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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), ...

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