U.S. v. Ozuna

• Decision Date: 23 January 2001
• Docket Number: No. 00-0249CR.,00-0249CR.
• Citation: 129 F.Supp.2d 1345
• Parties: UNITED STATES of America v. Bienvenido OZUNA
• Court: U.S. District Court — Southern District of Florida

129 F.Supp.2d 1345

UNITED STATES of America v. Bienvenido OZUNA

No. 00-0249CR.

United States District Court, S.D. Florida, Miami Division.

January 23, 2001.

COPYRIGHT MATERIAL OMITTED

Brian K. Frazier, Assistant U.S. Attorney, Miami, FL, for Plaintiff.

William Thomas, Assistant Federal Public Defender, Miami, FL, for Defendant.

ORDER DENYING MOTION TO SUPPRESS RULE 404(B) EVIDENCE

JORDAN, District Judge.

A grand jury indicted Bienvenido Ozuna on charges of importing cocaine and possessing cocaine with intent to distribute, in violation of 21 U.S.C. §§ 952 and 841. Prior to trial, the government provided notice of its intent to introduce, pursuant to Federal Rule of Evidence 404(b), evidence obtained from Mr. Ozuna's 1995 arrest in Maryland for possession of cocaine. Mr. Ozuna now moves to suppress the evidence from the prior arrest, arguing that it was unconstitutionally obtained. Although, as explained below, the exclusionary rule applies to Rule 404(b) evidence, suppression is not warranted. First, the Maryland trooper who arrested Mr. Ozuna in 1995 acted lawfully under Eleventh Circuit precedent. Second, even if the trooper ran afoul of Eleventh Circuit precedent in detaining and arresting Mr. Ozuna, the Rule 404(b) evidence should not be excluded. The trooper acted properly pursuant to the law of the Fourth Circuit, whose jurisdictional boundaries include Maryland, and suppressing evidence obtained by a law enforcement officer in accordance with the law of his jurisdiction would not deter future police misconduct.

I. THE CURRENT CHARGES

On March 18, 2000, Mr. Ozuna arrived at Miami International Airport onboard an American Airlines flight from Caracas, Venezuela. After being admitted into the United States by the Immigration and Naturalization Service, Mr. Ozuna proceeded with his luggage to the U.S. Customs Service for examination. During their secondary examination, customs inspectors asked Mr. Ozuna routine questions pertaining to his travel. While examining Mr. Ozuna's luggage, the inspectors discovered two wooden award plaques which emitted a glue-like odor. The inspectors probed the plaques and discovered a white powdery substance secreted inside them. When field tests confirmed that the substance was cocaine, the inspectors arrested Mr. Ozuna. According to a subsequent laboratory report, the plaques contained 1.9 kilograms of cocaine.

After arresting Mr. Ozuna, the inspectors read him his Miranda¹ rights. Mr. Ozuna waived his rights and made an oral statement to agents from the Customs Service.

Mr. Ozuna told the agents that a woman named Ingrid Mendoza purchased his one-way airline ticket from Caracas, Venezuela, and gave him the plaques to transport. He had met Ms. Mendoza in February of 1999 and had an intimate relationship with her for several months. Ms. Mendoza maintained a residence in New York City, but at the time she was living in an apartment in Caracas.

According to Mr. Ozuna, Ms. Mendoza was a Hispanic female, approximately 38 years old, who stood 5'10" tall and had a strong build. She had a light brown complexion, dark brown eyes, and black shoulder-length hair. She had a scar on her stomach, and was the mother of two boys, 12 and 15 years old.

Mr. Ozuna provided the agents with his New York address. He told them that prior to visiting Venezuela, he lived in Santo Domingo, Dominican Republic, for approximately four months, where he worked as a carpet installer. Ms. Mendoza persuaded him to come visit her in Venezuela, and he arrived there on March 15, 2000. Ms. Mendoza paid all of his expenses for the visit, including travel, meals, clothes, and lodging.

Although he admitted that both he and Ms. Mendoza were under the influence of cocaine while he was in Venezuela, Mr. Ozuna said that his last consumption of cocaine was on March 16, 2000, two days prior to his return. He stated that he was transporting the plaques as a favor to Ms. Mendoza. He indicated that Ms. Mendoza had purchased souvenirs for him to bring back to the United States along with the two plaques and had instructed him to wrap the plaques with clothes so that they would not be damaged. He thought her request was strange because the plaques were large. Prior to departing, he knocked on the plaques to check if they were constructed of solid wood.

Ms. Mendoza told Mr. Ozuna that she or her associate would contact him when he arrived in New York. The plan was for Ms. Mendoza's associate to pick up the plaques, or, alternatively, for Mr. Ozuna to deliver them to another location. As the story goes, Mr. Ozuna, the plaques, and the cocaine never made it to New York.

II. THE RULE 404(B) EVIDENCE

Mr. Ozuna was arrested in Maryland for possession of cocaine in 1995. He subsequently made post-arrest statements that are similar to the statements he made after his arrest in this case. Although Mr. Ozuna was ultimately not prosecuted in Maryland, the government seeks to introduce evidence regarding his 1995 arrest in its case-in-chief under Rule 404(b) in order to prove intent. Mr. Ozuna, on the other hand, contends that he was unlawfully detained in 1995, and argues that any evidence obtained as a result of that unlawful detention should be suppressed as fruits of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Before addressing the parties' arguments, I detail the facts concerning the 1995 incident as presented at the evidentiary hearing on September 22, 2000.

On August 5, 1995, at approximately 8:30 p.m., Maryland State Trooper Vincent Curry stopped a Greyhound bus headed southbound on Route 295 for speeding. After giving the bus driver a written warning and returning his driver's license and registration, Trooper Curry informed the driver that he was free to leave. Trooper Curry then obtained the driver's consent to board the bus and speak to the passengers. As Trooper Curry entered the bus, which was approximately three quarters full, he made a general announcement over the intercom system. He identified himself as a Maryland state trooper and notified the passengers that he was checking for illegal substances, contraband, and guns. In a normal conversational tone, Trooper Curry asked the passengers if he could speak with them, and asked them for their cooperation in claiming their carry-on baggage. Trooper Curry did not tell the passengers that they could not leave the bus, nor did he inform them that they could refuse consent or leave. Trooper Curry was the only officer on the bus, and his gun was not drawn.

After making this general announcement, Trooper Curry made his way from the front of the bus to the back, speaking to each of the passengers. At this time he saw Mr. Ozuna slouched in his seat at the rear of the bus.

As he spoke to the passengers, Trooper Curry did not block the aisle, but rather stood to the side to permit the passengers to leave if they wished to do so. The first passenger to claim her baggage opened it, despite the fact that Trooper Curry did not ask her to do so. Other passengers followed suit, but Trooper Curry did not go through anyone's baggage. During this time, the bus door was open and the driver stood at the front of the bus.

After interacting with approximately 15 passengers, Trooper Curry noticed several things about Mr. Ozuna. First, Mr. Ozuna would not look directly at Trooper Curry, even though all of the other passengers were interested in Trooper Curry's actions. Second, Mr. Ozuna was moving around in his seat and appeared nervous. Third, Mr. Ozuna pulled his shirt out of his waistband and over his shorts. Trooper Curry approached Mr. Ozuna, who was sitting by himself in an aisle seat, and stood in front of him. Trooper Curry asked Mr. Ozuna to claim his bag and Mr. Ozuna complied. Mr. Ozuna unzipped his duffel bag and gave it to Trooper Curry, even though Trooper Curry did not ask him to do so. Upon inspection, Trooper Curry found that the bag was empty, except for a one-way ticket from New York to Washington, D.C., and a tally sheet. Trooper Curry testified that based upon his experience, such tally sheets are used by drug couriers to account for debts owed on drug transactions.

When Trooper Curry asked Mr. Ozuna where he was going, Mr. Ozuna answered that he was traveling to Washington, D.C. During this encounter, Mr. Ozuna was nervous and would not look at Trooper Curry. According to Trooper Curry, Mr. Ozuna's hands were shaking and his voice showed signs of nervousness. Trooper Curry asked Mr. Ozuna to empty his pockets, and Mr. Ozuna complied. Trooper Curry then sought permission to conduct a pat-down search, and Mr. Ozuna responded "OK." Trooper Curry did not tell Mr. Ozuna that he had the right to refuse consent. In conducting the search, Trooper Curry felt a hard object, which he believed to be a package of cocaine or heroin, in Mr. Ozuna's shorts. The hard object was a five inch by five inch bag wrapped in tape. Trooper Curry placed Mr. Ozuna under arrest, but did not ask him any questions at that time. The package taken from Mr. Ozuna contained 476 grams of cocaine. See D.E.A. Reports, Government Exhibit 2 at 1 (August 8, 1995).

Trooper Curry was on the bus for about 2 minutes, and his encounter with Mr. Ozuna lasted approximately 15-20 seconds. After arresting Mr. Ozuna, Trooper Curry drove him to the barracks of the Maryland State Police, where he was fingerprinted and read his Miranda rights. Mr. Ozuna waived his rights verbally, and made a statement to Trooper Curry. Mr. Ozuna said that he was supposed to deliver the package to an unknown individual in Washington, D.C., at which time he was to receive a payment of $400.

On August 7, 1995, Officer Dan Nelson of the Maryland State Police interviewed Mr. Ozuna after he executed a waiver of rights form. See Waiver of Rights Form Government Exhibit 1 (August 7, 1995). Mr. Ozuna told Officer Nelson that he was from New York, where he worked...