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U.S. v. MATOS

December 30, 1991

UNITED STATES OF AMERICA
v.
ALFREDO PERALTA MATOS, DEFENDANT.



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

OPINION

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 as follows.

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 University Avenue.

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 the police.

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 Eleven.

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 "friend."

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 ...


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