Dismissal of the Indictment for Outrageous Government Conduct
Lopez moves for dismissal of the indictment based on the ground that government conduct involving the undercover officer and "Ritchie" during the course of the alleged witness tampering scheme violated Lopez' due process rights and amounted to outrageous government conduct. It is asserted that "the government went out of its way to create a criminal scheme to ensnare [Lopez]." Lopez Memo. in Support at 13. In opposition, the government contends that Lopez' motion actually represents an ordinary claim of entrapment.
The Second Circuit recently held that "to obtain dismissal of an indictment based upon a claim of outrageous government conduct, a defendant must establish that the government engaged in outrageous behavior in connection with the alleged criminal events and that due process considerations bar the government from prosecuting [him]." United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir. 1991) (citing United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973)) (further citation omitted). Furthermore, "the existence of a due process violation must turn on whether the governmental conduct, standing alone, is so offensive that it 'shocks the conscience,' . . . regardless of the extent to which it led the defendant to commit his crime." United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (quoting Rochin v. California, 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205 (1952)). Thus, "there are significant differences between a claim of entrapment and a claim of outrageous governmental conduct." Cuervelo, 949 F.2d at 565.
The sole factual basis offered in support of Lopez' claim appears to be the transcripts of monitored meetings and telephone calls in which Lopez communicated with "Ritchie" or the undercover officer. To that extent, having reviewed the transcripts, the Court finds the claim of outrageous government conduct to be without merit, and the motion, as made by Lopez and joined in by Melendez and Molina, is hereby denied.
However, defendants are hereby given leave to move again on this claim, if convicted, by way of a post-verdict motion. At that time this Court, having heard all the evidence in the case, could determine whether such an application would require a hearing, consistent with the Court's reasoning in Cuervelo. See 949 F.2d at 567.
Suppression of Lopez' Post-Arrest Statements
Lopez moves to suppress statements allegedly made by him following his arrest. Although Lopez indicates that he was advised of his Miranda rights, he nonetheless asserts that he was threatened and coerced into making the statements. The government consents to a hearing on this issue, and therefore the Court defers ruling on the suppression motion until the completion of a hearing.
For the reasons stated above, defendants' motions for severances, dismissal of the indictment, and to compel disclosure of information about the government's confidential informant are denied. Finally, the Court defers ruling on Lopez' motion to suppress post-arrest statements until the completion of a hearing on that issue.
Dated: Brooklyn, New York
March 27, 1992
DENIS R. HURLEY, U.S.D.J.