The opinion of the court was delivered by: Sweet, District Judge.
Defendant Alfredo Peralta-Matos ("Matos") has moved pursuant to
Rule 33, Fed. R.Crim.P. for an order granting him a new trial.
For the following reasons, the motion is denied.
Procedural and Factual Background
Matos was convicted on May 24, 1989 following a jury trial in
which he was found guilty of (1) conspiring to distribute and to
possess with intent to distribute over 500 grams of cocaine in
violation of 21 U.S.C. § 846; (2) distributing and possessing
with intent to distribute, together with codefendants,
approximately 1,007 grams of cocaine in violation of 21 U.S.C. § 812,
841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2; and (3)
possessing with intent to distribute approximately 0.844 grams of
heroin in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C)
and 18 U.S.C. § 2.
The conviction arose from a narcotics transaction between Matos
and his codefendants and agents of the Drug Enforcement
Administration ("DEA"). On December 5, 1990, Matos's conviction
was affirmed by the Second Circuit. See United States v.
Benitez, 920 F.2d 1080 (2d Cir. 1990). The evidence at trial, as
discussed by the Second Circuit on appeal, established the facts
In December 1987, undercover DEA agent Thomas C. Slovenkay
("Slovenkay") had several telephone conversations with a Eugene
Jimenez ("Jimenez") that culminated in a transaction at 161st
Street and the Grand Concourse in the Bronx, New York, on
December 29, 1987 in which Slovenkay purchased from Jimenez
approximately 52.6 grams of 63% pure cocaine for $2,500 in
pre-recorded currency. Following the sale, Jimenez, followed by
undercover DEA agent James Kerrigan ("Kerrigan"), went to an
apartment building at 2230 University Avenue in the Bronx. At a
later date, Slovenkay received a telephone message from Jimenez
requesting that Slovenkay call him at a number listed to one
Harry Torres ("Torres") at Apartment 2A ("Apartment 2A") at 2230
On January 13, 1988, Slovenkay called the number and spoke to
both Jimenez and Torres, who agreed to sell Slovenkay a kilogram
of cocaine in exchange for $23,500, with the transaction to be
carried out in four equal installments. The next day, Slovenkay
and Jimenez talked on the telephone and agreed to consummate the
sale that evening.
According to DEA agent J. Michael Smith ("Smith"), at
approximately 8:00 p.m. in the evening of January 14, 1988, a
Spanish male, whom he later identified as Matos, drove up to the
entrance of 2230 University Avenue, parked, and entered the
building. Jimenez arrived and entered the building at
approximately 8:25 p.m. Matos departed at approximately 8:35 p.m.
Shortly thereafter, Jimenez, Torres, and William Gonzalez-Benitez
("Benitez") departed 2230 University Avenue, and took a taxi cab
to and entered an apartment building at 2845 University Avenue.
Later that evening, Jimenez and Slovenkay met at 161st Street
and the Grand Concourse where, pursuant to their prior agreement,
Slovenkay gave Jimenez the first installment of $5,900 in
pre-recorded currency. Jimenez thereupon returned to 2845
University Avenue to pick up the cocaine. At approximately 10:00
p.m., Matos was observed by surveillance officers exiting a car
and entering 2845 University Avenue.
Meanwhile, Slovenkay waited for Jimenez to return with the
cocaine. Shortly after 10:00 p.m., Slovenkay spoke on the
telephone with Jimenez's wife, who informed him that "some
unforeseen problem had developed from the people involved in this
thing," and that Slovenkay would "have to sit and wait."
Approximately five minutes later, she advised Slovenkay that
Jimenez "said he'll be there in ten minutes." About ten minutes
later, Jimenez did arrive, bearing a kilogram of cocaine wrapped
in a brown paper bag, a plastic container, and plastic wrapping.
Affixed to the paper bag was a Sears and Roebuck label addressed
to "William Beniter [sic],
2845 University Avenue, Apartment 4J, Bronx, New York."
Jiminez gave the cocaine to Slovenkay, and was thereupon
arrested by DEA agents. Agents then went to Apartment 4J at 2845
University Avenue ("Apartment 4J") and entered by breaking down
the steel door to the apartment with a sledge-hammer. The agents
found Torres and Benitez inside, and arrested them. Matos and
Hector B. Ramirez ("Ramirez"), who had also been inside, had
jumped through the back window of the apartment. Ramirez lay on
the ground below; Matos was found at the end of a trail of blood
leading to the building's basement utility room. The agents
arresting Matos found, on the ground in the utility room where
Matos was standing at the time of his arrest, a package
containing a sample of 0.333 grams of 86% pure heroin and
glassine envelopes containing 17% pure heroin. Matos later
admitted to the physician treating his wounds at Montefiore
Hospital that he had jumped out of a window upon the arrival of
Subsequently, pursuant to search warrants, the DEA agents
recovered from Apartment 4J: cocaine, heroin, marijuana, various
narcotics paraphernalia, cutting agents, weapons, ammunition,
holsters, drug records, address books, and a flight jacket that
Matos was wearing when he was observed entering the building. The
address books listed telephone numbers for "Alfredo" and "Fredo"
and a ledger card bore the heading "Alfred." From Apartment 2A,
the agents seized: heroin, cocaine, narcotics paraphernalia,
cutting agents, an address book, narcotics transaction records,
and $10,425 in United States currency that included prerecorded
currency from the December 29, 1987 and January 14, 1988
transactions between Jimenez and Slovenkay. The narcotics
transaction records included an index card headed "Alfred"
bearing a running tally of dollar amounts.
After being advised of and waiving his constitutional rights,
Benitez gave a signed postarrest statement in which he
acknowledged that at 9:00 p.m. on January 14, 1988, while with
Jimenez in Apartment 2A, he had agreed that his apartment,
Apartment 4J, could be used to "make some money fast," and that
he and Jimenez had then traveled by cab from 2230 University
Avenue to 2845 University Avenue. Benitez further stated that a
"black guy" with a beard had been at Apartment 2A, had departed
to "go get that" saying "he would see us later," and had
reappeared at Apartment 4J with a "small Spanish male" with a
package, "the evidence we have now." Benitez added that when the
DEA agents announced their presence at Apartment 4J, "the black
guy and the Spanish guy went to the bedroom and I heard breaking
glass." Benitez's statement was admitted in evidence at trial,
but was redacted to delete any reference to the "black guy," the
"small Spanish male," and the "Spanish guy."
After warrants were issued for his arrest, Matos surrendered to
the authorities on April 15, 1988.
On May 16, 1988, an eleven-count superseding indictment (the
"Indictment") was filed against Matos, Ramirez, Torres, Benitez
and Jimenez. Matos was charged only in Counts One, Three, and
On or about May 24, 1988, DEA agents arrested Ramirez on
charges underlying the Indictment. After being advised of and
waiving his constitutional rights, Ramirez gave an oral statement
in Spanish, which was translated and transcribed by DEA Special
Agent Anthony Petrino ("Petrino"). Ramirez stated that on January
14, 1988, he had driven Matos to 2845 University Avenue and
waited in the car while Matos went inside. After approximately
one hour, Ramirez became concerned for Matos's safety, entered
the building and was directed to Apartment 4J by a teenager who
"asked him if Ramirez was looking for Matos." When he went into
the apartment, Ramirez saw two unknown persons and Matos,
together with a machine gun on a table that Ramirez thought was a
toy. Shortly thereafter, there was a knock on the door; looking
through a peep-hole, Ramirez saw an Indian boy who said, "they
are not going to kill you." Ramirez, not
knowing the police were at the door, jumped through the glass and
out the bedroom window.
At trial, Ramirez's transcribed statement was not admitted into
evidence. Rather, DEA agent Anthony Petrino, who had translated
into English Ramirez's Spanish statement, testified as to the
interview with Ramirez, modifying it only to the extent that all
references to Matos by name were replaced by a reference to a
Jimenez and Torres entered guilty pleas to Count Three of the
Indictment prior to trial. Each was sentenced to five years'
incarceration followed by four years of supervised release.
Jimenez and Torres refused to testify with respect to Matos at
trial, each expressing fear of physical retribution by Matos
against them and their families. See Kerrigan Aff. ¶ 4(h);
Sobol Aff. ¶¶ 19-21. Jimenez had given a signed statement in
which he swore that it was the "Gods honest truth" that it was
his "personal feeling  that ...