US v. Jimenez

• Decision Date: 05 May 1993
• Docket Number: No. S1 92 CR. 550(KC).,S1 92 CR. 550(KC).
• Citation: 824 F. Supp. 351
• Parties: UNITED STATES of America, Plaintiff, v. Luis JIMENEZ, a/k/a "Bello," a/k/a "Juan Diego," Carlos Enrique Perdomo, a/k/a "Rigo," Jose Urena, a/k/a "Jose Jimenez," Jose Miguel Rodriguez, a/k/a "Caballo," Roman Santiago, a/k/a "Frank Roman," Yvonne Burgos, Ines Urena, Gregoria Morel Bejaran, a/k/a "Bernadina," Jose Ramon Montoya, a/k/a "Monte," Rafael Colon, a/k/a "Andrew," Jimmy Rosado, a/k/a "Junior," Hector Ventura, a/k/a "Rubio," Pedro Guzman, Francisco Lnu, a/k/a "Pinguino," Daniel Urena, Usmare St. Hilare, a/k/a "Luisito," Raymond Comas, Moises Cuevas, Aparicia Urena Soto, a/k/a "Nana," Gloria Santos, Idelisse Reyes, a/k/a "Tammy," Agapito Velez, a/k/a "Pete," and Norberto Gomez, Defendants.
• Court: U.S. District Court — Southern District of New York

824 F. Supp. 351

UNITED STATES of America, Plaintiff, v. Luis JIMENEZ, a/k/a "Bello," a/k/a "Juan Diego," Carlos Enrique Perdomo, a/k/a "Rigo," Jose Urena, a/k/a "Jose Jimenez," Jose Miguel Rodriguez, a/k/a "Caballo," Roman Santiago, a/k/a "Frank Roman," Yvonne Burgos, Ines Urena, Gregoria Morel Bejaran, a/k/a "Bernadina," Jose Ramon Montoya, a/k/a "Monte," Rafael Colon, a/k/a "Andrew," Jimmy Rosado, a/k/a "Junior," Hector Ventura, a/k/a "Rubio," Pedro Guzman, Francisco Lnu, a/k/a "Pinguino," Daniel Urena, Usmare St. Hilare, a/k/a "Luisito," Raymond Comas, Moises Cuevas, Aparicia Urena Soto, a/k/a "Nana," Gloria Santos, Idelisse Reyes, a/k/a "Tammy," Agapito Velez, a/k/a "Pete," and Norberto Gomez, Defendants.

No. S1 92 CR. 550(KC).

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

May 5, 1993.

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Kenneth Paul, New York City, for Jimenez.

Andrew G. Patel, New York City, for Perdomo.

Michael Sporn, New York City, for Ines Urena.

Clover M. Barret, Brooklyn, NY, for Montoya.

George R. Mayer, Bronxville, NY, for Velez.

Robert Herbst, New York City, for St. Hilare.

Marion Seltzer, New York City, for Comas.

Daniel Felber, Balsam & Felber, New York City, for Guzman.

Roger J. Schwarz, New York City, for Ventura.

Anthony L. Ricco, Ricco & Villanueva, New York City, for Urena Soto.

Leonard J. Levenson, New York City, for Cuevas.

Edward D. Wilford, Wilford & Ramsey, New York City, for Rosado.

Lawrence Schoenbach, New York City, for Colon.

Lawrence Vogelman, New York City, for Daniel Urena.

ORDER

CONBOY, District Judge:

The defendants in this case are charged with conspiracy to distribute crack cocaine, engaging in a continuing criminal enterprise, possessing with intent to distribute crack cocaine, providing a premises for storage of cocaine, using firearms during and in relation to drug trafficking crimes and the possession of a machine gun, in violation of various sections of Titles 18 and 21, United States Code.

The indictment before the Court names twenty-three defendants, four of whom are fugitives and several of whom have pleaded guilty. Defendants Perdomo, Montoya, Cuevas, Soto and St. Hilare have filed pretrial motions and Jimenez, Ines, Urena, Colon, Daniel Urena, Rosado, Comas, Guzman and Velez have advised the Court that they join in the motions of co-defendants.

Defendant Hector Ventura is in the process of filing a motion not presently fully submitted, and it will be addressed when resolved in a separate order.

Montoya has moved for a bill of particulars, a severance, and the suppression of wiretap evidence. He is charged only in the conspiracy count, and is named in only one of 23 overt acts. He seeks to compel the Government to specify the dates on which and the selling location at which and the manner in which, he is alleged to have functioned as the shift manager, and the violent acts, if any, the Government asserts he committed or assisted. Without such information, Montoya argues that he cannot develop a defense. His request for a severance is based upon a fear of spillover prejudice resulting from such a large number of defendants, of such varying putative culpability. Montoya also argues that the wiretap evidence should be suppressed in the absence of proper minimization and in view of available alternative investigative means.

When Perdomo's home was searched pursuant to a search warrant issued by a Magistrate Judge, narcotics and related paraphernalia were seized, in addition to a handgun found under a mattress in one bedroom, and a number of weapons found in a locked safe in the basement.

Perdomo argues that the search warrant was defective because the agent's application contained a knowingly false or reckless statement, to the effect that surveillance had established that bags of crack and bags of money were carried into and out of Perdomo's house. He insists that the pertinent government surveillance reports do not support this claim, and he argues that under prevailing case authority he is entitled to a hearing on the matter.

He has moved to suppress the wiretap evidence and the fruits of the search of his home; for an in limine ruling that weapons seized therein are inadmissible under Rule 403; for a complete severance or at least a partial severance on Count Thirteen; for a bill of particulars disclosing dates, locations, manner and means with respect to his asserted use or carriage of a firearm in relation to the charged crimes; for a striking from the indictment of the "Means and Methods" section of the Indictment on the grounds that it is irrelevant, prejudicial and a mini-summation by the Government.

Perdomo moves to suppress wiretap evidence on the grounds that the application for the electronic surveillance failed to contain a full and complete statement regarding the pursuit or adequacy of alternative investigative procedures, in that the Government asserted that alternative investigative techniques had failed to locate the factory where cocaine was processed into crack and packaged into vials, that Perdomo's home is asserted by the indictment to be the factory, and that agents were aware of and had surveilled the premises prior to the application for the eavesdrop warrant.

On his Rule 403 claim, Perdomo argues that there will be no facts from which a jury could infer that the weapons found in his home were readily available to protect a drug operation, and he demands a pretrial hearing on the matter. He further asks for a severance on the possession of a machine gun count if the Government cannot show that it was used during or in relation to the drug trafficking charges. He also asks for a full severance on the ground that he played a lesser role in the conspiracy and will suffer prejudicial spillover if he is tried with the other defendants.

Cuevas moves for a severance, a striking of the "Means and Methods" section of the indictment, advance notice of 404(b) evidence that the Government intends to introduce, and a bill of particulars that seeks the identification and reports of expert witnesses, the names of witnesses not to be called by the Government, the notes, statements and reports of all Government witnesses, agreements and payments between the Government and its cooperating witnesses, the results of any polygraph examinations and the criminal records of any Government witnesses, the names of co-conspirators and the manner in which Cuevas committed the crimes alleged.

Soto moves to suppress wiretap evidence on the ground that the application failed to allege adequately that other investigative procedures had been tried and failed or were unlikely to succeed if tried or were too dangerous. He in substance argues that twelve months of surveillance and the use of four confidential informants had provided the Government with detailed information about the Louis Bello narcotics organization, and that the seven objectives of the wiretap as set forth in the application had in fact been already largely achieved.

St. Hilare moves for a bill of particulars, severance, disclosure of the identity of the four confidential informants and an opportunity to interview them, disclosure of any expert witnesses and their reports, disclosure of other crimes evidence, and suppression of evidence taken from his person at the time of his arrest, on the ground that the arrest was without probable cause.

THE ADEQUACY OF THE INVESTIGATIVE TECHNIQUES AVERMENTS OF THE GOVERNMENT'S WIRETAP APPLICATION

In paragraphs 12 through 44 of his affidavit, ("Mabray Affidavit") Special Agent Keith Mabray provided an overview of the Drug Enforcement Administration's investigation of the alleged criminal enterprise ("Bello organization") that is the subject of the indictment, and a summary chronology of particular investigative steps that had been taken. In brief, the Mabray Affidavit explained that information concerning the alleged organization, its members and leadership had been compiled from several sources, over a period of more than one year, which sources included: 1) three confidential informants ("CI-1," "CI-2" and "CI-4") who admitted to having worked in the Bello organization, and were convicted narcotics offenders, and one confidential informant ("CI-3") who assisted twice in the purchase of crack from Bello organization members (Mabray Affidavit, ¶¶ 14-19); 2) New York City Police Department ("NYPD") and Bureau of Alcohol, Tobacco and Firearms ("ATF") personnel who had executed several search warrants at apartments within 3428 and 3430 Park Avenue in the Bronx and 993-5 Intervale Avenue in the Bronx, which apartments, according to CI-1, CI-2 and CI-4, were being used by the Bello organization to store crack, resulting in the seizure of quantities of crack and several firearms, but which produced no arrests (Id., ¶¶ 21, 32, 43); 3) several consensually monitored telephone calls between CI-4 and the defendants Jose Urena, Norberto Gomez, and Tammy Reyes, and subsequent monitored purchases of crack by CI-4 from Urena, Gomez, Comas and Velez (Id., ¶¶ 22-25); 4) DEA surveillance of exchanges of suspected crack and money by certain members of the organization (Id., ¶¶ 28, 30, 31, 34, 39, 40, 43a); 5) pen register information detailing telephone calls from the Intervale Avenue telephone to several telephones and paging devices linked to the Bello organization and its members (Id. at ¶ 44); and 6) utility and telephone records checks. Through these sources of information and investigative techniques, the DEA identified buildings of likely significance to the organization, including 3315 Cruger Avenue; 3046 Gunther Avenue; 3430 Park Avenue; 3428 Park Avenue; 2105 Muliner Avenue; and 975 Intervale Avenue.

As set out in the Mabray Affidavit, according to information provided by the informants, the Bello organization involved numerous participants, only some of whom the DEA was able to physically observe, let alone surveil. See...