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U.S. v. RODRIGUES

September 28, 1999

UNITED STATES OF AMERICA,
v.
REGINALD RODRIGUES, DEFENDANT.



The opinion of the court was delivered by: Trager, District Judge.

MEMORANDUM AND ORDER

On July 2, 1998, defendant Reginald Rodrigues ("Rodrigues") was indicted on three counts of federal narcotics charges: conspiracy to distribute and possession with the intent to distribute a Schedule II controlled substance (cocaine), conspiracy to import a Schedule II controlled substance (cocaine) into the United States, and possession of a Schedule II controlled substance (cocaine) with the intent to distribute.

On May 26, 1999, Rodrigues moved to have all his post-arrest statements suppressed on the ground that the government questioned him in violation of Article 36 of the Vienna Convention on Consular Relations.*fn1 Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (hereinafter "Article 36" or "the Convention"]. On June 14, 1999, the government responded to defendant's motion.

Background

On June 5, 1998, several shipping containers, with a bill of lading listing J & W Seafood Vegetable and Fruits Corp., 125 Mott Street, New York, New York as consignee, arrived at Philadelphia's port from Guyana. See Letter from Karen R. Sage, Esq., Assistant U.S. Attorney, dated Dec. 15, 1998 at 1 [hereinafter "Dec. Ltr."].*fn2 According to its manifest, the containers held frozen headless sea trout; however, upon inspection, customs officers found two containers filled with boxes labeled frozen shrimp. See id. Two of these boxes actually contained 25 kilos of a white substance which later proved to be cocaine. See id. Customs agents refilled the two frozen shrimp packages with a "sham load" that included an electronic tracking device. See id. All the containers were then released from customs, unloaded, and brought to a cold storage facility in Brooklyn, New York. See id.

Surveillance of the cold storage facility on June 9, 1998 revealed a man, later identified as defendant Rodrigues, taking the two boxes containing the tracking device out of storage, loading them into the back of a white van, and boarding the van himself. See id. The van went to 295 East 38th Street in Brooklyn, where Rodrigues took the two boxes into an apartment building.*fn3 See id. at 2. Frank Wray arrived at the building soon thereafter, and both Wray and Rodrigues transferred the boxes from the apartment building to the trunk of Wray's car. See id. Wray then drove alone to 1455 St. Johns Place, Brooklyn, where he was arrested in the hallway outside his apartment door. See id.

Rodrigues was arrested a short time later outside the front door of 295 East 38th Street, Brooklyn. See Jan. Tr. at 31. Since Rodrigues did not have any ID on him at the time of his arrest, one of the customs agents instructed him to ask a friend to go inside and get his passport, which he did.*fn4 See id. at 32-33. Once the passport was obtained, Rodrigues was transported to the World Trade Center, where he was processed and placed in a room to be questioned. See id. at 40-41. As part of the processing routine, Rodrigues completed a "Personal History Report" (DEA Form — 202) on which he indicated he was a citizen of Guyana and had a permanent address there, as well as immediate family. See Letter from Robert S. Wolf, Esq., dated May 26, 1999, Ex. A [hereinafter "May Ltr."].

Later that same evening, June 9, 1998, two customs agents, Quintana and O'Brien, interviewed Rodrigues. See Jan. Tr. at 41. Agent Quintana began the interview by asking Rodrigues if he understood English; Rodrigues responded that English was his first language. See id. at 44. Agent Quintana then read Rodrigues the Miranda warnings listed on a card the agent regularly used for this purpose. See id. at 29; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Agent Quintana testified that Rodrigues "clearly said he understood (the warnings] and [that] he would be willing to speak with us." Id. Neither of the agents amplified the Miranda warnings in any way; nor did they inform Rodrigues of his right under the Convention to contact his. consulate. See id. at 45; Article 36, ¶ 1(b).

In response to their questions, Rodrigues told the agents that he was the shipper/exporter of the containers from Guyana and that he was the person responsible for completing the manifest, bill of lading, and customs documents. See Dec. Ltr. at 2; Jan. Tr. at 30, 52. He said he had flown into JFK airport early that same morning (June 9, 1998), having left Guyana as soon as he was notified the containers had cleared customs. See Jan. Tr. at 30. He also admitted to the agents that he knew there was cocaine in the boxes labeled frozen shrimp and that he had been given instructions by an unnamed source in Guyana to notify Wray when the shipment arrived and to give Wray the boxes. See id. These statements were presented to the Grand Jury and formed part of the basis for Rodrigues' indictment.

Discussion

(1)

Article 36 of the Vienna Convention on Consular Relations, to which both the United States and Guyana are parties, states, in relevant part:

  Article 36: Communication and contact
  with nationals of the sending State
    1. With a view to facilitating the exercise
  of consular functions relating to
  ...

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