U.S. v. Perez-Velazquez

• Decision Date: 27 April 2007
• Docket Number: Criminal No. 05-324(DRD).
• Citation: 488 F.Supp.2d 82
• Parties: UNITED STATES of America, Plaintiff, v. Juan C. PEREZ-VELAZQUEZ, Defendants.
• Court: U.S. District Court — District of Puerto Rico

488 F.Supp.2d 82

UNITED STATES of America, Plaintiff, v. Juan C. PEREZ-VELAZQUEZ, Defendants.

Criminal No. 05-324(DRD).

United States District Court, D. Puerto Rico.

April 27, 2007.

COPYRIGHT MATERIAL OMITTED

Francisco M. Dolz-Sanchez, Francisco M. Dolz Law Office, Jorge L. Armenteros-Chervoni, San Juan, PR, for Defendants.

Scott H. Anderson, United States Attorney's Office, San Juan, PR, for Plaintiff.

AMENDED NUNC PRO TUNC OMNBUS ORDER APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORTS AND RECOMMENDATIONS (DOCKET ENTRIES NO. 91 AND 141), AND DENYING SUPPRESSION HEARING AND OTHER PENDING MATTERS (DOCKET NO. 117)

DOMINGUEZ, District Judge.

Pending before the Court are two Reports and Recommendations issued by the United States Magistrate Judge Velez-Rive ("Magistrate Judge") (Docket Entries No. 91 and 141); the appeals filed by defendant Juan C. Pérez-Velázquez' ("Pérez") (Docket Entries No. 98 and 145), and the Government's opposition (Docket No. 99) to the Report and Recommendation of August 21, 2006 (Docket No. 91), as well as the Omnibus Motion To Dismiss, Or, Alternatively To Suppress Evidence filed on December 15, 2006 by defendant Pérez (Docket No. 117)

A. Report and Recommendation of August 21, 2006 (Docket No. 91).

On February 16, 2006, Pérez filed a Motion To Suppress Evidence Under Franks,¹ Aiudi, And Knock And Announce Rule ("Motion") (Docket No. 43), on the grounds that the sworn statements submitted by the local agent in support of the search warrant issued by the local court contained false statements, leading the local court to a faulty finding of probable cause. On May 30, 2006, the Government replied (Docket No. 61), on the grounds that (a) Pérez' motion to suppress should be denied for being filed late, and failure to comply with this Court's orders;² (b) Pérez' arguments are supported on Puerto Rico law which is inapplicable in federal courts; (c) Pérez' arguments failed to meet the Franks threshold test,³ as the defendant has failed "to show any deliberate falsehood or reckless disregard for the truth supported by any offer of proof' nor has the defendant submitted any affidavits or sworn or reliable statements of witnesses in order to rebut the affidavit submitted by the local agent; (d) there is no requirement that the agent needs to corroborate the informant's source, as the purpose of the affidavit and the information received from the anonymous source is "to establish that there is a fair probability that contraband or evidence of a crime will be found in a particular place," United States v. Cochrane, 896 F.2d 635, 641 (1st Cir.1990); (e) the search warrant was directed at the apartment [and/or the automobile] where the criminal activity was [occurring], not to the person committing the offense; (f) the location where the surveillance agent was located or the vehicle being used for surveillance purposed is irrelevant; (g) Pérez alleges that the evidence seized by the local agents is illegal under Puerto Rico law, however, he fails to show how the actions of the local agents, if undertaken by federal agents, would be illegal under the laws and the United States Constitution; (h) Pérez alleges that local agents failed to knock and announce themselves before entering defendant's apartment, . in violation of the Fourth Amendment of the U.S. Constitution, based only on hearsay testimony of Pérez' neighbors; (i) local agents caught Pérez flushing narcotics, and Pérez has failed to show otherwise; (j) there has been no spoliation of evidence, as there is no proof that the surveillance camera found in Pérez' apartment was connected to a recording device,⁴ (k) all the evidence seized was classified pursuant to the local agent that seized it, and it was presented to all parties for ocular inspection indicating the amount and the location where the evidence was seized; (l) the authentication proceeding of the evidence seized will take at trial not at the ocular inspection; and (m) Pérez was charged in the Indictment for being part of a conspiracy, "making him accountable for all the narcotics seized, regardless of the location" (Docket No. 61).

On June 29, 2006, the Court referred to the Magistrate Judge the Motion To Suppress Evidence Under Franks, Aiudi, And Knock And Announce Rule ("Motion") (Docket No. 43) filed by Pérez; the Addendum To Motion To Suppress Evidence Under Franks, Aiudi, And Knock And Announce Rule, submitting the exhibits to the Motion (Docket No. 44); and the United States of America's Omnibus Response In Opposition To All Of Defendant's Motions (Docket No. 61).⁵ See Minutes of June 29, 2006 (Docket No. 70). A Report and Recommendation was issued on August 21, 2006 (Docket No. 91). The Magistrate Judge recommended that Pérez' motion to suppress (Docket No. 43) be denied. The Magistrate Judge appropriately forewarned Pérez pursuant to 28 U.S.C. § 636(b)(1)(C), that any written objections to the Report and Recommendation shall be filed with the Clerk of Court within the next ten (10) days upon receipt of the Report and Recommendation. Furthermore, Pérez was advised that failure to comply with 28 U.S.C. § 636(b)(1)(C) precluded any further appellate review. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994); United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988). See also Local Civil District Court Rules for the District of Puerto Rico, Rule 72(d). Except, of course, that an unopposed Report and Recommendation is reviewed under the clear error doctrine. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415 (5th Cir.1996); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305, (D.P.R2001) (discussing Advisory Committee Recommendation as to appropriate standard); Garcia v. I.N.S., 733 F.Supp. 1554 (M.D.Pa.1990).

The record shows that Pérez opposed the Report and Recommendation on September 22, 2006 (Docket Entries No. 98 and 100), that is, after the ten (10) day period had elapsed, but with leave of Court, after the Court granted two (2) motions requesting extension of time (Docket Entries No. 92 and 95). The record also shows that several motions related to Pérez' appeal were filed tardy by the defendant and without leave of Court, to wit, an Informative Motion Regarding Submission Of Memorandum Of Law In Support Of His Appeal Of Magistrate's Report And Recommendation Denying Suppression On the Pleadings filed on October 3, 2006 (Docket No. 102), wherein the defendant informed the Court that a memorandum of law would be filed by October 4, 2006; and, the defendant's Memorandum Of Law In Support Of His Appeal Of The Magistrate's Report And Recommendation Denying Suppression (Docket No. 105) filed on October 11, 2006, instead of October 4, 2006. However, since these motions were filed after the extension of time has elapsed, and without leave of Court, they shall not be considered by the Court in its review. Local Rules are designed to be followed not to be disregarded causing unequal treatment amongst litigants, and further punishing the diligent and rewarding the non-complying parties.

Pérez alleges that the Magistrate Judge erred as follows: (a) that Pérez "could no longer assert that he had joined the motions of his co-defendants," as "he retains derivative standing to assert that the search and seizure conducted of his codefendants was illegal;" (b) the Court's conclusion that "it could dispense with a hearing;" (c) "the court ascribes little value to Mr. Pérez' arguments regarding the impossibility of Agent Figueroa having seen what he says he saw;" (d) that Pérez "did not allege the statement [of Agent Figueroa] to have been made with actual falsity ...;" and (e) that "Agent Figueroa's affidavit, absent the above-mentioned false information could stand on its own to justify [the] search and seizure" (Docket No. 98).

On September 29, 2006, the Government filed a Motion In Opposition To Defendant's Appeal of the Magistrate's Report And Recommendation And Expansion Of Time (Docket No. 99). The Government alleges that Pérez has no standing to move for the suppression of evidence obtained from a search of a vehicle under the name of other co-defendant, as Pérez "has absolutely no expqctation of privacy in a vehicle he does not own, and did not possess at the time of the search" (Docket No. 99). The Court agrees. Pérez' argument of "derivative standing" is meritless, further constituting an undeveloped argument, as it is devoid of any legal authority.⁶

The Government also argues that Pérez' argument that purports to show that one of the local agents is corrupt, is also meritless as Pérez failed to meet the applicable Franks threshold test, as to "affiant's untruthfulness" (the alleged corrupt agent was not an affiant — he participated with eleven other agents in the execution of the search warrant). Docket No. 99. Pérez also alleges that the agents failed to knock and announce themselves before executing the search warrant. In support of this allegation, Pérez "offers the hearsay statement of some neighbors" (Docket No. 99). The Government raises concern as to the sufficiency and relevancy of the hearsay statements.

Lastly, the Government questions the request for a Franks hearing to entertain the issue of whether or not one of the local agents that executed the search warrant is corrupt. The Government further alleges that, "[a] Franks hearing has nothing to do with a warrant's execution, only with the veracity of the affidavit" (Docket No. 99). The Court agrees and explains in this opinion.

At the outset, the Court makes reference to the Minutes of December 9, 2005 (Docket No. 34), wherein the Court granted the defendants until January 16, 2006 to file the motion(s) to suppress, and specifically granted Pérez' counsel until January 16, 2006 to file the motion requesting a Franks hearing. The record shows that Pérez filed the motion to...