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 looked like, Jaime said, "You know him.
If you see him, you'll remember." He later repeated that CI-1
would recognize Carlos when he saw him. Transcripts, N-16,
July 27, 1990.
CI-1 called (212)871-1157 on July 28, 1990 and eventually
succeeded in reaching Carlos. Carlos reiterated his plans to
go back to Miami early on July 29, 1990 and to
"be back Monday" with the money.*fn7 Carlos gave CI-1 his
beeper number in Miami, (305)352-5659. There followed a number
of telephone conversations between CI-1 and Carlos, one to the
Miami number Carlos had given CI-1, mainly about the delay in
getting "fabric." In one conversation, Carlos and CI-1
discussed setting up a meeting and how they would recognize
each other. CI-1 described what he would be wearing and Carlos
responded, "Are you [G]uayo?" When CI-1 said yes, Carlos said,
"I know you." Transcripts, N-21, July 31, 1990. There were
also conversations between CI-1 and Alejandro and Jaime in
Colombia, in which it was claimed Carlos had the money.
Transcripts, N-16 et seq., July 28, 29, 30, 1990.
On July 31, 1990, CI-1 called Cobra and recounted the
problems of delay with Carlos, and also recounted past
difficulties with Cheo. Cobra said "Cheo was an intermediary
with me because I couldn't at time. And we agreed on something
and you were the ones who fucked up . . . And that's what we
agreed on. We go the next day, we give them the money and we
go, and they give us the keys to a car that wasn't meant to be
or anything like that . . . [W]e even got panicky. Because I
said to , `That man has to be something strange.' I called
him down there and told mi papa . . ." Cobra then recounted
many of the details of the deal which, in his view, had gone
awry. He told CI-1, "Chespirito down below said to me, `Stay
away from it. Let this other guy.' So I stayed away." Cobra
and CI-1 then went over the details of the original deal and
what had gone wrong with the exchange. Cobra ended by agreeing
he would call his "papa" and find out what role Carlos played
and call back. He said, "Let's see if we can solve that
problem, because we're all — I'm stuck, to tell you the truth.
. . . I'm stuck, you're stuck, and nobody has done anything."
Transcripts, N-24, July 31, 1990.
On August 1, 1990, at about 10:45-11:00, Cobra called CI-1
and said he had just talked to his "papa" and was told Carlos
would take care of the errand. He said to call Carlos back and
tell him to "try and do it today. Because it's even in my best
interest — it's in everybody's best interest. . . . If you
don't manage to solve it, give me another call to see what we
do." Transcripts, N-26, August 1, 1990.
On August 1, 1990, CI-1 kept an appointment made with Carlos
to meet at "Au Petit Beurre," a coffee shop in the vicinity of
105th Street and Broadway in Manhattan, New York, with a man
who would set up the delivery of the remaining payment for
half of the 496 kilograms and for receipt of its delivery. DEA
agents observed CI-1 in Au Petit Beurre at 6 p.m., meeting
defendant Gill, and watched Salcedo-Castillo entering the
coffee shop and observing CI-1 and Gill during their meeting.
When Gill stood to leave, Salcedo-Castillo did also. When Gill
sat back down, so did Salcedo-Castillo. Gill then left the
coffee shop and entered a car driven by defendant Varela, at
104th Street and Broadway. At some point, Carlos Rodriguez
entered the car which then drove by Au Petit Beurre. As the
car drove by, Gill ducked his head down out of view and Carlos
Rodriguez was observed looking inside the coffee shop. Shortly
thereafter, Gill left the car, re-entered the coffee shop,
told CI-1 that Carlos would call him later and left. Gill then
walked a few blocks to the vicinity of Varela and Rodriguez
and all three were arrested. Salcedo-Castillo stayed in the
coffee shop until CI-1 left and then started to leave, at
which point he was arrested.
2. Orlando Gill, Carlos Rodriguez, Herman Varela and Fernando
After Gill's arrest, he gave a statement to DEA agents which
was the subject of his motion to suppress. Gill's statement
will not be considered as evidence against any one of the
other defendants. The statement describes how Gill, a resident
of Miami, Florida, agreed on or about July 30, 1990, to fly
from Miami to New York to drive a car in New York for pay and
stayed in a hotel room near La Guardia Airport, which was
registered in Gill's name. On or
about July 31, 1990, Gill made several trips to Manhattan to
meet with a pre-arranged contact. He also received $3000 in
payment for his services. Gill acknowledged he met with CI-1
in the coffee shop on August 1, 1990, as described above.
On or about August 1, 1990, DEA agents searched the hotel
room registered in Gill's name at the Royce Hotel near La
Guardia Airport, with Gill's written, voluntary consent.
Exhibit B to Government's Letter of December 12, 1990. By
letter of February 21, 1991, the U.S. Attorney's Office
advised all defense counsel that it had in its possession the
contents of four pieces of luggage which were seized in the
search of Room 324 of the Royce Hotel. Items which the
government considers of evidentiary value include $21,000 in
cash, a plastic bag with the name Carlos Rodriguez written on
it, and a baggage tag and hotel receipt from the La Guardia
Marriott. Other items seized but not retained by the
government were clothing and personal effects.
3. Gustavo Aguirre-Parra
a. The Arrest and Post-Arrest Identification Procedures
Defendant Aguirre-Parra was arrested on August 2, 1990, at
his residence, at about 2 a.m.*fn8 The government's letter of
January 22, 1991, indicates that on November 19, 1990, DEA
agents showed Rony Castillo a photo spread which included a
picture of Aguirre-Parra. See Government's Letter of January
22, 1991, Exhibit B. Castillo was unable to identify
Aguirre-Parra from that spread. He was then shown a photo array
containing the arrest photos of all five defendants and he
positively identified Aguirre-Parra and Carlos Rodriguez.
Exhibit C to Government's Letter of January 22, 1991. On
November 20, 1990, CI-1 (one of the confidential informants who
met "Cobra" on May 11, 1990) was shown the same photo spread
(Exhibit B) and was unable to identify Aguirre-Parra. He was
then shown the photo array (Exhibit C) and positively
identified Rodriguez, Gill and Salcedo-Castillo. After
describing in detail the person he saw on May 11, 1990, who
gave him and his companions $95,000 in cash for expenses
related to transporting cocaine, CI-1 was shown the March 10,
1988 arrest photo of Aguirre-Parra and identified him as the
same man. Exhibit D to Government's Letter of January 22, 1991.
CI-2 was not shown any photos of Aguirre-Parra.
Material responsive to requests for discovery of all
documents and information sought by defendants either has been
produced by the government, or the government has represented
to the Court that it does not now have any such material in
its possession and will produce it in the event one comes into
its possession. See Transcript of Oral Argument, January 29,
II. SALCEDO-CASTILLO'S OMNIBUS MOTION
1. Bill of Particulars
The motion for a bill of particulars is denied. Although
Rule 7(f) of the Federal Rules of Criminal Procedure grants a
court discretion to direct the prosecution to file a bill of
particulars, such a bill is not necessary as long as the
indictment provides each defendant with information about the
charges against him in sufficient detail to provide adequate
notice of the charges against him, including the essential
elements and facts of the crimes charged, and to prevent
prejudicial surprise at trial or the possibility of double
jeopardy. United States v. Torres, 901 F.2d 205, 234 (2nd Cir.
1990). See also, United States v. Salazar, 485 F.2d 1272, 1278
(2nd Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39
L.Ed.2d 882 (1974). As demonstrated by the statement of facts,
the defendants have been provided with the complaint, the
indictment and much evidentiary
detail, including several affidavits by DEA agents,
transcripts of telephone calls, surveillance photos and search
evidence. In view of the above, a bill of particulars is
unwarranted and the motion is denied. Torres, supra, at 234.
2. Disclosure of Brady Material
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), requires that the prosecution disclose to the defense
any evidence which tends to exculpate or favor the defendant,
in sufficient time to assure a fair trial. The United States
Attorney's Office has represented to the Court that it is not
aware of the existence of any material which falls under the
rule of Brady, but that if the existence of such material
becomes known to the Assistant United States Attorney
prosecuting the case, he will notify defense counsel and will
make it available to defense counsel in advance of trial. Since
none of the defendants has shown that extraordinary
circumstances exist in the present case which require deviation
from normal procedures, such assurances are adequate at this
time. United States v. Ruiz, 702 F. Supp. 1066, 1069-70
(S.D.N.Y. 1989). See also, United States v. Bagley,
473 U.S. 667, 675, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985); United
States ex. rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2nd Cir.
1974), cert. denied, 420 U.S. 939, 95 S.Ct. 1149, 43 L.Ed.2d
415 (1975) ("Neither Brady nor any other case . . . requires
that disclosures under Brady must be made before trial.").
3. Jencks Act Material
The motion for disclosure of Jencks Act material, also known
as § 3500 material, is likewise denied, without prejudice to a
similar motion upon commencement of the trial if necessary. The
Jencks Act provides that in a federal criminal prosecution, "no
statement or report in the possession of the United States
which was made by a Government witness or prospective
Government witness (other than the defendant) shall be the
subject of subpena [sic], discovery, or inspection until said
witness has testified on direct examination in the trial of the
case." 18 U.S.C.A. § 3500(a). The government is not obliged to
disclose prior statements of a witness until the day that
witness testifies on direct examination and then it is obliged
to disclose only statements which relate to the subject matter
of the witness' testimony. 18 U.S.C.A. § 3500(b). While some of
the material may also fall under the Brady rule, neither
the Jencks Act nor Brady require disclosure this far in advance
of trial and accordingly the motion is denied.
4. Identities of Confidential Informants and Potential
The motions for disclosure of the identities and whereabouts
of confidential informants or potential witnesses, and
specific information relating to such persons, are denied. The
standard is whether a "specific showing of need for disclosure
by the defendant" outweighs "a specific showing of need for
concealment by the government." See United States v. Munoz,
736 F. Supp. 502, 506-07 (S.D.N.Y. 1990) (citing United States v.
Cannone, 528 F.2d 296, 302 (2nd Cir. 1975)). The government has
agreed to make available to the defense any confidential
informants who will testify, on the same day that § 3500
material is made available and prior to their testimony, so
that defense counsel may determine if the witnesses agree to
speak to defense counsel and conduct any interview that may
ensue. See United States v. Saa, 859 F.2d 1067 (2nd Cir. 1988).
Informants and potential witnesses in narcotics cases,
especially cases involving large amounts of narcotics such as
the 496 kilograms seized in this case, fear for their own
safety and that of their families. See, e.g., United States v.
Taylor, 707 F. Supp. 696, 703 (S.D.N.Y. 1989); United States v.
Ruiz, 702 F. Supp. 1066, 1071 (S.D.N.Y. 1989). To list those
persons or their whereabouts in advance of trial in such cases
is to invite witness intimidation or danger to confidential
informants. The defense has not made a specific showing of need
to depart from this practice and the government has agreed to
make available, within reasonable limitations, any informant
who will testify or
other witness. Accordingly, the motions are denied.
5. Disclosure of Proof To Be Offered Under Fed.R.Evid.P.
The motion for disclosure of evidence of prior or subsequent
similar acts is premature at this time and is denied. Rules
104 and 403 of the Federal Rules of Evidence do not require
that the government disclose such material this early before
trial and the government has represented to the Court that it
will proffer to defense counsel, in advance of trial, any such
evidence it intends to offer which it has not already
disclosed to the defense. The Court should also receive a
proffer of such evidence in time for it to make a prompt
ruling during trial. At this point, the government's assurance
is adequate. The motion is denied.
6. Pre-Trial Hearing on Admissibility of Co-Conspirator
Neither Rule 104 nor Rule 801(d)(2(E) of the Federal Rules
of Evidence requires that; the Court hold a pre-trial hearing
to determine the admissibility of co-conspirator statements.
The proper procedure is to determine the issues surrounding
admissibility (the existence of the conspiracy, a particular
defendant's role, whether the statements were made in
furtherance of the conspiracy) during the trial, and, if
necessary, outside the presence of the jury. Defense counsel
have presented no reason why this will not suffice in the
present case and accordingly the motion is denied.
The general rule in this circuit is that defendants who are
indicted together and who are charged as co-conspirators
should be tried together. See, e.g., United States v.
Nersesian, 824 F.2d 1294, 1303-04 (2nd Cir. 1987), cert.
denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987).
This is so even though there may be different degrees of guilt
or involvement, 824 F.2d at 1303, or if the defendant believes
he would have a better chance of acquittal in a separate trial,
as long as a joint trial does not so severely prejudice the
defendant that he does not receive a constitutionally fair
trial. Cf. United States v. Serpoosh, 919 F.2d 835 (2nd Cir.
1990). There has been no showing that a joint trial in this
case will deprive any defendant of a constitutionally fair
trial. Although the defense raises Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (admission into
evidence of a co-defendant's statement implicating another
defendant violates the latter's right to cross-examination),
the concerns of Bruton may be met within the context of
a joint trial. Bruton does not mandate severance in this case,
since the government has stated that it will redact certain
statements in accordance with Bruton. Accordingly, the motion
for severance is denied.
8. Suppression of Items Seized Upon Arrest and At The Royce
Defendants Gill, Rodriguez, Salcedo-Castillo and Varela move
to suppress items seized from them upon arrest on the ground
that there was no probable cause to arrest them. They move for
suppression of the items seized at the Royce Hotel on the
ground that Gill did not have the authority to consent to a
search of the hotel room or the items found within, such as
luggage. Based on the information relating to the object of
the meeting at Au Petit Beurre, contained in the transcripts
of wiretapped phone conversations, the observations of the
surveying agents as set forth in the sworn complaint of DEA
Special Agent David Schwefel, there was ample probable cause
to arrest Gill, Rodriguez, Salcedo-Castillo and Varela and
accordingly, the motion to suppress any items seized upon
arrest is denied. See Government's Letter of December 12, 1990,
Exhibits D and E.