United States v. Lahey

• Decision Date: 08 August 2013
• Docket Number: Case No. 10–CR–765 (KMK).
• Citation: 967 F.Supp.2d 698
• Parties: UNITED STATES of America, v. Tracy LAHEY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

967 F.Supp.2d 698

UNITED STATES of America,

v.Tracy LAHEY, et al., Defendants.

Case No. 10–CR–765 (KMK).

United States District Court, S.D. New York.

Aug. 8, 2013.

Timothy Sini, Esq., Jeffrey Ehrlich Alberts, Esq., Anna Margaret Skotko, Esq., U.S. Attorney's Office, SDNY, New York & White Plains, NY, for the Government.

Paul Rinaldo, Esq., Grossman & Rinaldo, Forrest Hills, NY, for Defendant Robert Santiago.

Theodore Samuel Green, Esq., Green & Willstatter, White Plains, NY, for Defendant Walter Tarrats.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

On August 26, 2010, a Grand Jury returned a sealed Indictment charging Defendants with committing various narcotics and firearms crimes. (Dkt. No. 2.) Several days later, law enforcement officials arrested Defendants Robert Santiago (“Santiago” or “Comanche”) and Walter Tarrats (“Tarrats”) (collectively, “the Moving Defendants”), along with several others, and executed warrants to search multiple residences, including those associated with the Moving Defendants. The searches yielded physical evidence, including weapons and gang related paraphernalia. On August 2, 2011, the Government filed a Superceding Indictment. (Dkt. No. 53.) The Moving Defendants have moved to dismiss the Superceding Indictment as to them and/or to suppress the physical evidence from their residences. The Court denies Santiago's Motion in its entirety. The errors that Santiago has identified in the Government's presentation to the Grand Jury and in the search warrant affidavit are not prejudicial or material. Tarrats's Motion is granted insofar as he seeks suppression, but denied insofar as he seeks dismissal of the Superceding Indictment.¹

I. Background

A. Factual History

This case is the result of an eighteen-month undercover operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). Starting in March 2009, an ATF undercover agent (“the UC”) infiltrated the Pagans Outlaw Motorcycle Club (“the Pagans”). (Mem. of Law of the U.S. in Opp'n to Defs.' Pretrial Mots. 5 (Dkt. No. 84).) While in role, the UC at times carried an audio recorder, which he used to capture events relevant to ATF's investigation of the Pagans. ( See Post Hr'g Mem. of Law of the U.S. in Opp'n to Defs.' Mots. To Suppress Evidence (“Gov't Mem.”) 4 & n. 1 (Dkt. No. 145).) Due to safety concerns, the UC could not break role during the investigation, and he accordingly had to convey information, including audio recordings, to other ATF agents, who were preparing the case against Defendants.² When the time came for the Government to present its case to the Grand Jury for an indictment and, later, to submit affidavits in support of search warrants, the UC was still in role, and other ATF agents, including Special Agent Brian DiGirolamo, who was the case agent for the investigation, and Special Agent Robert Grunder, were responsible for performing these tasks. ( See Hr'g Tr. 26–27, Oct. 1, 2012.)

On August 26, 2010, following testimony by Special Agent DiGirolamo, a Grand Jury returned an Indictment under seal, charging seven individuals, including the Moving Defendants, with participating in a conspiracy to distribute narcotics from at least 2009 through in or about 2010, and with various firearms crimes. (Dkt. No. 2.) On September 13, 2010, Special Agent Grunder submitted an affidavit in support of a search warrant for premises associated with Defendant Santiago (“the Santiago Affidavit”), (Gov't Ex. 201 (“GX 201”)), and, the next day, Special Agent DiGirolamo submitted an affidavit in support of a search warrant for certain premises and properties associated with other Defendants, including Defendant Tarrats (“the Tarrats Affidavit”), (Gov't Ex. 3502–G (“GX 3502–G”)), (collectively, “the challenged affidavits”). Magistrate judges in various federal districts in New York, New Jersey, and Maryland issued these two and several other search warrants, and, on September 15, 2010, ATF agents executed them, arresting Defendants and seizing contraband at their residences. Special Agent DiGirolamo, as the case agent, was primarily responsible for preparing the various search warrant affidavits, including those that he did not personally swear out. ( See Hr'g Tr. 19–21, 157, Oct. 1, 2012.) Special Agent DiGirolamo explained that in preparing the affidavits, he relied on his discussions with the UC, reports prepared by Special Agent Kotchian that documented information relayed by the UC, (“the Kotchian Reports”), and his own review of the UC's audio recordings. ( See id. at 20–21, 30, 119.)

The challenged affidavits describe, among other things, a party held at Defendant Lahey's property on May 22, 2010 in Swan Lake, New York (“the Lahey Party”)—which party the UC attended, pretending to be a Pagans Member. The Moving Defendants' arguments in support of dismissal and suppression are largely based on alleged discrepancies between the Governments' description of various aspects of the Lahey Party—the sequence of events, the nature of the party, the Moving Defendants' activities during the party, etc.—and the actual aspects of the party, as revealed by the UC's partial audio recordings from May 22, 2010. In the challenged affidavits, which are identical in most respects, the Government affiants offered the following allegations regarding the Lahey Party:

9. According to the UC, members of the Pagans frequently gathered for meetings and/or parties, and purchased, used, and distributed narcotics, including, among others, cocaine, crack cocaine, amphetamines, prescription medications, and marijuana, during those gatherings. The Pagans members sometimes purchased narcotics from the members of other outlaw motorcycle gangs, including the Mongols....

...

11. According to the UC, on or about May 22, 2010, the UC attended a Pagans gathering at the residence of TRACY LAHEY in Swan Lake, New York, and where numerous other members of the Pagans were present, including, among others: CUEVAS, LAHEY, YOUMANS,[ ³] BLAIR,[ ⁴] TARRATS, and LEGG. According to the UC, the followingevents occurred during the gathering:

a. [Doc] told the UC that members of the Mongols Outlaw Motorcycle Gang would be coming to the party and would be bringing cocaine to sell. [Doc] asked the UC if the UC wanted to purchase some cocaine. The UC told [Doc] that he/she wanted to buy an “eight ball” and two 1–gram bags of cocaine. [Doc] told the UC that he would let the UC know the price for the cocaine.

b. [Doc] also showed the UC multiple firearms that were located inside LAHEY's residence, including a shotgun with a shortened barrel above the front door of the Residence; a shotgun with a shortened barrel inside a bedroom of the Residence; a High–Point 9 millimeter rifle; and a small caliber handgun in LAHEY's waistband, among others.

c. That afternoon, [Doc] and [Roadblock] arranged for a security assignments [sic] for the Pagans gathering. The UC saw [Doc] put a High–Point rifle in the front seat of a pick-up truck located at one of the two security check-points, and [Doc] told the UC that a second rifle was placed at the second security check-point.

d. [Doc] assigned the UC and another Pagans member to conduct security at the two security check-points from noon to 3:00 pm.

e. At approximately 3:00 p.m., TARRATS and LEGG replaced the UC and the other Pagans member at the respective security check-points. The UC told LEGG that the High–Point rifle was placed in the front seat of the pick-up truck. During the course of the afternoon, the UC observed LEGG and TARRATS at both security check-points and saw them alternate security check-points.

f. Later that afternoon, members of the Mongols Motorcycle Club arrived at LAHEY's residence, and the UC was introduced to “Comanche,” the president of the Mongols Upstate New York Chapter, who was later identified as [Santiago].

g. SANTIAGO arrived at LAHEY's residence with a woman who was carrying a bag. The woman was identified to the UC as SANTIAGO's “old lady” ( i.e., his girlfriend or wife). The UC also saw SANTIAGO get out of his car carrying an object wrapped in what appeared to be a t-shirt. SANTIAGO walked into the porch area of LAHEY's house and removed a shotgun with a shortened barrel from the t-shirt. SANTIAGO showed [Doc] the sawed-off shotgun. SANTIAGO, [DOC], LAHEY, and the woman accompanying SANTIAGO went into a bedroom in the house and closed the door.

h. A short time later, [Doc] and LAHEY left the bedroom and [Doc] approached the UC. [Doc] told the UC that the eight-ball of cocaine would cost $150 and each 1–gram bag of cocaine would cost $50. The UC handed [Doc] $250 in cash, and saw [Doc] hand that money to LAHEY. The UC subsequently observed LAHEY hand an amount of cash to SANTIAGO.

i. Approximately 45 minutes later, [Doc] asked the UC if LAHEY had given the UC cocaine, and the UC responded that LAHEY had not. The UC then saw [Doc] speak to LAHEY. Within a few minutes, LAHEY approached the UC and asked the UC to come to LAHEY's bedroom. As the UC and LAHEY entered the bedroom, SANTIAGO walked out of the bedroom.

j. When the UC entered the bedroom, the UC saw a large quantity of [cocaine] on a table.... The woman who arrived with SANTIAGO and another woman were seated at the table cutting and packaging the cocaine into small green plastic bags....

(GX 3502–G ¶¶ 9, 11 (footnote omitted); see also GX 201 ¶¶ 10–11.) The Santiago Affidavit contains an additional allegation describing a conversation between the UC and Doc regarding the Lahey Party:

According to the UC, on or about May 29, 2010, [Doc] approached the UC and asked the UC if he liked the cocaine that he/she had purchased at LAHEY's residence the previous weekend. [Doc] told the UC that [Santiago] had provided the cocaine sold at LAHEY's residence that weekend. [Doc] also told the UC that [Santiago] wanted to sell more “weight” and asked the UC if the UC would be interested in selling cocaine with [Doc.]

(GX 201 ¶...