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U.S. v. OCCHIPINTI

August 23, 1991

UNITED STATES OF AMERICA
v.
JOSEPH OCCHIPINTI, DEFENDANT.



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

OPINION

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.

DISCUSSION

In order to withstand a defendant's motion for judgment of acquittal on a particular count of an indictment, the Government must have introduced evidence in its direct case "upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt" on each and every element of the offense. United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984).

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 (1987).

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 155 (1987).

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 ...


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