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January 3, 1991


The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.



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 that earlier. 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.


A. Defendant Gomez

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.

B. Defendant Montana

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 ...

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