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United States District Court, Southern District of New York

April 30, 1991


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


The defendants, Jose Peralta and Jesus Ramos, were indicted in Count I for possession of a controlled substance with intent to distribute under 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(B), and in Count II for use of a firearm in connection with a drug trafficking offense under 18 U.S.C. § 924(c) and 2. On the fifth day of trial, after the jury had been charged but before it had rendered a verdict, the Court dismissed the indictment on motion of the defendants. We write now to reiterate the reasons for our decision.


Trial of this matter began on April 15, 1991. At the close of the government's case on April 16, defendants made two motions, one for a judgment of acquittal under Fed.R.Crim.P. 29(a) and one for dismissal of the indictment on the ground of misuse of the grand jury process by the government.*fn1 In particular, the latter motion relied upon several alleged inconsistencies, revealed for the first time during trial, between the version of the events surrounding the defendants' arrest given by the arresting officer at trial and the version related to the grand jury by an agent of the United States Bureau of Alcohol Tobacco and Firearms ("ATF"), who, although not involved in the arrest, was the sole witness presented to the grand jury.

With the consent of the parties, the Court reserved its decision on defendants' motions until the close of their case, which occurred on the morning of April 17. At that time, but before closing arguments, the government produced to the Court in camera a partial transcript ("Testimony Transcript") of grand jury proceedings on October 19, 1990, consisting of the testimony of the ATF officer, Special Agent Robert Cuccinelli. Special Agent Cuccinelli's testimony was comprised entirely of hearsay, derived from one brief conversation on the day of the defendants' arrest with the arresting officer, Detective David Caggiano of the New York Police Department's Bronx Narcotics Division, and from the Agent's review of "paperwork" prepared by Detective Caggiano. Testimony Transcript at 4.*fn2

Our review of the transcript found it to support defendants' allegation that Special Agent Cuccinelli's testimony before the grand jury as to what Detective Caggiano had told him about the circumstances surrounding the defendants' arrest was different in several instances from Detective Caggiano's own testimony at trial.*fn3 Further, Detective Caggiano had insisted at trial that his testimony was identical to the version of events he had given to Special Agent Cuccinelli on the day of the arrest.

A hearing was then held on defendants' motions. While acknowledging the inconsistencies between the testimony of the two officers, the government argued that the discrepancies did not warrant dismissal of the indictment. Even if Special Agent Cuccinelli's grand jury testimony was inaccurate, the government contended, the inaccuracies were of detail and not of material fact. Thus, the government argued, the reliance on hearsay testimony before the grand jury did not result in prejudice to the defendants.*fn4 Defendants countered that the potential for prejudice could be inferred from, inter alia, the fact that the grand jury requested that Special Agent Cuccinelli be returned to the grand jury room four times for further questioning. This implied, defendants argued, that the grand jury was concerned about the quality of the evidence before it — the very danger inherent in the government's practice of relying exclusively on hearsay testimony in such circumstances.

The issue to be resolved thus became the degree to which the grand jury was genuinely troubled by the prospect of returning an indictment solely on the basis of Special Agent Cuccinelli's hearsay testimony. Defendants sought an order to have transcribed the previously absent portions of the grand jury minutes, those containing the colloquies between the grand jury and the Assistant United States Attorney in the absence of the witness. After ordering that the transcripts be produced, the Court further reserved its decision on defendants' motions, in the interest of judicial economy and again with the consent of the parties.

Closing arguments took place on April 18, and the jury was charged on the morning of April 19. That same morning, shortly before charging was to commence, the government produced a partial transcript that included four colloquies between the grand jury and the Assistant United States Attorney ("Colloquy Transcript").*fn5 This transcript did not include a further colloquy, approximately twenty minutes in length, that occurred before Special Agent Cuccinelli was called for the first time.*fn6

The Court proceeded to charge the trial jury, which began its deliberations. Our in camera review of the Colloquy Transcript, however, revealed a new and unforeseen problem in the grand jury proceedings. During the first of the four transcribed colloquies, the following exchange took place between one or more grand jurors and the government:

    A Juror: Was the apartment the legal
  residence of either of these defendants? And the
  second question was were any fingerprints taken
  from the gun that was recovered?

    [Assistant]: I will ask that question — on
  the fingerprint question, I think it was
  constructive possession, okay.

    You have heard the testimony at the time
  Detective [Caggiano] made his observation, no one
  actually possessed the gun. The government is
  proceeding on the theory of both individuals being
  able to exercise some minimum — in other words,
  they exercise[d] control or they had access to the
  gun. They would be able — it was readily available
  for them to grab it or hold [it]. That is
  constructive possession. Their [sic] official words
  are "exercising dominion and control".

    A Juror: Did anyone have a license for the
  gun? Was it licensed?

    [Assistant]: Do you want me to go get him or
  do you want to go get him?

Colloquy Transcript at 7-8 (emphasis added). Later, during the fourth colloquy, the following exchange took place:

    A Juror: Again, one thing is bothering me. I
  know you went through it. Did he use and carry —
  [no,] the gun wasn't used or carried, but he had
  the opportunity to carry it and fire it?

    [Assistant]: It is charged to both
  individuals in this case.

    A Juror: But this is proper even though the
  gun was never carried?

    A Juror: Why don't you read the section

    A Juror: I understand the concept of
  availability, but did he use —

    [Assistant]: And Section 924(c), subdivision
  (1) — let me say that again. Section 924(c) of
  Title 18, subsection (c), subdivision (1), reads as

    "[Whoever], during and in relation to any crime
  of violence or drug trafficking crime for which he
  may be prosecuted in a court of the United States,
  uses or carries a firearm."

    Okay. "uses or carries a firearm." The
  definition of "use", so to speak, in this
  particular matter, that would be the idea of
  "carry" again. I am instructing you to
  constructive possession — whether or not the
  firearm in this particular case, a .38 caliber, was
  accessible to them; whether or not these two
  individuals exercised any type of dominion or
  control over it.

    I can't draw that conclusion for you. The only
  thing you can do is based on the circumstances, you
  would have to draw it for yourself whether or not
  they used and carried it.

    The definition of "used" in this particular
  case, it is up to you — "use" can mean, well, they
  actually pick[ed] it up or it was actually there
  readily available to be used or carried.

    Again, it comes back to the term, the idea of
  constructive possession. Is everyone clear on that?
  Because the question has come up two times. It is
  the key of constructive possession.

    No one actually possessed it in this case. No
  one actually picked it up, fired it, used it,
  pointed it. It was the idea they had dominion and
  control — that could fit under the idea of
  exercising dominion or control.

    A Juror: "Use" in the broader sense rather
  than "uses"?

    [Assistant]: In other words, there is, it's
  available to use. It was operating. The idea
  also, there was — if you look at the facts as they
  were testified to you through Agent Cuccinelli,
  based on the information [he] received from
  Detective Caggiano, you have Detective Caggiano
  indicated to Agent Cuccinelli he saw drugs, a
  scale, money, and there was a gun in an open

    It is up to you. From those circumstances it is
  up to you whether those guys were using and
  carrying that gun in connection with drug
  trafficking. I can't make that conclusion for you
  based on the circumstances. As to the gun, it is as
  to whether or not it was used and carried in
  connection with drug trafficking. That is something
  you have to draw

  the inference from, but "use and carry" apply with
  respect to the totality of the circumstances, and
  the idea of constructive possession applies in this
  particular case.

    A Juror: Can you substitute the words in the
  indictment, "with the intent to use"?

    [Assistant]: I can't change the statutory
  language, so to speak. I am required in the
  indictment to plead based on what the statute says.

    A Juror: Use in their work, which was
  distributing narcotics.

    [Assistant]: That would be — that is the
  theory under which the government is proceeding.
  Again, the idea of constructive possession, it has
  to apply here because you didn't hear any testimony
  of actually possessing it.

    A Juror: They were using it in their work, in
  their profession.

    [Assistant]: That is a theory that the
  government is a[d]vancing in this case, exactly.
  Now, it is up to you. I want to be clear, I am your
  legal advisor. I am — you have to determine whether
  or not they were using or carrying the gun in
  connection with the drug trafficking, not from me,
  but based on the facts that you heard. So I will
  leave this copy of the proposed indictment to
  you. . . .

Colloquy Transcript at 19-24 (emphasis added).

After reviewing the transcript and while the jury was deliberating, the Court held a further hearing on defendants' motions. The government conceded that the above-quoted excerpts almost certainly represented the only explanation of the legal concept of constructive possession given to the grand jury in this case.*fn7 As explained below, we found that the government's instructions on this issue of law were erroneous and misleading, and that together with the government's reliance on inaccurate hearsay testimony the instructions resulted in prejudice to the defendants before the grand jury.

At the second hearing, as noted below, the government insisted it had proceeded at all times under a constructive possession theory as to both defendants and all of the contraband. It thus made an application to have our ruling on this issue applied to both defendants and both counts of the indictment. The application came during a discussion of whether the Court's concern with the instructions on constructive possession would warrant delaying our ruling on defendants' motion to dismiss until the government could obtain the transcript of the missing initial colloquy with the grand jury:

  The Court: . . . If those minutes are in the
  possession and control of your office, and your
  office cannot deliver them to me so that I can make
  [a] determination prior to this jury rendering its
  verdict . . . what in that situation is the fair
  thing to do? That's all I'm asking.

  Mr. Williams: Well, your Honor, obviously the fair
  thing to do is dismiss the indictment, because every
  presumption goes with the defendant, they get the
  benefit of the doubt.

  The Court: I disagree with you, dismissing the
  indictment is not the answer. We're not talking about
  dismissing the indictment, we're talking about
  dismissing Count Two of the indictment.

  Mr. Williams: Well, your Honor, the fact of the
  matter is, constructive possession is also part of
  Count One as well in terms of defendant Peralta.
  Because we're charging him with constructive
  possession of the drugs that were on the desk. So it
  really obliterates the government's case as to — at
  least as to defendant Peralta, and actually as to
  defendant Ramos, because the possession by defendant
  Ramos at the desk was also a constructive one. So if
  you rule that way, essentially, the government has no

Id. at 27-28. The government reiterated this position several minutes later:

  The Court: Let me ask you, Mr. Williams, are you
  saying that the government's theory as to both of
  these defendants on Count One was constructive

  Mr. Williams: Yes, it had to be, your Honor, even
  if Mr. Ramos was seated behind the desk he didn't
  actually have his hands on it or in his pockets, it
  was in front of him. It was what we call a strong
  constructive possession case. Both theories are under
  constructive possession, your Honor.

The Court: As to both defendants?

  Mr. Williams: That's correct. That is the
  government's theory.

Id. at 36. We granted the government's application and defendants' motion, and dismissed the indictment.


A. Constructive Possession

Both before the grand jury and at trial in this case, the government relied upon a theory that each of the defendants possessed, not actually but constructively, both the gun found in the desk in the apartment where defendants were arrested and the three plastic bags found to contain "crack" cocaine. Indeed, although the evidence at trial may well have been sufficient to support a theory of actual possession as to at least defendant Peralta and one of the bags, the government insisted at the second hearing on defendants' motion to dismiss that constructive possession had been the lynchpin to its entire case against both defendants. Thus, the grand jury's understanding of the (somewhat counterintuitive) concept of constructive possession was extremely important.

An Assistant United States Attorney plays multiple roles before a grand jury. He or she "calls and examines witnesses, presents documents, explains the law, sums up the evidence, and requests an indictment." United States v. Kleen Laundry & Cleaners, Inc., 381 F. Supp. 519, 521 (S.D.N.Y. 1974). We hold that the Assistant United States Attorney's instructions to the grand jury on constructive possession in this case seriously misstated the applicable law.*fn8 As one court has explained,

  Possession may be either actual or
  constructive. . . . Actual possession exists when a
  tangible object is in the immediate possession or
  control of the party. Constructive possession exists
  when a person does not have actual possession but
  instead knowingly has the power and the intention at
  a given time to exercise dominion and control over
  [the] object. . . .

United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.) (emphasis added), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), quoted in United States v. Rivera, 844 F.2d 916, 925 (2d Cir. 1988), and in United States v. Tribunella, 749 F.2d 104, 111-12 (2d Cir. 1984). At no point in his colloquies with the grand jury in this case does it appear that the Assistant United States Attorney distinguished between actual and constructive possession in any coherent fashion. He clearly failed to instruct the grand jury that it had to find probable cause that each of the defendants "knowingly [had] the power and the intention . . . to exercise dominion and control" over the firearm and the drugs. Indeed, we find no mention whatsoever of the elements of knowledge and intent as they apply to constructive possession.*fn9

Nor did the Assistant merely fail to instruct the grand jury on a question of applicable law. Rather, he relied on the following misleading statements of the meaning of constructive possession:

  . . . being able to exercise some minimum — in other
  words, they exercise[d] control or they had access to
  the gun. They would be able — it was readily
  available for them to grab it or hold [it]. The[]
  official words are "exercising dominion and control";

  . . . accessible to them; whether or not these two
  individuals exercised any type of dominion or control
  over it;

  actually there readily available to be used or

  the idea they had dominion and control — that could
  fit under the idea of exercising dominion or control;

available to use.

Unlike the concept of actual possession, constructive possession is a legal fiction that frequently runs counter to a layperson's understanding of what it means to "possess" something. We conclude that there was a high probability, if not a certainty, that the grand jury in this case was misled into thinking that constructive possession was equivalent to the mere physical possibility of exercising dominion and control over the gun and the drugs. In other words, it is entirely possible that the grand jury concluded, improperly, that "mere proximity" would be sufficient to constitute possession as it pertained to the offenses charged.*fn10

B. Reliance on Hearsay Testimony

The potential prejudice to the defendants caused by the misleading explanations of the law of constructive possession was compounded by the recurring problem of the government's reliance on hearsay testimony before grand juries. As recently as last year, in United States v. Brito, 907 F.2d 392 (2d Cir. 1990), the Court of Appeals reiterated its longstanding concern with the government's practice of using a "case agent" before a grand jury in place of eyewitnesses, a practice which

  produc[es] "`evidence' which appears smooth, well
  integrated and consistent," making even weak cases
  appear strong, . . . [and] "prevents the defendant
  from utilizing grand jury testimony in
  cross-examining witnesses who will testify at trial"

and thus threatens the independence of the grand jury function.*fn11 Id. at 395 (quoting United States v. Arcuri, 282 F. Supp. 347, 349-50 (E.D.N.Y.), aff'd, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969)). More seriously, the practice is indicative of an unduly "casual attitude with respect to the presentation of evidence to a grand jury." United States v. Estepa, 471 F.2d 1132, 1135 (2d Cir. 1972).

Although the Court in Brito declined, "not with great enthusiasm," to dismiss the challenged indictment, it did so only after finding, "most importantly, [that] the agent's testimony to the grand jury was concededly accurate." 907 F.2d at 396. Here, by contrast, Special Agent Cuccinelli's testimony was concededly inaccurate: his descriptions to the grand jury of where Detective Caggiano first confronted defendant Peralta, and, more importantly, of where the defendants were standing in the room where the second confrontation occurred, were plainly contradicted by Detective Caggiano's testimony at trial.

C. Dismissal of the Indictment

We find that defendants were seriously prejudiced by the cumulative effect of the government's misleading statements of law and its use of inaccurate hearsay testimony. Cf. United States v. Hogan, 712 F.2d 757, 761-62 (2d Cir. 1983) (dismissing indictment based on government's reliance on "false and misleading" hearsay testimony). These defects in the grand jury presentation leave us with "grave doubt that the decision to indict was free from the substantial influence" of the errors. See Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988).

Under such circumstances, it was within our supervisory authority to dismiss the indictment against the defendants. In United States v. Vetere, 663 F. Supp. 381 (S.D.N.Y. 1987), the Court found that the combination of hearsay testimony, which contained factual errors about the offense and about the defendant's background,*fn12 the presentation of non-relevant, highly prejudicial, and erroneous information about the defendant's criminal record, and possibly erroneous and misleading instructions on the law, amounted to "prosecutorial impairment of the grand jury's independent role," United States v. Hogan, supra, 712 F.2d at 761, warranting dismissal of the indictment even after the trial jury had returned a verdict of guilty. We consider the errors in the present case, which went both to the quality of the evidence before the grand jury and to the requirements of the legal theory at the core of the government's case, to have been every bit as serious as those present in Vetere.


For the reasons stated above, we granted the government's application that our ruling on the issue of its instructions to the grand jury be applied to both defendants and both counts of the indictment in this case, and we granted defendants' motion to dismiss the indictment.

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