US v. Batista, Crim. No. 86-310-C.
| Decision Date | 23 December 1986 |
| Docket Number | Crim. No. 86-310-C. |
| Citation | 652 F. Supp. 942 |
| Parties | UNITED STATES of America, Plaintiff, v. Edward David BATISTA, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Willie Davis, Boston, Mass., for defendant.
Jonathan Chiel, Boston, Mass., for U.S.
This matter comes before the Court on the motion of defendant, Edward Batista, to dismiss the indictment on the grounds that federal agents of the Drug Enforcement Administration ("DEA") interferred with his right to counsel in violation of the Sixth Amendment of the United States Constitution. The defendant was arrested on September 6, 1986. On September 23, 1986, a federal grand jury handed down a one count indictment charging defendant with possession of more than one kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1). The chain of events which led to this indictment was described in testimony during an evidentiary hearing in this Court on November 5, 1986. The facts summarized below are not contested by the parties.
In April, 1985, defendant was arrested and indicted by the Suffolk County District Attorney for trafficking in cocaine. The defendant agreed, with the assistance of counsel, to cooperate with the Boston Police Department in the undercover investigation of local drug trafficking. The defendant undertook this cooperation with the understanding that his sentence could be reduced or even suspended as a result.1 Detective Foley of the Boston Police Department was pleased with the assistance provided by defendant and recommended to the District Attorney that he suspend defendant's sentence. This recommendation was refused. The District Attorney agreed instead to an "indefinite term" sentence which, in Massachusetts, permits a defendant to be paroled after six months.
Subsequent to this agreement, Detective Foley arranged a meeting with defendant and Special Agent Ritucci of the DEA to discuss the possibility of defendant's cooperation with federal drug investigators. The defendant attended the meeting without counsel but, according to the government, he was advised to consult with counsel before making a decision. There are no allegations that defendant was coerced in any way or that the DEA agent disparaged defendant's counsel. At the end of the meeting defendant had made no decision nor did he offer any information to the agents.
At their next meeting, defendant reported to Detective Foley and Special Agent Ritucci that he had consulted with his counsel and had been advised not to cooperate until his counsel discussed the arrangement with the DEA. The meeting ended without defendant having given any information to the DEA.
Special Agent Ritucci initiated a meeting with defendant's counsel, Willie J. Davis, to discuss the possibility of defendant's cooperation. At that meeting, held in July, 1986, defendant's counsel described to Ritucci the deal he was working on with the District Attorney to suspend defendant's sentence. Defendant's counsel expressed the hope that defendant's cooperation with the DEA might influence the District Attorney's decision regarding the indefinite term. Defendant's counsel warned Ritucci at this meeting that, until defendant's counsel could meet with the District Attorney, the DEA could debrief defendant on his state undercover work but Ritucci was not to involve defendant in any federal undercover investigations.
Two weeks later, defendant's counsel and Ritucci met again. There is no disagreement that at this meeting defendant's counsel and Ritucci were both aware of the fact that the District Attorney had refused to reduce further defendant's sentence, regardless of his proposed cooperation with federal drug agents. There were no further meetings between defendant's counsel and DEA agents.
After this meeting defendant contacted Detective Foley directly to express his desire to work with DEA agents. Defendant was aware that his cooperation would not affect his sentence for the state offense. Detective Foley testified that defendant repeatedly contacted him to discuss the possibility of his cooperation with the DEA. Special Agent Ritucci testified that Detective Foley informed him that Detective Foley and defendant's counsel agreed that the District Attorney would not reduce defendant's sentence. Defendant then commenced his cooperation with the DEA; defendant's counsel asserts that he was not informed of this cooperation.
Based on information developed by defendant, the DEA agreed to finance defendant's undercover purchase of ten kilograms of cocaine from a dealer named Felix Ulloa who operated in the Dominican Republic. Defendant arranged with the DEA to have an undercover agent meet Ulloa in a Burlington hotel room on September 5, 1986; to complete the deal. Defendant then requested of DEA agents that he be permitted to meet Ulloa privately before the meeting at the hotel. DEA agents kept defendant under surveillance, however, and observed him with Ulloa at a deserted gas station near Route 495.
When the deal was concluded in the Burlington hotel room, Ulloa was arrested by DEA agents. After Ulloa's arrest, DEA agents requested defendant's keys to search his car. Defendant complied and at the same time informed them that "there was a surprize waiting" because there were ten additional kilograms of cocaine in his car. DEA agents discovered the cocaine in defendant's car and arrested him.
Defendant's arrest and subsequent indictment on federal drug charges forms the basis of the motion now before the Court. After a hearing and consideration of the arguments presented by both parties, and for the reasons set forth below, I rule that defendant's Sixth Amendment right to counsel arising from his state indictment does not extend to immunize him from incriminating himself in other, unrelated investigations. Defendant's right to counsel as to his federal charges had not yet attached and could not therefore be violated by DEA agents. Accordingly, defendant's motion to dismiss the indictment should be denied.
Defendant relies primarily on United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), to argue that his right to counsel attached in 1985 when the state initiated adversary judicial proceedings against him. Defendant maintains that DEA agents interferred with his Sixth Amendment rights by involving him in an undercover scheme without the consent of his counsel. Defendant further argues that, but for this interference, he would not have been arrested and indicted on federal charges.
The government does not dispute defendant's argument that his Sixth Amendment right had attached with regard to his state charges; the government instead contends that defendant enjoyed no such right with respect to his other, unrelated federal charges. The government relies primarily on Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477...
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U.S. v. Batista
...up for review the district court's pretrial order of December 23, 1986, denying appellant's motion to dismiss the indictment. 652 F.Supp. 942 (D.Mass.1986). On appeal, appellant argues, first, that his Sixth Amendment right to counsel was abridged when federal agents of the Drug Enforcement......