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MEJIA ALVAREZ v. UNITED STATES

December 15, 1992

WILFREDO MEJIA ALVAREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

 This case is before the Court on petitioner's request for habeas corpus relief pursuant to 28 U.S.C. ยง 2255, and for a new trial pursuant to Rule 33, Fed. R. Crim. P.

 BACKGROUND

 On March 9, 1989, Wilfredo Mejia Alvarez was indicted along with four other defendants--Luis Susana, Juan Carlos Galan, Juan Morales, and Jamie Suarez--for violating the narcotics laws of the United States. Indictment 89 Cr. 198 ("Indictment").

 Count one of the Indictment charged Alvarez and his four co-defendants with conspiracy to possess five kilograms or more of cocaine with the intent to distribute. Id. Count two charged Alvarez and the four others with possession of five kilograms or more of cocaine with the intent to distribute. Id. Counts three and four charged only Susana with felony counts pertaining to possession of a firearm. Id.

 Galan, Morales and Suarez pled guilty prior to trial. Alvarez and Susana were tried jointly before the Honorable Dominick L. DiCarlo, *fn1" beginning on July 18, 1989. After a four-day trial, the jury returned verdicts of guilty on both counts against Alvarez, and on all four counts against Susana. *fn2" On November 28, 1989, Alvarez was sentenced to ten years in prison and five years of supervised release. He is currently serving that sentence.

 Alvarez's instant motions challenge the fairness of his trial in light of events that occurred after his trial. Accordingly, what follows is an extensive discussion of the trial itself, and the pertinent events that followed.

 The prosecution's case against Alvarez centered on the testimony of a Confidential Informant ("CI"), Jose Freddie Diaz. As the first witness called by the government, Diaz described the circumstances of the Drug Enforcement Agency ("DEA") sting operation that led to Alvarez's arrest.

 Diaz worked with a unit of the DEA known as Group 33. United States v. Alvarez, Trial Transcript ("Alvarez Tr.") at 70. He testified that on February 27, 1989, he entered a grocery store on 124th Street and Amsterdam Avenue in Manhattan to arrange a drug transaction with the owner, a reputed drug dealer. Id. at 35. Although Diaz spoke with the store owner that day, he made only preliminary inquiries. Id. at 36. He returned the next day, February 28, during "afternoon hours," id. at 37, and later arranged to purchase three kilograms of cocaine at $ 16,000 to $ 17,000 per kilogram. Id. at 36-38. Defendant Juan Morales, apparently in collaboration with the owner of the store, suggested to Diaz that if the deal was going to take place, Diaz needed to drive with Morales to 172nd Street and Fort Washington Avenue in Upper Manhattan. Id. at 40. Morales and Diaz then drove to that location, where they met three men: defendants Juan Carlos Galan, Jaime Suarez, and Luis Susana. Id. at 41, 180-81.

 The five men discussed the quality and price of the drugs. Id. at 41. Diaz was told that if he wanted the cocaine, he would have to go to the Bronx to get it. Id. at 42. He then drove with Morales to a Mobil gas station on Rosedale Avenue in the Bronx; Galan, Suarez, and Susana followed in a car behind them. Id. at 42-43. Diaz parked his car at the station and entered the other car. He then drove with Morales, Galan, and Suarez to the two-story, two-family home where Galan lived on Taylor Avenue, several blocks away. *fn3" Id. at 45-46, 186. They parked in a lot behind the house. Id. at 45.

 Diaz testified that the four men entered Galan's second-story apartment and walked into the dining room area of the kitchen, where Susana was sitting down. Id. at 46-48. With Diaz and each defendant present except Alvarez, Susana placed three bricks of cocaine on the table. Id. at 48. Diaz inspected the cocaine by placing some on his tongue. Id. at 50. In keeping with the DEA plan for making arrests, Diaz then said he needed to return to his car to retrieve his money. Id.

 Diaz testified that he asked if somebody could drive him back to the Mobil station, but that he was told "no, you have to walk back." Id. Diaz then allegedly asked if someone could at least accompany him, since he did not know the area and might get lost. Id. at 51. Galan responded to this question by calling Alvarez, who was in another room, and instructed him to accompany Diaz to his car. *fn4" Id.

 Diaz and Alvarez left the apartment together. On their walk to the gas station, according to Diaz's testimony, Alvarez made several comments about the cocaine business. Because of its importance to the case against Alvarez, I now reproduce in full Diaz's testimony on this point, from the time Diaz began describing the conversation to the close of the prosecution's direct examination:

 
Q. After you left the apartment with Mr. Alvarez, what did you do?
 
A. Well, I started asking him questions. Would the drugs be there when I get back the money.
 
Q. When you asked him would the drugs be there when you got back with the money, what did he respond?
 
A. He said, "look, we ain't kind [sic--should read "kids"], we don't play around like that. It's going to be there. As long as you got the money, it's going to be there."
 
Q. Did you ask him anything else?
 
Q. Did you ask him anything about the walking versus riding to the Mobil station?
 
A. Yeah. I asked him why couldn't they give me, you know, why can't somebody drive me over to where my car was. He says "look, this is the first time you are buying from us. Today we sold more kilos than we ever sold any other day. So this guy is kind of shaky, that's why he prefers you walking than driving over there."
 
[MR.LEADER--ATTORNEY FOR ALVAREZ]: Objection, your Honor. "This guy is kind of shaky"--
 
THE COURT: Did he tell you to whom he was talking.
 
DIAZ: Yes, he indicated to his boss--
 
. . . .
 
THE COURT: Without "the boss," did he indicate who he is talking about, being shaky? Did he say "my boss?"
 
. . . .
 
Don't give us what you thought yourself. Just what was said to you. He said his boss told him to do it?
 
A. Yes.
 
THE COURT: To the best of your recollection, he didn't identify who his boss was.
 
A.: No.
 
Q. While you were having this conversation with Mr. Alvarez, what were you doing?
 
A. We were walking towards the gas station.
 
Q. As you approached the gas station, was this the same gas station where you had been previously?
 
A. Yes.
 
Q. As you approached the gas station, did he say anything to you?
 
A. He said, if I would have known that the gas station was here, I would have showed you another short cut.
 
Q. When you got to the Mobil gas station, what did you do?
 
A. I gave the arrest signal.
 
Q. What was the arrest signal?
 
A. I had a baseball cap on. I took off my cap and that was the signal.
 
Q. What happened at that time?
 
A. I remember DEA agent John Wilson and John Buchanan came up to the scene and arrested the gentleman over there.
 
THE COURT: Which gentleman?
 
A. The one with the light green, beige--
 
MR. LEADER: Stipulated Mr. Alvarez.
 
THE COURT: You may refer to him as Mr. Alvarez. He's been identified as Mr. Alvarez.
 
[MS. GRAY--ATTORNEY FOR GOVERNMENT]: Your Honor, at this time I have no further questions of the witness.

 Id. at 53-56.

 During cross-examination, counsel for Alvarez, Howard Leader, Esq., attempted to impeach Diaz's credibility. Leader questioned Diaz about his prior criminal record and about numerous benefits he had received for his cooperation with the DEA. He asked Diaz about his prior convictions for dealing in drugs, about receiving jail time for failure to appear as a criminal defendant, about accusations against him of felonious assault, and about his failure to file tax returns for monies earned as a CI. Id. at 64-98. Leader also asked about the amount of compensation Diaz received from the DEA, about whether the government reduced Diaz's jail time in return for cooperation, and about whether Diaz's cooperation would allow him to avoid deportation. Id.

 The government's second witness was Special Agent James Hunt of the DEA. A Group 33 agent, Hunt was on surveillance duty during the evening of February 28, 1989 and testified that he followed Diaz from the grocery store on 124th Street and Amsterdam Avenue to the Mobil station in the Bronx. Id. at 125-29. Hunt watched as Diaz parked his car and as Diaz and Morales entered Galan's car. Id. at 129. He then followed Galan, Morales, Suarez, and Diaz as they drove to Galan's apartment, and observed them enter Galan's building at 1224 Taylor Avenue. Id. at 130.

 Hunt then proceeded to Galan's apartment where he and other DEA agents arrested Alvarez's co-defendants. Hunt stated that he recovered from the apartment eight kilograms of cocaine, a handgun, and $ 8,525 from the top of a dresser in the front bedroom. Two kilograms of cocaine were found outside the apartment after Galan apparently threw them out the window. Id. at 133-46.

 After a DEA chemist testified that the cocaine was genuine, the prosecution called Juan Morales. Morales testified that he helped arrange the meeting at 172nd Street and Fort Washington Avenue among Diaz, Suarez, Susana, Galan and himself to discuss the drug sale. Id. at 180-81. At this meeting, the men agreed to meet at the Mobil station and then go to Galan's home. Id. at 182.

 According to Morales, the five men eventually met in Galan's kitchen. Id. at 187. Diaz sampled the cocaine and indicated that he approved. Id. at 188-89. When Galan asked Diaz where his money was, though, Diaz said he did not have it. Id. at 189. Morales stated that after Susana said he would not accompany Diaz to the gas station, Galan called Alvarez. Id. at 189-90. When Alvarez came in to the room, this was the first time Morales had ever seen him. Id. at 190. Morales heard Galan tell Alvarez to go with Diaz to the gas station. Morales watched Diaz and Alvarez leave the apartment together. Id. at 190-91. The only other testimony Morales gave concerning Alvarez was that in the two months following their arrest, Alvarez told Morales that he had been staying at Galan's home for approximately 20 days before his arrest. Id. at 197-98.

 The government next called DEA agent David Toracinta. Toracinta testified about the circumstances of Susana's arrest. He described how Susana pointed a gun at Toracinta when the agent entered the living room, and that Susana dropped his weapon as instructed by Toracinta. Id. at 222. Toracinta then handcuffed Susana, retrieved the pistol, and removed the four rounds of a ammunition. Id. at 223, 242.

 After a firearms expert testified about the gun, the government rested. Id. at 250-56.

 At this point counsel for Alvarez moved for judgment of acquittal pursuant to Rule 29, Fed. R. Crim. P. The following colloquy occurred:

 
THE COURT: Any motions?
 
MR. LEADER: Yes. On behalf of Mr. Alvarez I make a motion pursuant to Rule 29 A for a judgment of acquittal in his behalf.
 
THE COURT: Count 1 and 2.
 
MR. LEADER: And specifically with respect to Count 2, that the charges I think are possession, I don't think there's been any evidence to suggest either actual or constructive possession on his part.
 
THE COURT: Counsel, what evidence do you have on the record to show constructive possession since there is no claim of possession?
 
MS. GRAY: Your Honor, the evidence in the record is that he was in the apartment on that day at the time the kilograms were being shown to the confidential informant. And at the time he left the apartment and walked with the confidential informant, he made reference to the fact that the cocaine would still be there when the buyer got back to the apartment.
 
And he also made reference to the fact that they had done a lot of business that day, so he has knowledge of the cocaine in the apartment and its presence there, and there is evidence that he is working in concert with Galan and with Susana and with the other people involved.
 
. . . .

 Id. at 256-58.

 Alvarez then took the stand in his own behalf. He testified that Galan was his boss, whom he had been working for at an auto shop, Jerome Autoland, for 48 days prior to his arrest. Id. at 263. Alvarez had obtained this job on the recommendation of a friend of Alvarez's from Puerto Rico, Carlos Gonzalez. Id. at 263-64. Alvarez lived with Gonzalez in Far Rockaway until January 30, 1989, when Gonzalez and his wife moved to Massachusetts. Id. at 264-65.

 Alvarez described at trial the circumstances leading to his moving in with Galan, stating that he looked for a place to live after he learned that the Gonzalez' were leaving New York. He testified that on January 24 he had seen a sign advertising rooms for rent. Id. at 265. He asked the person who advertised the rooms to call him at the auto shop, and he later told the auto shop secretary that he expected this telephone call. Galan overheard Alvarez's conversation with the secretary, and offered him a room in his apartment until Alvarez found a more permanent residence. Id. Alvarez accepted the offer and moved in on January 30. He brought no furniture--just his suitcase--and took the front bedroom. Id. at 266-67. He shared the apartment with Galan, Galan's wife and Galan's son. He did not pay rent. Id. at 295, 309.

 When asked about the night he was arrested, Alvarez stated that he left work at about 5:00 p.m. Id. at 267. He did not go directly to Galan's apartment because Galan had told him that he was going to take his wife to dinner. When Galan was preparing to leave the auto shop at around 3:30 or 4:00 p.m., he stopped his car and honked his horn. Id. at 267-68, 302. Alvarez described their conversation:

 
A. I said to him "yes?" And he said "here, take this $ 5 so that when they close you can go to the movies."
 
Q. Did you have a set of keys to the apartment at this time?
 
A. No, sir.
 
Q. What happened next?
 
A. Then he said to me so that I wouldn't be waiting at home just in case he didn't arrive, he didn't want me to be outside in the cold.

 Id. at 268.

 Alvarez testified that he did not actually go to the movie; he went to 42nd Street to watch videos instead. Id. at 303. He then went to Galan's apartment at about 8:00 and saw Galan, Diaz and Suarez. Id. at 269. He had never seen the latter two men before. Id. Alvarez said that the three men were standing at the entrance to the kitchen. Id. at 270. Alvarez proceeded to the living room to watch television. Id. As he was about to take his coat off, Galan said to him, "please don't take your coat off. I want you to go down to the corner with this man." Id. Alvarez stated that there was a grocery store on the corner. Id. at 271. As he and Diaz walked down the stairs together, Alvarez heard Galan say to Diaz "bring back a couple of beers, too." Id.

 At this point in the trial, Alvarez's testimony completely contradicts that of Diaz:

 
Q. On your way over to the grocery store, did you have any conversation with Mr. Diaz?
 
A. Yes, sir.
 
Q. Could you please tell us about that?
 
A. He said "I have got to get rid of this car. That car that I have is giving me too many problems."
 
Q. What else?
 
A. He said it's really a cold night, and I said, yes, my fingers are really frozen. And he said to me "do you live around here?"
 
And I said "yes, I have been living here for about a month. And I work at the shop with Mr. Galan."
 
He said to me "where you coming from now?"
 
I said "I'm coming back from 42nd Street."
 
Q. When you got to the grocery store, did anything happen there?
  
Q. When you said he said to bring some beer, who were you referring to?
  
A. I was referring to the fact that Mr. Galan had said for him to bring back some beer.
  
Q. And what did he say to that?
  
A. He said "we will buy it a little bit later. Let's go out and see a car that I left parked out there so that I can check that it has not been stolen."
  
Q. Did he tell you where he had parked his car?
  
A. No, sir.
  
Q. Did he stop to look for his car?
  
A. Yes. But he kept taking me on the opposite side of where the car was, and I said to him "well, where did you leave that car?"
  
He said "I left it around here."
  
And I said to him "why did you leave it so far away," and he said "there wasn't a parking place around here."
  
Q. How far did you go, as best as you can remember?
  
A. It was quite some distance. It was like a half circle.
  
Q. You mean a half circle from 1224 Taylor Avenue to where his car was parked?
  
A. Yes. We did a 180 degree angle.
  
Q. When you realized you will come all the way around in a semi circle, did you say anything to him about that?
  
A. Yes. I said "how is it you don't know where you left your car?"
  
And he said "I left it at the gas station."
  
I said "well, the only one that I know is the one that is down there."
  
He said "well, maybe that's it. let's go down there."
  
Q. So you went there, right?
  
A. Yes.
  
Q. And as you walked over to the gas station, the two of you continued talking together?
  
A. Yes.
  
Q. Without going into the specific details of the conversation, would it be true to say that you were talking just about background--I will withdraw the question.
  
In general terms, what were you talking about?
  
A. He seemed to be very interested in me. He wanted to know where I was from, whether I had any children, how long I had been here.
  
Q. Did you give him answers to his questions?
  
A. Yes.
  
Q. When you got to the gas station on the corner--there is the corner of what, Rosedale Avenue, would that be right?
  
A. I don't exactly remember the name, but I think yes it is.
  
Q. What happened?
  
A. Mr. Diaz said to me "this is the car."
  
I said "but they are not going to steal it from here."
  
He said "you don't know what kind of thieves there are around here."
  
Then he said to me "check that door and see whether it is closed well."
  
Then I realized--I check and it was well closed, well closed, and he said "okay," and then we started back.
  
Q. And then what happened?
  
. . . .
  
Did Diaz do anything at that time?
  
A. Yes. I noticed that he signalled to me.
  
Q. What specifically did he do that you saw?
  
. . . .
  
He put his hand in a pointing fashion over your head, right?
  
A. Yes.
  
Q. What was the very next thing that happened next?
  
A. We kept on walking and then all of a sudden I saw a person who said "freeze," and then I saw that he is pointing a gun at me.
  
. . . .
  
Then I looked around to see whether it was for me, and then I saw that he is quite close and it was for me. Then I raised my hands and I got down like this behind the car.
  
. . . .
  
When they arrested me there was a young man who was watching the arrest, and I said to him "please, if you know English, ask them why they are doing this to me."

  Id. at 272-77.

  During the prosecution's cross-examination, Alvarez basically repeated this account. He denied that Galan ever told him about the cocaine in the apartment, denied ever seeing the cocaine in the apartment, and denied having ever seen any cocaine in his life. Id. at 300-09.

  Following his testimony, Alvarez rested. Susana then called Galan as a witness. Galan testified that although Susana was with him in his apartment on February 28 before Galan went to meet Suarez, Galan never told Susana anything about the cocaine. Id. at 334-36. Galan gave many glib responses on cross-examination--for example, when asked if he was sure that Susana was not in the dining room when Galan put the gun in the couch, he answered "I had never had mental problems," id. at 338--but also provided significant and conflicting testimony. First, Galan stated that Alvarez was already at the apartment when the others arrived. Id. at 345. He testified that Alvarez and Susana were watching television together, and that Galan called Susana into the kitchen. Id. at 345-46. Susana then placed two packages of cocaine on the table. Id. at 346-47.

  After Diaz sampled the cocaine and asked for a ride to his car, Galan testified that it "was stupid to ask for a ride nearby the house. Nobody was going to give him a ride." Id. at 351. The following colloquy occurred at trial:

  
[MS. GRAY]: At the time that he asked for a ride you spoke to Mr. Alvarez, isn't that right?
  
A. With Mr. Alvarez, yes.
  
Q. And you told Mr. Alvarez to go with the confidential informant, isn't that correct?
  
A. That is correct.
  
Q. You told him to go with the confidential informant to get the money, isn't that right?
  
A. That is not correct.
  
Q. And when you told him to go with Mr. Diaz, the confidential informant, you were in the kitchen, weren't you?
  
A. Can you repeat the question again?
  
Q. When you told Mr. Alvarez to go with the confidential informant you were in the kitchen, weren't you?
  
A. I went to the living room. That was not in the living room, no. I meant it was not in the kitchen.
  
Q. And at this time the confidential informant and Mr. Alvarez left the apartment?
  
A. No.
  
Q. After you told Mr. Alvarez to go with the confidential informant, did they leave the apartment?
  
A. Actually, when I talked to him I told him to go out, but I didn't explain to him what he had to do.
  
Q. When you talked to Mr. Alvarez you told him to go out?
  
A. I didn't explain to Alvarez what he was supposed to do. I just told him to go with the CI . . . .
  
Q. After you asked him to go with the confidential informant, did the confidential informant leave your apartment?
  
A. Yes.
  
Q. And did Mr. Alvarez go with him?
  
A. Yes.
  
Q. Did you tell Mr. Alvarez to go to the store?
  
A. Before I sent him with the informant.
  
Q. So the answer is yes?
  
A. ...

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