Duca, 447 F. Supp. 779, 783 (D.N.J. 1978) ("The court cannot be blind to the real possibility that the defendant who stood trial did not genuinely desire that his pleading co-defendant testify at that trial, and thus that the new evidence is not worthy of belief.")
In addition to the aforementioned judicial determinations that the proffered affidavits are not "newly discovered" evidence, the defendant has failed to sustain his burden that they are. Indeed, that they are not is convincingly demonstrated by the defendant's own affidavit dated September 20, 1996 in paragraph 7 of which he states: "The defendant further contends that but for the defense counsel's unprofessional conduct, he failed to call to stand codefendants to testify at trial in defendant's behalf. Defendant contends that result of trial would have been totally different."
B. The Testimony of Agent Devine
The defendant's assertion that Agent Devine testified falsely when he said that cocaine emitted an odor is based upon co-defendant Gonzalez' affidavit that he did and upon submission at oral argument of page 158 of volume 15 of Analytical Proffers of Drug Substances edited by Klaus Florey, to the effect that cocaine is odorless. (Court's Exhibit A). For the reasons already given, Gonzalez' affidavit is entitled to no credence. The excerpt from the treatise is not persuasive absent a comparison of the substance referred to there and the substance seized from the defendants here. The questionable validity of both the Gonzalez affidavit and the treatise excerpt is convincingly demonstrated by a reference to merely a few of the literally countless cases which belie them. For example in United States v. Henry, 47 F.3d 17, 19 (2d Cir.), cert. denied, 132 L. Ed. 2d 268, 115 S. Ct. 2263 (1995), the defendant was convicted of conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841, 846. The opinion recites that couriers flew to Antigua and there strapped two prewrapped, sealed packages to their bodies, "masking the odor of cocaine with perfume." (Emphasis added). In United States v. Marin, 669 F.2d 73, 79 (2d Cir. 1982), the defendants were convicted of conspiracy to possess cocaine with intent to distribute it and for possession of cocaine with intent to distribute it. The opinion described the opening of a bag by a DEA agent who saw in it "two large packages that were sealed with masking tape and exuded an odor of cocaine." (Emphasis added). See also, e.g., United States v. Benevento, 836 F.2d 60, 64 (2d Cir. 1987), cert. denied, 486 U.S. 1043, 100 L. Ed. 2d 620, 108 S. Ct. 2035 (1988); United States v. Taborda, 635 F.2d 131, 134 (2d Cir. 1980). The cases are legion in which drug detecting dogs have sniffed out cocaine. See, e.g., United States v. Eltayib, 88 F.3d 157, 164 (2d Cir. 1996). It is remarkable to assume that given the plethora of cases in which the odor of cocaine was a factor, it wasn't until a convicted drug trafficker submitted a belated affidavit that it was odorless that a question about it is raised. The abundance of cases to the contrary suggest, rather, that Agent Devine's testimony was not perjurious. He was qualified as an expert witness at trial and his testimony was not disputed. The jury was, in addition, instructed that his testimony should be evaluated as the testimony of any other witness would. Given the totality of all the evidence adduced at trial, even had the testimony of Agent Devine been disputed, it was not so material that it would have affected the outcome of the trial. Far more damning was the length of time the defendant spent with Gonzalez at the latter's home in which 25 kilograms of cocaine was found; his false statement when arrested that he picked up Gonzalez on a street corner; the conversation Pelaez was seen to have with the defendant and Gonzalez before leaving with the duffel bag filled with cocaine, and his prior involvement with cocaine as testified to by Detective Pellegrino.
C. The Brady Claims
The claimed violation of the government's Brady obligation is predicated upon Pelaez' belated affidavit that he gave the arresting agent a description of the person he was to meet which did not fit the description of Miranda. His affidavit also affirmatively avers that the defendant was not involved and knew nothing about what he and Gonzalez were up to on the day of their arrest. The suspect nature of the Pelaez affidavit is heightened by a comparison of that document and the post arrest statement given to the arresting officer and made available to the defendant. See 3500, A-4. In that statement he said that he was instructed to meet a van at a designated location and pick up a bag to be delivered to a person waiting in the lobby of a nearby apartment house. Most significant, however, was his statement that he did not know nor had he ever before met the individuals from whom he obtained the bag at the van.
It is important to know that Pelaez was arrested immediately after leaving the van and just outside the apartment house at which he was to deliver the bag. His sworn statement that this defendant whom he had never met before, knew nothing about the transpiring events, is, therefore, patently incredible. It is also important to note that the government was first informed of statements Pelaez allegedly made to the arresting agent which he claims are not reflected in the agent's report upon receiving his affidavit. Even if the maxim falsus in uno falsus in omnibus were not invoked, the statements he allegedly made were neither exculpatory nor material in that it would have produced a different verdict.
For all of the foregoing reasons, the motion is denied as is the defendant's request for an evidentiary hearing. A motion for a new trial may be decided upon affidavits without evidentiary hearings. United States v. Metz, 652 F.2d at 481.
I. Leo Glasser
United States District Judge
Dated: Brooklyn, New York
December 3rd, 1996
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