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May 29, 2003


The opinion of the court was delivered by: Frederick J. Scullin, Chief District Judge



By superseding indictment dated August 23, 2001, Defendant Luis I. Santiago is charged with a single conspiracy count pursuant to 21 U.S.C. § 846, 841(a)(1), stemming from his alleged participation in the "Brito" narcotics conspiracy based in Utica, New York. Specifically, Count I of the superseding indictment charged Defendant with conspiring (1) to possess with intent to distribute and distribute cocaine base (crack) and cocaine in the Utica area and (2) to aid and abet the distribution of cocaine base (crack) and cocaine in the Utica area.*fn2

By stipulation of the parties, a bench trial was held on February 4-5, 2003. The following constitutes the Court's findings of fact and conclusions of law pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure.


In the instant case, there is no dispute that a conspiracy to distribute cocaine existed amongst various individuals under the direction of Ramon and Felix Brito, as charged in the superseding indictment. The question before the Court is thus whether Defendant was a member of that conspiracy.

A. The Investigation

Ramon and Felix Brito headed a narcotics conspiracy in the Utica, New York area between approximately 1999 and March 2001, the object of which was to import and distribute cocaine and crack cocaine for profit. The investigation of the Brito conspiracy began in earnest in December of 1999. At that time, members of the Oneida County Drug Task Force approached Federal Bureau of Investigation Special Agent Tony Fitzgerald with information regarding the Brito conspiracy. After interviewing a cooperating witness, Agent Fitzgerald opened a federal investigation of the Brito conspiracy.*fn3

With the assistance of a cooperating witness, federal investigators arranged fourteen controlled buys from Ramon Brito, Felix Brito and Hector Hernandez between February 2000 and December 2001. In total, the controlled buys netted 206 grams of crack cocaine.

In the course of the controlled buys, investigators identified three cellular telephones that members of the Brito conspiracy used to conduct drug transactions and subsequently ran pen registers*fn4 on each. The pen registers logged approximately 454 calls between Defendant's residential telephone number and the three cellular telephones over the course of approximately six months in 2000 and 2001.*fn5

Investigators thereafter obtained judicial authorization for a thirty-day wiretap, beginning on February 7, 2001, on two of the cellular telephones identified during the controlled buys. See Government Exhibit "35." Between February 7 and March 7, 2001, investigators intercepted forty-two calls in which Defendant participated. At trial, the Government introduced tapes and transcripts of thirty-one calls. See Government Exhibits "1"-"31" & "1A"-"31A."

During the thirty-day wiretap, surveillance was conducted to corroborate information obtained from the wiretap. See Government Exhibits "39," "41" & "42" (original surveillance reports); Government Exhibit "43" (surveillance videotape). Investigators testified that they observed Defendant approaching vehicles connected with the Brito conspiracy on four occasions on February 7, 15 and 16, 2001, after he was heard ordering drugs in intercepted calls.*fn6

Thereafter, arrest and search warrants issued for those persons believed to be part of the Brito conspiracy. Defendant was arrested at his residence on the morning of March 7, 2001. Shortly after his arrest, Defendant made various oral statements to FBI Special Agent John Bokal.*fn7 Specifically, Agent Bokal testified that Defendant stated that he had purchased cocaine from the Brito conspiracy for two to three years; that he originally purchased two to three "eightballs"*fn8 per month but that in the year leading up to his arrest he purchased two to three eightballs two to three times per week; that he paid $120 per eightball; that he purchased cocaine from various members of the Brito conspiracy, including Ramon Brito, Hector Hernandez and Porforio Gaton; and that he sold some of the cocaine that he purchased to support his drug habit.

B. Defendant's Cocaine Purchases

The evidence adduced at trial establishes beyond a reasonable doubt that Defendant was a regular and longstanding customer of the Brito conspiracy. Defendant's post-arrest statement that he was purchasing two to three eightballs two to three times per week in the year leading up to his arrest is supported and corroborated by Porforio Gaton's testimony that he delivered one to three eightballs to Defendant two or three times per week*fn9 and tape recorded telephone conversations in which Defendant ordered approximately thirty-four eightballs during the thirty days that the wiretap was in place.*fn10 See Government Exhibit "45."

C. Defendant's Resale of Cocaine

The investigation of the Brito conspiracy produced little direct evidence that Defendant sold cocaine. On cross-examination, Agent Fitzgerald conceded that there were no controlled buys from Defendant and that investigators did not identify any individuals who had purchased cocaine from Defendant. In addition, the search of Defendant's residence yielded only trace amounts of cocaine and no evidence of paraphernalia related to cocaine distribution, such as plastic bags, cutting agent, or scales. In contrast, substantial quantities of cocaine and cash were seized from the residences and automobiles of other undisputed members of the Brito conspiracy. See Government Exhibits "17," "18" and ...

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