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U.S. v. RIVERA

April 3, 1991

UNITED STATES OF AMERICA
v.
EVELYN RIVERA AND ANGEL RODRIGUEZ, DEFENDANTS.



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

OPINION

On November 3, 1990, defendants Evelyn Rivera and Angel Rodriguez were arrested by officers of the New York City Police Department in an apartment located at 1920 Anthony Avenue, Bronx New York, and transferred to the custody of Special Agents with the Bureau of Alcohol, Tobacco and Firearms ("ATF"). Rivera and Rodriguez were subsequently indicted and charged with possessing with intent to distribute, and conspiring to do the same, a Schedule II controlled substance, namely, cocaine base, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), 845a(a) and 18 U.S.C. § 2 (1988). In addition, Rivera and Rodriguez were charged with using and carrying firearms, namely, a .44 magnum revolver and a .25 caliber pistol, both of which were loaded at the time of the arrest in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 846 (1988). Both defendants had previously been convicted of a crime punishable by imprisonment for a term exceeding one year.

In a joint motion, counsel for Rivera and Rodriguez move pursuant to Fed.R.Crim.P. 12 and 14, to suppress statements and physical evidence and for an order directing that the trials of the two defendants be severed and tried separately. A hearing in this matter was conducted before me on March 8 and March 11, 1991.*fn1 The following constitutes my findings of fact and conclusions of law.

STATEMENT OF FACTS

On November 3, 1990, two undercover plainclothes officers with the New York City Police Department went to 1920 Anthony Avenue, apartment 8, in the Bronx, for the purpose of posing as purchasers of drugs. Hearing Transcript ("Tr.") 7, 8. One of the undercover officers knocked on the door of the apartment, which Rivera opened, and asked whether Rivera had some drugs for sale. Tr. 7. Rivera stated that she did not recognize the undercover. She then asked who sent the undercover. Finding his response unsatisfactory, she told him that she did not sell drugs. Rivera then shut the door, not allowing the undercover entry into the apartment. Tr. 9.

While the backup team waited in the hallway outside the apartment, Roman knocked on the door and posed as someone from the neighborhood. Tr. 10. Roman testified that she started a conversation with Rivera, requesting assistance in finding a neighbor in the building, and gained entry into the apartment while speaking with Rivera. Tr. 11. The two walked about five feet into the apartment when Roman spotted the yellow capped vials on the wall unit; she then placed Rivera under arrest. Tr. 13-14.

Within thirty seconds of the arrest, the backup team of officers entered the apartment. Tr. 36. Roman and the officers entered the living room where Angel and Hector Rodriguez*fn2 were arrested as well. On a table in the living room, Roman saw two guns and a tinfoil package, which were seized. The crack vials were also seized at that time. Tr. 14-15.

Subsequently, Roman left the apartment in order to obtain a search warrant at the Bronx Criminal Court. Tr. 16. After the search warrant was obtained, Roman returned to the apartment in order to execute the warrant; she found no more contraband. Tr. 16. Roman then contacted Special Agent Richard Buggy at ATF and gave him a report of the operation. Tr. 17.

Rivera and Rodriguez were transferred to ATF custody. Special Agents with the ATF advised them of their constitutional rights, and the defendants executed forms formally waiving their rights. Rivera then told the ATF Special Agents that she was aware there were drugs in the apartment. Rodriguez stated, in substance, that "we" bought the .44 caliber magnum revolver from an unknown black man for $200 approximately one month ago, and that "we" found the .25 caliber pistol after a shooting on Walton Avenue approximately one week ago. Rodriguez also stated, in substance, that he sells drugs.

DISCUSSION

I. Severance

Defendant Rivera argues that, because of Rodriguez' post-arrest admission concerning the firearms recovered in the search, she must be tried separately. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (severance warranted where co-defendant's confession inculpates defendant and sixth amendment right to confrontation and cross-examination are impaired). In the alternative, Rivera argues that Rodriguez' statement, that "we" bought the .44 magnum revolver, should be redacted so as not to connect Rivera to Rodriguez' admission. 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). There is no reason to believe that each of the defendants in the case at bar would not be afforded ...


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