US v. Santana, Crim. No. 91-30019-F.

• Decision Date: 10 December 1992
• Docket Number: Crim. No. 91-30019-F.
• Citation: 808 F. Supp. 77
• Parties: UNITED STATES of America v. Rafael SANTANA, Cornell Everett, Lillian Santana, Frank Fuentes, Floyd Henry, Uneria Capers, and Jackie Everett, Defendants.
• Court: U.S. District Court — District of Massachusetts

808 F. Supp. 77

UNITED STATES of America v. Rafael SANTANA, Cornell Everett, Lillian Santana, Frank Fuentes, Floyd Henry, Uneria Capers, and Jackie Everett, Defendants.

Crim. No. 91-30019-F.

United States District Court, D. Massachusetts.

December 10, 1992.

William J. O'Grady, Law Office of William J. O'Grady, Springfield, MA, Leonard Cohen, Cain, Hibbard, Myers & Cook, Pittsfield, MA, Richard T. Brown, East Longmeadow, MA, for Rafael Santana.

Robert M. Simels, New York City, for Lillian Santana.

Peter Ettenberg, Gould & Ettenberg, Worcester, MA, for Francis Fuentes.

Matthew J. King, Robinson, Donovan, Madden & Barry, Springfield, MA, for Floyd Robert Henry.

David P. Hoose, Katz, Sasson & Hoose, Springfield, MA, for Jackie Everett.

MEMORANDUM AND ORDER

FREEDMAN, Senior District Judge.

I. INTRODUCTION

On September 11, 1992, Magistrate Judge Michael A. Ponsor ("Magistrate Judge") denied, without a hearing, all seven of defendants' motions for dismissal of the indictment. Report and Recommendation Regarding Defendants' Motions for Dismissal of Indictment for Outrageous Governmental Conduct, slip op. (September 11, 1992) (Ponsor, U.S.M.J.) ("Report and Recommendation"). Four of the defendants¹ have filed objections to the Report and Recommendation, and have requested a hearing with respect to the government's tactics and investigatory techniques.

At bottom, defendants contend that the indictment must be dismissed, in toto, because the government supplied defendant Fuentes with a thirteen and three-tenths (13.3) gram sample of ninety-two percent (92.0%) pure heroin, unrecovered by the government and presumably channeled to end-users, in hope of gaining defendants' trust and confidence. The government's behavior, according to defendants, constitutes extreme and outrageous conduct, and the Court, they contend, should dismiss the indictment for violation of the fifth amendment due process clause and/or pursuant to the Court's supervisory powers.

The government denies that an evidentiary hearing is necessary, and defends, of course, the actions of the undercover officers. The government vehemently opposes defendants' objections to the Report and Recommendation.

The Court agrees that a hearing on the matter is unnecessary, for the salient uncontested facts are well articulated in the numerous submissions and the prevailing law settles the fundamental issue before the Court. Nonetheless, the Court concludes, in contrast with the recommendation of the Magistrate Judge, that Count III of the indictment against defendants Fuentes and Raphael Santana must be dismissed for extreme and outrageous governmental conduct. The balance of the charges faced by defendants Fuentes and Raphael Santana, as well as the counts against the remaining defendants, shall stand.

II. BACKGROUND

The facts relevant for purposes of defendants' motions are straightforward. In February of 1991 the government began investigating a purported heroin importation and distribution ring. Affidavit of Special Agent Gilbert A. Howard at ¶ 3 (August 26, 1991) (attached to Criminal Complaint, No. 91-1626-M (August 26, 1991)) ("Howard Affidavit"). A confidential informant, incarcerated with defendant Raphael Santana at a federal prison, apparently initiated the government's case when "in the fall of 1990 Raphael Santana told the informant that he was partners with Francis Fuentes and George Morales in the heroin distribution business." Id. at ¶¶ 3-4. The informant, serving a twenty-four (24) year term, had been convicted of conspiracy to import seven (7) kilograms of heroin, and defendant Raphael Santana had been jailed for a life term for conspiring to import and distribute one thousand (1,000) kilograms of heroin and for laundering some $1.1 million. Id. at ¶ 3. Defendant Fuentes had "previously been convicted at least twice in federal court for drug trafficking." Id. at ¶ 4. Defendant Raphael Santana allegedly told the government informant that his network was capable of "distributing between 150 and 200 kilograms of heroin per month throughout the United States." Id.

The reverse sting operation progressed and, according to the government, defendant Raphael Santana and the informant agreed by March of 1991 to import and distribute one hundred forty (140) kilograms of heroin. The government contends that defendant Fuentes, not imprisoned, served as chief negotiator for the drug deal. Id. at ¶¶ 7, 14-16, 18-21, 27, 34-35, 40.

On July 12, 1991 Special Agent Howard, in an undercover capacity, a second confidential informant and defendant Fuentes met at a hotel in Greenfield, Massachusetts. Id. at ¶ 21. During a conversation in the hotel's lounge, defendant Fuentes allegedly requested a sample of the heroin, and the government agreed to contact defendant Fuentes when a sample was readied. Id.

On August 8, 1991, the three met once again at the hotel in Greenfield. Id. at ¶ 34. This time, Special Agent Howard delivered to defendant Fuentes a sample of heroin. Id. The sample contained thirteen and three-tenths (13.3) grams of the drug, at ninety-two percent (92.0%) purity. See Report of Drug Property Collected, Purchased or Seized (attached to Government's Response to Additional Pretrial Motions (February 18, 1992)). There is no dispute that the heroin sample went unrecovered by the government.

III. STANDARD OF REVIEW

A dissatisfied litigant may obtain review of a dispositive pretrial motion issued by a magistrate judge by filing an objection to a report and recommendation in the district court. A de novo standard of review applies. The district court may accept, reject or modify the recommendation, receive additional evidence or recommit the matter to the magistrate judge with instructions. Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (citing Fed. R.Civ.P. 72; 28 U.S.C. § 636(b)(1)(B); Rules for United States Magistrates (Local Rule 3(b)).

IV. DISCUSSION

A. Government Provision of Narcotics

At the outset, the Court agrees that authority does not prohibit per se the government from supplying a modest sample of drugs to suspects in the course of a criminal narcotics investigation. In limited circumstances, this tactic may prove acceptable.² See, e.g., Hampton v. United States, 425 U.S. 484, 489-90, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976) (plurality op.) (government furnishes heroin sample and subsequently purchases the heroin); id. at 491-92, 96 S.Ct. at 1650-51 (Powell, J., concurring in the judgment); United States v. Ford, 918 F.2d 1343, 1349 (8th Cir.1990) ("a small quantity of cocaine and a small quantity of heroin"); United States v. Valona, 834 F.2d 1334, 1344 (7th Cir. 1987) (three and one-half (3.5) grams of cocaine); United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986) (sixty-nine (69.0) grams of marijuana). Careful consideration of the facts of these cases teaches, though, that the government does not enjoy unfettered discretion in dispensing narcotics to facilitate its investigations. Rather, several factors emerge for the courts to weigh in evaluating this potentially harmful investigative tactic.

In Hampton, the plurality and concurring opinions together established, for dissimilar reasons, that supplying illicit drugs to a suspected drug dealer does not necessarily implicate the due process clause and bar prosecution of the suspect. In that case, involving a conviction on two counts of distributing heroin, a government informant allegedly supplied the defendant with samples of heroin, and government undercover agents purchased the heroin from the defendant. The plurality opinion, written by then Justice Rehnquist, sought to frame the issue solely as one of entrapment and, because defense counsel conceded that the defendant was predisposed to commit the offense, the entrapment defense was of no avail. Hampton, 425 U.S. at 489-90, 96 S.Ct. at 1649-50 (plurality op.). The plurality, then, declined to address the issue raised by defendants in this case. In his concurrence, Justice Powell, joined by Justice Blackmun, explicitly approved of the provision of the contraband, reasoning that "the due process clause does not foreclose reliance on such investigative techniques." Id. at 491, 96 S.Ct. at 1651 (Powell, J., concurring in the judgment). The three dissenters argued that the government's furnishing of narcotics was particularly egregious. Id. at 499, n. 3, 96 S.Ct. at 1654, n. 3. For purposes of the present analysis, it is noteworthy that the government, in Hampton, recovered the narcotics provided to the defendant.

The balance of the cases cited above, likewise fail to bow to unbridled executive discretion regarding the provision of drug samples in undercover investigations, especially where the drugs go unrecovered. In Ford, the Eighth Circuit repeatedly stated that the quantities of cocaine and heroin were "small." Ford, 918 F.2d at 1346, 1349-50. Moreover, the heroin in question originated with the defendant, was given to the government undercover agent, and was returned to the defendant, at the defendant's request, a short time later. Id. at 1346 ("While they were waiting, Ford gave Rainville the government agent a small quantity of heroin as a sign of good faith.... Ford then asked Rainville to return the sample of heroin so he could sell it and make some money. Rainville gave the sample back to Ford."). In addition, the court highlighted that the suspect to whom the sample was given was a known addict. Id. at 1347, 1349-50. In fact, the defendant testified at trial that he had used the samples of heroin and cocaine for his own use, and had used monies supplied by the government during the course of the investigation to procure additional drugs for his personal consumption. Id. at 1347. Throughout the course of the investigation, the defendant requested narcotics from the government agent. Id. at 1346. The Eighth Circuit's holding incorporates these...