U.S. v. Guerrero

• Decision Date: 10 November 2009
• Docket Number: No. 09 Cr. 339.,09 Cr. 339.
• Parties: UNITED STATES of America, v. Antonio GUERRERO, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

669 F.Supp.2d 417

UNITED STATES of America, v. Antonio GUERRERO, et al., Defendants.

No. 09 Cr. 339.

United States District Court, S.D. New York.

November 10, 2009.

COPYRIGHT MATERIAL OMITTED

Preet Bharara, United States Attorney for the Southern District of New York, by Laurie Korenbaum, Esq., Marissa Molé, Esq., New York, NY, for Government.

Kelley Drye & Warren, LLP, by Don Buchwald, Esq., Frederick H. Cohn, Esq., New York, NY, for Defendants.

OPINION

SWEET, District Judge.

Defendant Antonio Guerrero a/k/a "Tony" ("Guerrero") has moved to suppress evidence seized from his home in the course of his arrest and a subsequent search of his residence on April 21, 2009, on the grounds that (1) the entry and security sweep by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") into his residence after his arrest outside his home was illegal; and (2) his consent to allow those agents to search his residence for photographs was involuntarily given

Defendant Edwin Maldonado ("Maldonado") has moved to (1) sever Counts One and Two from Counts Three though Eight of the Indictment; (2) recover from the Government a bill of particulars identifying "known" co-conspirators and specifying the communications "through a facility of interstate commerce" alleged in the Indictment; (3) disallow evidence of Maldonado's April 21, 2009 post-arrest statement; and (4) disclose items allegedly material to the preparation of Maldonado's defense, including various photographs.

Upon the facts and conclusions set forth below, a further hearing is required to resolve Guerrero's motion, and Maldonado's motions are denied.

I. FACTUAL BACKGROUND

On April 7, 2009, a federal grand jury in the Southern District of New York returned and filed an indictment (the "Indictment") against Guerrero, Maldonado, Omar Flores ("Flores"), and Johnny Cedeño, a/k/a "Jose Rivera" ("Cedeño") (collectively/ the "Defendants") (the "Indictment"). The Indictment charged these four individuals in connection with three separate shootings which occurred in late 1994, and resulted in the deaths of four individuals.

Counts One and Two of the Indictment charged Guerrero with the murder of Livino Ortega (Count One) and Fernando Garrido (Count Two) on or about September 3, 1994, in violation of 21 U.S.C. § 848(e). Counts Three and Four charged defendants Maldonado and Flores with the murder of Leonard Overman on or about October 9, 1994, in violation of 21 U.S.C. § 848(e) and 18 U.S.C. § 924(j). The Indictment alleges that Maldonado was the shooter hired to kill Overman. Counts Five through Eight of the Indictment charged defendants Maldonado, Flores, and Cedeño with the non-fatal shooting of Genaro Rodriguez ("Rodriguez") and shooting death of Carmen Diaz ("Diaz") on or about December 13, 1994, in violation of 18 U.S.C. §§ 924(j), 1958, and 2, and 21 U.S.C. § 848(e). Once again Maldonado is alleged to be the hired shooter of both Rodriguez and Diaz, and he and his co-defendants are alleged to have planned and carried out the shooting by communicating "through a facility of interstate commerce." The Indictment refers to "others known and unknown" who participated in the alleged conspiracy.

A. Guerrero's Arrest and Search of His House

On April 15, 2009, in the early morning, federal agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") (the "ATF agents") including Special Agent Charles J. Mulham ("Mulham") came to Guerrero's home in Miami, Florida, with a warrant for his arrest. Because, inter alia, Guerrero had been charged with being the shooter in two violent intentional homicides, the agents decided to enter quickly by forcing open the front door. At a certain point, Guerrero and his wife, MaryAnne Guerrero ("Mrs. Guerrero") (collectively, "the Guerreros"), came to the door to open it. Parties dispute whether or not the Guerreros succeeded in opening the door, or merely attempted to open it while the agents were prying it open. See Guerrero Aff. ¶ 3, Mulham Aff. ¶ 4 & n. 1. The ATF agents removed Guerrero and his wife from the doorway, placed them on the ground outside their home, and handcuffed them.

The ATF agents entered the house and conducted a security sweep, searching for other occupants of the house and finding a young child of undetermined age, MaryAnne Guerrero's twelve-year old brother, the Guerrero's sixteen-year old son, Antonio, Jr., their thirteen year-old son, Ramon, and Mrs. Guerrero's sixty-one year old mother. Guerrero, Mrs. Guerrero, Antonio, Jr., and Ramon were placed in handcuffs (the latter after he became disruptive). The parties dispute whether or not Mrs. Guerrero's mother and the younger children were also handcuffed. See Guerrero Aff. ¶ 3, Mulham Aff. ¶¶ 5, 8. In the course of the security sweep, Special Agent Gerry Area saw a large photograph hanging on a wall on the second floor that depicted Guerrero with suspected members of a drug crew that had been active in the 1990s in the Bronx, a fact that he later reported to Mulham. The agents who had performed the security sweep left the premises soon after it had been completed and the occupants were secured. Mulham and Detective Clohessy entered the house and read Guerrero standard Miranda warnings from a preprinted card.

Guerrero was brought into the first-floor bedroom where Mulham advised him of the charges against him. Mulham then told Guerrero that he intended to obtain a warrant to search the house for photographs of Guerrero and other alleged members the drug crew. Mulham had spoken with Assistant U.S. Attorneys in Miami and in the Southern District of New York who had told him that, based on the photograph hanging on the wall, and other information that he provided to them, the warrant would issue very soon.

The agents then asked Guerrero if he would consent to a search of the house. Before he could respond, Mrs. Guerrero, who owns the house jointly with Guerrero, was brought into the bedroom so that she could participate in the discussion. According to the Government, Guerrero expressed reluctance to consent because he was afraid the agents would "destroy" his home during the search, but Mulham responded that a consent search would be limited only to photographs whereas a search pursuant to a warrant would be broader. Mulham Aff. ¶ 14. According to Guerrero, agents threatened to "destroy" his home during the search if they had to go through the process of getting a warrant. See Guerrero Aff. ¶ 4, Mulham Aff. ¶¶ 13, 19, 20. Guerrero claims that at some point "agents threatened to arrest my thirteen-year old son." Guerrero Aff. ¶ 3. While Mulham concedes that these threats were made on account of Ramon's disruptive behavior, he maintains that they were not in any way linked to evincing consent from the Guerreros to search the house. Mulham Aff. ¶ 18.

The Guerreros agreed to let the agents look at two family albums which MaryAnne Guerrero had recently compiled. The Guerreros signed a consent form which limited the search only to "photos that depict members of the organization currently under investigation. The search will be for the photos alone and will not extend to any other item(s) in the residence." Gov't's Mem. of Law in Opp'n to Def's Mot. to Suppress. Ex, B. The agents seized a number of photographs from photo albums along with the photograph that had been hanging in the hallway.

B. Maldonado's Post-Arrest Statements and Discovery

On or about April 21, 2009, Maldonado was arrested and presented in federal court on the charges set forth in the Indictment. According to a June 18, 2009 discovery letter, Maldonado made an "incriminating statement" while being transported from the New York State detention facility to his arraignment in the Southern District of New York. Mulham submitted the following report, in relevant part:

[A]t approximately 0950 hours, MALDONADO was arrested . . . was advised of his rights by Det. Clohessy and was then removed from the [New York State prison] facility to be driven back to the Southern District of New York (SDNY) for his arraignment . . . [w]hile in [sic] route to the Southern District, MALDONADO made incriminating statements, specifically—that he knows "BB" (Elyn REYNOSO—another defendant in this case) and that they had been friends since they were young boys. Moreover, that REYNOSO had testified against MALDONADO in his 1995 murder trial. Lastly, MALDONADO states that he would fight REYNOSO if he were to see him . . . .

Buchwald Decl. Exh. C.

Since the time of Maldonado's arrest, the Government has produced discovery to the Defendants including autopsy and ballistics reports, crime scene photographs, transcripts, prison phone and visitation records, evidence vouchers documenting items seized at the crimes scenes, photos of some of the Defendants with their alleged co-conspirators taken around the time of the charged murders, and witness statements.

On October 15, 2009, at the oral argument on Maldonado's motions, the Court granted Maldonado's counsel's request that he be able to look at unredacted prison visitation logs in the Government's offices, and share it only with attorneys at his firm. The Court extended the ruling to the counsels of the co-defendants.

II. DISCUSSION

A. Entry Into Guerrero's Home After His Arrest Was Legal

Guerrero claims that the agents' entry into his home after his arrest outside his home was illegal. He concedes that had the agents arrested him inside his home "they would have been entitled to conduct a security sweep of the premises," given that they had an arrest warrant. But Guerrero argues that when he and his wife were "forcibly removed from the premises . . . the warrant, having been executed, lost its vitality as the key to the front door." Def's Mem. of Law at 3.

Guerrero incorrectly relies on his physical location during the arrest as being the dispositive issue in determining whether the security sweep was valid. The Second Circuit...