U.S. v. Murgas, No. 95-CR-384 (HGM).

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: Munson
• Citation: 967 F.Supp. 695
• Parties: UNITED STATES of America, v. Luis A. MURGAS, a/k/a Big Louie, a/k/a/ Barosa; Luis E. Cordoba-Murgas, a/k/a Negro, a/k/a Carlos; Luis Antonio Todd-Murgas, a/k/a/ Little Louie; Cesar A. Todd-Murgas, a/k/a Tony, a/k/a Pepita; Raul Antonio Cordoba-Murgas, a/k/a Strawberry; Jose C. Dominguez, a/k/a Pachito; Ruben A. Todd-Murgas; Vincente Rogers, a/k/a Santos; Gilberto Arce, a/k/a Luigi Santiago; Jayson Jones; Dennis J. Calandra, Jr.; Tiffany Gaudinot; and Tricia Irving, Defendants.
• Docket Number: No. 95-CR-384 (HGM).
• Decision Date: 15 April 1997

967 F.Supp. 695 UNITED STATES of America,
v.
Luis A. MURGAS, a/k/a Big Louie, a/k/a/ Barosa; Luis E. Cordoba-Murgas, a/k/a Negro, a/k/a Carlos; Luis Antonio Todd-Murgas, a/k/a/ Little Louie; Cesar A. Todd-Murgas, a/k/a Tony, a/k/a Pepita; Raul Antonio Cordoba-Murgas, a/k/a Strawberry; Jose C. Dominguez, a/k/a Pachito; Ruben A. Todd-Murgas; Vincente Rogers, a/k/a Santos; Gilberto Arce, a/k/a Luigi Santiago; Jayson Jones; Dennis J. Calandra, Jr.; Tiffany Gaudinot; and Tricia Irving, Defendants. No. 95-CR-384 (HGM). United States District Court, N.D. New York. April 15, 1997.

Page 696

COPYRIGHT MATERIAL OMITTED

Page 697

COPYRIGHT MATERIAL OMITTED

Page 698

COPYRIGHT MATERIAL OMITTED

Page 699

COPYRIGHT MATERIAL OMITTED

Page 700

Thomas J. Maroney, United States Attorney, Syracuse, NY, for U.S.; Grant C. Jaquith, Assistant United States Attorney, of counsel.

Frank Policelli, Utica, NY, for Defendant Luis A. Murgas.

Calvin Domenico, Rome, NY, for Defendant Luis E. Cordoba-Murgas.

William M. Borrill, Whitesboro, NY, for Defendant Luis Antonio Todd-Murgas.

William D. Walsh, Syracuse, NY, for Defendant Cesar A. Todd-Murgas.

Angelo A. Rinaldi, Syracuse, NY, for Defendant Ruben A. Todd-Murgas.

Richard P. Ferris, Utica, NY, for Defendant Gilberto Arce.

Norman P. Deep, Clinton, NY, for Defendant Jayson Jones.

Stephen Lance Cimino, Syracuse, NY, for Defendant Vincente Rogers.

Raymond J. Dague, Syracuse, NY, for Defendant Tiffany Gaudinot.

Lisa A. Peebles, Central Square, NY, for Defendant Tricia Irving.

Robert G. Wells, Syracuse, NY, for Defendant Raul Antonio Cordoba-Murgas.

Neal P. Rose, Sherrill, NY, for Defendant Dennis J. Calandra, Jr.

MEMORANDUM-DECISION & ORDER

MUNSON, Senior District Judge.

I. BACKGROUND

On March 21, 1996, the Grand Jury charged the defendants in an eight count second superseding indictment. The United States alleges that from 1991 until their arrest in March of 1996, the defendants were engaged in a conspiracy to distribute large quantities of powder and crack cocaine in Rome, New York, and the surrounding Oneida County area.

Count I of the indictment charges Raul Antonio Cordoba-Murgas with wilfully failing to deport from the United States in violation of 8 U.S.C. § 1252(e). Count II of the indictment charges all defendants with engaging in a conspiracy with intent to distribute and distribution of powder and crack cocaine, in violation of 21 U.S.C. § 846. Count III through Count VII charges defendants Vincente Rogers, Ruben A. Todd-Murgas, Gilberto Arce, Cesar A. Todd-Murgas, Luis E. Cordoba-Murgas, and Jayson Jones respectively with "knowingly and intentionally possess[ing] with the intent to distribute and distribut[ing] cocaine," in violation of 21 U.S.C. § 841(a)(1). Lastly, Count VIII charges all defendants with forfeitures of currency and automobiles pursuant to 21 U.S.C. § 853.

According to the United States, the inner circle of the drug enterprise included Luis E. Cordoba-Murgas, Cesar A. Todd-Murgas, Luis A. Murgas, Luis Antonio Todd-Murgas, Raul Antonio Cordoba-Murgas, and Jose C. Dominguez. In recent years, the government alleges that the enterprise paid defendant Jayson Jones to store the cocaine at his residence. When a distributor in the enterprise needed cocaine for a transaction, the distributor would then obtain it from Jones. Jones was also used to transport the cocaine from New York City—the apparent geographical source of the cocaine for the conspiracy—to Rome, New York.

The defendants were arrested on March 8, 1996. Also on this date, the government, including agents of the Central New York Drug Enforcement Task Force,¹ executed

Page 701

several search warrants. During the execution of the warrants, the government seized nearly $30,000 in currency. Included in the seized currency were "official government" funds previously paid by the government to members of the conspiracy for cocaine. Additionally, large quantities of powder cocaine were seized at the residence of Jones.

Presently before the court are defendants' omnibus pretrial and discovery motions. Defendants made over 120 separate motions in more than 25 distinct categories, and the government cross-moved for disqualification of one of the defendant's attorneys. The court heard oral argument on December 13, 1996 at a special motion term in Syracuse, New York. During oral argument, the court granted defendants motions for preservation of law enforcement notes, for an audibility hearing, for an evidentiary hearing in furtherance of a motion to suppress statements, and for a conflict of interest hearing.²

On January 15, 1997, the court held the conflict hearing to determine whether defendant Luis Cordoba-Murgas made a knowing and intelligent waiver of his rights under the Sixth Amendment to an attorney free from any potential or actual conflict of interest. At the conclusion of the hearing, the court held that defendant did make such a waiver and therefore, was entitled to be represented by the attorney of his choice, Calvin J. Domenico, Jr.

On January 27, 1997 the court held a evidentiary hearing in connection with defendant Jones' motion to suppress several statements given to law enforcement officers in connection with a search warrant executed on March 8, 1996. At the conclusion of the hearing, the United States requested and reserved the right to offer rebuttal evidence. On January 29, 1997 the government notified the court and defense counsel that it did not intend to offer any rebuttal evidence, and that it was satisfied with the record without any rebuttal evidence. Thereafter, on February 13, 1997, both Jayson Jones and the government submitted their closing statements, as directed to do so by the court. The decision of the court with respect to that particular motion, as well as the outstanding omnibus motions, is set forth below.³

II. DISCUSSION

A. PRETRIAL MOTIONS

1. Bill of Particulars

Defendants Luis Cordoba-Murgas, Cesar Todd-Murgas, Ruben Todd-Murgas, Vincente Rogers, and Tricia Irving move for the production of a bill of particulars pursuant to Fed.R.Crim.P. 7(f). Rule 7(f) provides that a court, within its discretion, may direct the government to file a bill of particulars. Fed.R.Crim.P. 7(f); see United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984). Bills of particulars are used to protect a particular defendant from another prosecution for the same offense, to enable a defendant to adequately prepare his defense, and to avoid surprise at trial. See United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990). A bill of particulars should not be used as a general discovery tool nor should it be used to circumvent a result not intended by Fed. R.Crim.P. 16. Torres, 901 F.2d at 234. Thus, where the indictment and discovery materials are sufficient to allow a defendant to prepare a defense with reasonable diligence, a court will generally not order that

Page 702

the government file a bill of particulars. See Panza, 750 F.2d at 1148.

More specifically, with respect to bills of particulars in conspiracy cases, the general rule is that the defendants do not need detailed evidence about the conspiracy in order to adequately prepare for trial. See, e.g., United States v. Feola, 651 F.Supp. 1068, 1132-33 (S.D.N.Y.), aff'd, 875 F.2d 857 (2d Cir.1989) (defendants in conspiracy case need not know the means by which it is claimed they performed overt acts; details as to how and when the conspiracy was formed, or when each participant entered the conspiracy; whether a particular defendant was present at alleged meeting in furtherance of the conspiracy; and the locations which the conspirators are alleged to have violated the statute). Courts have also held that matters such as the exact time and place of the overt acts and the names and addresses of persons present during meetings were not properly the subject of a bill of particulars. See United States v. Wilson, 565 F.Supp. 1416, 1438 (S.D.N.Y.1983).

Here, the court has reviewed the specific requests by each of the defendants and finds, for the most part, the second superseding indictment and the discovery made available to the defendants contain specific information sufficient to allow defendants to prepare a adequate defense, to avoid surprise at trial, and to plead the bar of double jeopardy at a later date should that become necessary. See United States v. Payden, 613 F.Supp. 800, 816 (S.D.N.Y.1985) (bill of particulars not necessary where court determines information sought has been provided elsewhere in discovery and the indictment).

However, the court directs that two particulars be disclosed to defendants, to the extent that the government possesses the particularized information and it has not yet been disclosed. The government must disclose the identities of all persons the government claims to have been coconspirators during the course of the alleged conspiracy, regardless of whether they have been indicted. While the government need not disclose the addresses of such coconspirators, the government is directed to disclose whether any coconspirators are in federal, state, or protective custody. Additionally, the government should disclose the amount of controlled substance it will seek to attribute to defendant Tricia Irving at trial as well as the amount of money exchanged for the given amount of controlled substance. The remaining information sought by defendants is either contained in the indictment and discovery furnished by the government or is the type of information that is not available through a bill of particulars. Therefore, the court grants the defendants' motions for a bill of particulars to the extent set forth above.

2. James Hearing

Defendants Ruben Todd-Murgas, Jayson Jones, and Tricia Irving move for a pre-trial hearing on the admissibility of coconspirator statements. These motions for such a hearing — also referred to as a James hearing pursuant to United States v. James, 590 F.2d 575 (5th...