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U.S. v. CASTANO

February 19, 1991

UNITED STATES OF AMERICA
v.
NELSON CASTANO, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

On October 5, 1989, following a jury trial, defendant Nelson Castano was convicted of conspiracy to distribute cocaine and possession of approximately one kilogram of cocaine with the intent to distribute. Castano moves for a new trial pursuant to Fed.R.Cr.P. 33. For the reasons that follow, the motion is denied.

BACKGROUND

Nelson Castano and four co-defendants, Raul Morales, Ramon Padilla, Basilio Vasquez, and Rodrigo Vasquez, were indicted in a two count indictment, which charged them with conspiracy to distribute cocaine and possession of one kilogram of cocaine with the intent to distribute. Padilla, Morales and Basilio Vasquez pled guilty prior to trial. The remaining two defendants, Castano and Rodrigo Vasquez, proceeded to trial and were convicted by a jury on both counts.

The evidence at trial established the following facts.

On May 26, 1989, Luis Hernandez, a confidential informant working for the United States Drug Enforcement Agency ("DEA"), met Ramon Padilla at 138th Street and Saint Ann's Avenue in the Bronx, New York. See Trial Transcript ("Tr.") at 75. Hernandez discussed the purchase of two kilograms of cocaine with Padilla and gave Padilla his telephone number so that Padilla could call him when he found a supplier. See id. at 75-76. Hernandez then returned to his apartment and telephoned Special Agent Leonard Johnson, the DEA agent who worked with him, and told him about what had transpired. See id. at 77.

While Hernandez was on the phone with Johnson, Padilla called Hernandez on the telephone*fn1 and told him to meet Padilla and another individual, later identified only as "Ralphie", on a corner a few blocks away. See id. at 77. Hernandez followed these instructions. See id. at 78. After a short conversation, the trio walked to a grocery store at 241 St. Ann's Avenue. See id. at 79. There, Hernandez was introduced to Basilio Vasquez and Rodrigo Vasquez. See id. at 80-81.

Hernandez went with Padilla, "Ralphie," and Basilio Vasquez to the rear of the store, where they agreed to sell Hernandez and Elvin Laboy, an undercover DEA agent, two kilograms of cocaine for $32,000 each. See id. at 81-83. Basilio Vasquez then told Hernandez that he would have to wait a few hours to obtain the cocaine. See id. at 83. Hernandez returned to his apartment where he telephoned the agents. They told him they would wait no longer than 6:00 PM for the transaction. See id.

A short time later, Hernandez returned to the store on Saint Ann's Avenue, but the package was still not there. See id. at 84. Hernandez told the others that the deal was taking too long and that his friend would not wait any longer than 6:00 PM. See id. A flurry of phone calls regarding the speed of the delivery followed, see id. at 84-87, and, at one point, Raul Morales called Hernandez and told him he would be there soon. See id. at 88, 93.

Subsequently, Nelson Castano and Morales arrived, with Castano carrying two kilograms of cocaine in a shopping bag. See id. at 89-93, 163; see also 95. Each kilogram was individually wrapped in brown paper secured by tape. See id. at 92. After showing Hernandez one of the packages, Morales told Hernandez that he would sell only one package at that time and would sell the rest to him later. See id.

Subsequently, Hernandez, Morales, and Castano left, taking one kilogram of cocaine with them, to meet with Agent LaBoy in Manhattan. Castano drove the others to 97th Street and Riverside Drive in his car. See id. at 95-97. Basilio Vasquez, Rodrigo Vasquez, Padilla and "Ralphie" remained at the store with the other kilogram of cocaine.

When they arrived at 97th Street and Riverside Drive, Hernandez got out of the car and spoke with Agent Johnson. See id. at 49-50; 98. Thereafter, the Agents arrested Castano and Morales and seized one kilogram of cocaine from behind the passenger seat of the car. See Tr. at 37-38; 48; 52. Shortly after that, the agents and Hernandez returned to the store on St. Ann's Avenue and arrested all of the remaining conspirators, except "Ralphie." See id. at 99-100; 200-01. However, the kilogram left at the store was not recovered. See id. at 223.

The basis for Castano's motion for a new trial consists of proposed excuplatory testimony of Morales and additional evidence bearing upon Hernandez's credibility. The first ground arises out of Castano's attempts to interview and call as a trial witness defendant Raul Morales, who had pled guilty on October 2, 1989, but had not been sentenced as of the time that Castano's trial commenced. See Tr. at 182; 185-87. In that connection, Morales' counsel stated that Morales would not consent to an interview and if called as a witness at trial would assert his Fifth Amendment privilege against self-incrimination. See id. at 219-21. Castano now asserts, in affidavits from himself and his counsel, that Morales told him approximately one and one-half weeks prior to sentencing that he would be willing to testify at a new trial and exonerate him. See Affidavit of Nelson Castano at ¶ 7 ("Castano Aff."); Affidavit of Stewart Leigh Orden at ¶¶ 11-12 ("Orden Aff."). Castano also maintains that Morales has reaffirmed his willingness to testify on several occasions since that time. See Castano Aff. at ¶ 7. However, although Castano's counsel's affidavit makes reference to possible testimony by Morales that a person named Hector was involved in the transaction, see Orden Aff. at ¶ 11, conspicuously absent from Castano's papers is an affidavit from Morales himself setting for the substance of his proposed testimony or, indeed, the fact that he would even be willing to testify.

The second alleged basis for a new trial arises out of the fact that following the verdict the government learned of certain events which had some bearing upon Hernandez' credibility as a result of his testimony in another case. In that case, Hernandez admitted that he had possessed a DEA shield for a short period of time and that a woman had seen that shield and formed the conclusion, not corrected by Hernandez, that he was a DEA agent or a police officer. Hernandez also testified that he carried that shield for two days and then turned it over to Special Agent Johnson. In addition, Hernandez testified that the woman who saw the shield later loaned him $3000.00 in Atlantic City so that he could gamble. The government ...


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