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UNITED STATES v. MURGAS

April 15, 1997

UNITED STATES OF AMERICA,
v.
LUIS A. MURGAS, a/k/a Big Louie, a/k/a/ Barosa; LUIS E. CORDOBA-MURGAS, a/k/a Negro, a/k/a Carlos; LUIS ANTONIO TODD-MURGAS, a/k/a/ Little Louie; CESAR A. TODD-MURGAS, a/k/a Tony, a/k/a Pepita; RAUL ANTONIO CORDOBA-MURGAS, a/k/a Strawberry; JOSE C. DOMINGUEZ, a/k/a Pachito; RUBEN A. TODD-MURGAS; VINCENTE ROGERS, a/k/a Santos; GILBERTO ARCE, a/k/a Luigi Santiago; JAYSON JONES; DENNIS J. CALANDRA, JR.; TIFFANY GAUDINOT; and TRICIA IRVING, Defendants.



The opinion of the court was delivered by: MUNSON

 I. BACKGROUND

 On March 21, 1996, the Grand Jury charged the defendants in an eight count second superseding indictment. The United States alleges that from 1991 until their arrest in March of 1996, the defendants were engaged in a conspiracy to distribute large quantities of powder and crack cocaine in Rome, New York, and the surrounding Oneida County area.

 Count I of the indictment charges Raul Antonio Cordoba-Murgas with wilfully failing to deport from the United States in violation of 8 U.S.C. § 1252(e). Count II of the indictment charges all defendants with engaging in a conspiracy with intent to distribute and distribution of powder and crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Count III through Count VII charges defendants Vincente Rogers, Ruben A. Todd-Murgas, Gilberto Arce, Cesar A. Todd-Murgas, Luis E. Cordoba-Murgas, and Jayson Jones respectively with "knowingly and intentionally possessing with the intent to distribute and distributing cocaine." Lastly, Count VIII charges all defendants with forfeitures of currency and automobiles pursuant to 21 U.S.C. § 853.

 According to the United States, the inner circle of the drug enterprise included Luis E. Cordoba-Murgas, Cesar A. Todd-Murgas, Luis A. Murgas, Luis Antonio Todd-Murgas, Raul Antonio Cordoba-Murgas, and Jose C. Dominguez. In recent years, the government alleges that the enterprise paid defendant Jayson Jones to store the cocaine at his residence. When a distributor in the enterprise needed cocaine for a transaction, the distributor would then obtain it from Jones. Jones was also used to transport the cocaine from New York City-- the apparent geographical source of the cocaine for the conspiracy-- to Rome, New York.

 Presently before the court are defendants' omnibus pretrial and discovery motions. Defendants made over 120 separate motions in more than 25 distinct categories, and the government cross-moved for disqualification of one of the defendant's attorneys. The court heard oral argument on December 13, 1996 at a special motion term in Syracuse, New York. During oral argument, the court granted defendants motions for preservation of law enforcement notes, for an audibility hearing, for an evidentiary hearing in furtherance of a motion to suppress statements, and for a conflict of interest hearing. *fn2"

 On January 15, 1997, the court held the conflict hearing to determine whether defendant Luis Cordoba-Murgas made a knowing and intelligent waiver of his rights under the Sixth Amendment to an attorney free from any potential or actual conflict of interest. At the conclusion of the hearing, the court held that defendant did make such a waiver and therefore, was entitled to be represented by the attorney of his choice, Calvin J. Domenico, Jr.

 On January 27, 1997 the court held a evidentiary hearing in connection with defendant Jones' motion to suppress several statements given to law enforcement officers in connection with a search warrant executed on March 8, 1996. At the conclusion of the hearing, the United States requested and reserved the right to offer rebuttal evidence. On January 29, 1997 the government notified the court and defense counsel that it did not intend to offer any rebuttal evidence, and that it was satisfied with the record without any rebuttal evidence. Thereafter, on February 13, 1997, both Jayson Jones and the government submitted their closing statements, as directed to do so by the court. The decision of the court with respect to that particular motion, as well as the outstanding omnibus motions, is set forth below. *fn3"

 II. DISCUSSION

 A. PRETRIAL MOTIONS

 1. Bill of Particulars

 Defendants Luis Cordoba-Murgas, Cesar Todd-Murgas, Ruben Todd-Murgas, Vincente Rogers, and Tricia Irving move for the production of a bill of particulars pursuant to Fed. R. Crim. P. 7(f). Rule 7(f) provides that a court, within its discretion, may direct the government to file a bill of particulars. Fed. R. Crim. P. 7(f); see United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). Bills of particulars are used to protect a particular defendant from another prosecution for the same offense, to enable a defendant to adequately prepare his defense and, to avoid surprise at trial. See United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). A bill of particulars should not be used as a general discovery tool nor should it be used to circumvent a result not intended by Fed. R. Crim. P. 16. Torres, 901 F.2d at 234. Thus, where the indictment and discovery materials are sufficient to allow a defendant to prepare a defense with reasonable diligence, a court will generally not order that the government file a bill of particulars. See Panza, 750 F.2d at 1148.

 More specifically, with respect to bills of particulars in conspiracy cases, the general rule is that the defendants do not need detailed evidence about the conspiracy in order to adequately prepare for trial. See, e.g., United States v. Feola, 651 F. Supp. 1068, 1132-1133 (S.D.N.Y.), aff'd, 875 F.2d 857 (2d Cir. 1989) (defendants in conspiracy case need not know the means by which it is claimed they performed overt acts; details as to how and when the conspiracy was formed, or when each participant entered the conspiracy; whether a particular defendant was present at alleged meeting in furtherance of the conspiracy; and the locations which the conspirators are alleged to have violated the statute). Courts have also held that matters such as the exact time and place of the overt acts and the names and addresses of persons present during meetings were not properly the subject of a bill of particulars. See United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983), aff'd, 750 F.2d 7 (2d Cir. 1984).

 Here, the court has reviewed the specific requests by each of the defendants and finds, for the most part, the second superseding indictment and the discovery made available to the defendants contain specific information sufficient to allow defendants to prepare a adequate defense, to avoid surprise at trial, and to plead the bar of double jeopardy at a later date should that become necessary. See United States v. Payden, 613 F. Supp. 800, 816 (S.D.N.Y.) aff'd, 768 F.2d 487 (2d Cir. 1985) (bill of particulars not necessary where court determines information sought has been provided elsewhere in discovery and the indictment).

 However, the court directs that two particulars be disclosed to defendants, to the extent that the government possesses the particularized information and it has not yet been disclosed. The government must disclose the identities of all persons the government claims to have been coconspirators during the course of the alleged conspiracy, regardless of whether they have been indicted. While the government need not disclose the addresses of such coconspirators, the government is directed to disclose whether any coconspirators are in federal, state, or protective custody. Additionally, the government should disclose the amount of controlled substance it will seek to attribute to defendant Tricia Irving at trial as well as the amount of money exchanged for the given amount of controlled substance. The remaining information sought by defendants is either contained in the indictment and discovery furnished by the government or is the type of information that is not available through a bill of particulars. Therefore, the court grants the defendants' motions for a bill of particulars to the extent set forth above.

 2. James Hearing

 Defendants Ruben Todd-Murgas, Jayson Jones, and Tricia Irving move for a pre-trial hearing on the admissibility of coconspirator statements. These motions for such a hearing--also referred to as a James hearing pursuant to United States v. James, 590 F.2d 575 (5th Cir. 1979) -- need not detain the court long. As then-Chief Judge Brieant so aptly stated: "[A] motion for a James hearing in this Circuit must be regarded as frivolous. Defendants who want James hearings should so conduct their business as to be tried in the Fifth or Eleventh Circuits." United States v. Feola, 651 F. Supp. at 1130; see United States v. Walker, 922 F. Supp. 732, 746 (N.D.N.Y. 1996).

 Accordingly, the court denies defendants' motions for a pre-trial hearing on the admissibility of coconspirator statements.

 3. Suppression of Wiretap Evidence

 Defendant Vincente Rogers moves for suppression of wiretap evidence, asserting that the warrants authorizing the wiretaps were deficient. The statutes at issue, 18 U.S.C. § 2518 and N.Y Crim. Proc. Law § 700.15, *fn4" require that an interception of wire communication or electronic communication may only be authorized by a court upon a finding of probable cause and a showing that less invasive or traditional investigative procedures have been tried and failed, or that such procedures are unlikely to succeed if tried, or that such procedures are too dangerous to try. 18 U.S.C. § 2518(3); N.Y Crim. Proc. Law § 700.15 (McKinney 1995). These requirements are "'simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'" United States v. Torres, 901 F.2d 205, 231 (2d Cir. 1990) (quoting United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 983 n.12, 39 L. Ed. 2d 225 (1974)). This is not to say, however, that electronic surveillance warrants can only be issued after all other traditional investigative procedures have been exhausted. See Lilla, 699 F.2d 99 at 102-103. Rather, the statutes in issue only mandate that the court make its findings in accordance with their requirements. See id.

 So as to allow a court to make this determination, both the New York and federal statute require that the application for an order authorizing an interception set forth a full and complete statement establishing that such traditional methods were tried and failed, are unlikely to succeed if tried or are too dangerous to employ. See N.Y. Crim. Proc. Law § 700.20 (d); 18 U.S.C. 2518(1)(c).

 It is the sufficiency of the applications for the warrants that the defendant attacks in the case sub judice. Specifically, defendant asserts that "Nowhere is there contained in the application a full and complete statement regarding alternative investigative techniques, which if used, it is submitted, would suffice to expose the criminal activity." Affidavit of Stephen Lance Cimino, dated August 28, 1996, Docket Document Number ("Doc.") 95, ("Cimino Aff.") at 14-15. Defendant also asserts that the criminal complaint sets forth in compelling fashion how the use of traditional investigative methods exposed the alleged criminal activity and therefore, "the use of wiretaps was unnecessary and illegal." Id. at 15.

 The court rejects defendant's position that the affidavits were inadequate. The court has reviewed each successive warrant or extension of warrant issued that the defendant objected to, dated July 21, 1995, August 21, 1995, September 6, 1995, October 5, 1995, October 13, 1995, December 20, 1995, January 24, 1996, February 22, 1996, and March 1, 1996, and finds that they satisfy the statutory requirements. See Cimino Aff., exh. "D" (attached warrants). By way of example, in the warrant issued July 21, 1995, one affidavit in support of the warrant set forth that traditional investigative methods, such as controlled purchases of narcotics and conventional surveillance, have been either unsuccessful or utilized with limited success because they "failed to produce sufficient evidence to identify or charge anyone with their roles in this drug distribution network." Affidavit of Investigator Michael D. Grande, dated July 11, 1995, Doc. 100, at 26 (attached to Cimino Aff., as part of exhibit "D"). The affidavit further set forth that the targets of the conspiracy continue to employ counter-surveillance techniques "making conventional surveillance extremely difficult if not impossible." Id. Moreover, the affidavit described how the use of pagers or beepers facilitated the illegal narcotics trafficking. The affidavit set forth that such use of beepers were often utilized "to alert each other as to the availability of product and to arrange covert transactions" and how these beepers allow persons "to conduct transactions at clandestine locations, thus making detection more difficult." Id. at 25.

 Furthermore, the warrants recite that the judge issuing the warrants, in most instances Oneida County Court Judge Donalty, was "satisfied that comparable evidence essential for the investigation and prosecution of these crimes could not be obtained by conventional investigative techniques." Eavesdropping Warrant, dated July 21, 1996, Doc 100, (attached to Cimino Aff., as part of exhibit "D") The court here will give these prior determinations by the issuing judge its due deference, as it is required to do. See, e.g., Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983).

 Defendant further contends that the wiretap evidence should be suppressed for another reason. Defendant asserts that the order authorizing the subsequent use of the intercepted communications by the United States in this prosecution pursuant to 18 U.S.C. § 2517(5) and N.Y. Crim. Proc. Law § 700.65(4) is invalid. Defendant argues, in an apparent extension of his primary argument, that the order is invalid because Judge Donalty could not have made the required determination that the warrants were issued in conformity with federal law based upon deficiencies in the underlying warrants. See Cimino Aff. at 15-16. Defendant further points out that the application for the § 2517(5) order is missing certain affidavits and pages contained in many of the affidavits submitted and, therefore, Judge Donalty had incomplete information before him to make a valid finding. See id.

 The court finds this argument without merit. Section 2517(5) requires that the reviewing judge make a finding that the "contents were otherwise intercepted in accordance with the provisions of this chapter." Here, the reviewing judge on the government's § 2517 application was Judge Donalty. As noted, Judge Donalty was the judge who ordered nearly all the warrants in the first instance. Thus, to say that Judge Donalty may not have had sufficient information before him to make the required determination under § 2517 is implausible. Moreover, the finding by this court that the warrants comply with the statutory requirements undermines any argument that the § 2517 order may be invalid.

 Accordingly, the court denies defendant's motion to suppress wiretap evidence.

 4. Suppression of Physical Evidence

 Defendant Vincente Rogers moves to suppress physical evidence obtained during the execution of a search warrant upon the ground that there exists no probable cause to justify the search of his residence. *fn5" Specifically, defendant contends that the application was deficient because it was lacking in factual allegations and contained only conclusory allegations. See Defendant Rogers' Memorandum of Law, Doc. 96, ("Rogers' Mem.") at 12. The defendant further contends that allegations contained in the application were based upon illegally intercepted wire communication and are therefore fruits of illegal conduct.

 "In determining whether a search warrant is supported by probable cause, a flexible, totality-of-the-circumstances standard is employed." United States v. Feliz-Cordero, 859 F.2d 250, 252-53 (2d Cir. 1988). Probable cause to search a place is determined by making "a practical, commonsense decision whether, given all the circumstances set forth in the affidavit . . ., there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983). The "duty of a reviewing court is simply to ensure" that the issuing judge had a "substantial basis for . . . concluding that probable cause existed." Id. (citations omitted); see Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991) ("courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than commonsense manner") (quotations and citations omitted); United States v. Rosa, 11 F.3d 315, 326 (2d Cir. 1993).

 As set forth above, the court determined that the interception of wire and electronic communication was legal and thus, can properly serve as a basis for the factual allegations contained in the affidavit in support of the search warrant. See discussion supra Part II.A.3. Therefore, there is no basis to suppress the physical evidence here as the fruits of illegal conduct, as defendant contends.

 Moreover, the affidavit contains ample information from which one can readily conclude probable cause existed to suggest that there was illegal activity being conducted at defendant's residence and that the residence would contain contraband. The affidavit, 17 pages in length, set forth in great detail the evidence obtained regarding the conspiracy as well as the involvement of defendant and the use of his residence in the drug conspiracy. See Cimino Aff. exh. "B," Doc. 98 (affidavit in support of warrant).

 For example, the affidavit details how defendant Rogers was involved in the drug conspiracy and that it was probable that he used his residence, among other places, to store cocaine. Id. The affidavit reveals how defendant would advise other parties to phone conversations, also suspected drug conspirators, that he has "it" or "the brick" or "the shit" or "the thing" or "the rock" at his residence and that they should either come and get it or he will deliver it to them. Id. at 4, 5, 10-11, 12, 13, 15, 17. As this court recently observed in United States v. Hargrett, 1996 U.S. Dist. LEXIS 14273, No. 96- CR-17, 1996 WL 551090, at *13 (N.D.N.Y. Sept. 25, 1996), while these terms are "perhaps ambiguous in a vacuum, [they] are inculpating when viewed as part of the conspiratorial diorama." The affidavit also reveals how investigators observed defendant meeting with other suspected drug dealers and traveling to clandestine meetings in automobiles suspected of transporting cocaine. Id. at 3-4, 9-10, 11-13, 16. The affidavit also contained accounts of defendant engaging in what they believed to be drug transactions with other suspected drug users and dealers. Id. at 3-4, 9-13, 15-16. These examples clearly demonstrate that the judge issuing the search warrant possessed a substantial basis to conclude that probable cause existed to search defendant's residence.

 Accordingly, defendant's motion to suppress physical evidence is denied.

 5. Suppression of Statements

 Defendant Jayson Jones moves to suppress his oral and written statements on the grounds that any statements taken from him were in degradation of his constitutional rights because he did not knowingly and intelligently waive his Miranda rights. The basis for Jones' motion is that, according to his attorney, Jones "cannot read, is severely dyslexic, and as psychological reports indicate, that the defendant is mentally retarded." See Defendant Jones' Memorandum of Law, dated September 3, 1996, Doc. 109 ("Jones' Mem."), at 13. The record reveals that Jones has an intelligence quotient (IQ) between 74 and 81 and has been evaluated as possessing "low average to borderline intelligence." The government responds that defendant Jones waived his Miranda rights and that low intelligence does not automatically negate a defendant's waiver of his Miranda rights. See United States Response to Defendants' Omnibus Motions, dated October 2, 1996, Doc. 119, ("Gov't Response") at 37. The government further sets forth that determining the competence of a defendant to make such a waiver depends on the "totality of the circumstances" and that based upon the circumstances present here, defendant Jones knowingly and voluntarily waived his Miranda rights. Id.

 In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court set forth that a defendant's statement made during custodial interrogation may only be used against him if the statement was made voluntarily and that the defendant makes a knowing and intelligent waiver of his Fifth Amendment right against compulsive self-incrimination. *fn6" Id. at 444, 86 S. Ct. at 1612. The government has the "heavy burden" to prove by a preponderance of the evidence that the defendant validly waived his rights and that the statements were obtained voluntarily. Id. at 475, 86 S. Ct. at 1628; see United States v. Anderson, 929 F.2d 96, 98-99 (2d Cir. 1991) ("Because in-custody interrogation contains psychological pressures that cause a suspect to speak when he would otherwise remain silent, the prosecution must show that this safeguard of informing the accused of his rights was actually employed").

 In analyzing whether a defendant validly waived his rights, the court must engage in a two-part inquiry. See United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995). First, the court must determine whether the waiver was "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986). Second, the court must determine whether the waiver was made with "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. Only if the "totality of the circumstances" and the facts surrounding the interrogation, including the background, experience, and conduct of the accused, "reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id. (quotations and citations omitted); see United States v. Lynch, 92 F.3d 62, 65 (2d Cir. 1996). Whether a defendant is competent to make a valid waiver is a heavy fact-specific inquiry. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938).

 Even if a confession is voluntarily given, it may nonetheless be inadmissible if the defendant "lacks the mental capacity to make a knowing and intelligent waiver" of his Miranda rights. United States v. Frank, 956 F.2d 872 (9th Cir. 1991) (citing Moran, 475 U.S. at 421, 106 S. Ct. at 1141); see Jaswal, 47 F.3d at 542. To be sure, the mentally retarded present significant problems for the courts because they are less likely to understand the implications as well as the consequences of a waiver. See, e.g., Jurek v. Estelle, 623 F.2d 929, 937-38 (5th Cir. 1980) (a defendant's mental limitations must be taken into account to determine a defendant's "inability to comprehend the circumstances" surrounding a confession); see also Paul T. Hourihan, Earl Washington's Confession: Mental Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1492 (1995) (the mentally retarded are "less likely to understand their Miranda rights and the consequences of waiving them, giving rise to concerns about the knowing intelligence of their waivers.").

 Although several courts have considered a defendant's limited cognitive ability when determining whether the requirements of a waiver were met, courts have generally concluded that "no single factor, such as IQ, is necessarily determinative in deciding whether a person was capable of knowingly and intelligently waiving . . . the constitutional rights embraced in the Miranda rubric." E.g., Fairchild v. Lockhart, 744 F. Supp. 1429, 1453 (E.D. Ark. 1989) (collecting and discussing numerous federal cases where the defendant's limited cognitive abilities were a factor in determining the validity of the waivers), aff'd, 900 F.2d 1292 (8th Cir. 1990); see Moore v. Dugger, 856 F.2d 129 (11th Cir. 1988) (defendant with an IQ of 62 found to validly waive Miranda rights); Harris v. Riddle, 551 F.2d 936 (4th Cir. 1977) (defendant, who had an IQ of 67 and was 17 years old held to possess sufficient comprehension where expert testified that he had a sixth grade intelligence and understood the right to remain silent, although not all of the consequences of giving up that right); United States v. Young, 529 F.2d 193, 195 (4th Cir. 1975) (although defendant had a below average IQ, limited education and reading ability, the court held that he validly waived his rights, stating "these factors are not in themselves determinative of the voluntariness of a waiver, for one must examine the totality of the circumstances surrounding the waiver."); United States v. Marenghi, 896 F. Supp. 207 (D. Maine 1995) (defendant with "cognitive limitations" and an IQ of 79 validly waived her Miranda rights), aff'd, 109 F.3d 28, 1997 U.S. App. LEXIS 5218, 1997 WL 114121 (1st Cir., 1997).

 During the suppression hearing, the government proffered the testimony of the law enforcement officers who took the statements from Jones, New York State Police Investigators Luis Rodriquez and Michael Grande. Rodriquez testified that on March 8, 1996, during the execution of a search warrant at Jones' residence, Jones gave his first statement. See Transcript of Suppression Hearing, dated February 10, 1997, Doc. 137, ("Supp.Tr.") at 6. Rodriquez testified he advised Jones of his rights using standard language printed on the top of the first page of the statement form. Supp.Tr. at 6-7. After reading Jones his rights, Rodriquez then had Jones read aloud the first couple of rights to ensure that Jones was capable of reading them. Supp.Tr. at 7-8. Rodriquez testified that Jones had no trouble reading the rights. Supp.Tr. at 8. Rodriquez then had Jones initial by each sentence of the rights warning and signed the waiver. Supp.Tr. at 8, 11. Jones stated to Rodriquez that he understood his rights, asked no questions regarding his rights, and gave Rodriquez no indication that he did not understand his rights. Supp. Tr. at 7-8. The statements made by Jones were then reduced to writing and then Rodriquez had Jones read the beginning part of the statement while he read to Jones the remaining portion. Supp. Tr. at 10-11.

 Subsequent to the statement being taken by Rodriquez, Jones and Rodriquez traveled to New York State Police Headquarters in Oneida, New York. Supp.Tr. at 15-16. There, Rodriquez and Investigator Grande interviewed Jones and Jones gave his second statement. Supp.Tr. at 16. Before giving this second statement, Jones was advised of his rights a second time by Grande in the presence of Rodriquez. Supp.Tr. at 16, 30-31. Also, Jones specifically asked if he was required to make a statement, and both Grande and Rodriquez informed Jones that he was not. Supp.Tr. at 31. Grande read the first part of Jones' rights to him and then had Jones read the remaining rights aloud so Grande could determine whether Jones could read. Supp.Tr. at 31. Grande then instructed Jones if he understood his rights, he should so ...


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