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UNITED STATES v. ESCOBAR

January 18, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
PABLO ESCOBAR and DANDENY MUNOZ MOSQUERA, Defendants.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge.

 Before the Court are pre-trial motions made by defendant Dandeny Munoz-Mosquera ("Defendant"), and one cross-motion by the United States of America ("Government"). The defendant moves (1) to exclude evidence of threats made by defendant against judges, prosecutors and other public officials; (2) to recuse the Court, all Judges in the Eastern District of New York and the Prosecutor assigned to his trial in the event his motion to exclude evidence of threats is denied; (3) to exclude evidence that the defendant plotted an escape from the MCC; (4) to Suppress: (a) Statements made by the defendant in September and October, 1991; (b) Statements made by the defendant to a fellow inmate in October and November, 1992; (c) Defendant's statements taken by the government allegedly in violation of the Code of Professional Responsibility; (d) Statements made by defendant over the telephone and intercepted by the government in October and November, 1992; (e) Statements made by an alleged co-conspirator; (f) Statements made by defendant to DEA agents on or about August 12, 1992, llegedly in violation of defendant's right to Miranda warnings; (5) to order the Government to supply Brady and other discovery material to the defendant forty-five days prior to trial; (6) for a Wade hearing to ascertain the circumstances of an out of court identification of the defendant.

 The government cross-moves for an anonymous and partially sequestered jury at trial.

 BACKGROUND

 The government alleges that the defendant is a dangerous, ruthless assassin and a member of the Columbian Medellin drug cartel. He is charged under the Racketeer Influenced and Corrupt Organizations Act ("RICO") with engaging in the conduct of a racketeering enterprise, engaging in a continuing criminal enterprise, conspiracy and various substantive counts of narcotics distribution and importation. He is also charged with placing a bomb on an Avianca Airliner, which exploded killing one hundred ten (110) people, including two Americans.

 The defendant's first contact with United States government officials came on or about September 25, 1991, when he was arrested and charged with making a false statement to a government official in violation of 18 U.S.C. § 1001. He was indicted on this charge on October 8, 1991, and tried on November 25, 1991, United States of America v. Mosquera, 91-Cr-1075 (Weinstein, J.). A federal jury found him guilty on November 26, 1991. On March 10, 1992, he was sentenced to the maximum possible term of incarceration: six years. The defendant was sent to the Federal Penitentiary at Marion, Illinois to serve his sentence.

 On November 22, 1991, while the false statement charges were pending against him, a Grand Jury in the Eastern District of New York returned an unrelated indictment charging the defendant and Pablo Escobar with conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 960 (B)(1)(ii), 963 and 18 U.S.C. § 3551 et seq. This indictment was sealed. On August 2, 1992, a superseding indictment was filed charging the defendant with conspiracy, engaging in the conduct of a racketeering enterprise, engaging in a continuing criminal enterprise, conspiracy and various substantive counts of narcotic distribution and importation in violation of 18 U.S.C. §§ 1963 and 3551 et seq., and 21 U.S.C. §§ 841(b)(1)(a)(ii), 846, 848(a) and (c) 960(b)(1)(3)(ii), and 963. This indictment was also sealed. On August 13, 1992, a second superseding indictment charging the same crimes as the two previous indictments but adding additional counts was filed and the defendant was arraigned on all three indictments at this time. A third superseding indictment was filed on June 16, 1993, charging the defendant with the crimes he is accused of in the instant matter and defendant was arraigned on June 25, 1993.

 The defendant was in custody in Nine South at the Metropolitan Correctional Center ("MCC") in New York from September, 1991, until March, 1992. *fn1" While in Nine South, he met and became friendly with another inmate named "Scorpion". *fn2" The defendant discussed with Scorpion his role in the Medellin Drug Cartel and illegal acts he committed in Columbia, and told Scorpion that Pablo Escobar was his "main boss." The defendant asked Scorpion about the possibility of escaping from the MCC. He told Scorpion that he had friends in Queens who had access to drugs and weapons and that they would help him escape. Scorpion passed this information on to another inmate and that inmate, a government informant, passed it on to government authorities.

 Subsequently, an agent of the Drug Enforcement Administration ("DEA"), spoke to Scorpion about the defendant's anticipated escape attempt. Plans were made for Scorpion to introduce an undercover agent to the defendant to aid him in his escape. Scorpion was specifically instructed not to discuss the defendant's pending false statement charges while talking with him. As a result of Scorpion's contacts with the defendant, telephone conversations between the defendant and an undercover agent were eventually recorded. The defendant thereafter decided to postpone his escape plans and was subsequently transferred to the Federal Penitentiary at Marion, Illinois.

 On August 12, 1992, the defendant was returned to the Eastern District of New York to be arraigned on the original and two superseding indictments in the instant case. The defendant was escorted from Marion to the Eastern District by DEA agents. In the holding pens at the Eastern District, and prior to his arraignment on the drug and conspiracy charges, the defendant is alleged to have made several incriminating statements to DEA agents. The government asserts that he was read his rights before he made these statements. The defendant denies that he was read his Miranda rights. After he was arraigned, on August 13, 1992, the defendant was returned to Marion, Illinois.

 After listening to one of the defendant's recorded conversations, an Assistant United States Attorney (AUSA) from the Eastern District of New York who had no connection with his prosecution visited the defendant. The AUSA specifically admonished the defendant to cease making death threats. He was warned of the ramifications if he should attempt or be successful in carrying out any of these criminal acts. The defendant was not questioned about his pending case at that time and the only statement he made was a denial that the voice on the tape recorded conversations was his.

 DISCUSSION

 MOTIONS TO EXCLUDE EVIDENCE OF THREATS, RECUSE THE COURT AND DISQUALIFY THE TRIAL PROSECUTOR

 Defendant moves for an Order prohibiting the government from offering in its case-in-chief evidence that the defendant threatened the lives of a prosecutor (AUSA Pollak), Judges (Weinstein and Johnson) and other public officials involved in the case against him, and prohibiting the government from offering evidence of his plot to escape from the MCC. In addition, the defendant seeks to have all of the judges from the Eastern District of New York recused from hearing this matter should his motion to exclude evidence of threats be denied. For the following reasons, the defendant's motions to exclude evidence of threats and attempt to escape from MCC are granted, and, therefore, his motion to recuse all of the judges of the Eastern District is moot.

 The admissibility of the evidence of defendant's threats against public officials involved in this action and his attempt to escape from MCC is governed by Federal Rule 404(b) which provides, in relevant part, that evidence of other crimes or wrongs "is not admissible to prove the character of a person in order to show action or conformity therewith." Rule 404(b) does permit the introduction of such evidence for "other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In the instant case, the defendant is not charged with threatening public officials or attempting to escape from lawful custody.

 The admissibility of evidence pursuant to Rule 404(b) is governed by a test outlined in Huddleston v. United States, 485 U.S. 681, 687-88, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). First, the evidence sought to be admitted must be introduced for a proper purpose relevant to the crime for which the defendant is on trial. Next, the evidence must be more probative than prejudicial. Finally, the evidence must be admitted with limiting instructions to the jury, if requested.

 The government additionally alleges that evidence of defendant's escape plot is directly probative of defendant's involvement in a conspiracy. As the Court will discuss in more detail later, the defendant's involvement in the conspiracy ended at the time of his incarceration. The escape plot therefore occurred after his participation in the conspiracy ended. Such evidence, therefore, may not properly be introduced.

 Having excluded the evidence of threats, the Court need not consider the defendant's motion to recuse all of the judges of the Eastern District from hearing this action nor defendant's request to disqualify the prosecutor who was threatened from serving on the prosecution team in this matter.

 MOTIONS TO SUPPRESS

 A. Statements made to an Informant and Agent While Defendant was in Custody at MCC During September - October, 1992

 While he was in custody at the MCC during September and October, 1991, awaiting trial on the false statement charges and prior to his arraignment in the instant action, the defendant made certain statements to another inmate, Scorpion, and to an undercover DEA agent. The conversations and statements the defendant made concerned his plans to escape from MCC and his association with the Medellin Cartel. One of the conversations with the agent which took place by telephone was recorded.

 The defendant argues that any statements he made to Scorpion and the undercover agent must be suppressed because these statements were made in the absence of counsel, counsel having been retained in an unrelated matter. The defendant asserts that the use of these statements violates his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel.

 The admissibility of statements made during the conversations between Scorpion, the DEA agent and the defendant during the September - October, 1991, period is governed by Illinois v. Perkins, 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394 (1990). The Supreme Court in Perkins held that "conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of 'police-dominated atmosphere' and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. . . . Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner." Id. at 296-97.

 The Perkins Court rejected the defendant's claim of denial of his Sixth Amendment right to counsel in a situation similar to the instant case. Although in custody on another charge, the defendant had neither been arraigned nor had retained a lawyer on the matter for which the admission of statements was sought. The Supreme Court in Perkins reaffirmed its holding in McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991), that a defendant's right to counsel during a custodial police interrogation is "offense specific". 111 S. Ct. at 2207.

 It is clear from the Supreme Court's decision in Perkins, as well as from the facts of the instant case, that the defendant was protected by neither the Sixth Amendment right to counsel nor the Fifth Amendment right against selfincrimination at the time he had conversations with a government agent and an informant in September and October, 1991. Defendant's motion to suppress statements made to Scorpion and a DEA agent during this period is denied.

 B. Informant CW Statements

 On October 15, 1992, the defendant, after being brought to New York from Marion, was again incarcerated at MCC. He was once again housed in Nine South, the segregation unit. There he met and had conversations with another inmate, CW. CW was also housed in Nine South for security reasons. The defendant talked to CW about his background and his activities in Columbia. The defendant told CW he was going to kill certain government officials involved in the case against him. He asked CW to make phone calls for him to facilitate these threats. CW subsequently reported the threats to government officials, who arranged to monitor the defendant's conversations. CW was specifically instructed not to question the defendant about the charges pending against him, only to listen to his statements about the death threats. As a result of CW's reports to government officials, at least one of the defendant's threats was subsequently recorded.

 After the recording was made, an AUSA, with no connection to the instant prosecution, visited the defendant at MCC with prison officials and DEA agents. The AUSA did not question the defendant, but did advise him to cease his death threats. The defendant was also warned of the ramifications should he undertake any criminal act or obstruction of justice. The only statement the defendant made at that time was a denial that the voice on the tape that was played for him was his. The government states that it does not intend to use this statement in its direct case.

 The defendant asserts that, since he was represented by counsel at the time of his conversations with CW, his Sixth Amendment right to counsel was violated by these conversations. The Supreme Court has held that, in a situation similar to this one, a defendant's statements which are "spontaneous" are not violative of the Sixth Amendment. A defendant must demonstrate that the police and their informant took some action, beyond merely listening, deliberately designed to elicit incriminating remarks. Kuhlmann v. Wilson, 477 U.S. 436, 459, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). In addition as discussed earlier, the defendant was ...


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