newark Airport. Later, Garcia spoke with an
unidentified male, stating that he spoke to the "man" that
morning, and that the man "loved the thing." Garcia said that
"he doesn't want half, he wants a whole." Garcia and the
unidentified man confirmed that they would have the whole.
On June 30, 1989 Roberto Rodriguez telephoned his
girlfriend, defendant Mirella Pacheco, from the Imperio Cafe.
She told him "the car has a mileage of seventy-eight thousand,
seven hundred and forty." She added that Rodriguez had not
left her any money. He responded "Well . . . take the seven
hundred and forty and take it." Rodriguez then called Garcia
and told him that Pacheco had called, and that there was
"seventy eight, seven forty" and that "There was missing . .
. one thousand, two hundred sixty." Garcia ended the
conversation by saying "I'll go, I'll go."
On July 1, 1989 Rodriguez called Garcia at his apartment,
asking him to "check my suitcase . . . to see if I have . . .
six pairs of underwear in there." After a long pause, Garcia
returned to the telephone, stating "Yes, all the clothes are
Physical surveillance of Garcia showed that on July 3, 1989
he was seen with
Rodriguez and defendant Manuelito "Lnu"*fn15 entering the
stash pad at 1725 Purdy Avenue in the Bronx. Ten minutes
later, defendants Evaristo Valentin and Aua Rodriguez entered
the building. Valentin was carrying what appeared to be a
ledger book, and Rodriguez was carrying a yellow plastic bag
and a brown paper bag. Five minutes later, all five defendants
left the building. Roberto Rodriguez was carrying the ledger
book and the yellow plastic bag, Aurea Rodriguez was carrying
the brown paper bag, but it was nearly empty with the top
Hannan stated that based on the evidence of the relationship
between Rodriguez and Garcia, and on the fact that Rodriguez
did not live at Garcia's apartment, it was his opinion that
the term "underwear" was a code word for contraband (narcotics
or money), and that Garcia was storing contraband for
Rodriguez at his apartment.
Garcia attacks the magistrate's determination of probable
cause, stating "all that is established is a prior
relationship between Garcia and Rodriguez along with a
questionable interpretation of intercepted telephone
conversations. The conclusion that these few facts established
probable cause to search Garcia's premises, amount to little
more than `wishful thinking' on the part of the agents."
(Garcia's memo in support, at ¶ 6).
The magistrate could reasonably conclude, however, that the
intercepted phone calls and the physical surveillance of
Garcia revealed involvement in the drug conspiracy. Moreover,
Agent Hannan's expert opinion that the reference to underwear
was a code word for contraband and that Garcia's apartment
would therefore contain evidence of narcotics dealings is
entitled to substantial weight in determining probable cause.
U.S. v. Benevento, 836 F.2d 60, 71 (2d Cir. 1987), cert.
denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988),
citing Fama, 758 F.2d at 838. Thus, the magistrate properly
concluded that there was a fair probability that Garcia was
storing contraband for Rodriguez in his apartment.
Accordingly, Nelson Garcia's motion to suppress evidence
obtained from the search of his apartment is denied.
4. Garcia's and Garner's motions to dismiss for improper venue
Garcia and Garner both move to dismiss the indictment
against them, arguing that venue is improper in this district
because they did not commit any criminal act here. They claim
that the evidence shows that there were two distinct
conspiracies — a large-scale conspiracy to distribute crack in
the Bronx and a separate conspiracy between Garcia and Garner
to distribute cocaine in New Jersey.
Nothing in the submissions made so far indicates that a
conclusion that there were two conspiracies is a more likely
trial outcome than that there was one.
Garcia's assertion that he himself did not commit any act in
furtherance of the conspiracy in the Bronx is immaterial.
Venue is proper here because the indictment charges that other
defendants committed acts in furtherance of the conspiracy in
the Bronx.*fn16 See Word v. U.S., 589 F. Supp. 806, 807
(S.D.N.Y. 1984), citing U.S. v. Lewis, 676 F.2d 508, 511 (11th
Cir. 1982) ("It is firmly settled law that a conspiracy may be
prosecuted in any district in which the agreement was formed or
in which there was an act in furtherance of the conspiracy.")
With respect to Earl Garner, the wiretaps showed that he
called Garcia at the Imperio Cafe to discuss the deal. Garcia
told him that he wanted to "make some points" with "these
people" because they are new, and that "you got 90, 100, okay,
I let you get away with 30, 40, 50. . . . I could give you a
little break." Garcia also had two telephone conversations
from the Imperio Cafe with unidentified individuals concerning
the sale to Garner.
One might fairly infer that the sale to Garner was made as
part of the narcotics
conspiracy charged in count one. Whether the evidence will
show that Garner was a part of that conspiracy must await the
trial. If it does, the fact that Garner may not have committed
any acts in furtherance of the conspiracy in the Bronx will be
immaterial, since the indictment charges that other defendants
committed acts in furtherance of the conspiracy in the Bronx.
Accordingly, Garcia's and Garner's motions to dismiss for
improper venue are denied without prejudice to renewal as a
motion for acquittal pursuant to Fed.R.Crim.P. 29(a).
5. Garner's motion for inspection of the grand jury minutes
and to dismiss the indictment because of prosecutorial
Garner requests that the court inspect the grand jury
minutes, and then dismiss the indictment. He claims that an
inspection of the grand jury minutes will show that the
prosecutor improperly instructed the grand jury because the
evidence does not: (1) show that he committed any crime, or
(2) connect him to the conspiracy charged in count one.
No particularized proof of any irregularity is offered to
overcome the presumption of validity of grand jury
proceedings, and accordingly, Garner's motion for the court to
inspect the grand jury minutes is denied. See, e.g., United
States v. Cummings, 49 F.R.D. 160, 161 (S.D.N.Y. 1969).
6. Noa's motion to exclude mention of "Marielito Cubans" at
Nelson Noa moves pursuant to Fed.R.Evid. 401 & 403 to
preclude the government from referring at trial to the
following terms: "`Mariel Boatlift,' `Marielito', `Cuban
refugees,' or any word or phrase which directly or indirectly
describes any defendant compelled to leave Cuba during what is
now commonly referred to as the `Mariel Boatlift'". (Noa memo
in support, at ¶ 6).