United States v. Larrahondo

• Decision Date: 15 August 2012
• Docket Number: Criminal No. 10–18–10 (JDB).
• Citation: 885 F.Supp.2d 209
• Parties: UNITED STATES of America v. Ramiro Anturi LARRAHONDO, Defendant.
• Court: U.S. District Court — District of Columbia

885 F.Supp.2d 209

UNITED STATES of America

v.Ramiro Anturi LARRAHONDO, Defendant.

Criminal No. 10–18–10 (JDB).

United States District Court,

District of Columbia.

Aug. 15, 2012.

Charles D. Griffith, Jr., Mark A. Maldonado, Stephen A. Sola, United States Department of Justice, Washington, DC, for United States of America.

Robert A. Feitel, Law Office of Robert Feitel, P.L.L.C., Sandi S. Rhee, Law Office of Sandi Rhee, Robert A. Spelke, The Law Office of Robert A. Spelke, Washington, DC, for Defendant.

MEMORANDUM OPINION & ORDER

JOHN D. BATES, District Judge.

At the time of his arrest on February 9, 2010, defendant Ramiro Anturi Larrahondo was a prosecutor in the nation of Colombia. Anturi's co-defendants are alleged to have been part of a maritime drug trafficking organization (“DTO”) that transported tons of cocaine intended for the United States from Colombia to Central America. The DTO allegedly made cash payments to Anturi in exchange for sensitive information about the investigation of the DTO and to protect the DTO from law enforcement. Anturi has been indicted on one count of conspiracy to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503 and 70506 and 18 U.S.C. § 2, and one count of conspiracy to distribute five kilograms or more of cocaine knowing and intending that the cocaine will be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959, 960 and 963 and 18 U.S.C. § 2.

Most co-defendants have pled guilty and others are engaged in plea discussions. Anturi's trial is scheduled to begin on October 15, 2012. Now before the Court are ten motions by the defendant and one notice and motion by the government. Anturi's motions pertain largely to evidentiary matters, as well as a few other issues. The government's notice and motion regards the introduction of evidence pursuant to Federal Rule of Evidence 404(b). A motions hearing was held on June 29, 2012.

For the reasons described below, the Court will essentially deny each of the defendant's ten motions, although the discussion herein may have certain implications for the government's pre-trial obligations as well as the presentation of evidence at trial. The Court will also grant the government's motion, finding that the evidence sought to be introduced is admissible under Rule 404(b), although it is not intrinsic to the charged crime.

I. Background

As explained in this Court's Order of September 29, 2011, denying Anturi's motion for a bill of particulars, the government has summarized seven pieces of evidence pertaining to its case against Anturi. See Order of Sept. 29, 2011 [Docket Entry 98] at 3. By the government's characterization, this evidence includes intercepted calls between Anturi and his co-conspirators,as well as two other individuals; recordings of conversations between Anturi and a confidential source; a bank receipt reflecting a bribe from the DTO to Anturi; a purported government document, provided by Anturi to the DTO, that contained information regarding the DTO's trafficking activities; documents retrieved from Anturi's computer drive about the DTO; and a transcript of an interview with Anturi conducted by a federal agent. Id. The government has alleged that the defendant provided sensitive information regarding the DTO and committed other acts in order to make it possible for the co-conspirators to continue drug trafficking without detection. Id. The government contends that these actions amount to aiding and abetting an ongoing conspiracy, making Anturi liable as a principal. Id. at 3–4.

II. Discussion

Anturi has filed ten motions. In the order that the motions were filed, he moves (1) for a pre-trial determination on the admissibility of alleged co-conspirator statements, (2) to exclude evidence of events predating his membership in the charged conspiracies, (3) for immediate production of transcripts, (4) for production of the confidential informant file of Jorge Baena, (5) to strike improper aliases, (6) to suppress post-arrest statements made to the Drug Enforcement Agency, (7) to suppress wiretap evidence, (8) to unseal the co-defendants' plea agreements and court proceedings, (9) to dismiss count one of the superseding indictment, and (10) to compel production of discovery. The government has filed a notice and motion regarding the introduction of evidence pursuant to Federal Rule of Evidence 404(b). The Court will address the defendant's motions in the order that each was filed and then address the government's notice and motion.

a. Anturi's motions for a pre-trial determination on the admissibility of alleged co-conspirator statements and to exclude events predating his membership in the charged conspiracies

Anturi has filed two related motions regarding the connection between evidence of drug trafficking that does not directly involve him and evidence involving him that does not directly involve drug trafficking. The first motion indicates that the government has provided to the defense audio recordings of approximately 140 phone calls, of which approximately 45 directly involve the defendant. Def.'s Mot. for a Pre–Trial Determination on the Admissibility of Alleged Co–Conspirator's Statements [Docket Entry 148] (“Def.'s Pre–Trial Deter. Mot.”) at 1. Anturi notes that under Federal Rule of Evidence 801(d)(2)(E), a statement is not considered hearsay if it is offered against a defendant and “was made by the [defendant's] coconspirator during and in furtherance of the conspiracy.” Def.'s Pre–Trial Deter. Mot. at 3–4. He relies on Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), for the proposition that, in order for such a statement to be admissible, the district court must find by a preponderance of evidence that a conspiracy existed, that the defendant and declarant were members of the conspiracy, and that the statement was made in furtherance of that conspiracy. Anturi argues that the government does not have sufficient evidence to connect him with the narcotics conspiracy because the phone calls directly involving him began almost seven months after the last seizure of cocaine, are with two persons who have never been identified as co-conspirators in the case, and appear to be unrelated to drug trafficking. Def.'s Pre–Trial Deter. Mot. at 4–5.

Anturi's second motion also contends that the government has insufficient evidence to connect Anturi to the drug trafficking conspiracy. Def.'s Mot. to Exclude Evidence of Events Predating His Membership in the Charged Conspiracies [Docket Entry 149] (“Def.'s Mot. to Exclude Predating Evidence”) at 1, 2. Anturi relies on United States v. Hitt, 107 F.Supp.2d 29 (D.D.C.2000), which in turn relies on Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), for the proposition that “after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment.” Grunewald, 353 U.S. at 401–02, 77 S.Ct. 963. Anturi indicates that, to his knowledge, the evidence involving drug trafficking occurred from December 2008 to April 2009, that he was not involved in the conspiracy during this time period, and that, in his view, the conspiracy terminated before he is alleged to have joined. Def.'s Mot. to Exclude Predating Evidence at 2–3.

The second motion also makes an argument about the effect of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on the determination to be made by the jury in this case. The defendant notes the broad scope of “Pinkerton liability”—“the well-settled principle of conspiracy law that someone who jointly undertakes a criminal activity with others is accountable for their reasonably foreseeable conduct in furtherance of the joint undertaking.” United States v. Saro, 24 F.3d 283, 288 (D.C.Cir.1994) (citing Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). He also notes the black letter rule that “with regard to liability for conspiracy, a defendant may be legally responsible for acts of coconspirators prior to that defendant's entry into the conspiracy.” United States v. Blackmon, 839 F.2d 900, 908–09 (2d Cir.1988). Anturi nonetheless argues that “the rules of drug attribution do not hold a coconspirator responsible for drug trafficking which took place before he joined the conspiracy.” Def.'s Mot. to Exclude Predating Evidence at 4. Anturi relies on United States v. Rodriguez–Gonzalez, 433 F.3d 165, 168 (1st Cir.2005), which, after noting that “[e]vents in a conspiracy prior to a defendant's joinder may be relevant,” including for “characterization of the conspiracy or Pinkerton liability,” concluded that “when it comes to sentencing, the guidelines say that a defendant is responsible only for losses that occurred and victims who were injured after he joined.” Anturi argues that it would be unfairly prejudicial under Federal Rule of Evidence 403 for the government to admit evidence of drug trafficking that is not attributable to him.

The Court will first address the defendant's argument about the relationship between Apprendi and Pinkerton liability, out of concern that Anturi has incorrectly perceived the nature of the charges against him. Put simply, the defendant's second motion misstates the law. Apprendi held that “convictions depend on findings by a jury (unless waived) of the elements of an offense.” United States v. Fields, 325 F.3d 286, 289 (D.C.Cir.2003) (citing Apprendi, 530 U.S. at 476–77, 120 S.Ct. 2348). The D.C. Circuit has applied this rule to drug quantity, where drug quantity is an element of the offense: “Where the drug quantity alters the...