§§ 812, 841(a)(1) and 841(b)(1)(A). The indictment also charges various defendants with substantive narcotics trafficking offenses, the unlawful possession and use of firearms in relation to the heroin conspiracy, and engaging in "a continuing criminal enterprise" in violation of 21 U.S.C. § 848(a). On March 12, 1993, the Court learned that three agents involved in the investigation of the above-captioned case had been arrested for narcotics trafficking. Thereafter, the defendants submitted numerous motions, discussed below, which primarily seek the following relief: (1) suppression of the original wiretap order and all fruits thereof; (2) disclosure of all Government materials regarding the investigation of the three agents' misconduct; (3) dismissal of the indictment as to defendant Noel Melendez ("Melendez"); (4) appointment of a Special Prosecutor to investigate potential criminal conduct by law enforcement personnel; and (5) staying further proceedings in this case until the Special Prosecutor is appointed and completes the preliminary stages of his or her investigation. The Government opposes these motions and moves for two rulings in limine. Specifically, the Government seeks an order (1) permitting the introduction into evidence of all wiretap tapes through the testimony of two summary witnesses; and (2) precluding defense counsel from conducting any cross-examination or presenting any evidence regarding the arrests of the three agents.
On March 2, 1993, one week prior to the Government's opening statement in the above-captioned case, a Complaint was filed charging New York State Police Detective Jeffrey Beck ("Beck"), Sergeant Joseph Termini ("Termini") and Investigator Robert Robles ("Robles"), three of the agents involved in the Millan investigation, with conspiring to distribute approximately four ounces of heroin.
On March 12, 1993, three days after the start of opening statements, the Government notified the Court that Beck, Termini and Robles had been arrested on narcotics trafficking charges. Thereafter, defense counsel moved in open court to dismiss the indictment on the grounds of prosecutorial misconduct.
On March 17, 19 and 22, 1993, the Government submitted three letters in opposition to defendants' application. The Government also requested in limine rulings that would (1) permit the introduction of all wiretap evidence through summary witnesses; and (2) preclude defense counsel from conducting any cross-examination or presenting any evidence regarding the three arrests.
In support of its application, the Government provided the Court, under seal, with the affirmation of Assistant United States Attorney David Fein, dated March 17, 1993 (the "Fein Aff."), which detailed the extent and nature of the ongoing investigation by the Internal Affairs Division (the "IAD"), into certain allegations of misconduct by past and present members of the New York Drug Enforcement Task Force (the "NYDETF"), and the affirmation of Assistant United States Attorney Dietrich L. Snell, dated March 17, 1993 (the "Snell Aff."), regarding the roles played by the agents in the Millan case.
Specifically, the Fein Aff. alleges that on or about December 3, 1992, Agents Beck and Termini provided a confidential informant with approximately four ounces of heroin for the informant to sell. During the next three months, numerous telephone conversations allegedly occurred regarding attempts by the informant to sell the narcotics and efforts by Beck and Termini to obtain approximately $ 25,000 in exchange for the drugs. On December 12, 1992, Robles is purported to have appeared on behalf of Beck and Termini to obtain money from the informant, although he was not paid at that time. The affirmation further alleges that the criminal activity cited in the Complaint was part of a continuing pattern of crime, including: theft of jewelry from a nondrug vault at the Drug Enforcement Administration (the "DEA"); a conspiracy to rob a subject of a money laundering investigation; a conspiracy to rob a suspected drug trafficker; and a conspiracy to burglarize locations associated with narcotics traffickers. The Fein Aff. also indicates, however, that all of the illegal conduct occurred within the past twelve to eighteen months, after the arrests in the case at hand.
The Snell Aff. indicates that Robles made five undercover heroin buys in an investigation that proceeded the instant case -- buys which ultimately formed the basis for the Government's wiretap. The buys occurred on October 29, November 2, November 28, December 20, 1990, and January 31, 1991. The Snell Aff. also indicates that all of the investigative actions, including the undercover buys, of Agent Robles were corroborated by surveillance agents. The affirmation also recounts Robles's involvement as a monitoring agent in the plant where the telephone conversations were intercepted pursuant to court authorized wiretaps. It further indicates that on August 1, 1991, Robles was assigned to a team of NYDETF and DEA agents who executed a search warrant at 324 Alexander Avenue, Apartment 3F, Bronx, New York; Detective Beck participated in the arrest of defendant Carlos Rivera, the seizure of his vehicle, and the search of 71-40 160th Street, Apartment 2-Front, Queens, New York; and Detective Termini participated in the execution of a search warrant at 110 Baruch Drive, Apartment 1D, New York, New York.
On March 19, 1993, following an ex parte application by the Government, the Court issued an order requiring the dissemination to defendants and their counsel of the entire Snell Aff. and a redacted version of the Fein Aff., which contained sensitive information about the ongoing Robles investigation. At the Government's request, additional redactions of the Fein Aff. were permitted by a Modified Order, dated March 19, 1993. Both the Snell Aff. and redacted Fein Aff. were subsequently distributed to defense counsel.
On March 23 and 24, 1993, the Court conducted an evidentiary hearing to determine the duration and extent of any police misconduct by agent Robles. At the hearing, defendants produced two witnesses, Joseph Serrano ("Serrano") and Rafael Abecasis ("Abecasis"). Serrano testified that he engaged in extensive criminal activity with Robles and Termini, including: (1) "fencing" stolen diamonds, gold and jewelry; (2) burglarizing a storage area; (3) impersonating a police officer; (4) surveillance of "stash houses" for potential burglarizing; and (6) an illegal car stop to steal money from a suspected drug dealer. Serrano also testified, however, that his criminal involvement with Robles began sometime in the past eighteen months. Serrano's statements were contradicted, in part, by Abecasis, a confidential informant, who testified that Serrano told him that (1) ten to fifteen agents were involved in criminal misconduct; (2) the illegal activities with Robles spanned a three to five year period; and (3) Robles threatened to kill Serrano if he talked.
The defendants now move for an order: (1) suppressing the original wiretap order and all fruits thereof on the grounds that the order was issued without probable cause;
(2) disclosing to defense counsel all evidence regarding the Robles/Beck/Termini investigation; (3) dismissing the indictment as to defendant Noel Melendez; (4) appointing a Special Prosecutor to investigate the criminal conduct by agents of the Task Force; and (5) staying these proceedings in order to provide the Special Prosecutor with time to complete the preliminary stages of his or her investigation. The Government opposes these motions and requests an order in limine (1) permitting the introduction of the wiretaps without Robles's testimony; and (2) precluding the defendants from cross-examining any witness regarding the Robles/Beck/Termini investigation.
I. Motion to Suppress the Wiretap Tapes
On January 28, 1991, this Court entered an order authorizing the interception of communications over telephone number (212) 847-2859, a cellular telephone previously identified by the NYDETF as being used by a member of the charged heroin conspiracy, Jose Colon. Interception of communications over telephone (212) 847-2859 commenced on January 30, 1991 and concluded on March 1, 1991.
The January 28, 1991 Order was issued on the basis of the thirty-three page Affidavit of Special Agent Dongilli, dated January 28, 1991 (the "Dongilli Aff."). The probable cause section of the Dongilli Aff. was based, in part, on five undercover buys of heroin by NYDETF member, Robert Robles, which occurred on October 29, November 2, November 28, December 20, 1990, and January 31, 1991. See Dongilli Aff. at PP 27, 28, 34, 36.
A. Probable Cause
The defendants move to suppress the original January 28, 1991 wiretap order as not supported by probable cause. Defendants challenge the veracity and credibility of Dongilli's sworn statement, specifically, the proof regarding the undercover buys in which Robles participated. In light of the subsequent arrests of Robles, Beck and Termini, defendants maintain that the January 28, 1991 Order must be suppressed as the issuing judge relied upon the now suspect undercover purchases of heroin to find probable cause. See Letter of Benjamin Brafman, to the Honorable Shirley Wohl Kram, dated 3/17/93, at 7. Defendants argue further that Robles actually monitored various conversations and drew certain conclusions that were incorporated into other affidavits to obtain additional warrants. Accordingly, the defendants argue that all the warrants in this case may well be infected. Id.
In response, the Government contends that not only do the allegations of misconduct relate to events that occurred long after the wiretap phase of the Millan investigation, but also, (1) the investigative actions of Robles were corroborated by the observations and actions of other members of the NYDETF; and (2) the allegations against Robles do not involve the validity of the Title III orders or their execution and do not suggest false accusation or evidence tampering. See Letter from Dietrich L. Snell, to the Honorable Shirley Wohl Kram, dated 3/22/93, at 2; see also Fein Aff. at P 9; Letter from Dietrich L. Snell, to the Honorable Shirley Wohl Kram, dated 3/17/93, at 1-2. The Government further argues that the defendants on trial lack standing to challenge the original wiretap order, which resulted in further investigations, as none of these defendants were either named as a subject in the wiretap order or intercepted during the course of the order's execution. Id.
The standard for probable cause in a wiretap case is the same as that for a search warrant.
United States v. Biaggi, 853 F.2d 89, 95 (2d Cir. 1988), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 581, 109 S. Ct. 1312 (1989); United States v. Fury, 554 F.2d 522, 530 (2d Cir. 1977), cert. denied, 436 U.S. 931, 56 L. Ed. 2d 776, 98 S. Ct. 2831 (1978). Under that standard, probable cause exists when
the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense is being committed, has been committed, or is about to be committed.
United States v. Feola, 651 F. Supp. 1068, 1089 (S.D.N.Y. 1987) (quoting United States v. Harvey, 560 F. Supp. 1040, 1951 (S.D. Fla. 1982), aff'd sub nom., United States v. Van Horn, 789 F.2d 1492 (11th Cir. 1986)), aff'd, 875 F.2d 857 (2d Cir.), cert. denied sub nom., Martin v. United States, 493 U.S. 834 (1989). Probable cause is a "practical, non-technical conception." Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). The affidavit must be read as a whole and in light of common sense, with each fact "gaining color" from the others. United States v. Monica, 295 F.2d 400, 401 (2d Cir. 1961), cert. denied, 368 U.S. 953, 7 L. Ed. 2d 386, 82 S. Ct. 395 (1962); see also United States v. Harris, 403 U.S. 573, 577-79, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971); Illinois v. Gates, 462 U.S. at 230-32.
Wiretap orders, like search warrants, are also entitled to a presumption of validity. Franks v. Delaware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); United States v. Fury, 554 F.2d at 530. In considering whether the issuing court acted properly and based its decision on probable cause, substantial deference must be given to the prior judicial determination, and any doubts should be resolved in favor of upholding the authorization. Illinois v. Gates, 462 U.S. at 235-36; Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). Even if probable cause is found lacking, the wiretap order should be suppressed only where: (1) the issuing judge abandoned his or her detached, neutral role; (2) the agent was dishonest or reckless in preparing the affidavit supporting the issuance of the wiretap order; or (3) the agent's reliance on the warrant was not objectively reasonable. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984): Franks v. Delaware, 438 U.S. at 171.
Having reviewed the affidavits of Special Agent Dongilli and Assistant United States Attorney Snell, the Court finds no evidence that the misconduct of Robles, Beck, or Termini tarnished the investigation resulting in the issuance of the wiretaps.
See Snell Aff. at PP 5-22; see also Letter from Dietrich L. Snell to the Honorable Shirley Wohl Kram, dated 3/22/93, at 2; Sealed Affirmation of United States Attorney Roger S. Hayes, dated March 23, 1993, at P 6. Virtually every investigative action taken by Robles is extensively corroborated by observations and actions of other members of the NYDETF. Specifically, in each undercover situation, (1) every action taken by Robles, except the actual exchange of drugs for money, was observed by some eight members of Group 92, the surveillance team assigned to watch each undercover transaction; (2) Robles was provided just enough money to purchase an agreed upon amount of heroin; (3) after the buy was complete, the heroin was immediately transported to NYDETF for processing; (4) Agent Dongilli witnessed the weighing of the heroin and its placement into a heat sealed envelope; and (5) the heroin was kept overnight in the DEA vault and then transported to the DEA Northeastern Regional Lab for processing. See Snell Aff. PP 5-18; Dongilli Aff. PP 27-38. In several instances, the integrity of the undercover purchases was further corroborated by taped communications between Robles and Colon. See Snell Aff. at PP 10, 11, 14, 16. The tape cassettes of these recorded conversations were transported to the NYDETF office, where Robles signed, dated and sealed the tapes in a DEA heat sealed envelope, in the presence of Agent Dongilli. The sealed envelopes were thereafter submitted to the DEA Non-drug Evidence Custodian. Certain tabs on the tapes were depressed to ensure that no further recording could be made on the tapes. Id. Thus, in light of the substantial corroboration of virtually all of Robles's involvement in the Millan investigation, the Court finds no evidence of impropriety which would require suppression of the original wiretap order.
Moreover, in addition to the evidence above, which establishes the integrity of the five undercover buys, the Dongilli Aff. contains a wealth of other information which strengthens the issuing judge's finding of probable cause. For example, the Dongilli Aff. includes testimony regarding an October 1, 1990 interview between Agent Dongilli and a confidential informant, who indicated that Eric Millan's brand of heroin, "Blue Thunder", was sold by Jose Colon in the vicinity of East 157th Street between Gerard and Walton Avenues in the Bronx. Dongilli Aff. at PP 24, 25; Snell Aff. at P 4. The Dongilli Aff. further indicates that NYDETF members recovered trash from in front of two suspected drug locations in the Bronx, which was typical of material used by heroin traffickers, Dongilli Aff. at P 39, and that pen registers and telephone toll records revealed probable usage of telephones in drug-related calls. Dongilli Aff. PP 40-48; see also United States v. Todisco, 667 F.2d 255, 258 (2d Cir. 1981), cert. denied sub nom., Vallone v. United States, 455 U.S. 906 (1982) (pen register and other contacts "subject to an innocent interpretation when viewed in isolation" support probable cause finding when set in context). Thus, in view of the foregoing, the Dongilli Aff. evidenced probable cause justifying the issuance of the January 28, 1991 wiretap order. Accordingly, the defendants' motion to suppress the original wiretap order and any allegedly tainted fruits is denied.
The defendants also attack the wiretaps on the grounds of inadequate minimization of the monitored conversations. Specifically, counsel for defendants Alfred Bottone, Alfred Bottone, Jr., and Vincent Basciano contend that while Robles was acting as a monitoring agent, the Government failed to minimize the recording of conversations that had nothing to do with narcotics activities. Counsel suggests that Robles deliberately failed to minimize the recording of these conversations because he was interested in obtaining information regarding locations that housed large sums of cash and drugs appropriate for burglarizing. See Letter of Maurice H. Sercarz, to the Honorable Shirley Wohl Kram, dated 3/22/93, at 9-10.
As an initial matter, the Court notes that the original January 28, 1991 wiretap order and supporting Dongilli Aff. specifically call for minimization, in accordance with 18 U.S.C. § 2510, et seq. Dongilli Aff. P 52. Counsels' speculative assumption that the order's minimization requirement was not complied with is not persuasive. Guided by the factors suggested by the Supreme Court in Scott v. United States, 436 U.S. 128, 139-41, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978), the Court has reviewed the wiretap logs and concludes that these documents provide abundant evidence of compliance with federal minimization, standards.
As noted in Scott, minimization in the context of wiretaps requires a reasonable effort to minimize the interception of irrelevant calls. Id. at 140-42; United States v. Feola, 651 F. Supp. at 1098. Minimization will, however, depend on the circumstances of each case. Id. Thus, the mere fact that every conversation is monitored does not necessarily violate the minimization requirement. United States v. Hinton, 543 F.2d 1002, 1012 (2d Cir.), cert. denied sub nom., Carter v. United States, 429 U.S. 980, 50 L. Ed. 2d 589, 97 S. Ct. 493 (1976). Rather, the court must consider such factors as the size and extent of the conspiracy under surveillance, the stage of the investigation, the length of the conversations being monitored, and the use to which the telephone is typically put. Scott v. United States, 436 U.S. at 140-42. Thus, "when the investigation is focusing on what is thought to be a wide-spread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise." Id. at 140.
In the case at hand, the Court finds that Robles made a good faith effort to achieve minimization. The logs reveal a high percentage of pertinent calls as compared to the percentage of non pertinent and non-minimizable calls, i.e., wrongs numbers, busy signals, no answers and conversations too short to determine their pertinence. In fact, the vast majority of non-minimized calls were less than two minutes in length. See United States v. Capra, 501 F.2d 267, 275-76 (2d Cir. 1974), cert. denied, 420 U.S. 990, 43 L. Ed. 2d 670, 95 S. Ct. 1424 (1975) ("too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation."). Other conversations appear to involve coded language, making characterization impossible until the calls were terminated. In addition, the logs confirm that Robles, and the agents working with him, turned off the surveillance after making a determination of non-pertinence.
Thus, the Court concludes that Robles was aware of the minimization requirement and made a good faith effort to comply with its standards. Accordingly, evidence gathered by the wiretap will not be excluded on this basis.
II. Admission of the Wiretap Tapes
The Government requests an in limine ruling that would permit all wiretap tapes to be introduced into evidence without the testimony of Robles, who intercepted and recorded the original telephone conversations, or any other wiretap monitor. Instead, the Government seeks to authenticate the wiretap recordings through two summary witnesses, namely, (1) Special Agent Dongilli, the case agent who supervised the wiretap; and (2) James Williams, the legal assistant assigned to this case, who supervised the preparation of 326 single-conversation tapes.
According to the Government, Special Agent Dongilli will testify to the nature and quality of the equipment used to facilitate the wiretaps; testing of the equipment from time to time to ensure that it was in good working order; immediate report and correction of any malfunction in the equipment; the instructions given to the actual monitors; the custody procedures used to maintain the integrity of the tape recordings; his comparison of each conversation reproduced in a single-conversation tape with the original recording; the accuracy of the single-conversation tapes; and the identification of the taped voices. James Williams will testify as to the procedure used to produce the single conversation tapes.
The defendants, objecting to the Government's request, claim that a proper foundation cannot be established to introduce the wiretap tapes in light of Robles's arrest for narcotics trafficking. Relying on the undisputed fact that Robles actually monitored certain key telephone conversations which the Government intends to introduce at trial, and participated, in part, in deciphering other "coded" conversations to determine whether they were drug related, see Letter from Benjamin Brafman to the Honorable Shirley Wohl Kram, dated 3/17/93, at 3-4, defendants argue that Robles's arrest precludes a finding of "official regularity" in the making of the wiretap tapes and weighs heavily toward suppression of this evidence. The Court disagrees.
Although the Second Circuit has not adopted a specific test for authenticating and admitting wiretap recordings, this district approved a seven factor analysis to determine whether sufficient foundation has been established to properly introduce sound recordings into evidence. United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y. 1958). Specifically, the Government must show that: (1) the recording device was capable of taping the conversation being offered; (2) the operator of the device was competent to operate the same; (3) the recording is authentic and correct; (4) changes, additions or deletions have not been made in the recording; (5) the recording has been preserved in a proper manner; (6) the speakers can be identified; and (7) the conversation elicited was made voluntarily and in good faith, without any inducement. Id. The Second Circuit has also stated, however, that while the McKeever approach is a "valuable formulation of the factors a trial judge should consider in making an initial determination whether a sufficient foundation for the admissibility of the tape has been established . . . the varying circumstances of particular cases . . . militate against the adoption of inflexible criteria applicable to all cases." United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.), cert. denied sub nom., Sansone v. United States, 434 U.S. 959, 54 L. Ed. 2d 320, 98 S. Ct. 491 (1977). Thus, a general standard has been adopted, namely, that the Government must produce "'clear and convincing evidence of authenticity and accuracy'" as a foundation for such recordings. Id. (quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967)); see also United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.), cert. denied sub nom., Gotti v. United States, 116 L. Ed. 2d 324, 112 S. Ct. 372 (1991).
The First Circuit has provided more guidance on the issue of the foundation required for admitting wiretap tapes. In United States v. Cortellesso, 663 F.2d 361 (1st Cir. 1981), the First Circuit affirmed the district court's ruling admitting into evidence recordings of intercepted telephone conversations without the testimony of the agents who actually monitored the wiretaps. Instead, the supervising agent testified to the procedure followed by the F.B.I. with respect to the intercepts, his presence at the initial test of the equipment, his personal preparation of the transcripts from the tapes, and his custody of the original logs and tape recordings. Id. at 364. According to the court, with that testimony, the government had done more than enough to raise the "presumption of official regularity," and "it was not necessary that the agents who did the actual monitoring for the calls take the stand to confirm that they followed [the case agent's] instructions, and to deny tampering with the tapes." Id. at 364. The court further stated that once the government presents sufficient foundation testimony, the party challenging the tapes bears the burden of coming forward with evidence that the recordings are inaccurate; the mere fact that "one can conjure up hypothetical possibilities that tampering occurred" would not be sufficient. Id.
Similarly, in United States v. Rengifo, 789 F.2d 975, 978 (1st Cir. 1986), the First Circuit reaffirmed that it does not rehire authentication of tape recorded conversations by someone who either participated in or personally overheard the subject matter of the recording in evidence. In Rengifo, the testifying witness stated that he supervised the activities of the agents actually manning the listening post and visited the listening post periodically to observe the agents. Id. at 978-79. He also described in detail the custody procedures followed to maintain the integrity of the recordings. Id. According to the court, this testimony was sufficient to raise a presumption of official regularity, discharging the government's burden of authentication. Id. at 979.
Although this Court recognizes that "recorded evidence is likely to have a strong impression upon a jury and is susceptible to alteration," see United States v. Ruggiero, 928 F.2d at 1303, the Court also recognizes that once the Government has laid the foundation described in Cortellesso and Rengifo, a prima facie case of authenticity will have been established sufficient to introduce the wiretap tapes into evidence without the testimony of a contemporaneous witness to the recorded conversations.
See United States v. Leon Lopez, 90 Cr. 73 (SWK); United States v. Ortiz, S10 91 Cr. 634 (LJF); United States v. Salerno, 86 Cr. 245 (MJL), rev'd on other grounds, 937 F.2d 797 (2d Cir. 1991) (permitting the introduction of wiretap conversations based on the authentication testimony of the case agent). The burden will then shift to the defendants to show that the tapes are inaccurate. See United States v. Rengifo, 789 F.2d at 978. Accordingly, subject to the Government's ability to prove authenticity and accuracy, the Government's request for an in limine ruling permitting the wiretap tapes to be introduced without the testimony of Robles is granted.
III. Cross-Examination of Government Witnesses
The Government also seeks a ruling in limine precluding defense counsel from conducting any cross-examination or presenting any evidence regarding the arrests of Robles, Termini and Beck.
According to the Government, all testimony or evidence regarding the allegations against Robles and other NYDETF members is inadmissible under Rules 402 and 403 of the Federal Rules of Evidence, as (1) Robles's alleged wrongdoing occurred outside the scope of the Millan investigation and is therefore, irrelevant; (2) the propriety of all of Robles's activities in the investigation is corroborated by cooperating defendants and/or NYDETF surveillance; (3) any testimony regarding discussions with Robles is hearsay; and (4) there is no indication that Robles mishandled any evidence in this case. See Letter from Dietrich L. Snell to the Honorable Shirley Wohl Kram, dated 3/22/93, at 2-4. The Court disagrees.
First, in its opening statement to the jury, the Government stated as follows:
The evidence will show that on November 2, 1990, . . . Noel Melendez helped Marcus Delgado and another man named Vincent Roman sell 600 glassines of "This is it" heroin, the heroin being packaged by Miguel Kercado, to a customer named Bobby, a customer who said he was from out of town.