U.S. v. Ramirez, CR 99-0043(PLF).
| Decision Date | 17 June 1999 |
| Docket Number | No. CR 99-0043(PLF).,CR 99-0043(PLF). |
| Citation | 54 F.Supp.2d 25 |
| Parties | UNITED STATES of America v. Roger RAMIREZ, et al. Defendants. |
| Court | U.S. District Court — District of Columbia |
Thomas Earl Patton, III, Tighe, Patton, Tabackman, Babbin, LLC, Washington, DC, Edward Brian Mac Mahon, Jr., Middleburg, VA, for plaintiff.
Joe Robert Caldwell, Jr., Bardford Mann Berry, Miller, Cassidy, Larroca, Lewin, L.L.P., Washington, DC, for defendant.
This matter came before the Court for a hearing on approximately twenty motions filed by four of the seven defendants originally charged in this case. Prior to the hearing on the motions, defendants Roger Ramirez and Jose Ismael Medina-Torres entered guilty pleas, and the motions they had filed therefore became moot and were not argued. Defendant Pedro Agramonte, who had been a fugitive since the filing of the indictment, was only recently brought to the District of Columbia and arraigned. The Court therefore has given his attorney additional time to file motions. The Court heard testimony and argument on the motions filed by defendants Miguel Romero, Jose Diplan, Jose Marquez and Antonio DeJesus Alberto for three full days on May 24, 25 and 26, 1999.1
On March 2, 1999, a grand jury returned a thirteen-count indictment against seven individuals charging all of them with one count of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and containing several substantive counts of heroin distribution, possession with intent to distribute heroin and aiding and abetting in violation of various provisions of the Controlled Substances Act, 21 U.S.C. § 801 et seq. After defendants Ramirez and Medina-Torres entered guilty pleas, only five counts remained viable. In Count I, defendants Romero, Diplan, Marquez, Agramonte and Alberto all stood charged with conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. In Count X, defendants Romero, Diplan, Marquez and Agramonte were charged with possession with intent to distribute 100 grams or more of heroin and aiding and abetting on February 4, 1999. Count XI related to the same alleged incident but also alleged that it took place within 1,000 feet of a school. See 21 U.S.C. § 860(a). In Count XII, defendant Alberto alone was charged with unlawful possession with intent to distribute heroin on February 9, 1999. Count XIII related to the same alleged event but also alleged that it occurred within 1,000 feet of a school.
On June 1, 1999, following the hearing on these motions, a grand jury returned a nine-count superseding indictment against defendants Romero, Diplan, Marquez, Agramonte and Alberto.2 Count I charges all five defendants with a conspiracy to distribute and possess with intent to distribute narcotics, beginning in the spring of 1998 and concluding on or about February 9, 1999. This conspiracy charge involves not only heroin but also cocaine and cocaine base or crack cocaine. Count II charges defendant Alberto with distribution of cocaine base on November 30, 1998. Counts III and IV charges defendant Agramonte with distribution of cocaine base and aiding and abetting on December 7, 1998, the latter count adding the allegation that the alleged conduct occurred within 1,000 feet of a school. Counts V and VI are identical to Counts X and XI of the earlier indictment and include allegations against all defendants except Alberto. Counts VII and VIII are identical to Counts XII and XIII of the earlier indictment and relate only to defendant Alberto and his alleged conduct on February 9, 1999. Count IX charges defendant Agramonte with witness tampering in violation of 18 U.S.C. § 1512(b).
The Court heard evidence on several motions to suppress evidence: (1) defendant Alberto's motion to suppress physical evidence seized pursuant to a search warrant from 4104 14th Street, N.W., Apt. 3, and his motion to suppress physical evidence seized from a blue Honda he was driving on February 9, 1999; (2) defendant Marquez's motion to suppress statements allegedly made by him to the DEA; and (3) defendant Romero's motion to suppress a post-arrest statement allegedly made by him to the DEA. After hearing argument, the Court denied defendant Alberto's two motions and defendant Marquez's motion, announcing its findings and conclusions from the Bench. At the request of counsel for defendant Romero, the Court postponed argument and decision on defendant Romero's motion until after it receives a report with respect to Mr. Romero's competency to stand trial, that issue having arisen during the course of the hearing.
The Court postponed argument on defendant Alberto's motion to suppress eyewitness identification testimony because it now appears that other defendants may file similar motions and the same witnesses will be relevant to all such motions. It also postponed argument on defendant Marquez's motion to suppress recorded conversations because additional recordings have only recently been provided and counsel requested an opportunity to review all tapes that might raise similar issues. Finally, defendant Alberto withdrew his motion to suppress statements (even though the Court had already heard substantial evidence with respect to the statements) after the government represented that it would not use any statements made by defendant Alberto in its case in chief. If the government seeks to introduce such statements in rebuttal, the Court then will decide the question of their voluntariness before permitting the government to offer them in the presence of the jury.3
The Court heard argument on the motions of defendants Romero and Diplan to review and remove Magistrate Judge Kay's order of pretrial detention and the motion of defendant Marquez to further modify his conditions of release, the Court having previously released him to the Intensive Supervision Program. The Court took these motions under advisement. It now has resolved the motions of defendants Diplan and Marquez in separate orders issued this same day. It has postponed decision on the motion of defendant Romero pending the results of his competency evaluation.
The Court also considered the issue of any apparent or potential conflict of interest on the part of counsel for defendant Marquez. After hearing from both defense counsel and counsel for the government, the Court addressed Mr. Marquez personally on these matters. For the reasons stated in court, the Court concluded both that there was no actual or apparent conflict of interest and that the potential for a conflict arising was remote. It also concluded that Mr. Marquez fully understood the potential problem and nevertheless wished to waive his right to conflict-free counsel and proceed with his present counsel.
The Court and counsel agreed that it would be appropriate to postpone argument on the following motions until after the grand jury returned the superseding indictment: (1) defendant Marquez's motion for severance; (2) the motions of defendants Alberto, Diplan, Marquez and Romero for a pretrial determination on the existence of a conspiracy and a pretrial ruling on the admissibility of co-conspirators' statements (the so-called "James hearing"); (3) the government's motion for leave to introduce other crimes evidence under Rule 404(b) of the Federal Rules of Evidence; and (4) any and all motions to be filed by defendant Agramonte. Those motions and all others are now scheduled for argument on August 17 and August 18, 1999. See Order of June 8, 1999.
Finally, the Court arraigned defendants on the superseding indictment on June 4, 1999. The Court did not hear any new argument on the pending motions. Counsel did make additional representations to the Court at that time regarding what discovery material had been provided to defendants.
The remaining matters before the Court on which it heard argument relate to defendants' requests for bills of particulars and discovery generally and the government's Brady obligations. The Court turns now to those matters.
With respect to Count I, the conspiracy count, defendants Romero, Marquez and Alberto request a bill of particulars as to (1) the identities of all co-conspirators not named in the indictment; (2) the specific overt acts taken in furtherance of the alleged conspiracy and to whom each such act is attributed; (3) the time, place, date and participants for each meeting, conversation or agreement in which each defendant is alleged to have participated; (4) the specific date each defendant is said to have entered the conspiracy; (5) the amount of drugs attributable to each defendant; and (6) any and all specific evidence of each defendant's having acted in concert with others.4 The Court finds that defendants are entitled to a bill of particulars as to some but not all of the items they have requested.
"Under [Rule 7(f) of] the Federal Rules of Criminal Procedure, it is within the sound discretion of the court to determine whether a bill of particulars should be provided," and the Court should grant such motions when "necessary to prevent unfair surprise at trial." United States v. Espy, 989 F.Supp. 17, 34 (D.D.C.1997); see United States v. Butler, 822 F.2d 1191, 1192-93 (D.C.Cir.1987). The Court must strike a "prudent balance" between the legitimate interests of the government and those of the defendants. United States v. MacFarlane, 759 F.Supp. 1163, 1169 (W.D.Pa.1991). A bill of particulars is not a discovery tool or a devise for allowing the defense to preview the government's theories or evidence. It properly includes clarification of the indictment, not the government's proof of its case. United States v. Smith, 341 F.Supp. 687, 690 (N.D.Ga. 1972).
Unlike the general federal conspiracy statute, see 18 U.S.C. § 371, the conspiracy...
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