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UNITED STATES v. CARBAJAL-BRAND

January 15, 1998

UNITED STATES against OSCAR CARBAJAL-BRAND, et al., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Defendants Enrique Leon Abdala ("Abdala") and Ricardo Bernal-Diaz ("Bernal-Diaz") move to suppress certain evidence recovered incident to their arrest. Abdala also moves to suppress statements made to law enforcement agents prior to his arrest. For the reasons stated below, Defendants' motions are denied.

 I. Introduction

 The charges against the Defendants arose from an ongoing money laundering investigation of individuals seeking to transfer narcotics proceeds from New York to Columbia. In the course of that investigation, two undercover agents of the United States Customs Service ("Customs"), who were posing as money launderers, arranged to pick up a large sum of cash from an individual who would identify himself as "Code 113." On or about August 6, 1997, the agents were contacted by "Code 113" and arranged to pick up the money in the vicinity of 34th Street and 10th Avenue.

 At approximately 5:00 p.m. on August 6, 1997, Customs agents and agents of the Drug Enforcement Administration (the "DEA") established surveillance in the vicinity of the parking lot of a McDonald's restaurant located at 34th Street and 10th Avenue. The undercover agents paged the individual who was supposed to drop the money off. Shortly thereafter, a light blue Cadillac ("Blue Cadillac") driven by Defendant Oscar Carbajal-Brand ("Carbajal-Brand") arrived in the vicinity of the McDonald's. Agents noticed that the Cadillac was being followed by a red Nissan Maxima ("Red Nissan") occupied by a number of Hispanic males. The Blue Cadillac parked in the McDonald's parking lot and Carbajal-Brand exited the car. In the meantime, the Red Nissan, which had appeared to drive around the block, reappeared with additional passengers and parked across 10th Avenue from the McDonald's.

 Carbajal-Brand handed a key to the trunk of the Blue Cadillac to one of the undercover agents so that they could retrieve the money. Carbajal-Brand then walked away from the undercover agents. At approximately that time, a black Nissan Maxima ("Black Nissan") driven by defendant Alfredo Soto parked near the 34th Street entrance of the McDonald's parking lot. Soto got out of the car, had a brief exchange with a Hispanic male, Helvert Gomez ("Gomez"), and then reentered the Black Nissan, driving it into the parking lot.

 As the undercover agents were attempting to retrieve the money from the trunk of the Blue Cadillac, Gomez and several other Hispanic males in the parking lot walked in the direction of the undercover agents. Gomez, who was brandishing a firearm, physically confronted the undercover agents, at which point shots were fired. During the ensuing gunfire, one of the Customs agents was shot in the upper leg and Gomez was shot and killed.

 Defendant Bernal-Diaz was arrested as he ran north from the parking lot, crossing 34th Street. Defendant Abdala was arrested later in the evening of August 6, 1997 next to a parking lot in the vicinity of 33rd Street and Broadway, where agents had discovered what appeared to be the Red Nissan.

 II. Procedural Background

 Defendants Abdala and Bernal-Diaz are the only remaining defendants in a six-defendant, eight-count indictment. Count Three of the indictment charges Abdala and Bernal-Diaz with conspiracy to assault a federal officer, in violation of 18 U.S.C. § 371. Count Four charges both defendants with conspiracy to commit robbery affecting commerce, in violation of 18 U.S.C. § 1951. Count Five charges both with illegal possession of a firearm, in violation of 18 U.S.C. §§ 924(c) and 2. Count Eight charges Bernal-Diaz with making false statement to federal law enforcement agents, in violation of 18 U.S.C. § 1001.

 III. Abdala's Challenge to the Probable Cause for ...


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