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United States of America v. Carlos Acosta

May 6, 2013

UNITED STATES OF AMERICA
v.
CARLOS ACOSTA, A/K/A "PACO," DEFENDANT.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

USDC SDNY DOCUMENT ELECTRONICALLY FILED

DOC #: _________________

MEMORANDUM OPINION & ORDER

Defendant Carlos Acosta is charged with (1) conspiring to distribute, and possessing with intent to distribute, more than one kilogram of heroin, in violation of 21 U.S.C. § 846; (2) distributing and possessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); and (3) distributing and possessing with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Superseding Indictment (Dkt. No. 11))

Acosta has moved to suppress (1) his post-arrest statements; and (2) evidence obtained from his person at the time of his arrest, from inside an apartment at which he was staying, and from a vehicle in which he traveled. Acosta has also moved to suppress identification evidence provided by two cooperating witnesses, arguing that the identification procedures used were unduly and unnecessarily suggestive. Finally, Acosta has moved for an order requiring the Government to produce evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). (See Dkt. Nos. 19 and 33 (Notice of Motions))

For the reasons stated below, Acosta's motions will be denied in their entirety.

BACKGROUND

I. ACOSTA AND DOMENECH'S AFFIDAVITS

In support of his motion to suppress, Acosta has submitted affidavits from himself and from Rosalia Domenech, his common-law wife, alleging the following facts: On January 16, 2012, Acosta and Domenech drove from Massachusetts to New York to visit Acosta's grandmother. (Acosta Aff. ¶ 5; Domenech Aff. ¶ 5) After arriving in New York, they stayed at the apartment of Domenech's sister -- Apartment 1B, 1104 East Tremont Avenue, in the Bronx. (Acosta Aff. ¶ 6; Domenech Aff. ¶ 6) Acosta and Domenech brought separate bags, and Domenech does "not have permission to touch [Acosta's] bag or [his] belongings." (Acosta Aff. ¶ 7; see also Domenech Aff. ¶¶ 8-9) Acosta and Domenech are native Spanish speakers and understand and speak very little English. (Acosta Aff. ¶ 4; Domenech Aff. ¶ 4)

On January 17, 2012, after dinner, Acosta stepped out of the apartment to take out the garbage. (Acosta Aff. ¶¶ 10-11) He was immediately surrounded by five agents, handcuffed, and placed in a police car. (Id. ¶ 12) Acosta says that he was terrified, and that he was not given Miranda warnings. (Id. ¶¶ 12-13) Once in the vehicle, Acosta claims that one of the agents asked him which apartment he was staying in. (Id. ¶ 13) Acosta did not believe that he "was allowed to refuse to answer" (id. ¶¶ 12-13), so he told the agents he was staying on the first floor. (Id. ¶ 13) All but one agent then left and entered 1104 East Tremont Avenue. (Id. ¶ 14) Acosta further alleges that no agent asked him in Spanish for his consent to search Apartment 1B or his belongings, and that he never gave such consent. (Id. ¶¶ 16-17)

When Acosta left Apartment 1B to take out the garbage, Domenech was inside the apartment. (Domenech Aff. ¶ 14) She heard knocking at the door. (Id. ¶ 16) When she went to the door, she saw her cousin, Santo, with three agents. (Id. ¶ 17) Santo told her that Acosta was outside in handcuffs and that agents wanted to search Acosta's bag. (Id. ¶ 18) Domenech was "very frightened" and "did not know what to do." (Id. ¶ 19) One of the agents asked Domenech if it would be okay for him to check the bags. (Id. ¶ 20) Domenech claims that she thought she had no choice but to consent. (Id. ¶ 21) A female agent then asked Domenech to identify which was her bag and which was Acosta's bag. (Id. ¶ 22) That agent then searched Domenech's bag and found nothing. (Id. ¶ 23) The agent then asked which bag was Acosta's. (Id. ¶ 25) Domenech "acquiesced" to the search of Acosta's bag because the agent "gave [her] the impression that [Acosta] had given her permission to search his bag." (Id. ¶ 25) The agent recovered zip-lock bags of pills from Acosta's bag. (Id. ¶ 30)

The agents then asked Domenech for permission to search a Honda FIT vehicle parked outside 1104 East Tremont Avenue. (Id. ¶ 32) Domenech was the registered owner of the vehicle,*fn1 but she had given Acosta "permission to be inside the van, to travel with [Domenech], and to store his belongings in the van." (Id. ¶¶ 33-34 and Ex. A (certificate of title)) Domenech provided agents with keys to the Honda FIT. She now claims that she did not want to give her keys to the agents, "but under the circumstances, I felt I had no alternatives. . . . I felt pressured to permit the search." (Id. ¶¶ 35-38) Domenech followed the agents outside and was present when they searched the Honda. (Id. ¶¶ 36-37)

After the search of the vehicle, Acosta was transported to jail, where he was read his Miranda warnings in Spanish. (Acosta Aff. ¶¶ 22-23) Acosta said that he did not want to answer questions and asked for a lawyer. (Id. ¶ 23) Over the next two hours, agents nonetheless questioned Acosta, but he kept repeating that he wanted a lawyer. (Id. ¶ 24) Agents told Acosta "that they had recovered pills from the apartment and they wanted to know to whom the pills belonged." (Id. ¶ 25) Agents also told Acosta that if he "gave up [his] 'source,' [he] could probably go free. [Acosta] still refused to speak with [the agents]." (Id. ¶ 25) After "constant questioning," however, Acosta "could not take it anymore and [he] gave in," admitted the pills were his, and told agents that Domenech did not know that Acosta had the pills. (Id. ¶ 26)

III. THE GOVERNMENT'S EVIDENCE

A.The November 22, 2011 Heroin Arrest

The Court conducted an evidentiary hearing concerning Acosta's suppression motion on January 2, 2013. The Government called Drug Enforcement Administration ("DEA") Special Agents Angela Lisboa and Bruce Hom, and Supervisory Special Agent Orville Greene to testify. Acosta did not testify and did not call any witnesses. During the hearing, Agent Lisboa referenced a January 13, 2012 affidavit ("Lisboa Affidavit") she submitted in support of a warrant to obtain GPS tracking data for a cell phone with the assigned call number of (781) 267-5056. (Tr. 11*fn2 ; see also Govt. Supp. Opp. Br. (Dkt. No. 37), Ex. A (Lisboa Affidavit)) In resolving the pending suppression motion, the Court has also considered the information set forth in the Lisboa Affidavit.

In November 2011, a confidential source ("CS") advised the DEA that the CS had arranged to purchase heroin that would be provided by an individual known as "Paco." (Lisboa Aff. ¶ 8(a)) The transaction was scheduled for November 22, 2011 at 167th Street and Audobon Avenue in Manhattan. (Id.) An individual (CW-1) arrived at that location at the appointed time and handed the CS a package containing 224 grams of heroin. (Id. ¶ 8(b)) CW-1 was then arrested. (Id.) A consent search of CW-1's vehicle led to the recovery of an additional 1,057 grams of heroin. (Id. ¶ 8(c)) CW-1 agreed to cooperate, and told the arresting agents that the heroin belonged to an individual known to him as "Paco," who lived in Boston. (Id. at ¶ 8(b)-(d); Tr. 8-9) CW-1 did not have an address for "Paco" but described him as a "tall, stocky, overweight Dominican . . . approximately 45 to 46 years old."*fn3 (Tr. 10)

CW-1 consented to a search of a cell phone found on his person at the time of his arrest. (Lisboa Aff. ¶ 8(e)) Agent Lisboa found three telephone numbers for "Paco" on CW-1's cell phone (collectively "Paco's Cell Phones"). CW-1 confirmed that all three numbers were for cell phones used by "Paco," the owner of the heroin seized on November 22, 2011. (Tr. 9, 73; Lisboa Aff. ¶ 8(e)) All three numbers had a Massachusetts area code. (Lisboa Aff. ¶ 8(e), 13) Records for CW-1's cell phone confirmed that CW-1 had communicated with one of Paco's Cell Phones on November 22, 2011. (Id. ¶ 8(e))

Agents attempted to identify "Paco" from subscriber information for the Paco Cell Phones, but there was no true subscriber information for these phone numbers. (Tr. 12-13) Moreover, use of the Paco Cell Phones ceased shortly after the November 22, 2011 arrest of CW-1. (Lisboa Aff. ¶ 9)

B.Toll Record Analysis

Agent Lisboa analyzed toll records for Paco's Cell Phones. That analysis revealed that Paco's Cell Phones had been frequently used to call and receive calls from a cell phone bearing the number 718-772-7012 (the "718 Number"). (Lisboa Aff. ¶ 10; Tr. 73-74) Indeed, Paco's Cell Phones had contacted the 718 Number hundreds of times between November 1, 2011 and December 22, 2011. (Lisboa Aff. ¶ 16)

Toll records further indicated that shortly after CW-1's November 22, 2011 arrest, the 718 Number began to be in frequent contact with, seriatim, three other numbers with Massachusetts area codes. (Id. at ¶¶ 11, 13) The first Massachusetts number was contacted by the 718 Number, and was in operation, between November 22, 2011 and December 26, 2011. (Id. ¶ 11) The second Massachusetts number was in frequent contact with the 718 Number, and was in operation, between December 26, 2011 and January 2, 2012. (Id.) Beginning on January 2, 2012, frequent contact between the 718 Number and a third number with a Massachusetts exchange -- (781) 267-5056 -- began. (Id. at ¶ 12) Indeed, between January 2, 2012 and January 8, 2012, 57 calls were made between the 718 Number and (781) 267-5056 (the "Target Cell Phone"). (Id.) Moreover, the account for the Target Cell Phone was activated on January 2, 2012, the same day that the account for the second Massachusetts number was suspended. (Id. at ¶¶ 11-12)

Analysis of toll records revealed that Paco's Cell Phones and the Target Cell Phone were in frequent contact with at least 17 of the same telephone numbers. (Id. at ¶ 14; Tr. 74-75)

Based on the information discussed above, Magistrate Judge Fox issued a GPS tracking warrant for the Target Cell Phone on January 13, 2012.

C.Acosta's Arrest

On January 17, 2012, based on GPS data obtained pursuant to the tracking warrant, Agent Lisboa and other agents determined that the Target Cell Phone was in the vicinity of 1104 East Tremont Avenue in the Bronx. (Tr. 13-14) Agent Lisboa testified that based on her experience using GPS data "on numerous occasions," such data can provide "an accurate proximity" of the cell phone to "approximately 300 meters." (Tr. 14) Surveillance agents in the vicinity of 1104 East Tremont Avenue observed a silver Honda FIT bearing Massachusetts license plates. (Tr. 15) The presence of this vehicle outside 1104 East Tremont Avenue supported the agents' suspicion that "Paco" was in the area, given the cooperating witnesses' statements that "Paco" was from Boston. (Tr. 9, 15, 83, 98)

While conducting surveillance outside 1104 East Tremont Avenue, Agent Lisboa observed "an individual fitting the description of Paco" standing with a group of other men. (Tr. 15) Agent Lisboa approached this group and called out "Paco." (Tr. 16) The individual fitting "Paco"'s description -- later identified as Acosta -- was the only man who turned around. (Tr. 16, 83-84, 98) Acosta was taken into custody. (Tr. 16)

Agent Lisboa then asked Acosta where he was staying in 1104 East Tremont, and he stated he was staying in apartment 1B. I asked him where he came from and he said that he came from Boston, Massachusetts. . . . I further asked him what he goes by . . . and he stated Paco. (Tr. 17) Most of this conversation took place in Spanish.*fn4

Agents searched Acosta and recovered, inter alia, a cell phone. (Tr. 19) Agent Lisboa turned on the cell phone and "saw that the phone number on the cell phone . . . matched up to the same number that the GPS tracking warrant was issued on." (Tr. 20)

Agent Lisboa then placed Acosta in the back seat of an agent's vehicle. (Tr. 20) In order to confirm that Acosta was in fact "Paco," Agent Lisboa took two photographs of Acosta and transmitted them via text message to CW-1. (Tr. 20-21, 40, 42; see GX-3 (photograph of Acosta)) CW-1 confirmed that Acosta was known to him as "Paco" and that he had provided the heroin that was seized on November 22, 2011. (Tr. 21, 40, 42)

After receiving confirmation from CW-1 that Acosta was "Paco," Agents Lisboa and Hom got into the car with Acosta. (Tr. 21-22) Agent Lisboa read Miranda warnings to Acosta in English, but it appeared that Acosta did not understand English. (Tr. 22) Agent Lisboa then gave Acosta a DEA-issued Spanish-language Miranda card to read. (Tr. 22-23) Acosta was not able to read the card, however. (Tr. 23) Agent Lisboa then read the Spanish-language Miranda card to Acosta.*fn5 (Tr. 23) She asked Acosta in Spanish whether he understood the warnings, using the text printed on the Spanish-language Miranda card, and Acosta answered "yes." (Tr. 25) Agent Lisboa then read Acosta, in Spanish, the language from the Miranda card asking whether Acosta was willing to answer questions, and Acosta said "yes." (Tr. 26)

Agent Lisboa then questioned Acosta in Spanish. (Tr. 28) In response to the agent's questions, Acosta stated that he and his wife had driven from Boston to New York in the silver Honda FIT, that was he was staying in Apartment 1B at 1104 East Tremont Avenue, and that his wife was currently in Apartment 1B. (Tr. 28-29) Acosta's answers were fully responsive to Agent Lisboa's questions, and he appeared to understand what was being said to him. (Tr. 28, 30, 88)

Agent Lisboa then asked Acosta, in Spanish, whether agents could search his belongings in Apartment 1B. (Tr. 28) This topic was presented as a request and not as a declaration. (Tr. 72) The agents did not threaten Acosta, nor did they make any promises to him in order to induce consent. (Tr. 30, 72, 89) Acosta answered "yes" in Spanish to the search request. (Tr. 30, 71, 89)

Agent Lisboa then left the car and entered 1104 East Tremont Avenue with other agents. Agents knocked on the door to Apartment 1B and Domenech opened the door. (Tr. 31- 32) Agent Lisboa, assisted by the building's superintendent, told Domenech in Spanish that Acosta was under arrest, and asked for permission to search Acosta's belongings, explaining that Acosta had consented to such a search. (Tr. 32, 70-71, 101-02) In speaking with Agent Lisboa, Domenech referred to Acosta as "Paco" and to herself as his wife. (Tr. 32) Domenech answered "okay" to Agent Lisboa's request to search Acosta's bag. (Tr. 33-34) In Acosta's bag, Agent Lisboa found approximately 1,000 oxycodone pills. (Tr. 35-36; see GX-2 (photograph of pills))

After Agent Lisboa discovered the oxycodone pills, Domenech stated that they were not her pills and that she did not know why they were in Acosta's bag. (Tr. 36-37) She also stated that she and Acosta had just driven from Boston to the Bronx in a Honda FIT. (Tr. 37) Domenech stated that she was the registered owner of the Honda, but that it was "Paco's vehicle." (Tr. 37)

Agent Lisboa then left Apartment 1B and returned to the car where Acosta was seated. Agent Lisboa showed Acosta the pills and asked whether they belonged to him. (Tr. 38) Acosta said that the pills were his and that his wife had no knowledge of them. (Tr. 38) Acosta also stated that he had just come down from Boston in the Honda FIT with the pills. (Tr. 37-38, 93)

Agent Hom then asked Acosta, in Spanish, for permission to search the Honda FIT. (Tr. 93, 104) Acosta consented. (Tr. 93) Agents then searched the Honda FIT and recovered a cell phone. (Tr. 104; Domenech Aff. ¶ 40)

Agent Lisboa testified that Acosta never asked for a lawyer and never indicated that he wanted questioning to stop. (Tr. 39) After the Honda FIT was searched, Acosta was transported to the DEA's Manhattan office. (Tr. 93-94) No further questioning took place. (Tr. 38) The following day, January 18, 2012, a criminal complaint was filed against Acosta charging him with conspiracy to ...


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