United States v. Cresta, Crim. No. 84-0009-B.

• Decision Date: 30 July 1984
• Docket Number: Crim. No. 84-0009-B.
• Citation: 592 F. Supp. 889
• Parties: UNITED STATES of America v. Robert D. CRESTA, et al.
• Court: U.S. District Court — District of Maine

592 F. Supp. 889

UNITED STATES of America v. Robert D. CRESTA, et al.

Crim. No. 84-0009-B.

United States District Court, D. Maine.

July 30, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard S. Cohen, U.S. Atty., Joseph H. Groff, III, Asst. U.S. Atty., Portland, Maine, for U.S.A.

Philip Castleman, Springfield, Mass., for defendant Robert T. Cresta.

Joseph Flak, Boston, Mass., for defendant John J. Gillen, Jr.

Jeffrey A. Thaler, Richardson, Tyler & Troubh, Portland, Maine, for defendant Douglas A. Hardy, Jr.

Daniel Barrett, Cloutier, Barrett, Cloutier & Conley, Portland, Maine, for defendant Douglas A. Hardy, Sr.

Ronald Chisholm, Boston, Mass., for defendant Richard T. Ford.

Neal L. Weinstein, Old Orchard Beach, Maine, for defendant Edward W. McCauley.

David C. Pomeroy, Portland, Maine, for defendant Manford J. Porter.

John S. Campbell, Portland, Maine, for defendant George B. Trundy.

Dan Warren, Bean, Sawyer & Warren, Scarborough, Maine, for defendant Edward Joseph Welch, Jr.

Mark Dunlap, Dunlap & O'Brien, Portland, Maine, for defendant Ernesto Agudelo.

Brian F. Gilligan, Milton, Mass., Julio C. Codias, Miami, Fla., for defendant, Gabriel Caravajal.

John C. McBride, Boston, Mass., for defendant Guido Impemba.

Robert J. Wheeler, Jr., Boston, Mass., for defendant Sherree Rogers.

Stephen Weymouth, Boston, Mass., for defendant John Doe No. 1 Anthony Gravallese.

Paul Buckley, Milton, Mass., for defendant John Doe No. 3 Marino Sarno.

MEMORANDUM OF OPINION AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS

GIGNOUX, District Judge.

Eighteen defendants are charged in a two-count indictment with conspiracy to possess with intent to distribute more than 1000 pounds of marijuana in violation of 21 U.S.C. §§ 846, 841(b)(6) (Count I) and with conspiracy to import a large quantity of marijuana into the United States in violation of 21 U.S.C. §§ 960, 963 (Count II). Presently before the Court are defendants' motions to suppress evidence pursuant to Fed.R.Crim.P. 12(b)(3) and 41, treated as adopted by all defendants. An evidentiary hearing has been held, the issues have been comprehensively briefed and argued by counsel, and the following memorandum opinion contains the Court's findings of fact and conclusions of law as required by Fed.R.Crim.P. 12(e).

I. The Facts

A. The Preliminary Investigation

The investigation that led to the instant indictment began in early November 1983. On November 6, 1983, agents of the Drug Enforcement Administration (DEA) in Boston informed DEA Special Agent Michael Cunniff of the joint DEA/Maine State Police (MSP) Anti-Smuggling Task Force that they anticipated the arrival of a large shipment of marijuana along the Maine coast. From the Boston agents, Cunniff learned that defendant Manford Porter, a 6'5" fisherman from Gloucester, Massachusetts, acting under the direction of defendant Guido Impemba and several Colombians, including defendants Gabriel Caravajal, Ernesto Agudelo and Israel Acevedo, was suspected to be in charge of arranging for the marijuana to be unloaded and delivered into the United States. By late November, Cunniff was informed that the Boston agents had information that a large coastal vessel named "Adina" or "Hadina" was en route from Colombia and would be met by fishing vessels which would transport the marijuana to an offloading site in Maine. On December 6, a Coast Guard aircraft located a vessel named "Adina" in the Gulf of Maine at 41 degrees 40 minutes latitude north by 66 degrees longitude west. Thereafter, Coast Guard aircraft continued surveillance of the vessel.

Independently, on December 9, a Rockland, Maine fisherman named Robert Kenney, who had been arrested in connection with a previous marijuana smuggling prosecution in Maine, met with Cunniff, Trooper Leslie Bridges (MSP) and Trooper Michael Vittum (MSP) at the United States Attorney's Office in Bangor. Kenney reported that defendant George Trundy had contacted him on December 4, and was looking for a fishing boat and crew to transport 50,000 pounds of marijuana from a mothership to a herring pumping station in Rockland. Trundy described the vessel to Kenney as a large blue freighter with a white wheelhouse located 200 miles off the Maine coast at 66 degrees west longitude by 42 degrees north latitude. Trundy told Kenney that he was working for a fisherman from Gloucester called "Manny" who was "big, tall, rugged and mean." Trundy planned to take some of the marijuana to Wooden Ball Island in Penobscot Bay and was looking for someone to take the remaining marijuana to a herring pumping station near Sea-Pro, Inc. in Rockland, where it would be transferred to a tractor trailer. According to Trundy, the transfer of marijuana at sea was expected to take place on the afternoon or night of December 10.

Based upon this information, Cunniff advised DEA Group Supervisor Ronald Garabotto in Boston to contact the Coast Guard. In response to a request by Garabotto, the Coast Guard dispatched the U.S. Coast Guard Cutter Unimak to the location in the Gulf of Maine reported to Kenney by Trundy. In the early morning of December 10, the Coast Guard intercepted and boarded the Adina and discovered approximately 1000 bales which tested positively for marijuana hidden in the holds under a load of cement. The Coast Guard relayed this information to the investigating agents in Maine.

Meanwhile, on land, officers investigating the Rockland area became suspicious when they observed a meeting between the occupant of a blue 1983 Dodge Aries (Mass. # 644-572) and three occupants of a blue Renault (N.H. # 221-955) at 2:30 p.m., December 10, in the parking lot of a Burger King Restaurant on Route 1 in Rockland. Cunniff arrived at the Burger King at about 2:45 p.m. with Corporal Terrance Parsons and Trooper Vittum in time to observe two of the individuals in the Renault. He later identified these individuals as defendants Impemba and Agudelo.

B. The Kenney Tapes

At the December 9 meeting at the United States Attorney's Office in Bangor with Cunniff, Bridges and Vittum, Kenney agreed to allow the agents to record his telephone conversations with the suspected conspirators. In exchange for his cooperation, Cunniff promised to inform the sentencing judge in the pending smuggling prosecution of Kenney's assistance and to recommend to that judge that Kenney serve his prison sentence at a designated institution. Cunniff explained the equipment that was to be used to record the conversations, and Kenney said he understood and agreed. Thereafter, the officers recorded seven telephone calls placed by Kenney on December 9 and 10. Before each call the same procedure was followed, and Kenney gave his consent to the recording.

Kenney made the first consensually-recorded telephone call from the Bangor United States Attorney's office to Trundy's residence in Stonington, Maine at 3:40 p.m. on December 9. During that call, Kenney discussed weather conditions with Trundy and agreed to speak with him again the next day. On December 10, at 1:40 p.m., Kenney placed a second consensually-recorded call to Trundy from the DEA command post at Room 129 of the Samoset Hotel in Rockland. Trundy said he had been working on his boat and Kenney arranged to call him at another number later.

At 2:50 p.m. on December 10, Kenney placed a third consensually-recorded call from the Samoset Hotel to Trundy at a number listed to a pay phone in Rockland. Trundy speculated as to the time the mothership would reach the rendezvous point in the Gulf of Maine and told Kenney that the vessel was in radio contact with people in New Hampshire. Trundy also discussed preparations for offloading the marijuana once it reached shore. He reported that people who would help unload the vessel and load the tractor trailer were staying at the Navigator Motel in Rockland under the name Green. According to Trundy, the tractor trailer operator planned to leave the trailer on the dock and would tell the watchman that he was waiting for a load of frozen herring.

At 5:03 p.m. on December 10, Kenney spoke again with Trundy in a fourth consensually-recorded telephone conversation from the Samoset Hotel. Trundy said he still was having problems with his boat and was thinking of meeting the mothership in a 40-foot open Novi boat instead. He told Kenney that the driver of the tractor trailer would leave for Rockland upon a signal from Trundy. When asked by Kenney, Trundy said that his contact at the Navigator Motel was someone named "Manny" and that he was registered under the name Jack Green. At 5:35 p.m. on December 10, Kenney placed a fifth consensually-recorded call from the Samoset Hotel to Trundy in which Trundy said that the offloading crew at the Navigator Motel was in Room 106 and had changed the room registration to the name Parker. Trundy then instructed Kenney to call the Navigator and ask for Mr. Parker. In this conversation, Trundy described the tractor trailer driver in greater detail as a young man named Doug with a beard, glasses and a squeaky voice. At the end of the conversation, Trundy and Kenney arranged to meet later at the Wayfarer Lounge in Rockland.

Following Trundy's instruction, Kenney placed a sixth consensually-recorded call from the Samoset Hotel to the Navigator Motel at 6:00 p.m. on December 10 and asked for Mr. Parker. "Parker" said he had been waiting for Kenney and wanted to meet with him. To enable Kenney to recognize him, "Parker" described himself as wearing a plaid jacket and said he was sitting in the piano lounge of the Navigator Motel near the ladies' room with one or two others and eating chicken wings.

Based on the information obtained through Kenney, investigating agents established surveillance in the lounge of the Navigator Motel. At approximately 6:15 p.m. on December 10, Vittum, Parsons and Trooper Charles Stevens (MSP) observed a large 6'5" man, later identified as defendant Porter, wearing a plaid jacket and...