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United States v. Viera

United States District Court, S.D. New York

January 14, 2015

UNITED STATES OF AMERICA
v.
WIGBERTO VIERA, a/k/a

OPINION AND ORDER

EDGARDO RAMOS, District Judge.

On February 6, 2014, a grand jury returned an indictment charging Wigberto Viera, a/k/a "Roberto, " a/k/a "Wiz, " Louie Santiago, a/k/a "Lionel, " a/k/a "L, " a/k/a "Leonel, " Ernesto Colon, Eduardo Dejesus, and Eva Figueroa with conspiracy to distribute narcotics, and conspiracy to commit Hobbs Act robbery. Viera, Colon, Dejesus, and Figueroa were also charged with possession of a firearm during the charged conspiracies, and Santiago with brandishing a firearm during the charged conspiracies. The charges arose from a sting operation conducted by the Drug Enforcement Administration ("DEA"), which culminated in the defendants' arrest on January 8, 2014.

The defendants[1] have moved to dismiss the indictment, arguing that the sting operation constituted outrageous government conduct in violation of their Fifth Amendment due process rights.[2] Defendant Viera has separately moved to dismiss the indictment on subject matter jurisdiction grounds.[3] In the alternative, the defendants seek the immediate disclosure of Giglio and Jencks Act material.

For the reasons discussed below, the defendants' motions are DENIED.

I. BACKGROUND

In October 2013, a cooperating witness ("CW") provided information to the DEA regarding Viera. Compl. ¶ 9. According to the CW, Viera had previously indicated that he had a crew that had conducted robberies of drug dealers in the past and that was capable of committing such robberies in the future. Id. Viera asked the CW to inform him of any potential targets for a robbery or home invasion. Id.

In October and November 2013, at the direction of law enforcement, the CW made several recorded telephone calls to Viera in which the CW informed him of a potential opportunity for a robbery, and they agreed to meet in person at a parking lot in upper Manhattan (the "Parking Lot") to further discuss the planned robbery. Id. ¶ 10.

On November 15, 2013, Viera met with the CW at the Parking Lot. Id. ¶ 11. Viera brought Santiago to the meeting. Id. The CW told Viera and Santiago that a person he knew had inside information on drug dealers who would be moving a large shipment of cocaine and heroin from Miami to New York. Id. ¶ 11(a). Viera and Santiago expressed interest in robbing the drug dealers with their "crew." Id. Viera and Santiago informed the CW that if any of the intended targets made any sudden movements during the robbery, they would "deal with them." Id. ¶ 11(b). The CW understood that statement to mean that Viera and Santiago would shoot or kill the intended targets if they resisted the robbery. Id. Viera and Santiago also explained to the CW that they could sell the CW's share of the stolen drugs for him. Id.

On December 21, 2013, at the direction of law enforcement, the CW made a recorded telephone call to Viera in which Viera indicated his continued willingness to do the robbery, and they arranged to have another in-person meeting. Id. ¶ 12. On January 1, 2014, Viera and Santiago met in the Parking Lot with the CW and a confidential source who was posing as the person with inside information on the drug dealers ("CS"). Id. ¶ 13. At the meeting, the CW and the CS informed Viera and Santiago that the drug dealers would be transporting 22 kilograms of cocaine and six kilograms of heroin and that they should be prepared to commit the robbery on January 8, 2014. Id. ¶ 13(a). Viera and Santiago advised the CW and the CS that they were ready to proceed with the robbery, and reiterated that they were prepared to shoot the intended targets of the robbery if they resisted. Id. ¶¶ 13(b), 13(c).

During the first week of January 2014, the CW had several telephone conversations with Viera and Santiago, confirming their readiness to proceed with the robbery on January 8, 2014. Id. ¶ 14. In the early afternoon on January 8, 2014, law enforcement units observed Viera, Santiago, Colon, Dejesus, and Figueroa in Camden, New Jersey, inside of a rented silver 2013 GMC Terrain with South Carolina license plates (the "Vehicle"). Id. ¶ 15(a). When the Vehicle arrived in New York City, Viera called the CW, who instructed them to meet in the Parking Lot. Id. ¶¶ 15(c), 15(d).

At approximately 6:15 p.m., the CW pulled into the Parking Lot and met with Viera and Santiago. Id. ¶ 15(e). The CW could see other people in the Vehicle. Id. The CW explained to Viera and Santiago that the robbery was still scheduled to occur, and Viera and Santiago confirmed that they were ready to proceed. Id. The CW instructed them to wait at a motel room that he had rented in Manhattan while he went to pick up the CS. Id.

At approximately 8:30 p.m., the CW telephoned Viera and informed him that he had picked up the CS and that they should all meet again at the Parking Lot. Id. ¶ 15(g). At approximately 8:50 p.m., the Vehicle was observed entering the Parking Lot, at which time Viera exited the Vehicle and met with the CW and the CS. Id. ¶ 15(h). The CW told Viera that the drug dealers would be armed, and Viera said that the CW should not worry because they had some "big shit" for them, which the CW understood to mean high caliber weapons. Id. Viera informed the CW that the CW and the CS's share of the drugs would be 10 kilograms of cocaine and one kilogram of heroin, and that the balance would be split among his crew. Id. ¶ 15(i). Viera also told the CW and the CS that all of the individuals in the Vehicle would be participating in the robbery. Id. The CW and the CS entered their car as the Vehicle pulled behind them, driving in tandem to the target location at West 132nd Street and 12th Avenue. Id. ¶ 15(j).

When the cars arrived at that location, law enforcement conducted a traffic stop of the Vehicle. Id. ¶ 16. As officers approached the Vehicle yelling "Police!" and wearing tactical raid jackets marked "Police, " Santiago exited the Vehicle and pointed a handgun at the officers. Id. ¶ 16(b).[4] Santiago was subsequently shot by one of the officers in the arm. Id. [5]

The officers arrested the defendants and conducted a search of the Vehicle. Id. ¶ 16(c). They recovered the handgun that had been brandished by Santiago between the console and the driver's seat, a two-way radio in the front passenger door cup holder, and black ski masks under the passenger seat and in the glove compartment. Id. ¶ 16(d). The officers recovered a black guitar bag from the trunk which contained "zip ties, " a pump action Mossberg Shotgun with a pistol grip, and an AK-47 assault rifle with a collapsible stock. Id. ¶ 16(e). In addition, Figueroa was in possession of black tactical ...


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