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United States v. Brito

December 22, 2008

UNITED STATES OF AMERICA,
v.
JOSE BRITO, DEFENDANT.



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

MEMORANDUM DECISION AND ORDER

Jose Brito has been charged with two counts of violating the laws of the United States. The indictment charges that, on March 21, 2008, Mr. Brito, along with several other individuals, distributed and possessed with intent to distribute cocaine and also entered into a conspiracy to violate the narcotics laws, both in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). Following his arrest, Mr. Brito made several statements to a police officer while in the custody of the City of Yonkers Police Department. Mr. Brito has filed a motion, among other things, to suppress those statements, and, on November 27, 2008, the Court held an evidentiary hearing. On December 8, 2008, the parties submitted simultaneous memoranda addressing the legal issues raised by the testimony presented at the hearing, and Mr. Brito submitted a supplemental memorandum on December 9, 2008.

For the reasons set forth in this opinion, the Court grants in part and denies in part Mr. Brito's motion to suppress.

I. BACKGROUND

A. Facts

On March 20, 2008, a confidential informant (the "CI") working with the City of Yonkers Police Department met an individual later identified as Jose Brito outside of the Yonkers Motor Inn (the "Inn"), in Yonkers, New York. After the meeting, the CI informed police officers that Mr. Brito had told him that he (Mr. Brito) had three kilograms of cocaine to sell. The following day, March 21, 2008, the CI, under the supervision of law enforcement officers, called Mr. Brito to arrange a purchase of the three kilograms of cocaine. The CI and Mr. Brito agreed to meet at the parking lot of the Inn.

The CI then met with Mr. Brito in the parking lot, and law enforcement officers observed him getting into Mr. Brito's car. Shortly thereafter, the CI called an officer working with the Drug Enforcement Administration Task Force (the "Task Force") as well as an undercover Task Force officer. The CI confirmed that Mr. Brito had told him that the drugs would be arriving shortly. The CI then called the Task Force officers to tell them that the drugs had arrived in a second car.

The undercover officer left the guest room at the Inn wearing a concealed recording device, and he entered the second car. Inside the car were the CI, Mr. Brito, and a third-man later identified as Juan Deoleo. After discussing the details of the drug purchase, Mr. Brito took the undercover officer to the second car, which was being driven by an individual later identified as Jason Anderson. Mr. Brito bent over the front seat and retrieved what appeared to be three kilograms of cocaine. Mr. Brito and the undercover officer discussed the details of the drug purchase, and Anderson confirmed that the drugs were good.

Thereafter, the undercover officer exited the second car, and Mr. Brito, Anderson, and Deoleo were arrested. The three kilograms of cocaine were field tested; one of the kilograms did not test positive for cocaine, and the second and third kilograms tested positive in certain places and negative in others.

B. Procedural History

On the basis of this alleged conduct, Mr. Brito was indicted on two counts of violating the laws of the United States. The indictment charges that, on March 21, 2008, Mr. Brito, along with several other individuals, distributed and possessed with intent to distribute crack cocaine and also entered into a conspiracy to violate the narcotics laws, both in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). Following his arrest, Mr. Brito made three sets of statements to Jose Pina, a detective with the City of Yonkers Police Department.

On September 15, 2008, Mr. Brito filed a motion seeking to suppress those statements and seeking immediate disclosure of Brady,*fn1 Giglio,*fn2 Rule 16 discovery, and Rule 404(b) evidence. In connection with his motion to suppress, Mr. Brito originally submitted an affidavit stating that "[a]t no time during this period did the agents read me any rights prior to speaking with me." Affidavit of Jose Brito ("Brito Aff.") ¶ 3. Despite this claim, it appears from the testimony presented at the November 27, 2008, evidentiary hearing and from the post-hearing legal memoranda that Mr. Brito has changed course-claiming that he was read, but did not waive, his Miranda rights. The Court turns to that testimony now.

C. Suppression Hearing

At the December 8 evidentiary hearing, the Government called as a witness Detective Jose Pina. Detective Pina testified that, on March 21, 2008, he, along with Detective Louis Venturino, interviewed Mr. Brito at ...


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