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UNITED STATES v. BRAVO

December 2, 1992

UNITED STATES OF AMERICA,
v.
CARMELO BRAVO, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

MEMORANDUM OPINION AND ORDER

 SHIRLEY WOHL KRAM, U.S.D.J.

 On August 7, 1991, the defendant, Carmelo Bravo ("Bravo"), was convicted of possessing with intent to distribute 500 grams and more of cocaine within 1000 feet of a school; using and carrying a firearm during and in relation to a federal drug trafficking crime; and, as a convicted felon, unlawfully possessing and receiving a firearm that had passed in foreign and interstate commerce. Bravo now moves, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, *fn1" for a new trial on the grounds that the Government improperly withheld vital impeachment material, and for the ancillary relief of a reopened Franks hearing *fn2" and reconsideration of his motion to depose the confidential informant in this case who has purportedly fled to the Dominican Republic. *fn3"

 BACKGROUND4

 A. Introduction

 On March 23, 1990, Bravo was arrested by Drug Enforcement Administration ("DEA") agents assigned to a unit known as "Group 33." The complaint, which was sworn to by Special Agent Roger Bach ("Bach"), alleged that:

 (1) On or about March 23, 1990, fellow DEA agents executed a search warrant for the seizure of weapons and indicia of occupancy, residency or ownership at 227 West 203rd Street, *fn5" Apartment 4F, Bronx, New York ("Apartment 4F"), the residence of the defendant Carmelo Bravo. Shortly before they executed the warrant, the agents observed the defendant Carmelo Bravo arrive in a black car, park the car out on the street, get out of the car and enter Apartment 4F. The defendant Carmelo Bravo was in Apartment 4F while the agents executed the warrant.

 (2) While searching Apartment 4F for indicia of occupancy, residency or ownership of Apartment 4F, the agents found records reflecting narcotics transactions. The agents then arrested the defendant Carmelo Bravo.

 (3) Thereafter, the agents seized the black car and conducted an inventory search of the car. In the trunk of the black car the agents found approximately three kilograms of a substance which later field-tested positive for the presence of cocaine and a fully loaded .38 caliber revolver.

 The affidavit in support of the search warrant referred to in the complaint, also executed by Agent Bach, detailed the circumstances leading up to Bravo's arrest. Specifically, a confidential informant (the "CI") allegedly relayed the following information to DEA agents:

 (4) On or about March 21, 1990, the CI advised DEA agents that, on or about March 20, 1990, he met with an individual who has identified himself to the CI as Carmelo Bravo. At this meeting, Bravo gave the CI $ 20.00 in United States currency, a machine gun and a silencer. Bravo then instructed the CI to go to Bravo's residence, located at 227 West 203rd Street, Apartment 4F, Bronx, New York and to place the machine gun and the silencer in a closet inside the apartment. Bravo stated that his wife would allow the CI to enter the apartment for this purpose.

 (5) The CI followed Bravo's instructions, went to 227 West 203rd Street, Apartment 4F, Bronx, New York, where a woman he believed to be Bravo's wife, let him into the apartment. He then deposited the machine gun and the silencer in a closet inside the apartment.

 After indictment, Bravo filed various pre-trial motions. In support of these motions, Bravo submitted an affidavit which alleged that the agents' representations were untrue in that (1) he had never given a gun, a silencer and $ 20.00 to anyone; (2) at the time the agents entered his apartment to execute the search warrant, he had just gotten up and was preparing to go to court in an unrelated matter and, therefore, had not been seen driving up to and entering his apartment; and (3) the agents initially entered the apartment before the search warrant was issued. Affidavit of Carmelo Bravo, sworn to on June 25, 1990 ("June 25, 1990 Aff."). Bravo also relied on these contentions in his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).

 On March 7, 1991, Bravo moved for (1) reconsideration of his previously denied motions to suppress, and (2) suppression of his post-arrest statements on the ground that he had not been given his Miranda rights. In support of his motion for reconsideration of the request for a Franks hearing, Bravo submitted a certification by Dr. Angel Encarnacion Castillo (the "Castillo certification"), an attorney and notary public in the Dominican Republic, that, on February 20, 1991, Guido Perez Mendez -- the confidential informant in this case who had fled to the Dominican Republic -- had, in the presence of Dr. Castillo, made a sworn statement attributing the information which formed the predicate for the search warrant to pressure by the agents and admitting that it was a lie. *fn6"

 On March 11, 1991, just before trial, the Court, on consent of the Government, held a limited Franks hearing in connection with Bravo's motion for reconsideration. At that hearing, Agent Bach, the affiant to the affidavit in support of the search warrant, testified that Special Agent Hunt first made contact with Guido Perez, the confidential informant in this case. March Tr., at 9. Bach also testified that Hunt told him that the informant had previously worked for another federal agency, and that the informant had proven reliable to that agency in the past. March Tr., at 9. Bach testified further that he and Hunt met with the informant in March 1990, at which time the CI told the agents about two individuals, namely Bravo and Eddie Ramirez, who were dealing in narcotics and weapons. March Tr., at 10. Specifically, the CI told the agents that Bravo "was a dealer of cocaine, and had been in possession of weapons, that the informant was solicited by Bravo to deliver the machine gun to a residence in the Bronx, and that on another occasion the informant had been in the company of Bravo and Eddie Ramirez while cocaine was being cut up at Ramirez's residence." March Tr., at 11. As a result of this information, the agents conducted a consensual search of Eddie Ramirez's residence, where they found approximately one kilo of cocaine and two semi-automatic pistols. March Tr., at 11. Having received confirmation of the CI's information, and having learned about the CI's history from Hunt, Bach applied for and received a search warrant for the home of Carmelo Bravo. March Tr., at 12.

 In addition, Bach testified that he never pressured the informant to make false statements and, as far as he knew, no one else did either, and that the CI accepted approximately $ 5000 for the information he provided. March Tr., at 12-13.

 After the evidentiary hearing, the Court denied Bravo's renewed motion, finding that Bravo had failed to meet his burden of showing that the affidavit submitted in support of the search warrant contained false statements that were made knowingly and intentionally or with reckless disregard for the truth. March Tr., at 54.

 On March 12, 1991, this matter proceeded to trial. However, after several days of deliberation following the close of trial, the Court declared a mistrial as the jury was unable to reach an unanimous verdict. See August 1, 1991 Opinion, at 2 n. 1.

 On June 15, 1991, in contemplation of the re-trial, Bravo moved, pursuant to Rule 15 of the Federal Rules of Criminal Procedure, for leave to depose the CI in the Dominican Republic, by means of letters rogatory. The Government opposed the motion, contending that Bravo failed to make the requisite showing of "exceptional circumstances" for the relief he was seeking. After briefing of the legal issues was completed, the Court denied Bravo's motion, relying in part on the Court's previous finding that Agent Bach's testimony at the March 11, 1991 Franks hearing was credible. See August 1, 1991 Opinion, at 5-9.

 On July 24, 1991, and July 30, 1991, the Court held a hearing concerning the admissibility of a post-arrest statement which the Government intended to use at the re-trial. At the hearing, Agent Violet Szeleczky testified that she had administered Miranda rights to Bravo and that Bravo had indicated that he understood his rights. See Transcript dated July 24, 1991 ("July 24 Tr."), at 11-12, 16-17. Agent Hunt testified that after Bravo was advised of his rights, he asked Bravo about the location of the keys to the black car outside, and Bravo responded, in substance, that the keys were on a bedroom table. July 24 Tr., at 49-50. Bravo also testified at the hearing and indicated, among other things, that he had not been advised of his rights. See Transcript dated July 30, 1991 ("July 30 Tr."), at 27. The Court denied Bravo's motion to suppress, finding that the defendant had been advised of his rights, that he knowingly and voluntarily had waived his rights, and that his post-arrest statement concerning the car keys was therefore admissible at trial. See August 1, 1991 Opinion, at 13.

 B. Re-trial

 Re-trial of this matter began on August 1, 1991. The Government called 12 witnesses, including four DEA agents, four Bureau of Alcohol, Tobacco and Firearms ("ATF") agents, a chemist, an interpreter, an U.S Attorney's Office investigator, and a Parking Violations Bureau employee. Agent Hunt and Special Agent James Clifford ("Clifford") testified that during their separate surveillances of East 203rd Street in the Bronx prior to executing the search warrant, they observed Bravo drive onto East 203rd Street in a black Buick, double-park the car in front of 227 East 203rd Street, get out of the car and enter the building at that address. Trial Transcript ("Trial Tr."), at 30-33, 376-77, 383-84. Agent Clifford testified that Bravo was alone in the car. Trial Tr., at 30-31. The CI in the case was present with Agent Hunt during the surveillance of Bravo's arrival on the scene. Trial Tr., at 374-76. After Bravo drove up to the apartment building and went inside, Agent Hunt radioed instructions to fellow agents that the person they were waiting for had arrived and that the search of the apartment was to begin. Trial Tr., at 381.

 Shortly after Bravo was observed in the black Buick, DEA agents began their search of Apartment 4F, 227 East 203rd Street, and saw Bravo inside the apartment wearing a towel as he was coming out of the bathroom. Trial Tr., at 32, 34, 151. During the search, Agent Szeleczky found atop a living room wall unit, three spiral notebooks which contained detailed records of numerous drug deals. Trial Tr., at 151-53, 406-15. Agent Clifford recovered a triple-beam scale which is commonly used for weighing amounts of cocaine and other narcotics. Trial Tr., at 34-35. Agent Hunt found approximately $ 4,780 in cash in a bedroom drawer. Trial Tr., at 386.

 After Bravo was placed under arrest and advised in Spanish of his Miranda rights by Agent Szeleczky, he told Agent Hunt, in response to questioning, that the keys to the black Buick were on his bedroom dresser. Trial Tr., at 388-89. Agent Hunt then picked up a set of keys from the dresser, handed the keys to Agent Clifford, and told him to seize the Buick that was double-parked outside. Trial Tr., at 390. The car was to be seized as a drug-related asset. Trial Tr., at 390. Agent Clifford collected three other sets of keys from the apartment, cast two of the sets to the side after determining that they were keys to foreign cars or house keys, and selected the keys he believed were to the Buick. He then went outside to the car to conduct an inventory search. Trial Tr., at 36-37, 67-68.

 Upon unlocking the Buick's trunk, Agent Clifford found two shoeboxes: one containing a loaded .38 caliber revolver, resting on plastic baggies containing a white powdery substance, Trial Tr., at 37, the other containing additional bags of white powder. Trial Tr., at 37. A DEA chemist testified that chemical analysis of the white powder proved that the substance was cocaine, weighing a total of approximately three kilograms, with purities ranging from 49% to 91%. Trial Tr., at 304-06, 307-08. ATF agents testified that the .38 caliber revolver successfully testfired, and that the gun had passed through both foreign and interstate commerce before it settled in the Buick trunk. Trial Tr., at 542-43, 557-60.

 An official from the New York City Parking Violations Bureau testified that, based on his review of the Bureau's business records, approximately 52 parking tickets had been issued to the black Buick, a significant percentage of which were issued to the car at a distance within several blocks of Bravo's apartment. Trial Tr., at 145-46, 266-70; Government Exhibit "15." More specifically, two of the tickets were issued to the car within ten hours of Bravo's noontime arrival, ...


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