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United States v. Cicuto

August 6, 2010

UNITED STATES OF AMERICA
v.
SILVANO CICUTO, ROBERT CICUTO AND LUCIANO MANNU DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge.

USDC SDNY DOCUMENT

MEMORANDUM OPINION & ORDER

Defendants Silvano Cicuto ("Cicuto"), Robert Cicuto ("Robert") and Luciano Mannu ("Mannu") are charged with one count of conspiracy to import ecstasy and 1-benzylpiperazine in violation of 21 U.S.C. §§ 952(a), 812, 960(b)(3), and one count of conspiracy to possess ecstasy and 1-benzylpiperazine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 812, 841(b)(1)(c).*fn1 The Indictment alleges that Defendants and others conspired to import ecstasy pills from Canada for sale in the United States and that Defendants committed overt acts in furtherance of the conspiracy in the Southern District of New York.

On January 21, 2010, after months of investigation, agents of the Drug Enforcement Administration ("DEA") learned that Cicuto and Mannu were staying in a hotel room at the Ramada Plaza in Newark, New Jersey. The hotel room was registered in Cicuto's name only and an invoice for the room indicates a single guest. On January 22, 2010, DEA agents arrested Cicuto shortly after he left the hotel room. The agents then knocked on the hotel room door and Mannu answered. After arresting Mannu, the agents conducted a protective sweep of the room. During the sweep, the agents noticed handwritten notes and a hotel bill sitting on a desk and on a bedside table. Following the protective sweep, Mannu signed a written consent to search the hotel room and the agents seized the notes and hotel bill.

Cicuto moves to suppress the notes and hotel bill as the products of a warrantless search in violation of the Fourth Amendment. If suppression is not granted, Cicuto asks the Court to hold an evidentiary hearing to determine whether the evidence is admissible. Cicuto contends that because the hotel room was registered in his name, Mannu did not have actual or apparent authority to consent to the search. In opposition, the Government argues that regardless of whether the room was registered in Cicuto's name, Mannu had actual authority to consent to the search. Even if Mannu did not have actual authority to consent to the search, the Government contends that he had apparent authority. Finally, even if Mannu did not have actual or apparent authority to consent to the search, the Government maintains that the seizure was authorized under the plain view exception to the Fourth Amendment's warrant requirement.

To be entitled to an evidentiary hearing on a motion to suppress, the defendant "bears the burden of showing the existence of disputed issues of material fact." United States v. RW Prof.'l Leasing Servs. Corp., 317 F. Supp. 2d 167, 172 (E.D.N.Y. 2004). To carry this burden, the "defendant must submit sworn factual allegations from an affiant with personal knowledge." United States v. Fruchter, 104 F. Supp. 2d 289, 308 (S.D.N.Y. 2000). Cicuto fails to show a single disputed issue of fact necessitating an evidentiary hearing. Indeed, Cicuto does not expressly challenge the Government's recitation of the facts; instead, his counsel simply asserts that the Government must prove the proffered facts at an evidentiary hearing. This argument is the precise opposite of the relevant legal requirement. It is Cicuto's burden to show that there are disputed questions of fact; it is not the Government's obligation to prove its unchallenged factual assertions on Cicuto's say-so. Besides, Cicuto has not submitted an affidavit in support of his motion based on personal knowledge. He prefers to rely on his attorney's sworn statement, but the attorney has no personal knowledge of the facts surrounding the DEA agents' seizure of the notes and hotel bill. Finally, Cicuto's attorney's affidavit does not challenge the facts as recited by the Government; it simply recounts otherwise undisputed facts.

Based on the unchallenged facts, the seizure of the notes and hotel bill was proper. Mannu consented to the search of the hotel room, and since he was staying with Cicuto in the room, he had actual authority to do so. Even if Mannu did not have actual authority to consent to the search, it was more than reasonable for the DEA agents to believe that Mannu had the authority to consent, and so he had apparent authority. Since Mannu was authorized to consent to a search of the hotel room, the Court does not reach the Government's plain view argument. Cicuto's motion to suppress and for an evidentiary hearing is DENIED.

I. Facts*fn2

In June, 2009, the DEA began an investigation into a Canadian ecstasy smuggling ring based on a tip from a confidential informant. (Government's Memorandum in Opposition ("Mem. in Opp.") at 2; Defendant's Memorandum in Support ("Mem. in Supp.") at 1-2.) Over the following eight months, an undercover DEA agent communicated with various alleged co-conspirators, including Cicuto and his son Robert. (Mem. in Supp. at 2-3; Mem. in Opp. at 2-6.) Throughout this time, the undercover posed as a friend of the informant interested in purchasing large amounts of ecstasy pills. (Mem. in Supp. at 2-3; Mem. in Opp. at 2-6.)

In July and August, 2009, the undercover worked out a deal to purchase 100,000 ecstasy pills from Cicuto and his associate in Canada. (Mem. in Opp. at 3.) The drugs were shipped in late August, 2009, and when the drug courier attempted to cross the border from Canada into Minnesota, he was arrested. (Id.) Upon arresting the courier, law enforcement agents discovered and seized 100,000 pills containing 30 kilograms of 1-benzylpiperazine. (Id. at 4.)

Shortly after the 100,000 pill seizure, Cicuto and Robert agreed to deliver a large quantity of ecstasy pills to the undercover in New York City. (Mem. in Opp. at 4-5; Mem. in Supp. at 3.) In mid-October, 2009, the undercover worked out the logistics of the deal with Robert and other alleged co-conspirators. (Mem. in Opp. at 4-5.) The undercover sent one of the co-conspirators an email stating that he would meet the "guys" at an address in the Chelsea neighborhood of Manhattan. (Id. at 5.) The drugs were shipped, and on October 29, 2009, DEA agents arrested two men with 150,000 ecstasy pills at the address the undercover had provided. (Id.)

After DEA agents arrested the two men and seized the 150,000 ecstasy pills, the undercover called Robert and said that the transaction had gone as planned. (Mem. in Supp. at 3.) On November 2, 2009, Cicuto sent the undercover a text message telling him to wire payment for the ecstasy pills to an address in British Columbia, Canada. (Mem. in Opp. at 6.) But the undercover did not wire the money, and over the following two months, he received numerous text messages and voicemails pressing him for payment. (Id.; Mem. in Supp. at 3.)

The drugs still unpaid for, Cicuto and Mannu entered the United States on January 20, 2010. (Mem. in Supp. at 3.) On the same date, Cicuto rented room 233 ("Room 233") at the Ramada Plaza in Newark, New Jersey. (Affidavit of Stephanie Carvlin ("Carvlin Aff.") ¶ 6; Ramada Invoice, Carvlin Aff., Ex. A.) The invoice for Room 233 lists "Silvano Cicuto" under the heading "Guest Information" and next to "Number of Guests" only one guest is indicated. (Ramada Invoice, Carvlin Aff., Ex. A.) The invoice, however, also shows that Room 233 had "Double Beds." (Id.)

On January 21, 2010, Mannu called the informant and said that he had come to the United States to meet with the informant and the undercover to discuss payment for the 150,000 ecstasy pills. (Mem. in Opp. at 6.) Mannu told the informant that he was staying at the Ramada near the Newark International Airport and gave the informant his phone number and room extension at the hotel. (Id.) The informant then passed Mannu's hotel and room information on to the undercover. (Id.) The undercover, in turn, called the phone number Mannu had given to the informant and Mannu answered the phone. (Id.) Mannu told the undercover that, "[y]ou received some goods . . . and we in Vancouver got fucked." (Id.) The undercover, who was unaware that Cicuto was with Mannu, asked Mannu whether he was in Newark on behalf of Cicuto. (Id.) Mannu said that he was and asked the undercover whether they could discuss payment for the ecstasy pills. (Id.) After the undercover said that he wanted to hear from Cicuto, Mannu ...


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