The opinion of the court was delivered by: Motley, District Judge.
On June 17, 1991, the Government rested its case. After a
hearing and arguments of counsel on June 17, 1991, defendant
then moved for a judgment of acquittal on all counts pursuant
to Fed.R.Crim.P. 29(a). The court orally denied defendant's
motions for judgment of acquittal on all counts. On June 13,
1991, the Government moved the court to make its findings
pursuant to United States v. Geaney, 417 F.2d 1116 (2d Cir.
1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d
539 (1970), with respect to the use of co-conspirator
statements as evidence against the defendant. This court made
its Geaney finding with an Opinion to follow. This opinion sets
forth the court's reasons for its rulings.
At this stage, the Government must also show, by a
preponderance of the evidence, that the defendant knowingly and
willfully became a member of and participated in the civil
rights conspiracy in order to permit co-conspirator statements
to be used as evidence against the defendant pursuant to
Fed.R.Evid. 801(d)(2)(E). United States v. Geaney,
417 F.2d 1116 (2d Cir.), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25
L.Ed.2d 539 (1970). "[A] court, in making a preliminary factual
determination under Rule 801(d)(2)(E), may examine the hearsay
statements sought to be admitted." Bourjaily v. United States,
483 U.S. 171, 181, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144, 156
In order to allow co-conspirator statements to be used as
proof against a particular defendant pursuant to Fed.R.Evid.
801(d)(2)(E), the Government must show, by a preponderance of
the evidence, that the defendant knowingly and willfully became
a member of and participated in the conspiracy charged in the
indictment. This proof must consist of evidence independent of
co-conspirator statements which could themselves be admissible
against the defendant under the co-conspirator exception to the
hearsay rule, Fed.R.Evid. 801(d)(2)(E). However, hearsay
statements admissible against a defendant under some other
exception may be used by a court in its preliminary
determination that the defendant knowingly joined in the
conspiracy charged. United States v. DeJesus, 806 F.2d 31 (2d
Cir.), cert. denied, 479 U.S. 1090, 107 S.Ct. 1299, 94 L.Ed.2d
On the basis of the evidence outlined below, the court finds
that the Government has introduced sufficient proof upon which
a jury could reasonably find the defendant guilty beyond a
reasonable doubt as to each count charged in the indictment.
The evidence is also sufficient to show that the defendant
knowingly and willfully participated in the civil rights
conspiracy charged in Count 1 of the indictment.
The defendant, Joseph Occhipinti, is a supervisory special
agent in the Immigration and Naturalization Service (INS). He
is charged in a 23-count indictment with committing various
crimes during the course of investigations connected with
"Project Bodega." Project Bodega was implemented by the INS and
Agent Occhipinti, the stated object of which was "to
investigate . . . aliens that were smuggled into [the United
States] by the Freddie Then drug cartel to work in bodegas to
facilitate some type of drug distribution operation." Tr. 1798.
Agent Stafford Williams, Occhipinti's partner during most of
the searches, testified as a Government witness*fn1 and stated
that — of 56 searches conducted during Project Bodega — none
resulted in links to the Freddie Then drug cartel. Tr. 1806.
I. COUNT 1 — CIVIL RIGHTS CONSPIRACY.
Count One charges the defendant with violating 18 U.S.C. § 241,
specifically conspiring to violate inhabitants' Fourth
Amendment rights by participating in such acts as conducting
illegal detentions, searches and seizures, making false
statements to cover-up such activities, and embezzling money
from the bodegas.
In order to establish guilt beyond a reasonable doubt in this
conspiracy count, the Government must establish the following
five elements: 1) that two or more persons entered into the
conspiracy; 2) that the conspirators agreed to the object of
the conspiracy, as defined by the Government: "to injure,
oppress, threaten or intimidate an inhabitant of a State in the
free exercise or enjoyment of [his or her] Fourth Amendment
right against unreasonable searches and seizures"; 3) that the
conspirators acted under color of law in the course of the
conspiracy; 4) that the defendant knowingly became a member of
the conspiracy; and 5) that the defendant acted willfully.
It was undisputed that Agent Occhipinti, an INS agent for 15
years, led the Project Bodega investigations and that the
searches complained of were conducted under color of law. All
of the witness-complainants testified that Occhipinti
(typically described as "the short, white agent" rather than
named) was the leader, entered their establishments, showed
them a business card identifying himself as an INS agent,
ordered the other officers around, and conducted the
questioning of the store occupants. Agent Williams testified
that Occhipinti referred to himself during these searches as
"el jefe," the boss.
Agent Williams supplied evidence that he and agent Occhipinti
acted in concert and, thus, entered into a conspiracy. Agent
Williams testified that he and defendant would on occasion
drive around upper Manhattan, spot an uncrowded bodega, and on
no suspicion at all, stop and conduct a search of the premises.
Tr. 1811-12. He testified that on one occasion, after leaving
a store in which they had conducted an investigation, and as
they placed the evidence in the rear of their squad car, "Mr.
Occhipinti looked over his shoulder and he saw this unknown
bodega and he said, let's go there." Tr. 1814. They did. On
these occasions, Agent Williams testified, they were searching
for "any evidence of a crime." While Occhipinti questioned an
employee inside the store, Agent Williams "ordered the door
closed [and] [t]he door was locked." Tr. 1815. The two agents
then questioned and searched the 8 to 10 occupants of the store
even though Agent Williams knew he was violating their Fourth
Amendment rights. Tr. 1816. He testified that, often, during
Project Bodega they seized money from "any and everywhere" and
counted it as gambling proceeds even if there was no evidence
to that effect. Tr. 1825.
At the search of 350 Bowery in Manhattan, an alleged brothel,
Agent Williams testified that Occhipinti became "frustrated
over his inability to obtain a consent to search" and told the
agents to conduct a search anyway. Tr. 1793. Williams testified
that he conducted the search even though he knew it was wrong.
Tr. 1794. During the course of this search, another agent found
a gun under a mattress and was told by Occhipinti that "if
anyone asks you where the gun was found, say it was found in
plain view." Tr. 1796.
Williams testified that some of their searches were conducted
at premises visited by mistake — such as the searches of
Televicine Printing shop and Uptown Grocery. At Televicine,
after Williams searched in the back of the shop without
permission, he showed Occhipinti a printing plate which he took
from the premises after Occhipinti said to "seize it." Williams
testified that ...