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UNITED STATES v. GALLEGO

November 6, 1996

UNITED STATES OF AMERICA, against ALFREDO GALLEGO, GEORGE GALLEGO, and STEVEN MARTINEZ, Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 On January 21, 1993, Guillermo Gonzalez, the driver of a postal truck, was stopped on his rounds and shot to death in the Bronx. The truck, with Gonzalez' dead body inside, was driven to Fort Lee, New Jersey, and hurriedly abandoned.

 The government first indicted Alfredo Gallego, who was apprehended near the truck, and Giovanni Rosado for robbery and conspiracy to rob and on other charges. Alfredo Gallego pleaded guilty to all charges. Rosado stood trial, but the jury was unable to reach a verdict.

 Rosado then agreed to cooperate with the government. The grand jury later indicted Steven Martinez and George Gallego for murder, conspiracy to murder, robbery and conspiracy to rob. It charged Alfredo Gallego with murder and conspiracy to murder. *fn1" After George Gallego pleaded guilty to conspiracy to murder, Alfredo Gallego and Martinez went to trial and were convicted on all counts. *fn2"

 The Court has received extensive affidavits and conducted an evidentiary hearing at which Martinez, his trial counsel, and other witnesses testified over a period of two days. This opinion contains the Court's findings of fact and conclusions of law.

 Facts

 Pretrial Proceedings

 Martinez was arrested in Atlanta, Georgia, on April 13, 1995 and then transferred to and presented in the Southern District of New York. On May 2, 1995, Stewart L. Orden, Esq., was appointed to represent him.

 Orden adopted extensive pretrial motions filed on behalf of George Gallego, who had moved for production of a panoply of materials pursuant to Rule 16 and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny, as well as suppression of items seized pursuant to a search warrant and at the time of George Gallego's arrest. Orden moved also to suppress statements made by Martinez on September 21, 1993 *fn3" in which he acknowledged that he knew Giovanni Rosado and Pamela and George Gallego and that he drank Heineken beer, but claimed that his only knowledge of a robbery of a Postal Service truck driver came from what he had read in the newspapers or seen on television. *fn4"

 Orden joined as well in subsequent in limine motions, filed on October 30, 1995 on behalf of George Gallego, which sought to compel the government to disclose the identity and location of a confidential informant and to obtain copies of grand jury transcripts. Further motions were filed on November 10, 1995, seeking leave to introduce at trial against the government certain party and adoptive admissions, to preclude the government from admitting certain postal reports filed by Guillermo Gonzalez a few weeks before his murder, and to preclude evidence related to a prior gun transaction involving Rosado, Martinez and George Gallego. *fn5"

 In written correspondence and during a conference on December 18, 1995, Martinez expressed dissatisfaction with Orden, claiming that Orden had failed to provide him with various documents, including statements of witnesses from the Rosado trial, and to follow leads identified by Martinez. *fn6" The Court relieved Orden, and Andrew Patel, Esq was appointed to replace him. On the same day, George Gallego pleaded guilty to conspiracy to murder. In his plea allocution, George Gallego admitted under oath that he and others conspired to kill Gonzalez. (Tr. 698-702; GX 3474-K).

 Before the trial, Patel filed additional in limine motions on Martinez' behalf in which he urged the Court to preclude evidence that Martinez had suborned perjury. He argued that such efforts, if they occurred, were part of a post-conspiracy scheme to conceal the completed crimes and hence inadmissible. Patel moved also for a severance of Martinez' trial from that of his remaining co-defendant, Alfredo Gallego, on the grounds that there was a substantial disparity in proof and that Alfredo Gallego intended to adopt much of the government's proof relating to the robbery. (Abrams Aff. Ex. D).

 The Trial

 The Government's Case as to Martinez

 The principal witness against Martinez was Giovanni Rosado, who testified pursuant to a cooperation agreement. As an accomplice, he provided first-hand, detailed testimony about the participation of Martinez and the Gallegos in the murder and robbery. Rosado testified that Martinez told Rosado about his robbery plans (Tr. 406-08), that Martinez began to recruit Rosado in or about December 1992 (Tr. 408-10), and that Martinez, George Gallego, and Alfredo Gallego attempted to rob the postal driver on January 14, 1993, a week before the actual robbery and murder (Tr. 429-38). He then described how the robbery and murder occurred on January 21, 1993. (Tr. 446-77)

 Four other witnesses testified to incriminating statements by Martinez. Two, Solvieg Rivera McAuley and Peter Harney, met Martinez in 1992 at a bar frequented by Martinez where Harney worked as a bartender. Both testified without immunity. (Tr. 196-213; Tr. 107-35)

 McAuley testified that she overhead Martinez talking to others in the bar on two separate occasions in the fall of 1992 about possibly robbing a Post Office. (Tr. 124-27) Harney testified that Martinez asked Harney in the fall of 1992 if he were interested in making a lot of money. (Tr. 203) After Harney expressed interest, Martinez, on a day which Harney "guessed. . . was in November. . . or early December," drove Harney and two others in Martinez' car to scout out the Parkchester Post Office, the location of the subsequent homicide and robbery. (Tr. 205-10) In the "following week," Martinez told Harney that he was planning to knock off a payroll truck from the Post Office, and Harney refused to participate. (Tr. 210-12) Harney revealed Martinez' plan to mutual friends. "A week or so later," Martinez visited the bar and told Harney to keep his mount shut. (Tr. 212-13)

 The third witness, Arthur Brown, testified pursuant to an order of immunity. *fn7" Brown testified that Martinez took Brown to George Gallego's apartment in late 1992, where he saw Gallego making a silencer. (Tr. 324-25) Around the same time, Martinez told Brown that Martinez was looking for Rosado because Martinez and George Gallego wanted to use Rosado's car in the robbery of a postal truck. (Tr. 327-31) After the murder and robbery, Martinez told Brown that "Gio [Rosado] had fucked up and smacked into the back of a postal truck." (Tr. 341)

 The fourth witness, Fernando Vega, testified without immunity. (Tr. 1173-92) Shortly after the robbery and murder, Vega saw Martinez, Rosado, and another person, Joe Amato, standing beside Rosado's damaged car and heard Martinez admit that it had been damaged during the robbery. (Tr. 1186-87) Vega later heard Martinez discuss the robbery, how Rosado's car had been damaged, and how someone had been shot. (Tr. 1188-89)

 The government introduced substantial proof apart from the witnesses who testified to Martinez' admissions and conduct. Gregory Cintron, who does not know Martinez and testified pursuant to a cooperation agreement, related a conversation that he had with George Gallego on January 21, 1993, soon after the robbery and murder. (Tr. 847-49) George Gallego then stated that someone who lived in his building, which the jury was entitled to conclude was a reference to Martinez, also participated in the robbery. (Tr. 849)

 The government introduced also George Gallego's plea minutes in which he admitted to participating in the charged conspiracy to murder with others. (Tr. 699-702; GX 3474-K)

 The Defense Case

 Both the co-defendant, Alfredo Gallego, and Martinez presented evidence. Gallego called Glen Montalvo, who testified that Rosado worked in the postal facility which the victim regularly visited in the course of his duties. (Tr. 1321-23) Gallego himself testified, admitting to participating in the robbery while steadfastly denying that he had any intent to kill the victim. He asserted also that Martinez had not been involved. (Tr. 1329-33)

 Martinez called only one witness, his mother. Mrs. Idali Martinez testified that her son, in January 1993, routinely ate dinner at her house, that Martinez, as a general rule, left his own home for hers between 5:15 and 6:15 p.m., and that he usually returned between 8:15 and 9:15 p.m. (Tr. 1395-96)

 Martinez did not testify. During the trial, Martinez' trial counsel, Patel, at first stated that the defense was not sure whether Martinez would testify. (Tr. 791) Later, he said that he anticipated that Martinez would testify. (Tr. 1319) After Gallego and Mrs. Martinez testified, Patel represented to the Court, in Martinez' presence, that "Mr. Martinez has informed me ...


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