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May 17, 2005.


The opinion of the court was delivered by: JOHN KOELTL, District Judge


The defendant Arnold Dalisay ("Dalisay"), a/k/a "Arnold Ray," was charged in a two-count superseding indictment (the "S3 Indictment") filed on March 10, 2005.*fn1 The S3 Indictment charges twelve defendants, including Dalisay, with participating in a conspiracy in violation of 21 U.S.C. § 846, from in or about 2001 to up to and including in or about November 2003, to distribute fifty grams and more of methamphetamine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841 (b)(1)(A). (See S3 Indictment ¶¶ 1-2.)

Dalisay now moves to suppress evidence of a Federal Express package that was allegedly seized by the United States Customs Service (the "USCS") on March 4, 2003 and subsequently destroyed by the USCS on June 3, 2003. While the package has been destroyed, there is evidence concerning the package, including photographs of the package and its contents, shipping documents, and testimony by USCS agents. The defendant argues that because he cannot examine and test the original package and its contents, the introduction of any evidence about the package would be highly prejudicial and should be precluded at trial as a means of sanctioning the Government for its destruction. The Government argues that this evidence is admissible because the Federal Express package was not destroyed in bad faith and the destruction was not part of an effort to prevent anyone from reviewing the evidence in this case. The Court held an evidentiary hearing on December 17, 2004 because the issue of sanctions depends on a case-by-case examination of the facts surrounding the destruction of the Federal Express package, including the Government's culpability for the loss of the evidence. See United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980).

  Having reviewed the evidence and assessed the credibility of the witnesses, the Court makes the following findings of fact.

  On or about March 4, 2003, a Federal Express package addressed to Arnold Dalisay was inspected by the USCS at the Federal Express Hub at the Ted Stevens International Airport in Anchorage, Alaska. (See Transcript of December 17, 2004 Hearing ("Tr.") at 4, 6-8.) The package allegedly contained two t-shirts, three CD-ROMs, four deodorant containers, and a personal letter. (Tr. at 8.)

  USCS Inspector Terence Sanders ("Sanders") examined the Federal Express package at issue. Sanders testified that, on a daily basis, he routinely inspects roughly 100 packages of the more than 30,000 Federal Express packages that arrive at the Federal Express Hub in Anchorage. (Tr. at 5.) Sanders routinely inspects these packages to determine the admissibility of cargo arriving in the United States and seizes contraband, including narcotics. (Tr. at 5-6.) Sanders has seized narcotics approximately 200 to 250 times in the course of his employment as a Customs Inspector, and he has seized methamphetamine approximately fifty-seven times, about fifty of which seizures occurred prior to March 4, 2003.*fn2 (Tr. at 6, 52.) Based on this experience, Sanders is familiar with the appearance of methamphetamine. (Tr. at 6.) Sanders has no investigative function and refers seizures to the USCS Office of Investigations ("OI").*fn3 (Tr. at 19-20.)

  Sanders testified that another USCS officer had selected the Federal Express package for a random inspection. (Tr. at 6-7, 25.) According to the handwritten Federal Express Airbill associated with the package, the package was sent from Rene Rhodas ("Rhodas") in the Philippines to Arnold Dalisay at 304 East 110 Street, Apartment 8, New York, New York. (Tr. at 6-7; Gov't Ex. 1.) Sanders testified that when he opened the package, he found that it contained two t-shirts, three CD-ROMs, a personal letter, and four deodorant containers. (Tr. at 8.) Sanders x-rayed the deodorant containers, which according to Sanders, revealed that three of the four containers held "foreign bodies." (Id.) Sanders took the Federal Express package to the lab at the USCS Office to extract the foreign bodies from the deodorant containers. (Tr. at 9.) Inside three of the four containers, Sanders found a total of six latex-wrapped packets, each holding a clear crystal substance. (Id.) Sanders probed one of the six packets and recognized the substance inside as methamphetamine. (Id.) Sanders performed an NIK A field test for narcotics on the substance in one packet, which field-tested positive for amphetamine.*fn4 (Tr. at 9-10.) Sanders looked at, and later tested, the substances contained in each of the remaining five latex-wrapped packages. (Tr. at 12-13.) Based on his experience seizing methamphetamine and a comparison with the packet he had already field tested for amphetamine, Sanders concluded that each of the other five packages also contained methamphetamine. (Tr. at 13.)

  Sanders contacted OI for possible investigative or enforcement action. (Id.) Approximately twenty minutes to thirty minutes after contacting OI, Sanders received a facsimile from OI, which indicated that OI was declining enforcement action in the case in both Alaska and in New York. (Tr. at 14; Gov't Ex. 3501-A.) Because OI had declined any enforcement action, Sanders understood that the case would proceed no further than the seizure of the Federal Express package. (Tr. at 14.) Accordingly, Sanders effected seizure of the package, which involved entering the details of the seizure into a computer database known as SEACATS, and obtaining a 16-digit computer-generated forfeiture number ("FPF number"), which uniquely identified the seizure for tracking purposes. (Tr. at 15-16; Gov't Ex. 3501-B.) The FPF number generated for the Federal Express evidence in this case was 2003319500021701. (See Gov't Ex. 3501-B; Gov't Ex. 11.)

  Before placing the package and its contents into an evidence bag, Sanders weighed the latex-wrapped packets and determined that those packets had a total weight of 38.7 grams. (Tr. at 11; Gov't Ex. 7.) Sanders also took several photographs, including: a photograph of the x-ray machine printout of the four deodorant containers (Tr. at 12; Gov't Ex. 4); a photograph of the four deodorant containers, with one container opened and showing a latex-wrapped packages at 12; Gov't Ex. 5); a photograph of latex-wrapped packages allegedly containing methamphetamine (Tr. at 10-11; Gov't Ex. 6); and a photograph of the six packages allegedly containing methamphetamine on a digital scale, which can be seen in the photograph as registering a weight of 38.7 grams (Tr. at 11; Gov't Ex. 7). Sanders testified that he did not take photographs of the other items in the package — the t-shirts, CD-ROMs, or the personal letter — because he had concluded that these items were not relevant to the "actual smuggling of the narcotics." (Tr. at 19.) Sanders testified that there is no USCS policy with respect to the taking of photographs. (Tr. at 50.) Sanders also testified that although he had probably scanned the personal letter contained inside the Federal Express package, he could not recall reading it and could not remember whether the letter was handwritten or typed. (Tr. at 18-19.) Sanders did not photocopy the letter, but testified that he would have photocopied and referred it to OI if the letter had contained information regarding monetary, narcotics, or immigration fraud. (Tr. at 19.) Sanders testified that he placed the Federal Express package and its contents into a sealed evidence bag and locked it in a safe, where it was to be retrieved by a USCS seized property specialist the next day. (Tr. at 16-17, 22.) Sanders also testified that, at the time of the seizure of the Federal Express package and in the months immediately following the seizure, he was not aware of any DEA investigation that involved defendant Dalisay in New York. (Tr. at 20-21.)

  Charles G. Hunt ("Hunt") is a USCS Seized Property Specialist responsible for the safeguarding and destruction of seized property. Hunt handles approximately 12 to 15 seizures per week. (Tr. at 54-55.) He has no investigative duties for the USCS. (Tr. at 55.) On March 5, 2003, Hunt retrieved the sealed evidence bag from the vault at the Ted Stevens Airport in Anchorage. (Id.) Hunt testified that when he retrieved the evidence bag containing the Federal Express package, there were no signs of tampering. (Tr. at 56.) Hunt testified that he photographed the evidence bag and opened it in the presence of another USCS officer, Nancy Mangum ("Mangum"). (Tr. at 56-57; Gov't Ex. 8.) Hunt removed the six latex-wrapped packages of methamphetamine and weighed these packages, recording a total weight of 38.0 grams, a 0.7-gram difference in the weight that was recorded by Sanders on March 4, 2003, the previous day. (Tr. at 11; 57-58.) Hunt photographed the six packages on a scale, and this photograph reflects that the scale registered a weight of 38.0 grams. (Tr. at 57-58, Gov't Ex. 9.) Hunt testified that he observed Officer Mangum field-test one of the six packages, and that she informed Hunt that the substance inside the field-tested package was methamphetamine. (Tr. at 58.) Hunt testified that he was involved in safeguarding methamphetamine prior to March 5, 2003, and is familiar with its appearance. (Tr. at 88.) Hunt also testified that although he was "not actually positive on the color" that appeared in the test vial during the field test performed by Mangum, he believed the color "turned a fairly bright blue." (Tr. at 74.) Hunt concluded, consistent with his experience, that the substance he saw inside the six latex-wrapped packages was methamphetamine. (Tr. at 89.) Hunt placed these six packages inside numbered evidence bag A0483070 and sealed the bag. (Tr. at 58-59.) Hunt weighed evidence bag A0483070 containing the six packages in order to determine its "shelf weight," which was 54.8 grams. (Tr. at 59, Gov't Ex. 10.) Hunt separately inventoried the non-drug items contained in the seized Federal Express package, compared them with the items listed on USCS Form 6051S, a Custody Receipt (Gov't Ex. 11), and then put them into another numbered evidence bag, separate from the six latex-wrapped packages in sealed evidence bag A0483070. (Tr. at 58-59.) He then brought the two sealed evidence bags containing all of the evidence seized from the Federal Express package to the USCS seized property vault in an office building in Anchorage. (Tr. at 60.)

  The USCS Fines, Penalties and Forfeiture ("FPF") Office in Anchorage is responsible for authorizing approximately 500 to 700 forfeitures each year. (Tr. 121.) The FPF Office employs three people: Officer Patrick McGownd ("McGownd"), the office Supervisor; Seized Property Specialist Hunt; and a paralegal. (Tr. at 90.) As part of the forfeiture process, the FPF Office generally sends two documents to interested parties regarding items that have been seized. (Tr. at 91.) The first document is a Notice of Seizure and Intent to Forfeit, which is a letter that describes the property seized and informs the sender and the intended recipient (the "interested parties") of the seized property that they have thirty days to contest the forfeiture. (Tr. at 92, 94; Gov't Ex 12; Gov't Ex. 3503-H.) The second document, a Notice of Intent to Forfeit, is sent after thirty days if there has been no response to the first document, and informs the interested parties that they have twenty days to contest the forfeiture and post a cash bond. (Tr. at 91, 95; Gov't Ex. 18; Gov't Ex. 3503-G.) Each of these notices is routinely prepared by the FPF Office paralegal, and occasionally by the seized property specialist, to be signed by McGownd. (Tr. at 93, 101.) If the USCS receives no response to these notices within the prescribed time periods, which is not unusual in cases involving the seizure of narcotics, the property is administratively forfeited and may be destroyed if the Government has no need for the property. (Tr. at 91, 100, 113, 121.)

  In this case, the interested parties were the sender, Rene Rhodas, and the intended recipient of the seized Federal Express package, Arnold Dalisay. (Tr. at 91-92.) On or about March 13, 2003, the USCS Office in Anchorage sent one Notice of Seizure and Intent to Forfeit to Dalisay at 304 East 110th Street, New York, New York 10029, and another to Rhodas in the Philippines. (Tr. 92; Gov't Ex. 12; Gov't Ex. 3503-A; Gov't Ex. 3503-H.) The notices were prepared by the FPF Office paralegal and signed by McGownd. (Tr. at 104-05.)

  After thirty days, the FPF Office had received no response from either defendant Dalisay or the sender of the Federal Express package. (Tr. at 95.) Accordingly, Notices of Intent to Forfeit were sent to Dalisay and Rhodas on April 30, 2003. (Tr. at 95-99; Gov't Ex. 18; Gov't Ex. 3503-G.) On May 1, 2003, a copy of the first Notice of Seizure and Intent to Forfeit was also posted on a bulletin board at the USCS Office in Anchorage. (Tr. at 97-99; Gov't Ex. 19.) No response to any notice sent to Dalisay was ever received. (Tr. at 99-100.)

  On May 13, 2003, the Notice of Intent to Forfeit that had been sent to Dalisay on April 30, 2003 was returned to the FPF Office in Anchorage by the U.S. Postal Service with a stamp indicating that delivery was "attempted not known." (Tr. at 99, 117; Gov't Ex. 17.) An envelope addressed to Rhodas in the Philippines was also apparently returned to the FPF Office. (See Tr. at 99.) To explain how the envelopes to Dalisay and Rhodas were addressed, McGownd testified that the paralegal at the FPF Office typically uses the airbill that accompanies a Federal Express shipment to prepare the notices sent to all interested parties. (Tr. at 105; Gov't Ex 1.) In this case, the paralegal had addressed all notices to defendant Dalisay at "304 East 110th Street," the address listed on the Federal Express Airbill (see Gov't Ex. 1), rather than "309 East 110th Street," the address listed on the Federal Express Commercial Invoice. (Tr. at 106; Gov't Ex. 2.) McGownd testified that it is the duty of the FPF Office to send these documents to the ...

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