United States v. Solano
| Decision Date | 05 September 2018 |
| Docket Number | 16-CR-00535 (LDH) |
| Citation | 412 F.Supp.3d 187 |
| Parties | UNITED STATES of America v. Juan SOLANO, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Alexander Mindlin, United States Attorney's Office, Brooklyn, NY, for United States of America.
Defendant Juan Solano was charged in a superseding indictment, dated August 2, 2017, with two counts. Count One charged Solano with participating in a conspiracy to distribute and possess with the intent to distribute five kilograms or more of a substance containing cocaine, a Schedule II controlled substance, contrary to 21 U.S.C. § 841(a)(1). Count Two charged Solano with attempting to distribute and possess with the intent to distribute five kilograms or more of a substance containing cocaine. The indictment also included a criminal forfeiture allegation. On August 8, 2017, Solano pleaded not guilty as to both counts.
The Court held a jury trial commencing on November 13, 2017. At the close of the Government's case, Defendant Solano moved for a judgment of acquittal. The motion was denied. On November 17, 2017, the jury returned a verdict of not guilty on Count One and guilty on Count Two of the Superseding Indictment.
Defendant Solano moves, pursuant to Federal Rule of Criminal Procedure 29(b), for a judgment of acquittal, or in the alternative, a new trial pursuant to Rule 33(a). (See Mot. J. Acquittal, ECF No. 70.)
On July 9, 2014, Customs and Border Protection ("CBP") agents at a warehouse in Elizabeth, New Jersey discovered cocaine hidden inside of a shipping container, which was designated to contain plantains. (Tr. 222–26.) Upon the discovery, the CBP agents removed the cocaine from the container and placed it under surveillance. (Tr. 226.) The next day, on July 10, 2014, Solano, a truck driver by trade, was observed retrieving the container by Homeland Security Investigations Special Agent Brian Dalrymple. (Tr. 227–28.) Subsequently, Special Agent Dalrymple conducted an interview of Solano. (Tr. 228.) Solano was not arrested. (Id. ) At the conclusion of the interview, Special Agent Dalrymple provided Solano with his phone number. (Tr. 221–22.)
On January 7, 2016, CBP agents, at Red Hook Terminal in Brooklyn, New York discovered cocaine and heroin inside of a shipping container. (Tr. 299–303, 312, 313.) As with the July 2014 container, the manifest indicated that the container held produce. (Id. ) Again, CBP agents removed the cocaine from the container and placed it under surveillance. (Tr. 302–04.) Four days later, on January 11, 2016, Solano retrieved the container and drove it to a warehouse in New Jersey. (Tr. 303–04, 316.) Once at the warehouse, Solano waited for approximately two hours before driving the container to a truck yard where he left it and then returned home. (Tr. 316.) On January 12, 2016, Solano again retrieved the container and then delivered it to a warehouse in the Bronx. (Tr. 317.) Subsequently, on January 26th and 27th of 2016, Task Force Officer Michael Corvi interviewed Solano about the container. (Tr. 304, 319–20.) During the interview, Solano maintained that he was unaware that the container contained narcotics. (Id. ) Solano was not arrested. (Tr. 320, 501.)
On June 1, 2016, CBP agents inspected a container at Red Hook Terminal in Brooklyn, New York, that, according to the manifest contained produce, such as sour oranges and peppers. (Tr. 48–49, 95.) The inspection of the container revealed that a white, powdery substance was hidden in the pallets used to hold the produce. (Tr. 36–38, 50–52.) The substance tested positive for cocaine, with a purity level ranging from 50–60%. (Tr. 37, 86–97.) In total, the cocaine weighed 13.59 kilograms. (Tr. 38, 41.)
CBP agents then placed an agricultural hold on the container and determined that they would conduct a "controlled delivery" of the cocaine.3 (Tr. 100.) The agricultural hold was subsequently lifted, and on June 6, 2016, CBP agents began to surveil the container. (Tr. 101–02.)
On June 7, 2016, at 8:15 a.m., Solano received a call from Jimmy Machuca, an importer of "agriculture and seafood." (Tr. 133, 401, 516.) Machuca indicated that he wanted Solano to pick up a container from Red Hook Terminal and deliver it to a location in the Bronx. (Tr. 485–86.) At 8:40 a.m., Solano and Machuca began to exchange text messages regarding the pick-up and drop-off instructions for the container at Red Hook Terminal. (Tr. 133–34.) By 9:00 a.m., Solano had arrived at a Bronx warehouse to complete a separate delivery for Javier Montalvo, an administrative manager tasked with arranging container deliveries from Ecuador to the United States. (Tr. 133, 423, 485, 517.) While completing that delivery, Solano and Montalvo discussed the container at Red Hook Terminal. (Tr. 485–86, 518.) Among other things, Montalvo informed Solano that another driver had refused to pick up the Red Hook Terminal container because "something about it smelled bad." (Tr. 429–30, 487, 515, 549.) Montalvo also advised Solano to "[b]e careful with Machuca." (Tr. 549.) Solano testified that Montalvo's admonishment made him "suspicious." (Tr. 497.)
At 11:34 a.m., Solano received a text message from Machuca containing information concerning the pick-up and delivery of the container at Red Hook Terminal. (Tr. 134.) At 2:23 p.m., Solano entered Red Hook Terminal. (Tr. 62, 133–34.) Upon entering the terminal, he noticed surveillance vehicles and became concerned that he was doing "something bad." (Tr. 491.) At 2:29 p.m., Solano was photographed hitching the container to his truck. (Tr. 106–07.) At 2:35 p.m., Solano placed the first of three calls with Special Agent Dalrymple. (Tr. 135, 215, 520.) During the first call, Solano told Special Agent Dalrymple that he had not yet entered Red Hook Terminal and that he was concerned something was wrong with the container he was intending to pick up. (Tr. 229–31.) Before the call ended, he asked Special Agent Dalrymple to check on the container and let him know if it was okay to pick it up because he did not want to get into trouble for transporting another container. (Tr. 229.) By 2:47 p.m., Solano had loaded the container and exited Red Hook Terminal, driving towards the Bronx. (Tr. 63, 108, 136.) At 3:01 p.m., Solano had the second call with Special Agent Dalrymple. (Tr. 136, 140.) At the time of the second call, Solano was on or around the Manhattan Bridge. (Tr. 136, 140.) Solano told Special Agent Dalrymple that he had nothing to do with the container. (Tr. 245.) The third call between Solano and Special Agent Dalrymple occurred at 3:11 p.m., at which time, Solano was in lower Manhattan. (Tr. 136, 141.) On the call, Special Agent Dalrymple told Solano that the container had been placed on an agricultural hold but was now okay to be picked up. (Tr. 246.) Solano then told Special Agent Dalrymple that a person from Ecuador named [Javier] told him to "be careful" with Machuca. (Tr. 247.) When Special Agent Dalrymple asked Solano what Javier meant by "be careful," Solano told him about a woman who was arrested for transporting heroin into the United States in liquor bottles; according to Solano, the heroin actually belonged to the woman's brother-in-law and the woman was unaware of the bottles' content. (Tr. 247.) At some point after the phone call, Solano arrived at the delivery location in the Bronx, where he was arrested. (Tr. 113.)
Upon his arrest, Solano was given Miranda warnings and underwent two interviews by agents of Homeland Security Investigations. Special Agent Lennis Barrois and Task Force Officer Corvi conducted the first interview. (Tr. 165, 190, 305, 323.) During the interview, Solano stated that Edwin Pacheco was supposed to pick up the container for Machuca, but did not do so because he was not feeling well. (Tr. 114, 305, 329.) Solano also indicated that he received a warning from Montalvo that Machuca was bad and the load was suspicious. (Tr. 115, 329.) Solano maintained that he understood Montalvo's statement to mean that Machuca wrote "bad checks." (Tr. 115.) Solano also stated that he did not know that the container contained drugs. (Tr. 191, 305.) Once Solano had completed his statement, Special Agent Barrois informed Solano that he did not believe Solano was being truthful. (Tr. 191.) Special Agent Barrois then ended the interview and placed Solano in a holding cell. (Tr. 116, 191, 305, 326.)
Subsequently, Supervising Special Agent Robert Etienne, Task Force Officer Corvi, and Special Agent John Malone conducted a second interview of Solano. (Tr. 305, 327, 355.) During this second interview, Solano again indicated that Pacheco was supposed to pick up the container. This time, however, Solano stated that Pacheco did not retrieve the container because Pacheco felt that something was "wrong," "suspicious," and "bad" about the container. (Tr. 356.) As in his first interview, he noted that Montalvo warned him to be careful because the container was bad. (Tr. 305–06, 328–29, 356.) However, unlike his first interview, Solano admitted that he knew there were drugs in the container when Montalvo told him to be careful. (Tr. 305–06, 328–29, 359.) Solano then admitted to previously transporting two other containers holding narcotics. (Tr. 306–08, 333–35, 362–65.) Solano indicated that, on each of these occasions, the narcotics were stored in the bottom of the box inside a false bottom. (Tr. 364–65.) In addition, Solano provided the agents with information concerning two drug importers. (Tr. 307–08, 333–35, 362–65.)
After Solano completed his statement, Supervising Special Agent Etienne brought Special Agent Barrois into the interview room. (Tr. 365.) Supervising Special Agent Etienne then summarized the statements Solano had made during the second interview. (Tr. 365.) Supervising Special Agent Etienne then directed Solano to "tell exactly the...
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