The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
Defendants Miguel Angel Gomez, a/k/a "Pedro Medero" and Pedro
Montana a/k/a "Pedro Sabogal" were arrested on May 21, 1990 in
the vicinity of 2170 Broadway, New
York, New York, by agents of the Drug Enforcement
Administration ("DEA") and the United States Customs Service
("USCS"). Montana and Gomez were charged with having conspired
to import a quantity of cocaine into the United States in
violation of 21 U.S.C. § 812, 952(a), 960(a)(1), and (a)(2);
18 U.S.C. § 2 (1988). Gomez moves pursuant to Fed.R.Crim.P.
12(b) and 14 to suppress certain evidence, or in the
alternative, to redact certain portions of evidence, and/or
sever his case from that against his co-defendant Montana. The
government consents to redact Gomez' name from inculpating
statements made by Montana. See Rosenberg Letter, November 6,
1990. Montana moves to suppress statements and property as
fruit of the poisonous tree because: (1) there was no probable
cause to arrest; (2) statements were coerced; (3) interrogation
continued in contravention of fifth amendment rights; and (4)
excessive prearraignment delay preceded the making of certain
statements. This motion was made solely on counsel's affidavit.
A hearing on this matter was conducted before me on November
19-20, 1990, after which I reserved judgment. I accepted
Montana's affidavit submitted in support of his motion at the
time of the hearing. The following constitutes my findings of
fact and conclusions of law.
The investigation which led to this arrest began on May 17,
1990 after USCS agents in Miami intercepted a package
containing cocaine en route from Medellin Colombia to New York.
Hearing Minutes ("H.") 3, 26. A Miami DEA agent flew to New
York with the package and turned it over to Robert Koval, a New
York DEA agent. H. 4. Koval examined, probed, and field tested
its contents, which tested positive for cocaine. Following the
testing, DEA agents in New York kept the package under
surveillance. H. 26-30. The package was addressed to "Pedro
Medero" at Mail Boxes, Etc., one of a private chain of
businesses that, inter alia, rents mailbox space. H. 3, 6-7.
The Mail Boxes, Etc. involved here is located at 2170 Broadway
in Manhattan. Gomez apparently leased a box under the name
Pedro Medero and listed a nonexistent address as his residence.
H. 3, 7.
Medero called Mail Boxes, Etc. several times on May 17-19,
1990, inquiring about the whereabouts of the package. H. 8. On
the morning of May 21, 1990, when Medero called Mail Boxes,
Etc., he was told that the package had arrived. H. 9.
Anticipating his arrival to retrieve the package, the DEA
arranged a controlled delivery through employees of Mail Boxes,
Etc. H. 9.
At approximately 11:35 on the morning of May 21, 1990, Gomez
and Montana were seen by DEA agents walking south on Broadway
in the direction of Mail Boxes, Etc. H. 9-11. When they reached
Mail Boxes, Etc., Gomez entered the storefront and Montana
remained outside on the sidewalk in front of the store. H. 11.
While Gomez was inside Mail Boxes, Etc., Montana walked up and
down Broadway between 76th and 77th streets, looking inside
storefronts and cars. One of the cars that he peered into was
a Mercedes Benz with smoked glass windows. That car was being
used by the DEA agents staking out the location and awaiting a
prearranged arrest signal.
The arrest signal was given. Upon opening the package at the
counter area of Mail Boxes, Etc., Gomez was seized by DEA agent
Robert Koval. H. 11. Montana was seized and frisked outside the
premises, then both Gomez and Montana were arrested. H. 11,
79-83. Certain articles were recovered from Montana but no
charges arose from that search. Gomez and Montana were read
their Miranda rights. H. 11-12, 48, 140, 142-43. Montana nodded
his head up and down in response to the reading and then
remained silent. H. 119-20. Both were then taken to DEA offices
on West 57th street for processing. H. 11-12, 48, 140, 142-43.
The agents apparently told Gomez and Montana that they could
help themselves by cooperating. H. 16. Montana allegedly asked
who was going to take care of his family. H. 16. One of the
agents responded by stating that Montana should have thought of
H. 16. Then, another agent stated: "I think what they meant is
who is going to protect their family." H. 17. Gomez and Montana
then allegedly nodded in assent. H. 17, 145.
During the interview process at DEA offices, the agents
learned that Montana was on parole under the name Pedro
Sabogal. H. 99. Processing concluded at the DEA's offices at
approximately 2:30 p.m., then Gomez and Montana were
transported to pretrial services at the United States District
Courthouse for the Southern District of New York. H. 50, 100.
Gomez was arraigned at approximately 5:30 p.m. on May 21, 1990.
Montana was set to be arraigned but because the Magistrate's
calendar was running late, his arraignment was rescheduled for
the next morning. While inside the arraigning Magistrate's
courtroom, Montana stated to DEA agent Peter Mitesser: "you
know, I can't believe I'm in all this trouble for $50.00." H.
103-25. He further made statements to the effect that he should
not have gone to pick-up the package at that time because he
"smelled the cops." H. 105.
Gomez moves pursuant to United States v. Bruton,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Fed.R.Evid. 403,
for: (1) suppression of Montana's post-arrest statement naming
Gomez; (2) redaction of the statement to delete any reference
to Gomez; or (3) a severance. The Government consents to the
redaction of Montana's post-arrest statement to remove Gomez'
name. It is well-settled that where a defendant makes a
statement incriminating both himself and his co-defendant,
admission of a redacted version of the statement which excludes
the name of the co-defendant is proper and does not violate the
co-defendant's constitutional rights. United States v. Tutino,
883 F.2d 1125, 1135 (2d Cir. 1989), cert. denied, ___ U.S. ___,
110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). Because the Government
agrees to redact Gomez' name from Montana's post-arrest
statements, suppression of entire statements is unnecessary and
a severance is unwarranted.
Montana seeks to suppress his post-arrest statements and the
items seized from him at the time of his arrest on the
following grounds: (1) the arrest was not based on probable
cause; (2) statements were made as a result of coercion; (3)
statements were made as a result of interrogation after
invocation of fifth ...