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United States v. Heras

June 29, 2009


The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge


SIFTON, Senior Judge.

On February 19, 2009, defendant Nelson Heras ("Heras") was charged in a five-count indictment along with two co-defendants with participating in a drug importation and distribution scheme. On April 29, 2009, a jury convicted Heras of one count of conspiring with Terry Pannell and Simon Correa, a/k/a "Luichi," to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and 846, and one count of aiding and abetting attempted possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and 846.*fn1 Now before the court is a motion pursuant to Federal Rule of Criminal Procedure 29(c)*fn2 by defendant for a judgment of acquittal. For the reasons stated below, the motion is granted.


Viewed in the light most favorable to the prosecution,*fn3 the evidence adduced at trial was as follows:

On January 24, 2009, federal agents stationed at JFK airport searched Terry Pannell ("Pannell"), who had just arrived from Colombia, and found 1,413.5 grams of high purity cocaine secreted in a portfolio and in his briefcase.*fn4 Transcript of Trial Proceedings at 27-33 ("Tr."). Agents arrested Pannell and he agreed to cooperate with them by making monitored phone calls to his source of supply of drugs in Colombia and to the person in New York who had arranged to pick up the drugs. Tr. 51-52. Pannell gave no indication that he knew defendant Heras, nor did he make any calls to Heras. Tr. 62. Agents proceeded to set up a controlled delivery of the drugs at the Holiday Inn near JFK Airport, and installed Pannell in a hotel room under video surveillance. Tr. 52-53.

At 10:30 p.m. on January 25, 2009, federal agents monitoring the parking lot of the hotel noted a minivan entering the lot; the van dropped off a person later identified as Simon Correa ("Correa"). Tr. 72. Correa soon appeared at Pannell's room. Tr. 55. Pannell asked Correa if Correa had the money for the drugs, and Correa said he did not. Transcript of Video Surveillance, Govt. Ex. 18A. Correa indicated that his plan was to take all of the drugs and return with the money the next day, but Pannell insisted that Correa take half the drugs and return with Pannell's payment for all the drugs and pick up the other half. Id. Correa agreed, offering to return within an hour with $8,000 in payment for Pannell. Id. At that point, federal agents entered the hotel room and arrested Correa, seizing a cell phone and a box cutter hidden in Correa's sleeve. Tr. 59-60. While answering questions about his plan to pick up the drugs, Correa stated that he had first called Jorge Rodriguez ("Rodriguez") for a ride to the hotel but Rodriguez did not have a car, so Correa called Heras, who did. Tr. 62-63.

After receiving word that the person exiting the van in the parking lot had been arrested for attempting to pick up the cocaine, federal agents monitoring the lot surrounded the van, finding Heras in the driver's seat and Rodriguez in the passenger's seat. Tr. 72, 73, 75. The engine and lights of the van were off. Tr. 82. Agents escorted Heras to a secure interview area for questioning. Tr. 74, 82. Rodriguez was also questioned but was not arrested. Tr. 150.

After Special Agent Robert Etienne ("Agent Etienne") elicited Heras's biographical information, Heras asked what was going on. Tr. 83. Agent Etienne stated that a serious federal crime had been committed involving the importation of narcotics. Id. Heras then stated, "Whoa, whoa, whoa, whoa, whoa. Whatever happened up there, that has to do with Simon. That has nothing to do with me."*fn5 Id. Following that statement, Agent Etienne read Heras his Miranda rights. Tr. 83. During the questioning that ensued, Special Agent Noah Abott ("Agent Abott") took notes, after which Agent Etienne read Heras the notes and confirmed that they were accurate. Tr. 110. Heras did not read or initial the notes. Id.*fn6

Agent Etienne first asked Heras what he was doing in the parking lot. Tr. 83-84. Heras stated that he was there to drop off Correa, and that he was waiting in the lot for a call from him to say that he was safe. Tr. 84-85. Heras further stated that he was not going to permit Correa to get back in the car after the hotel visit. Tr. 120. At the start of questioning, Heras stated that Correa was at the hotel to see a girl. Tr. 85. Upon further questioning, Heras stated that he knew that Correa was a drug dealer. Id. Heras said he had agreed to drive from his home in Manhattan to pick up Correa and Rodriguez and take them to a location along the Van Wyck expressway in Queens.*fn7 Tr. 113. Rodriguez did not tell him the reason for the trip, but Heras admitted to the agents that he knew or assumed it had to do with drugs, although he did not know what kind, nor did he know who Pannell was. Tr. 113-114, 120, 126. Agent Etienne testified that Heras also admitted that, during the car ride, Correa and Rodriguez had openly discussed Correa's plan to pick up drugs from someone at the hotel. Tr. 86. Heras told agents that in the car, Correa used the phrase "una vaina," a slang term meaning "a thing," to describe what he was going to do. Tr. 144. Heras indicated to the agents that "una vaina" suggested to him that drugs were involved. Id.

When asked whether he expected to receive compensation for the ride to the hotel, Heras stated that he was not going to get paid for giving Correa a ride, but rather that he "understood that Luichi was going to take care of him." Tr. 87. When Etienne questioned Heras about the meaning of this statement, Heras replied that he (Heras) was a "small time... marijuana dealer," and that Correa had connected him with sources for marijuana in the past, which Heras hoped he would do again. Id.

The prosecution presented evidence of phone calls between Pannell and Correa, Correa and Heras, and Correa and Rodriguez, as well as a text message from Correa to Heras. Tr. 132, 134. A summary of the phone records introduced as Government's Exhibit 33 indicates that Correa called Rodriguez at 8:29 p.m. on January 24th, which call lasted three minutes. Ex. 33. At 8:35 p.m. and 8:58 p.m., Correa called Heras, both of which calls lasted 40 seconds. Id. At 4:30 p.m. on January 25th, Correa again called Heras, which call lasted 30 seconds, immediately after which Correa called Rodriguez, which call lasted 97 seconds. Id. At 5:08 p.m., Correa sent a text message to Heras's phone. Id., Tr. 136. The text message read as follows: "Que Honda marqueme es su primo no me abandone," which the parties stipulated had the following English translation: "What's up dial me it's your cousin don't abandon me." Tr. 131. Following several calls to Rodriguez and one call to Pannell, Correa called Heras three more times. Ex. 33. At 9:48 p.m., Correa called Heras, which call lasted 40 seconds, and one minute later, Heras called Correa, which call lasted 35 seconds. Id. It is not evident from the records whether there were conversations during the calls, whether there were missed calls, or whether the parties left messages for one another.

At the close of the prosecution's case, Heras moved for a judgment of acquittal on the ground that the prosecution had failed to introduce sufficient evidence to convict him. I reserved decision on the motion. The defense did not call witnesses. The jury returned a verdict of ...

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