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United States v. Clarke

May 28, 2008

UNITED STATES OF AMERICA,
v.
BARON CLARKE, DEFENDANT.



The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge

REPORT AND RECOMMENDATION AND ORDER

Judge Korman has referred to me the defendant Baron Clarke's pretrial motions to suppress evidence and to compel discovery. Specifically, the defendant seeks to suppress physical evidence seized from him at the time of his arrest, and evidence of various telephonic conversations intercepted through the use of court-authorized wiretaps. He also seeks to compel the government to produce post-arrest statements made by his co-defendants, and hard copies of the transcripts of all of the intercepted conversations in which he participated. For the reasons below, I recommend that the motions to suppress evidence be denied. The motions for discovery are denied.*fn1

BACKGROUND

The charges in this criminal case arise from the government's investigation of various persons employed at John F. Kennedy International Airport ("JFK Airport") concerning the smuggling of narcotics.*fn2 Certain employees at the airport came to the government's attention through a confidential source who disclosed that they were smuggling narcotics into this country by diverting drug-laden luggage on inbound international flights in such a way as to avoid detection by law enforcement personnel.

Using the confidential source, government agents launched a sting operation in which the confidential source began to negotiate with two allegedly corrupt airport employees to obtain their assistance in smuggling purportedly drug-laden luggage into the country. In the course of several ensuing meetings, the confidential source introduced another confidential source to the employees, and the four of them discussed various aspects of the operation, including the methods that would be used to divert luggage arriving by aircraft and the price that would be charged by the employees for their services. Once the methods of the operation had been sufficiently ironed out, government agents sought and obtained judicial authorization to intercept wire communications occurring over the cellular telephone of one of the corrupt employees, Glenroy Phillips (hereinafter the "Phillips Telephone"), who is one of the other co-defendants charged in this action.

With the wiretap in place, one of the confidential sources began to negotiate in earnest with Phillips about the diversion of a specific piece of purportedly drug-laden luggage from an international flight. Through the wiretap, agents learned the identities of several other airport employees who were approached by Phillips to assist in accomplishing the diversion, including the defendant Baron Clarke, and intercepted conversations between Phillips and Clarke concerning the diversion as well. Ultimately the diversion was unsuccessful because the flight carrying the luggage to be diverted was significantly delayed, and when it finally arrived the corrupt employees were unable to reach the luggage before it was unloaded by others. The wiretap continued for several weeks thereafter, however, and agents gathered communications about other planned diversions involving Phillips and other corrupt employees. In addition, following an airport seizure of a quantity of cocaine unrelated to the sting operation, the wiretap disclosed communications suggesting that one of the corrupt employees was supposed to be involved in the diversion of the luggage carrying those drugs.

On the basis of the evidence developed through the investigation, the government obtained arrest warrants for five of the airport employees alleged to be involved in the scheme, including the defendant Baron Clarke. Pursuant to the warrant for his arrest, Baron Clarke was arrested on September 19, 2007, and various items, including his cellular telephone, were seized from his person at the time of arrest.

DISCUSSION

The defendant's various motions to suppress evidence and to compel discovery are addressed separately below.*fn3

I. Motion to Suppress Evidence Seized Upon Arrest

The defendant seeks to suppress the evidence seized from him at the time of his arrest on the ground that there was no probable cause for his arrest. Recognizing that evidence seized pursuant to an arrest made in good-faith reliance on a facially valid warrant is not subject to suppression even if the warrant is later found to be defective, see United States v. Leon, 468 U.S. 897 (1984), the defendant argues further that the warrant was based on an affidavit that was so patently defective that no agent could have reasonably relied upon it. Def't Letter, May 1, 2008, at 2.

"Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2nd Cir. 1990) (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949). The belief need not "be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983). In gauging the existence of probable cause, the court is required to use a "totality-of-the-circumstances" approach rather than any rigid tests. See Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Probable cause is a "flexible, common-sense standard," and the evidence "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Texas v. Brown, 460 U.S. at 742 (1983) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).

Viewed with those principles in mind, the affidavit provides ample probable cause for the defendant's arrest. The defendant does not dispute that the affidavit sets forth facts more than sufficient to establish the existence of a conspiracy to import cocaine into the United States. The affidavit details a number of conversations between two confidential sources and two persons employed at JFK Airport, Mickey Phillip and Glenroy Phillips, about how luggage containing narcotics could be unloaded from international flights and diverted to avoid detection by law enforcement officers. See Salisbury Aff't, Sept. 17, 2007, ¶¶ 12-17 (annexed as Ex. A to Gov't Letter in Opposition, Apr. 4, 2008). The conversations included details about the best flights from which to remove bags (Guyana was preferred), and how much the airport employees were to be paid ($5,000 per diverted bag). Id. ¶ 16. The affidavit further asserts that once the wiretap was in place, negotiations continued concerning a specific bag to be diverted that was supposed to arrive on a TravelSpan flight from Trinidad in the early morning hours of July 28, 2007. Id. ¶ 20. These facts are sufficient to establish a conspiracy to import narcotics involving at least Mickey Phillip and Glenroy Phillips. The defendant does not contend otherwise.

What defendant does argue is that the affidavit does not provide sufficient evidence that the defendant joined the conspiracy. He argues that the intercepted discussions in which he participated do not show any knowledge of a plan to unload bags with cocaine from any flight, and that his conduct does not display any intention to do anything other than his job -- unloading baggage at the airport.

The defendant's arguments overlook several important legal principles. First, "once a conspiracy is shown to exist, the evidence sufficient to link another defendant to it need not be overwhelming." United States v. Casamento, 887 F.2d 1141, 1156-57 (2nd Cir. 1989) (citing United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986)). Thus, even if a defendant is unaware of various aspects of a conspiracy, he becomes a coconspirator if he has knowledge of a common unlawful endeavor and agrees to join it. Casamento, 887 F.2d at 1156-57. In evaluating whether a defendant has joined a conspiracy, the court may consider not only the ...


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