United States District Court, E.D. New York
For the Plaintiff: Assistant United States Attorney, Saritha Komatireddy, United States Attorney for the Eastern District of New York, Brooklyn, NY.
For the Defendant: Robert P. LaRusso, Esq., Of Counsel, LaRusso & Conway LLP, Mineola, NY.
DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
Presently pending before the Court is a motion by the Defendant James J. Rich, Jr., also known as " Chip" (the " Defendant" ), for the withdrawal of his guilty plea to Count One of the Superseding Indictment and to dismiss Counts One through Three of that Indictment.
The following facts are generally undisputed and, in any event, in this decision, the Court makes no findings of fact.
In early 2012, a confidential informant advised the Federal Bureau of Investigation (" FBI" ) that the Defendant had sold crack cocaine to him on several occasions. The FBI then conducted controlled purchases of crack cocaine by the confidential informant from the Defendant and recorded those purchases with audio and video recording equipment. The controlled purchases, each involving less than one gram for $100, occurred on March 26, 2012 in Central Islip, New York and on April 3, 2012 at the Defendant's residence in Wyandanch, New York. These drug sales carried a punishment of from zero to twenty years incarceration, enhanced to zero to thirty years due to the Defendant's prior drug conviction, a fact known to law enforcement.
On April 4, 2012, the FBI obtained and executed a search warrant on the Defendant's residence and recovered, among other things, crack cocaine, marijuana, digital scales, and small plastic bags. During the execution of the search warrant, FBI Special Agent Gregory C. Kies interviewed the Defendant. Special Agent Kies advised the Defendant of his Miranda rights. The Defendant spoke with Special Agent Kies and admitted that he had sold drugs since he was a little child and sold crack cocaine for the previous four months. The Defendant further admitted that, on a daily basis, he purchased one gram of crack cocaine for fifty dollars from an individual in Amityville, New York and sold that crack cocaine to his customers for one hundred dollars per gram. The Defendant also admitted that he had been associated with a gang called " K-T," or " Killa Thugs" in the past. In addition, the Defendant signed a written consent to search form authorizing the FBI to search his three mobile phones.
A review of the Defendant's criminal history revealed that the Defendant had a prior conviction for robbery at the age of seventeen and numerous prior convictions for drug offenses. In particular, on May 19, 2000, the Defendant plead guilty to Robbery in the Third Degree in New York State court in connection with an act of robbery that involved the display of a firearm.
At this point, the parties' version of events diverge to a degree. Accordingly, the Court delineates their respective versions.
A. The Government's Account of the Reverse Sting Operation
As the Government concedes, it subsequently orchestrated a " reverse sting" drug operation aimed at the Defendant.
Of relevance here, the Government contends as follows:
The Defendant discussed participating in a robbery and recruiting at least one other individual to participate in the robbery. The Government also contends that the Defendant expressed his intention to possess a firearm during the robbery and ensure that the other individual possessed a firearm as well. The Defendant further discussed his intention to bring duct tape and zip ties to the robbery site to restrain the intended victims. The Defendant and the confidential informant also discussed how they would divide the narcotics and cash obtained during the robbery. The FBI recorded the conversation with audio and video recording equipment.
On May 27, 2012, the confidential informant contacted the Defendant by sending a text message to the Defendant's mobile phone. The confidential informant inquired whether the Defendant was still " in" for the robbery later that week. The Defendant responded, " Hell yea, u gotta give me the address so I can scope the place out."
On May 30, 2012, the Defendant contacted the confidential informant and reported that he had secured participation in the robbery of an additional individual, a co-conspirator, and that the co-conspirator desired to meet the confidential informant. Later that day, the Defendant, the co-conspirator, and the confidential informant meet near the Tanger Outlets in Deer Park, New York, and discussed the planned robbery. All three discussed the logistics of carrying out the robbery, which contemplated the Defendant and the co-conspirator forcibly entering the narcotics trafficker's residence after the confidential informant transported them to the location. The three men also discussed how they would divide up the narcotics and cash obtained during the robbery and agreed that the robbery would be conducted the following day. The FBI surveilled and recorded this meeting with audio and video recording equipment.
B. The Defendant's Account of the Reverse Sting Operation
Of relevance here, the Defendant frames the reverse sting operation as follows:
The FBI sought to enhance the pressure on the Defendant to participate in the home invasion robbery by having the confidential informant tell him that the narcotics traffickers were " white boys" with a substantial amount ...