United States v. Veloz
| Decision Date | 04 June 2015 |
| Docket Number | Criminal Action No. 12–10264–RGS. |
| Citation | 109 F.Supp.3d 305 |
| Parties | UNITED STATES of America v. Danny VELOZ et al. |
| Court | U.S. District Court — District of Massachusetts |
Christopher J. Pohl, Peter K. Levitt, United States Attorney's Office, Boston, MA, for United States of America.
Arnold R. Rosenfeld, Sarrouf Law, Scott P. Lopez, Lawson & Weitzen, Robert L. Ullmann, Boston, MA, for Danny Veloz et al.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS
The above-captioned case was transferred to this session of the court on November 4, 2014. Several motions to suppress are pending. The first three involve the identifications of defendants Danny Veloz, Jose Matos, and Gadiel Romero by cooperating witnesses.1 In addition, Veloz objects to the search of his residence pursuant to a warrant issued by Magistrate Judge Marianne Bowler,2 the subsequent search of hard drives and memory chips taken from computers and cell phones seized at his home, and to a later search of email accounts held in his name by Google and Apple.3 The court heard oral argument on the legal issues on May 13, 2015. As there are no material facts in dispute, the court declines to hold an evidentiary hearing, and will instead address each motion on its merits.
The FBI and various local law enforcement agencies had undertaken a joint investigation of Joloperros (which roughly translates to "stick-up men") involved in violent kidnappings and home invasions in the Lawrence, Massachusetts area. Joloperros "crews" frequently targeted local drug dealers. The crews would surreptitiously attach global positioning system (GPS) units to their victims' vehicles, track their movements, and after a successful hostage-taking, demand ransom payments from the kidnap victims and their families.
On July 23, 2012, Lawrence police responded to a 9–1–1 call at 67 Allston Street, after Minerva Amparo reported having witnessed a white minivan follow her husband's car into their driveway.
Three men wearing masks and black T-shirts emblazoned with the word "Police" (and shouting "Police!") had held her husband Manuel Amparo and another man (Jose Castro) at gunpoint, forcing them into the van and driving away. Lawrence police and the FBI recovered a white zip tie (used as a handcuff) next to Manuel Amparo's car, as well as a small GPS device that had been attached to the rear side bumper of his car.
Early the following morning, Manchester, New Hampshire police responded to a 9–1–1 call at 859 Clay Street, after a homeowner reported that a man standing on his porch claimed to have been a kidnapping victim. Manuel Amparo, displaying visible injuries, had escaped from his captors and run for help. He told police that he had been kidnapped in Lawrence the day before by four masked men in a white Toyota minivan. He had been take to New Hamphire where he was punched, kicked, burned with an iron, and held for ransom.4 He led police to 890 Clay Street, where Castro and three of the kidnappers were still on the premises. Officers arrested Henry Maldonado, Thomas Wallace, and Jose Guzman, and, after obtaining a search warrant for the house and the minivan, seized a handgun, police paraphernalia, a GPS device, and several heating irons
. Police also discovered blood stains in the interior of the minivan.
After initially denying his involvement, one of the arrested men (identified as CW–2) begin cooperating with the government. On the evening of July 24, 2012, CW–2 gave a lengthy, recorded, post-Miranda statement in which he admitted to his role in the kidnapping. See Dkt. No. 309–9. CW–2 related that he met the members of the crew (Guzman, Wallace, Gadiel Romero also known as "TC," and Luis Reynoso) at the Veloz residence, and drove to Matos also known as "Boyca" 's apartment to gather firearms and police shirts. They then drove to Amparo's home in the white minivan. There, dressed in police regalia, they had abducted Amparo and Castro and taken them to New Hampshire. CW–2 named Veloz as the chief of the crew and described the location and interior layout of his home. CW–2 explained that Veloz tracked the movements of his potential victims (mostly drug dealers referred to Veloz by other drug dealers who paid him for protection) by attaching GPS units to their cars. CW–2 stated that he had personally observed Veloz monitoring the movements of his victims on a laptop computer attached to a large-screen television and a cellular phone in his home.5 In addition, CW–2 accurately described Veloz as light-skinned and in his 30's; that he had a black belt in martial arts, numerous martial arts trophies in his apartment, and had once owned a karate shop in Lawrence; that he had spent a year in the Middleton Jail on gun charges; that he lived with his wife and two young children; and that he owned a beige/gold Cadillac CTS. CW–2 also noted that Veloz had a distinctive tattoo of a tiger face on his right arm.6
Prior to his initial appearance in Boston, CW–2 rode with agents to 443–447 Andover Street in Lawrence, where he identified Apartment # 9 as Veloz's residence.7 A Cadillac sedan and CW–2's personal car were parked on the street in front of Veloz's home. On the basis of CW–2's information, on July 25, 2012, FBI Special Agent John Orlando obtained and executed a search warrant at Veloz's apartment. The search recovered two laptops, a tablet computer, two thumb drives, and seven cellular phones.
On August 2, 2012, FBI Special Agent Kathryn Earle obtained a supplemental search warrant for the contents of the seized devices. On August 6 and 7, 2012, agents downloaded data from the thumb drives and the cellular phones.8 On August 13, 2012, a forensic examiner searched and imaged the laptop computers. Over the following months, agents analyzed the copied data and determined that one of the laptops was used in the kidnappings. An email address contained in the laptop (palomo.1025@gmail.com)9 listed to a Juan Pablo Durarte,10 and a telephone number (978–876–2897),11 were determined to have been used in connection with the purchase of a GPS unit. The laptop also contained GPS satellite images of the streets in and around Amparo's home.
Also on August 2, 2012, CW–2 was shown a three-ring binder containing 37 photographs (without any identifying information) labeled 1–37.12 He accurately identified photograph 30 as that of Veloz. During his grand jury testimony, he also accurately identified photos of Guzman (also known as "Cano"), Wallace, Reynoso, and Romero. On August 31, CW–2 identified Matos from an array of 6 photos.
CW–3 also began to cooperate with law enforcement shortly after the July 23 kidnapping. In August of 2012, he told the grand jury that he had met Maldonado at a methadone clinic in 2007 and had begun selling pills with him, supplied by Veloz, in or about January of 2012. In the spring of 2012, Maldonado approached CW–3 about participating in a hostage-taking and introduced CW–3 to Guzman. Maldonado and Guzman referred to Veloz as "Maestro" because of his role in orchestrating the kidnappings. CW–3 also testified about Veloz's use of GPS devices to track potential victims. Prior to the July 23 kidnapping, CW–3 met with Veloz and other crew members at Veloz's apartment approximately five times. CW–3 accurately described the exterior and interior of Veloz's residence, and related that Veloz had purchased a Cadillac with the proceeds of a prior successful kidnapping. CW–3 also described meeting with Matos at the Veloz residence, that Matos's apartment served as the "stashhouse" for the operation, and described Matos physically.
On July 30, 2012, CW–3 was shown a loose-leaf binder containing 36 numbered photographs without identifying information. He identified photograph 30 as Veloz. During his grand jury testimony, he accurately identified photographs of Guzman, Maldonado, and two photos of Veloz. On August 29, 2012, CW–3 also identified Matos from an array of 6 photos.
Like CW–2 and CW–3, CW–5 pled guilty to conspiracy to commit kidnapping and agreed to cooperate with the government. He told the grand jury in July of 2013 that he had met Veloz and Romero while they were inmates at the Middleton Jail in late 2010/early 2011. Veloz recruited CW–5 and Romero to join his kidnapping crew. Veloz had explained to CW–5 the use of GPS units to track potential ransom victims (usually drug dealers). CW–5 testified that he had either participated in or had knowledge of seven different kidnappings carried out by the Veloz crew. For example, CW–5 admitted to taking part in the kidnapping of a target named "Majimbe" with Veloz, Romero, and Matos. CW–5 had observed Matos put a GPS device on Majimbe's vehicle prior to the kidnapping, and participated in the remote tracking of Majimbe's car from Veloz's apartment. CW–5 met with other members of the crew on multiple occasions at Veloz's residence and accurately described its interior.
In November of 2012, CW–5 was shown individual photographs taken from the binder kept by the FBI and accurately identified two photos of Veloz, as well as photos of Romero, Matos, Maldonado, Wallace, and Reynoso. During his grand jury testimony he identified photos of Veloz and Romero.
Defendants argue that the conduct of the photographic identifications was deficient because: (1) the agents did not employ a double blind or blinded procedure; (2) the cooperating witnesses were not told that they were not required to make an identification; and (3) were not asked how certain or confident they were when they did make an identification. Veloz and Matos also contend that some of the arrays shown were of an unconstitutionally small size (arrays of 6 photos were shown to identify Matos, while CW–2 during his initial interview was shown a single photograph of Veloz).
While the policy arguments over best...
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