United States v. Figueroa

• Decision Date: 25 April 1962
• Citation: 204 F. Supp. 641
• Parties: UNITED STATES of America v. Antonia FIGUEROA, Frank Figueroa, and Edmond Figueroa, Defendants.
• Court: U.S. District Court — Southern District of New York

204 F. Supp. 641

UNITED STATES of America v. Antonia FIGUEROA, Frank Figueroa, and Edmond Figueroa, Defendants.

United States District Court S. D. New York.

April 25, 1962.

Robert M. Morgenthau, U. S. Atty. for Southern District of New York, New York City, Ned D. Frank, Asst. U. S. Atty., of counsel, for United States.

Mark T. Smith, New York City, for defendant, Edmond Figueroa.

CASHIN, District Judge.

Defendant, Edmond Figueroa, has moved for a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. and for an order pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure suppressing certain evidence allegedly seized as a result of an unlawful search and seizure.

The facts are briefly as follows: In February 1961 undercover Agent Mangiaracina of the Federal Bureau of Narcotics was introduced by a special employee to Antonia and Frank Figueroa, codefendants. On February 21, 1961, this undercover agent purchased one ounce of heroin from Antonia Figueroa, who is no relation to the movant. Immediately before and after the sale she was observed entering 5-7 East 107th Street, Manhattan, New York. On February 28, 1961, the same agent, Anthony Mangiaracina, made a second one-ounce purchase. At this time Antonia Figueroa was again observed entering the same building before and after the sale and was also seen entering apartment 5 of this building by Agent Carrozo.

The narcotic agents had been originally "tipped off" about Antonia Figueroa by a special employee, Pete Woods. This Pete Woods had supplied information to Agent Ferro for a period of several years and all of the information received from him in the past had been found to be reliable. After the sale on February 28, 1961, the agents again communicated with this special employee to try and determine Antonia Figueroa's source of supply. Agent Ferro testified that the special employee told him that on one occasion he, the special employee, was able to observe Frank Figueroa, a codefendant, making a telephone call to his connection and he was able to obtain the first two digits of that number. The first digit was 3 and the second digit was 4. Agent Ferro then checked the telephone numbers listed to 5-7 East 107th Street and found that only two telephone numbers in this building could use the combination of the digits 3 and 4. One of these telephone numbers was listed to a Mrs. Rose Benitez in apartment number 5. The special employee had also informed Agent Ferro that the connection's nickname was "Moe" or "Elmo". After checking the files in his office, Agent Ferro determined Mrs. Rose Benitez was an aunt of defendant Edmond Figueroa and that his address was listed in a 1944 memorandum as 5-7 East 107th Street. Agent Ferro also obtained a photograph of Edmond Figueroa and ascertained that he had the nicknames of "Moe" and "Elmo". From the photograph, Agent Ferro remembered that he had seen defendant Edmond Figueroa in the vicinity of 107th Street and Madison Avenue hailing a taxicab at the conclusion of the purchase on February 28, 1961.

Arrangements were then made by the various agents connected with the case for Agent Mangiaracina to place an order for two ounces of heroin and to purchase only one, thus leaving one ounce with the connection. On March 29, 1961, this third sale was consummated. Sometime after 6:30 P.M. Antonia Figueroa was again observed entering and leaving 5-7 East 107th Street. She delivered one ounce of narcotics to Agent Mangiaracina and informed the agent that if he still wanted to buy the other ounce that her connection had the ounce in his apartment. This took place around 7:15 P.M. and shortly after that Antonia Figueroa was arrested in the vicinity of 107th Street and Madison Avenue. At this time she had $400, which had been given to her by Agent Mangiaracina, in her possession. After the arrest, Agents Carrozo and Ferro proceeded to and entered 5-7 East 107th Street. After waiting on the first floor landing for approximately one-half hour until 8:30 P.M., the agents saw a woman, who they later determined to be Mrs. Rose Benitez, place a key into the door of apartment 5 and open it. Agent Ferro testified that "At this point Agent Carrozo and I approached her and told her that we were federal officers and at this point she said, `Please'. We then entered the apartment. The apartment was dark except for some light coming out from under a door from a room on the left. Agent Carrozo knocked on the door and said that we were federal officers, `Open the door'. At this time we heard a scuffle in the room and we proceeded to push the door in." There were two men in the room, one of whom was the defendant, Edmond Figueroa, who was placed under arrest. The room was then searched for a little more than an hour and a small double glassine envelope containing 200 milligrams of cocaine and a large glassine envelope containing 38 grams of heroin were uncovered.

Agent Carrozo's testimony differs slightly from that of his fellow-agent Ferro's. Agent Carrozo testified that as Mrs. Rose Benitez opened the door, "* * * Agent Ferro and I came off the stairwell and I identified myself. I told her we were federal officers. She stuck her...