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U.S. v. FEIJOO-TOMALA

November 16, 1990

UNITED STATES OF AMERICA
v.
ANA LENOR FEIJOO-TOMALA, DEFENDANT.



The opinion of the court was delivered by: Bartels, District Judge.

MEMORANDUM and ORDER

Background

The defendant Ana Lenor Feijoo-Tomala ("Feijoo") is awaiting a retrial in connection with a one-count indictment which charges her with knowingly and intentionally importing into the United States more than 500 grams of cocaine in violation of 21 U.S.C. § 952(a), 960(a)(1) and 960(b)(2)(B)(ii). Feijoo's first trial ended in a mistrial on June 8, 1990, due to the jury's inability to reach a unanimous verdict.*fn1

This case began more than one year ago, on October 26, 1989, the day Feijoo, accompanied by her two daughters, returned to the United States from a one month so-journ in Ecuador, her homeland. Feijoo was arrested that evening after United States Customs Agents discovered cocaine secreted in a false bottom of a hard-sided suitcase she had in her possession. In addition to the hard-sided suitcase, which was distinctively marked with three strips of silver masking tape that had the words "New York" and her name printed on them, she also had three soft-sided suitcases with her. The soft-sided suitcases contained no contraband and were not seized as evidence in this case.

At her first trial Feijoo called three witnesses; her husband, Eduardo Granda ("Granda") (who had not accompanied the defendant on her trip to Ecuador, but was at the airport on the evening of the 26th to meet her flight), her eldest daughter, Dilcia ("Dilcia"), and Feijoo herself took the stand. Granda, Dilcia and Feijoo are expected to testify at the second trial as well.*fn2

The only issue in the case was, and continues to be, whether or not Feijoo knew there was cocaine in the suitcase. Feijoo claims that she was unaware that the hard-sided suitcase contained cocaine, or any form of contraband. In essence, her defense was that in the course of doing a favor for a stranger who unexpectedly approached her at the airport in Ecuador, she was unwittingly duped into bringing the cocaine into the United States.

At her first trial Feijoo tried to establish that it was not uncommon for people who were traveling between Ecuador and the United States to do favors for one another by carrying packages to and from relatives and friends. She testified that people had done similar favors for her, and that she had done like favors for others. Specifically, Feijoo told the jury that in the spring of 1989 her neighbor, Mercedes Moran ("Moran"), brought a package to her relatives in Ecuador, and that on this trip she did Moran a favor by taking a package to Moran's sister, Estrella. Feijoo also testified that on this trip she was doing a favor for Sarah, a girlfriend, who met Feijoo at the airport at the last moment and asked Feijoo to take a letter and some medicine back to her son in the United States. (The relevancy of this testimony is questioned.)

As background to the events that took place at the airport Feijoo testified that two days after she arrived in Ecuador she told Estrella (Moran's sister) that she would be returning home in about one month's time. She also testified that another woman, who identified herself as a friend or relative of Moran's, telephoned shortly before she left Ecuador and she told this person that she was leaving near the end of the month. (The relevancy of this testimony is also questioned.)

Feijoo and Dilcia both testified that while they were waiting to check their luggage at the airport in Ecuador a stranger approached Feijoo and called her by name. Feijoo then testified that the woman, whose name she later learned was Maria Alcivar ("Alcivar"), identified herself as a relative of Moran's. Alcivar then asked Feijoo if she would do her a favor and take the hard-sided suitcase and an envelope containing two letters back to the United States. Alcivar told Feijoo that the suitcase and one letter were intended for her sister Georgina, who she said lived in New Jersey, and the other letter was for Moran.*fn3 Feijoo further testified that Alcivar opened the suitcase and showed her the contents, ladies and girls clothing, and told Feijoo that she was returning these garments to her sister because she had been unable to sell them in Ecuador. Feijoo testified that she opened the suitcase a second time to make sure that there was no food inside and when she found none she applied three strips of silver colored tape, which she had in her handbag, to the suitcase and wrote her name and destination on the tape.

The Pending Motion

The defendant has made a motion pursuant to Rule 15(a) of the Fed.R.Cr.P. to depose three individuals, who happen to be her nieces, who are citizens and residents of Ecuador. The defendant maintains that her nieces can provide exculpatory testimony with respect to two factual matters which did not arise at her first trial, but which might arise at her retrial. The first matter concerns the appearance and condition of the soft-sided suitcases which Feijoo had in her possession when she returned from Ecuador. The second matter concerns telephone conversations Feijoo's nieces had with certain individuals, both before and after Feijoo left Ecuador, regarding her return trip to New York.

DISCUSSION

Rule 15(a) reads in relevant part:

  Whenever due to exceptional circumstances of the case
  it is in the interest of justice that the testimony
  of a prospective witness of a party be taken and
  preserved for use at trial, the court may . . . order
  that ...

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