US v. Arango
| Decision Date | 16 June 1987 |
| Docket Number | No. 86-246-CR.,86-246-CR. |
| Citation | 670 F. Supp. 1558 |
| Parties | UNITED STATES of America, Plaintiff, v. Sixto Mario ARANGO, Carlos Arturo Arango and Simeon Rojas-Lopez, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Michael P. Sullivan, Asst. U.S. Atty., Miami, Fla., for U.S.
Lawrence F. Ruggiero, New York City, for defendants.
THIS CAUSE is before the Court upon the Defendants' Motions for Vacatur, Dismissal, New Trial and Production of Documentation. In accordance with the procedures set forth in United States v. Ellsworth, 814 F.2d 613 (11th Cir.1987), as more fully set forth below, this Court conducted an evidentiary hearing on the matters set forth in Defendants' Motions. For the reasons enunciated below, the Defendants' Motions are hereby DENIED.
The Defendants were indicted under a five-count indictment, charging a conspiracy to manufacture cocaine, the manufacturing of cocaine at two locations, and the possession of cocaine at the same two locations. On June 16, 1986, the Court conducted a hearing on Defendant Carlos Arturo Arango's Motion to Suppress, which Motion was denied, and on June 17, 18, and 19, 1986, the case proceeded to a jury trial. As a result of that trial, the Defendants were convicted as to all charges. These convictions are the subject of a pending appeal before the United States Circuit Court of Appeals for the Eleventh Circuit.
In March of 1987, during the pendency of the appeal, the United States filed a Motion for Certification of Remand for Further Consideration in this Court and, simultaneously, a Motion for Stay of Briefing Schedule and Motion to Remand in the Eleventh Circuit Court of Appeals, indicating that this Court should determine, post-trial, whether certain information within the constructive knowledge of the government should have been disclosed pre-trial to the Defendants as Brady/Giglio1 material.
Based thereon, the Court scheduled a hearing on May 4, 1987, at which time arguments were heard concerning the proper procedure for this Court to entertain post-trial motions, given the pendency of an appeal, based on newly supplied information which may fall within the category of Brady material. The parties were in agreement that the procedure set forth in United States v. Ellsworth, 814 F.2d 613 (11th Cir.1987) is controlling, which provides:
The proper procedure after an appeal is taken is for a motion to be filed with the district court; the district court may either deny the motion on its merits or certify that the motion should be granted in order to afford the appellate court jurisdiction to entertain a motion to remand.
Id. at 614, citing United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984).2
After hearing opening statements in the form of a proffer, the Court granted Defendants leave to file whatever post-trial motions they deemed appropriate, which motions are the subject of this Order, and scheduled an evidentiary hearing to determine whether any Brady material should have been disclosed to Defendants by the government. Based on the evidentiary hearing held in this cause, at which various Metro-Dade County police officers, Drug Enforcement Agency officers, and Assistant United States Attorneys testified, the Court makes the following findings of fact with respect to the incident which the government has belatedly brought to the attention of defense counsel and which Defendants argue requires a new trial.
1. In the early morning hours after his arrest on March 16, 1986 at a cocaine manufacturing laboratory located at 7943 N.W. 64 Street, Miami, Florida, Defendant Carlos Arturo Arango was taken by Metro-Dade police officers and DEA agents to the parking area of the Villa Regina Apartments located on Brickell Avenue in Miami, Florida.
2. Carlos Arturo Arango pointed out a vehicle parked in the parking garage of the Villa Regina Apartments, claiming that said vehicle belonged to his boss.
3. The police believed that Carlos Arturo Arango's boss was the money man behind the cocaine manufacturing operation.
4. A check with the apartment security disclosed that the vehicle belonged to Apartment 706.
5. Apartment 706 was leased to Defendant Sixto Mario Arango.
6. The police then proceeded to enter Apartment 706, without a warrant, using keys obtained either from Carlos Arturo Arango's brother, Sixto Mario Arango, at the time of Sixto's arrest the night before, or those seized from Carlos Arturo Arango at the time of his arrest.
7. Present at the time of this warrantless entry were DEA agents Kenneth B. Peterson, Anthony Marratta, and John Andrejko, and Metro-Dade County officers Gerry Stinson, Gail Shaver, and Judy Gable. Agents Peterson and Andrejko were apparently in charge of the entry.
8. A search of the apartment was conducted whereupon a plasticene bag containing approximately two ounces of white powder was discovered on a table in the living room area.
9. The white powder was never field-tested to determine whether it was an illegal controlled substance.
10. Agent Peterson telephoned AUSA William Norris from the apartment for the purpose of inquiring as to whether a search warrant could be obtained for the apartment, at which time Agent Peterson was referred to the Duty AUSA, Richard Scruggs.
11. AUSA Richard Scruggs instructed Agent Peterson to completely vacate the apartment, leaving its contents untouched, and to meet him at his office to discuss whether a search warrant could be obtained.
12. The police then vacated the apartment, leaving agents posted at the apartment complex, while Agents Peterson and Andrejko proceeded to meet with AUSA Richard Sruggs.
13. AUSA Richard Scruggs informed the DEA agents that a search warrant could not be obtained because of a lack of probable cause and advised the agents not to prepare a report of the incident. AUSA Richard Scruggs testified that his reasoning for this instruction was that "he did not want to tie the hands of the handling AUSA" as to how the matter should be handled. He did, however, advise the agents that he would apprise the handling AUSA of the incident.
14. AUSA Scruggs also testified that he did make notes of this meeting with Agents Peterson and Andrejko in his capacity as Duty AUSA, but that these notes could not now be located.
15. Apparently, this file passed through the hands of several United States Attorneys, until it finally landed in the lap of AUSA Thomas A.W. Fitzgerald, who eventually tried the case on behalf of the government. None of the handling United States Attorneys were personally made aware of the warrantless entry by AUSA Richard Scruggs.
16. A couple of weeks before trial, AUSA Fitzgerald became aware of the warrantless entry into Defendant Sixto Mario Arango's apartment during the course of his pre-trial interview of agents Angel G. Hernandez and Andrew Perez.
17. Without investigating further, AUSA Fitzgerald dismissed the incident as irrelevant to the trial of Defendants Carlos Arturo Arango, Sixto Mario Arango, and Simeon Rojas-Lopez, and as "too remote in time" to the incidents charged in the indictment herein, even though the arrests of all three Defendants and the warrantless entry occurred within a six-hour period of time.
18. AUSA Fitzgerald testified that he was not at any time prior to trial made aware of the fact that a bag of white powder was observed at the subject apartment.
19. Either while the jury was deliberating or immediately after the trial of this case, DEA Agent Peterson convened a meeting at DEA (Group 4) headquarters, at which various DEA agents and Metro-Dade police officers were present.
20. During the course of this meeting, Agent Peterson admonished those present for leaking information to the United States Attorney's Office regarding alleged wrongdoing at the Villa Regina Apartments.
21. Although AUSA Fitzgerald became more fully aware of the incident in question, including the presence of the plastic bag of white powder and other allegations, after the trial of this case, this matter was not brought to the Court's or defense counsel's attention until concern arose as to how it might impact on the pending appeal and after it became the subject of an internal investigation by the Justice Department in Washington, D.C.
Defendants argue that a new trial is warranted by the post-trial disclosure of this incident in order that they might avail themselves of this information for use at trial in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendants further argue that the governmental misconduct exhibited by this warrantless entry by itself requires a new trial for all three Defendants. Finally, Defendants request this Court to consider this newly-supplied information as "newly discovered evidence" requiring a new trial under Fed.R.Crim.P. 33.
Plaintiff, on the other hand, takes the position that it has not brought this matter to light at this juncture because it deems a new trial appropriate. To the contrary, Plaintiff suggests that this material is not Brady material, as that concept has been contoured by case law and, further, that Defendants' claims of governmental misconduct have been blown all out of proportion. Plaintiff states that it has merely brought this matter to the Court's and defense counsel's attention in the "interests of fairness and justice."
In order to establish a Brady violation, a defendant must show (1) that the prosecution has suppressed evidence; (2) that such evidence was favorable to the defendant or was exculpatory; and (3) that the evidence was material. United States v. Bent-Santana, 774 F.2d 1545 (11th Cir. 1985). The government here argues that Defendants have not met their burden as to any of the three prongs of this test. In order to analyze whether ...
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U.S. v. Arango
...motion in its entirety. The defendants now appeal from this order as well. The trial court's memorandum opinion was reported at 670 F.Supp. 1558 (S.D.Fla.1987). This court finds the trial court's findings of fact to be without prejudicial error. The trial court found II. FINDINGS OF FACT 1.......