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 the two often seized cash that was not
accompanied by evidence of a crime such as gambling receipts.
Even without the testimony of Agent Williams, this court
finds a fair preponderance of the evidence — as illustrated by
the witness testimony below — shows the defendant willfully
and knowingly became a member of and participated in the civil
II. COUNTS 2, 3, 4, 6, 8, 10, 13, 16, 19, 21, and 23 —
VIOLATION OF CIVIL RIGHTS: SEARCHES AND SEIZURES.
These counts charge the defendant with violating 18 U.S.C. § 242,
specifically, depriving inhabitants' of rights.