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UNITED STATES v. SANTIAGO

February 13, 1998

UNITED STATES OF AMERICA
v.
ANGEL SANTIAGO, et al., Defendants.



The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 Shira A. Scheindlin, U.S.D.J.

 Defendant Angel Santiago ("Santiago" or "defendant") is charged in a multi-defendant, multi-count RICO and drug conspiracy indictment. He is charged, in substance, with belonging to a gang known as "Power Rules" that engaged in large-scale narcotics trafficking accompanied by the extortion and violence necessary to ensure the continuing viability of the enterprise. The eleven defendants remaining in the case have made a substantial number of motions, only one of which -- Santiago's motion to suppress a statement he made on June 9, 1997 -- is addressed by this Opinion. This statement was made while Santiago was being questioned by agents of the New York Drug Enforcement Task Force ("Joint Task Force"), an entity that includes agents of the Drug Enforcement Administration ("DEA") and officers of the New York City Police Department ("NYPD"). A suppression hearing was held on December 8 and December 30, 1997. For the reasons discussed below, the statement must be suppressed.

 I. FACTUAL BACKGROUND AND FINDINGS

 A. Background

 Santiago was arrested on or about August 28, 1996, on charges that he sold two vials of crack to an undercover police officer. See Transcript of December 30, 1997 ("TR") at 264. He was arrested again on or about November 4, 1996, this time for selling five vials of crack to a police officer. TR at 265. He was held in state custody on Rikers Island, pending disposition of these charges, neither of which is yet resolved. TR at 253. The current federal indictment charges Santiago with participating in a conspiracy to distribute crack cocaine for a period of time including all of 1996. *fn1"

 The federal indictment was returned on August 7, 1997 and unsealed on August 12, 1997. While these charges were under investigation, agents of the Joint Task Force interviewed Santiago pursuant to a writ of habeas corpus ad testificandum. See Defendant's Exhibit ("DX") A. When asked how that interview happened to occur, Agent Peter Borysevicz stated:

 
Well, through my investigation into the Power Rule gang, I knew that Angel Santiago was a member. So at that point I took a shot at interviewing him....I, just, on a hunch, pulled him out of Rikers Island. He's a member of the gang, he was looking at two state cases at the time, so I figured he would be a candidate for an interview.

 Transcript of December 8, 1997 ("TR") at 138.

 In order to obtain the writ of habeas corpus ad testificandum, a supporting Affirmation was submitted by an Assistant United States Attorney ("AUSA"). See DX B. The Affirmation was captioned "In the Matter of a Proceeding Before the Grand Jury". Id. In her affirmation, the AUSA stated that "she has charge of an investigation being conducted by the United States Attorney for the Southern District of New York in the above-entitled matter." She further states that Angel Santiago "is believed by the Drug Enforcement Administration and the New York City Police Department to have certain information which will be material and necessary to present to the Grand Jury." Id. The Affirmation ends with a request:

 
That a writ...be issued directing the New York City Department of Correction to produce to Special Agents of the Drug Enforcement Administration, New York City Police Detectives, or any duly authorized federal law enforcement officers on June 9, 1997, at or before 10:00 a.m., so that said prisoner may meet with representatives of the United States Attorney's Office for the Southern District of New York in preparation for his Grand Jury appearance in the matter of United States v. John Doe.

 Id. The writ itself repeats this language, commanding the Warden of Riker's Island to transfer custody of Angel Santiago to the DEA, NYPD or any duly authorized federal law enforcement officers "so that said prisoner may meet with representatives of the United States Attorney's Office for the Southern District of New York in preparation for his Grand Jury appearance in the matter of United States v. John Doe." DX A.

 The Grand Jury described in this writ was undoubtedly the Grand Jury considering the charges ultimately brought against Santiago and fifteen other defendants. As mentioned briefly above, those charges include RICO, extortion and conspiracy charges, as well as substantive charges of narcotics distribution, murder, armed robbery and firearms violations. Santiago faces a life sentence.

 After questioning the AUSA who drafted the affirmation in support of the writ, a United States District Judge issued it. See Affirmation of AUSA Margery Feinzig ("Feinzig Aff.") dated January 20, 1998. *fn2" DEA Agent Borysevicz and NYPD Detective Joseph Miraglia went to Rikers Island and took Santiago to the DEA's office in Manhattan. TR at 139. Santiago never met with any AUSA in preparation for any grand jury testimony, nor did he testify in any proceedings. TR at 154. The Government concedes that at the time of the June 9 interview, the agents neither notified Santiago's counsel in his pending state cases nor provided a different counsel to represent him on the potential federal charges. TR at 140. Agent Borysevicz testified that he did advise Santiago of his Miranda rights. TR at 139. Santiago, in turn, testified that he repeatedly asked for counsel. TR at 259, 266, 277-78, TR at 145. *fn3" The Government denies this. The agents proceeded to question Santiago with respect to matters concerning the Power Rules gang -- specifically, its membership and its unlawful activities. TR at 142. It appears that Santiago was not questioned about either of the pending state charges. TR at 143. According to the Government, Santiago made a number of incriminating statements. See GX 6 (DEA ...


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