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February 10, 1993



The opinion of the court was delivered by: JOHN S. MARTIN, JR.

JOHN S. MARTIN, JR., District Judge:

I can think of few things more threatening to the liberty of our citizens than to have a court system which tolerates perjury by Government agents in a criminal trial. This is the second case in a brief judicial career in which I have found, on the basis of my assessment of the credibility of the witnesses who appeared before me, that police officers have lied in an attempt to secure the conviction of individuals whom they no doubt believe guilty of some criminal act.

 The issue is particularly frustrating in the matter currently before the Court since it appears that my earlier failure to articulate clearly the bases of my decision in this case has led the Court of Appeals to express a view on the facts, without having seen the witnesses, that is directly contrary to the conclusion I reached having observed the witnesses. In addition, the Court of Appeals has directed that I enter judgment on the jury verdict, even though it expressly noted that I had not decided whether the conduct at issue amounted to knowing use of perjured testimony by the prosecution and the record indicated that alternative grounds urged for setting aside the jury verdict had not been decided because a new trial had been ordered pursuant to Rule 33.

 Since this case will go back to the Court of Appeals and could conceivably be reviewed by the Supreme Court, it seems appropriate to set forth detailed factual findings as well as my conclusions as to the outstanding legal issues.

 The strongest evidence against Carluin Sanchez was testimony by three police officers that in the course of executing a search warrant for the second floor apartment at 417 Thieriot Avenue in the Bronx they observed Carluin Sanchez running from the bedroom area to the bathroom area of the apartment and that shortly thereafter they found bags of heroin floating in the toilet and in the toilet trap.

 According to Sergeant Bushrod and Detective Domenitz, the two officers called as part of the Government's direct case, after breaking through the main entrance door to the building they proceeded up to the second floor landing. There Sergeant Bushrod knocked on the door, which was opened by Hector Sanchez, a/k/a Tito. Sanchez asked "What do you want?" when Bushrod identified himself as a police officer, Sanchez attempted to slam the door shut. According to his testimony, Bushrod prevented this by sticking his foot in the door. Both Bushrod and Domenitz testified that, in the ensuing struggle to push their way into the apartment, the door always remained partially open. Eventually Detective Chin, who had the ram, came up and joined the fray, striking the open door with the ram to help them gain entrance.

 Both Bushrod and Domenitz testified that they observed Carluin Sanchez running from the bedroom to the bathroom as they struggled to push open the apartment door. When asked how many times Carluin Sanchez was observed running to the bathroom, Sergeant Bushrod answered "Once." (Trial 275). Detective Domenitz testified consistently with Sergeant Bushrod that he saw Carluin Sanchez run from the bedroom to the bathroom "initially when the door was open. It was open I guess about a foot maybe a little more. I saw a second male running from what turned out to be the bedroom into the bathroom." (Tr. 399-400, A 205-206).

 The testimony of both Sergeant Bushrod and Detective Domenitz indicated that this sighting of Carluin Sanchez running toward the bathroom occurred prior to the time Detective Chin was summoned to hit the door with the ram to assist them in gaining entrance.

 The defense called the owner of the building in question, a young police officer named John Valdespino, who had no official involvement with this investigation. He produced photographs that clearly indicated that the ram had been applied to a locked door, not the open door to which Domenitz and Bushrod testified.

 In rebuttal, the Government called Detective Daniel Chin. Contrary to Bushrod's and Domenitz' testimony that once Tito Sanchez opened the door there was a constant struggle with the door always partially open, Detective chin testified that when he got to the top of the stairs, the door was closed and Bushrod was standing away from it. Adopting the party line, however, Chin testified that once he used the ram to open the door there was a struggle, and he too observed Carluin Sanchez running from the bedroom to the bathroom. At the motion to suppress hearing held subsequent to the remand from the Court of Appeals, another police officer, Lieutenant Comperato, testified. Although he indicated that he was further down on the stairway and could not see what happened inside the apartment, he testified that Sergeant Bushrod had his foot in the door prior to the time Detective Chin was called up to hit the door with the ram and Bushrod and Domenitz were struggling at the door as Chin passed him on the way up.

 Based on my observations of the witnesses who testified before me, I find as a fact that police officers committed perjury at this trial concerning the way they obtained entry to the apartment and their observations of Carluin Sanchez running towards the bathroom. This conclusion which exists to a moral certainty is based on their demeanor as well as the inconsistencies and contradictions of their testimony. Having spent a substantial part of my professional life in law enforcement, it does not come easy for me to reach that conclusion. But no reasonable person who observed Sergeant Bushrod's testimony could reach any other conclusion.

 Having observed Sergeant Bushrod testify, it was clear to me that he was a person with no respect for the truth. A cold record cannot capture the impression made by Sergeant Bushrod, particularly on cross-examination where it became evident that the truth was not as important to him as giving an answer damaging to the defendant.

 The testimony of Detective Domenitz was also not credible and was contradicted by the objective evidence that the door had been closed and locked when it was hit by the ram, as well as by the testimony of Detective Chin.

 Chin's testimony was not credible in light of all the other evidence, including contradictions not only with Bushrod and Domenitz, but also to some extent with Comperato. Thus, it is impossible for this factfinder to find, even on a preponderance of the evidence standard, that Chin observed what he testified he observed.

 I find that the following occurred at 417 Thieriot Avenue on the morning of January 9, 1991.

 A group of police officers arrived with warrants to search the second floor apartment and the basement, but not the first floor apartment at that address. Detective Chin used the ram to break into the front door and Sergeant Bushrod led a group of police up to the second floor apartment. *fn1" As Detective Chin was placing the ram down after battering the front door, he was called to the upstairs apartment where Sergeant Bushrod was standing in front of a locked and closed door. Detective Chin was told to break in the door before anyone knocked and announced their purpose.

 While Tito Sanchez is a witness of questionable credibility, his testimony that the police entered the apartment unannounced without a struggle at the door more probably comports with what occurred than does the police testimony concerning a struggle at the door -- which would place three of the officers on a small landing in a position to observe Carluin Sanchez running towards the bathroom. One of the benefits of observing the witnesses is that it becomes obvious that a small man like Tito Sanchez -- even with his pre-prison food girth -- would not have been able to prevent three good sized men like Domenitz, Bushrod and Chin from quickly pushing their way into the apartment. Certainly he could not have delayed them long enough for Carluin Sanchez to get into the bathroom, dump the heroin in the toilet, flush it and emerge.

 In addition, as noted earlier, the testimony of the four police officers is totally inconsistent. Bushrod's and Domenitz' testimony was that they saw Carluin Sanchez running to the bathroom once and that this was before Chin was called up with the ram. Thus, if Bushrod and Domenitz are to be believed it would have been impossible for Chin to have observed Carluin Sanchez running towards the bathroom after the door was struck with the ram. Despite Chin's unequivocal testimony that Bushrod was standing away from the door when he came up the stairs, both Bushrod and Domenitz testified that the door was always partially open as they struggled to gain access and Lieutenant Comperato testified that Bushrod and Domenitz were pushing against the door when Chin came up the stairs and passed him. Further, at the argument on the motion to suppress, the United States Attorney persuasively argued that Tito Sanchez would have been anxious to keep the police officers from entering his apartment. This is totally inconsistent with the idea that Tito would have opened the door to ask the police what they wanted when he already knew they were coming, thereby giving them the opportunity to push their way into the apartment. Yet Sergeant Bushrod swore Tito Sanchez opened the door and said "What do you want?"

 While I find that the police officers did not knock and announce their purpose and that no one saw Carluin Sanchez running into the bathroom, Tito Sanchez admitted that he knew the police were on their way and was not about to let them into the apartment.

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