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United States v. Rosa

April 4, 2008

UNITED STATES OF AMERICA
v.
BETZAIDA ROSA, ZELMALY TORRES, ROBERTO E. NAVARRO, DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(A) and, pursuant to 28 U.S.C. § 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. § 636(b)(1)(A) (Docket No. 19).

The instant matters before the Court are (a) defendant Rosa's omnibus motion (Docket No. 38*fn1 ) which seeks the following relief: a bill of particulars, discovery, production of Giglio materials, production of Jencks Act materials, identification of informants; (b) defendant Navarro joins in most of Rosa's motions (Docket No. 39*fn2 ); and (c) defendant Torres' omnibus motion for discovery, production of Brady material, Federal Rules of Evidence 404(b), 608, and 609 evidence, preservation of evidence, disclosure of Jencks Act materials, request for bill of particulars, and suppression of evidence (Docket No. 42*fn3 ). For convenience, this Order considers these motions together. Also within Rosa's and Torrres' motions are motions to suppress statements and to suppress physical evidence*fn4 (Docket Nos. 38, 42); these motions will be considered separately in a Report & Recommendation.

Motions were due by January 28, 2008, with the Government's response due by February 11, 2008 (Text minute entry, Nov. 27, 2007). The Government has filed responding papers and oral argument was heard on March 11, 2008 (id.; Docket No. 46).

BACKGROUND

Defendants were charged in a four-count Superceding Indictment with conspiracy to distribute controlled substances (cocaine), in violation of 21 U.S.C. § 841; use of a communication facility (the U.S. mail) to commit felonies, in violation of 21 U.S.C. §§ 841, 846, 2 (Docket No. 27, Indictment, Counts 1, 2). The Indictment also charged defendant Navarro with unlawful possession of 500 grams or more of cocaine on January 11, 2007 (id. Count 3), while it charged defendants Rosa and Torres possessed a similar amount of cocaine on January 16, 2007 (id. Count 4).

This case arises from the United States Drug Enforcement Administration ("DEA") and the postal inspectors conducting a controlled delivery of an Express Mail package addressed to a "Y. Prado" at 66 Kenefick Avenue, apartment 2, Buffalo, New York (Docket Nos. 40, 43, Gov't Responses at 1). The return address on that parcel was an address in Ponce, Puerto Rico (id.). Prior to January 16, 2007, the U.S. Postal Inspectors intercepted a package which contained a handwritten label (not a typed label usually used for Express Mail labels by commercial customers), there was no business account number on that label, indicating that the sender paid cash, that last name of the address has received Express Mail parcels at the address but does not regularly receive mail at the address, and the parcel was heavily taped, all signs of possible use of Express Mail to transport controlled substance (Appl. for Search Warrant, Case No. 07-M-2217, Aff. of Postal Inspector Stacy Wiechec, sworn to Jan. 16, 2007, ¶¶ 8, 5). This package was searched (Docket No. 43, Gov't Response at 1); a Niagara Frontier Transportation Authority drug-detecting dog sniffed the package and had a positive result (Wiechec Aff. of Jan. 16, 2007, ¶ 7; "Affidavit" of Thomas Kolbert, Narcotics/K-9 Handler). A warrant was issued to search the parcel and cocaine was found in it. An anticipatory search warrant then was sought for the addressee at Kenefick Avenue while the parcel was delivered with sham cocaine. (See Docket No. 43, Gov't Response at 1-2.) That apartment then was placed under surveillance and one DEA agent noted that he saw an unknown individual in the upper apartment looking out the window (id. at 2).

On January 16, 2008, an undercover postal inspector posed as a mail carrier and delivered the parcel with the sham cocaine. The undercover inspector spoke with a female later identified as defendant Rosa and asked her about the addressee "Y. Prado," with Rosa responding that Y. Prado was her cousin. Rosa then signed for the parcel and the undercover agent gave it to her. (Id. at 3.) For about an hour after that delivery, Rosa was observed peering out the upper apartment window. Rosa then was observed leaving the side door to a trash tote, dropping something into the tote. (Id.) Two hours later, a white sedan with two Hispanic females inside stopped in front of 66 Kenefick Avenue and Rosa exited that building and entered their car. The vehicle left and then was stopped by federal agents. Other agents then entered the upper apartment of 66 Kenefick Avenue pursuant to the anticipatory search warrant. (Id. at 3-4.) The agents searched for the Express Mail parcel within the apartment then searched the trash tote and found the parcel in a plastic bag (id. at 4-5).

The agents brought the three women to 66 Kenefick Avenue for questioning, advising defendants Rosa and Torres of their Miranda rights. Rosa then stated that she accepted the parcel for her cousin Torres' boyfriend, defendant Navarro, stating that Navarro had instructed her to receive the package and to hold it for another person would pick it up later (id. at 5). Rosa stated that she received parcels for Navarro in the past and was to be paid $500 for receiving this one (id.). She said that, before the agents entered the apartment, she called Navarro and he told her to leave the parcel for him in the trash tote, which she did (id. at 5-6).

Agents then asked Torres as to the whereabouts of Navarro and she said that he was in Puerto Rico (id. at 6). The agents then instructed Torres to call Navarro to ask him to come over and retrieve the parcel (id.). The agents had Torres call Navarro three more times, this time the calls were recorded; Navarro became evasive and refused to engage in a deeper conversation with Torres.

Rosa and Torres then were arrested and charged with conspiracy to possess cocaine and other related charges. (Id. at 7.) Navarro was later arrested in Puerto Rico (id. at 10).

In response to these omnibus motions, the Government moves for reciprocal discovery (Docket No. 40, Gov't Response at 26-28).

DISCUSSION

I. Bill of Particulars

All defendants move for bills of particular (Docket No. 38, Rosa Atty. Affirm. ¶¶ 4-6; Docket No. 42, Torres Atty. Aff. ¶ 32; see Docket No. 39, Navarro Motion), specifying the participants in these offenses, the amounts of cocaine at issue. The Government responds to all motions arguing that a bill of particulars is not warranted here due to the pretrial discovery furnished to defendants (Docket No. 40, Gov't Response to Rosa and Navarro at 10-16; Docket No. 43, Gov't Response to Torres at 10-16).

Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. Bills of Particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. United States v. Torres, 901 F.2d 205 (2d Cir. 1990). The Government is not obligated to "preview its case or expose its legal theory" United States v. LaMorte, 744 F. Supp. 573 (S.D.N.Y. 1990); United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977); nor must it disclose the precise "manner in which the crime charged is alleged to have been committed," United States v. Andrews, 381 F.2d 377 (2d Cir. 1967). Notwithstanding the above, there is a special concern for particularization in conspiracy cases. United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988).

Upon review of the Indictment and noting the discovery the Government has furnished to defendants, the Court finds that defendants are not entitled to a Bill of Particulars inasmuch as they are each sufficiently advised of the charges against her or him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the defendant from double jeopardy.

II. Discovery

Defendants seek various items of pretrial discovery (Docket No. 38, Rosa Atty. Affirm. ¶¶ 7-47; Docket No. 42, Torres Atty. Aff. ¶¶ 4-11; see Docket No. 39, Navarro Motion). Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the ...


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