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U.S. v. AGUIRRE-PARRA

April 18, 1991

UNITED STATES
v.
GUSTAVO AGUIRRE-PARRA, CARLOS RODRIGUEZ, A/K/A "FEDERICO, OR FRED, ORTEGA-SUAREZ," ORLANDO GILL, FERNANDO SALCEDO-CASTILLO, A/K/A "COCO", AND HERMAN VARELA, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

  OPINION AND ORDER

Defendant Fernando Salcedo-Castillo, also known as "Coco" ("Salcedo-Castillo "), brings an omnibus motion for 1) a bill of particulars, 2) discovery pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), 3) disclosure of Jencks Act material under 18 U.S.C. § 3500, 4) discovery of lists of government witnesses and the identities and whereabouts of confidential informants, 5) advance disclosure of proof to be offered under Rules 104, 403 and 404(b) of the Federal Rules of Evidence, 6) a pretrial evidentiary hearing to determine the admissibility of co-conspirator declarations which the government may submit at trial, 7) severance pursuant to Rules 12(b)(5) and 14 of the Federal Rules of Criminal Procedure, 8) the suppression of items seized from defendant upon his arrest and items seized at the Royce Hotel, where defendant allegedly stayed.

Defendants Gustavo Aguirre-Parra ("Aguirre-Parra"), Carlos Rodriguez, also known as Federico Ortega-Suarez ("Rodriguez"), Orlando Gill ("Gill"), and Herman Varela ("Varela") join in the omnibus motion. Defendant Varela has separately moved to suppress his post-arrest statements and a hearing has been ordered on that motion.

Defendant Gill separately moved to suppress his post-arrest statements and evidence seized during as search of a room at the Royce Hotel at La Guardia Airport which was registered in Gill's name; the Court held an evidentiary hearing on February 13, 1991 as to Gill's motion to suppress evidence and denied it from the bench on the grounds that Gill was adequately informed of his rights, that he did consent to the search of the room at the Royce Hotel, and that his consent was voluntary. See Transcript of Hearing, February 13, 1991, at 55; Government's Letter of December 12, 1990, Exhibit B; Affidavit of Orlando Gill, December 21, 1990.*fn1

Defendant Aguirre-Parra moves in addition for 1) suppression of his name on the government's transcriptions of certain tapes, 2) the suppression of identification testimony as to him, or, in the alternative, a pretrial hearing as to the identification procedures, 3) discovery and inspection of items believed to be in the government's possession and potential evidence in the government's case, 4) discovery of specific information listed as an appendix to his Notice of Motion.

By supplementary motions, on February 19, 1991, Aguirre-Parra's counsel challenges the existence of probable cause to arrest Aguirre-Parra and on March 7, 1991 also moves to suppress all evidence seized from the defendant's home at the time of his arrest, on the grounds that the arrest at his home was warrantless, without probable cause or justifying circumstances, and that Aguirre-Parra did not consent to the search. Aguirre-Parra's counsel also moves to suppress the fruits of any evidence seized or information obtained during an alleged stop and search of Aguirre-Parra and search of his home by federal agents during the summer of 1990. The Court reserves decision on Aguirre-Parra's supplementary motions pending a hearing held on April 12, 1991, at 10 a.m., to be continued on April 19, 1991, as to the circumstances of his arrest and the search of his home, and further discovery as to the alleged earlier stop and search.

By letters of October 9, 1990, December 12, 1990, January 22, 1991, and March 27, 1991, and undisputed statements in open court, the government has disclosed to all defense counsel the physical evidence in its possession, has allowed them to inspect it, and has provided any requested photocopies. The defense has been given copies of the photos, photo spreads and photo arrays used to identify the defendants. Upon inspecting the evidence, Salcedo-Castillo withdrew his Motion to suppress evidence seized at the Royce Hotel. However, since the motion was adopted by other defendants, the Court will address the issue below.

BACKGROUND

1. Generally Applicable Facts

Defendants are charged as co-conspirators in an indictment alleging a scheme to possess and distribute large amounts of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). The facts according to the indictment, the complaint signed by Special Agent David Schwefel ("Agent Schwefel") of the Drug Enforcement Agency ("DEA"), dated August 2, 1990, the affidavit of DEA Assistant Special Agent in Charge John H. Toal ("ASAC Toal"), dated February 4, 1991, and the transcripts of tape recordings made available to the Court and the defendants are as follows.*fn2

On or about May 11, 1990, in the vicinity of the Douglaston Shopping Center and the Toys-R-Us store, in Queens, New York, a man using the code name "Cobra" provided two confidential informants of the DEA, CI-1 and CI-2, and Rony Castillo with $95,000 in cash to cover a portion of certain expenses to be incurred in connection with the transportation and delivery to Cobra of approximately 496 kilograms of cocaine from Colombia to the United States. Payment for the cocaine apparently had not been made but would be due on delivery. Cobra was described by the informants as a Colombian male with a mustache, who drove a late-model, grey Lincoln Continental Town Car. On May 11, 1990, in the vicinity of the New Orleans International Airport, Rony Castillo provided an undercover agent of the DEA ("UC-1") with a package containing approximately $65,000 in cash.

On or about July 12, 1990, in the vicinity of a beach on the Pacific Coast of Guatemala, CI-2 and Agent Schwefel received approximately 496 kilograms of cocaine from a fishing vessel which had come from Colombia.

On or about July 18, 1990, a third confidential informant ("CI-3") met a Colombian male with a mustache who used the name "Cobra" in the vicinity of 30th Avenue and 75th Street, Queens, New York and went to Cobra's house at 25-16 72nd Street, East Elmhurst, Queens, New York, where Cobra gave him $300,000 in cash. Surveying DEA agents reported that Cobra drove a late-model, grey Lincoln Continental Town Car bearing New York livery license plate number T53845C, which plate was registered to Gustavo Aguirre, 25-16 72nd Street, East Elmhurst, New York, who was identified from a previous arrest on March 10, 1988, as defendant Gustavo Aguirre-Parra.

On July 20, 1990, a DEA confidential informant in New Orleans using the code name "Barbas," who has been identified as CI-1, called a beeper number, (212)278-5150, using an identification number of 55, and left the telephone number where he could be reached. A man using the code name "Cobra" returned the call. Cobra indicated interest and familiarity when CI-1 described himself as "Alex's uncle" and told Cobra that "Alex" had given him Cobra's number. Cobra referred to related telephone conversations Cobra had had with Alex about the pending deal. He also questioned CI-1 about previous calls CI-1 had made to his number and confirmed that 55 was the correct identification code to use. When CI-1 repeated back the telephone number he had dialed, (212)278-5150, Cobra said "That's my number." Cobra showed a willingness to do business and a familiarity with the activities of CI-1 and "Ronnie,"*fn3 and he agreed to provide "25" in exchange for CI-1's courier making "something available," because CI-1 told him he was "short of . . . fabric,"*fn4 with another "400" to change hands when a portion of the "product" was delivered. When CI-1 asked Cobra if he was the one who met previously with CI-1, "Ronnie" and "Guayo" in a parking lot in New York, Cobra said "Yes." When CI-1 continued with a description of Cobra's car as a grey Continental or Chrysler, Cobra said "Yes." When CI-1 tried to ask another question, Cobra interrupted, "I'm not that one, but . . . a friend of mine is, yes." New Orleans Transcript, N-12, July 20, 1990.*fn5

On or about July 22, 1990, CI-2 received $25,000 from two unidentified Colombian males in the vicinity of the Sheraton Hotel in midtown Manhattan.

On July 24, 1990, at 4:40 p.m., CI-1 called 278-5150 and left, the number of the Parker Meridian Hotel in New York. While waiting for a return phone call, CI-1 received a telephone call from "Alejandro," from Cali, Colombia, who confirmed that Cobra's number is 278-5150, that he had another number, 905-6449, and that CI-1 should identify himself by punching in the number 55. When CI-1 spoke of difficulty in reaching Cobra, Alejandro agreed to try and get Cobra to call the confidential informant. Transcripts, N-5, July 24, 1990.

At 6 p.m. on July 24, 1990, Cobra called CI-1, stated he was busy and instructed CI-1 to call "Cheo" at (212)457-7011 using the same identification number code, 55, that the informant had used to reach Cobra. Transcripts, N-6, July 24, 1990. Cheo's number was called and Cheo called back at 7:30 p.m. during which call Cheo stated that he, Cheo, had already spoken with Cobra. Cheo and CI-1 arranged to talk the next day, using a beeper number which CI-1 gave Cheo. Transcripts, N-7, July 24, 1990.

On July 25, 1990, a telephone conversation took place at 12:07 p.m. between CI-1 and Cheo, in which Cheo said that he was going to meet Cobra at one o'clock, that they would solve a "small problem with the fabrics" and that they would be "getting in touch with `mi papa' out there" (evidently meaning the people in Colombia). Transcripts, N-8, July 25, 1990.

On July 26, 1990, there were two telephone conversations between Cheo and CI-1, setting up a meeting at which "175" was to be exchanged for "a quarter of all that, which is 125 people . . ." with another "200" to be paid two days later.*fn6 Cheo stated he would send a man and a woman with a child to the meeting. CI-1 told him that the man and woman should bring "the briefcase" and would receive the keys to a car, a blue Ford, which he states must be returned later to "Budget." Transcripts N-10, N-11, July 26, 1990.

On July 26, 1990, in the vicinity of the Parker Meridian Hotel, on West 57th Street, a DEA undercover agent posing as CI-2 received $175,000 in cash from two Colombians, an unidentified male and an unidentified female with a child. The agent did not supply the cocaine as expected. That afternoon, Cheo had a telephone conversation with "Dave," another DEA undercover agent, in which "Dave" stated he wanted $200,000 more before making delivery, referring to the "original deal" of "400,000" for "250 packages," and Cheo asked, "[Y]ou're not going to return our 175,000?" Transcripts, N-13, July 26, 1990. Several more telephone conversations with Cheo occurred on the same subject that day.

On July 27, 1990, CI-1 had telephone conversations with Alejandro and "Jaime" in Cali, Colombia, in which Jaime told CI-1 that the errand would be run by "Carlos" from that point on, gave him a telephone number, (212)871-1157, and told him to ask for Carlos. Jaime then added, "The moment you talk to him you then you two guys set it up." Jaime also said "One of, of my friends, Cobra, told me that one of your friends, a Hispanic, was very jittery, very jittery." When CI-1 said that he, CI-1, got together with Cheo, but only Cheo, Jaime said "Oh, so it was you who was jittery." Jaime then stated he will get "that money" for CI-1 between that day and the next. When CI-1 asked what Carlos ...


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