US v. Leonard
| Decision Date | 22 December 1992 |
| Docket Number | No. 91-1251.,91-1251. |
| Citation | 817 F. Supp. 286 |
| Parties | UNITED STATES of America v. James LEONARD, Donald Brown, Robert Seyfert and John Papajohn, Jr. |
| Court | U.S. District Court — Eastern District of New York |
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Andrew J. Maloney, U.S. Atty., Eric Corngold, Asst. U.S. Atty., Brooklyn, NY, for plaintiff.
Joseph K. Garneau, West Hempstead, NY, for James Leonard.
Robert M. Simels, New York, NY, for Donald Brown.
Lee Ginsberg, New York City, for Robert Seyfert.
James Michael Merger, Boston, MA, for John Papajohn, Jr.
In the above-referenced prosecution, James Leonard ("Leonard"), Donald Brown ("Brown"), Robert Seyfert ("Seyfert"), and John Papajohn, Jr. ("Papajohn"), are charged in a one-count superseding indictment with conspiring to distribute and to possess with intent to distribute hashish, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). Currently before the Court are various pretrial motions made both individually and collectively by defendants. Within this Memorandum and Order, the Court addresses those aspects of the motions discussed below.
The factual background of this case, as described by the government, is as follows. A confidential informant, ("CI"), working with the United States Drug Enforcement Administration, ("DEA"), was given Leonard's name in the fall of 1990 by a narcotics trafficker living in Pakistan. The trafficker allegedly informed the CI that Leonard owed money to the trafficker for a quantity of heroin previously supplied to Leonard. Consequently, the trafficker asked the CI to obtain the money owed him.
Sometime during October of 1990, the CI contacted Leonard and initiated a series of telephone conversations and meetings. Throughout these communications, various narcotics transactions were discussed by the parties. In August of 1991, the CI informed Leonard that he had arranged to import two tons of hashish into the United States. Apparently, the CI indicated to Leonard that he had 500 kilograms of the hashish available for sale; Leonard then indicated that he would procure buyers for the hashish.
On September 12, 1991, the CI arranged to give Leonard a sample of the available hashish. At a location in Brooklyn, New York, the CI, along with two undercover DEA agents, met with Leonard in a van which contained approximately 500 kilograms of hashish. During the meeting, which was video and tape recorded, Leonard inspected the hashish and took approximately one-half kilogram as a sample. Thereafter, on September 15, 1991, Leonard met with the CI on Staten Island. At the meeting, which was recorded, Leonard and the CI discussed the details of the transaction, ultimately agreeing to a price of $1,300 per pound. The government further alleges that at that meeting of September 15, 1991, Leonard spoke by telephone with an individual subsequently identified as Brown. In that connection, Leonard informed the CI that Brown was attempting to meet "the Canadians," who were purportedly going to buy most of the available 500 kilograms of hashish.
On September 19, 1991, the CI met with Leonard in a recorded meeting on Staten Island, at which Leonard gave the CI approximately $100,000 as partial payment for an initial three hundred pounds of the hashish. Leonard and the CI then agreed to meet later during that day, at which time Leonard would give the CI the balance of the money due for the initial three hundred pound purchase. Later that afternoon, Leonard and the CI met at the same location. After the CI refused to produce a portion of the hashish absent full payment, Leonard indicated that he would get the balance of the money for the three hundred pounds of hashish.
Approximately two hours later on that same afternoon of September 19, 1991, Leonard met with the CI again. Leonard stated that he would go down the road to retrieve the balance of the money for the transaction. Agents then followed Leonard, who drove a silver Pontiac, to a Holiday Inn Motel, where Leonard used a pay telephone and then returned to his car. At approximately 6:50 P.M., the agents observed a red Chrysler with two men inside park directly in front of Leonard's car. At that point, Leonard exited his car and, approaching the red Chrysler, pointed to a parking lot across the street. Leonard then drove to the parking lot, as did the red Chrysler, which drove in an "erratic fashion" according to the government. The agents then observed the two cars park adjacent to each other in the parking lot for several minutes, after which time the silver Pontiac drove away. Surveillance of the red Chrysler was maintained.
Other agents followed the silver Pontiac to the location where the CI had previously met Leonard. Leonard then met with the CI and gave the CI a box containing approximately $200,000 in United States currency. Thereafter, Leonard was arrested.
The agents maintaining surveillance of the red Chrysler observed that the occupants of the car had left the vehicle. The agents then entered a nearby restaurant and asked two patrons how they arrived; the customers responded that they had arrived in the red Chrysler. At that point, the two individuals, later identified as Seyfert and Papajohn, were arrested. At the time of the arrest, the agents found keys to the red Chrysler and approximately $10,000 in United States currency on Papajohn's person. A small quantity of hashish was discovered on Seyfert's person. The government further asserts that Papajohn's palm print was subsequently found on one of the bags of currency given to the CI by Leonard.
Following his arrest, Leonard made various post-arrest statements, some of which inculpated Brown. More specifically, Leonard revealed certain details regarding transactions with Seyfert, Brown, and an individual identified as "Paul." Subsequent to Leonard's arrest, Brown contacted a DEA agent ("Agent Cipriano") and later met with the agent in New York. At that meeting, which took place on September 23, 1991, Brown allegedly stated that Leonard had approached him (Brown) several months earlier in regard to a hashish transaction. Brown further stated, according to the government, that he thereafter contacted a potential Canadian buyer of the hashish, but after some initial negotiating and a meeting with Leonard, Brown decided he "did not like the deal." Govt's Memo. in Opp. at 9.
As indicated above, all defendants currently move for various types of pre-trial relief.
Brown moves to suppress statements made at the time of an interview with DEA agents on September 23, 1992, as well as to suppress statements made by him in a subsequent telephone conversation of September 27, 1992. Given the nature of Brown's motion, it is necessary to examine the facts surrounding the interview of September 23 with some detail.
According to an affidavit filed by Brown, a relationship between Brown and DEA Special Agent Mario Sessa ("Agent Sessa") and Agent Cipriano has existed since 1979. At that time, Brown was the subject of an investigation and subsequent indictment involving the DEA, and more specifically, Agent Cipriano. It is Brown's assertion that Agent Cipriano did not approve of a cooperation agreement ultimately struck between Brown and the government in relation to the 1979 investigation, and that since that time, Agent Cipriano has felt animosity towards Brown.
Brown asserts that during the summer of 1991, while living in Texas, he communicated with a friend in New York who informed Brown of a possible heroin importation scheme taking place at John F. Kennedy International Airport in Queens, New York. Brown contends that he agreed to act as an intermediary with the DEA and inform them of the scheme. As a result, Brown was eventually put in contact with Agent Cipriano, who allegedly directed Brown to come to New York and discuss the matter, which Brown did. At the meeting, Agent Cipriano admonished Brown not to discuss the matter with anyone else.
Subsequently, Brown did in fact mention the matter to defendant Leonard, an individual known by Brown for nearly thirty years, and a person Brown had been speaking to during that period. It is Brown's contention that his "indiscretion" in mentioning the matter to Leonard, in contravention of Agent Cipriano's directions, fueled the current prosecution. Brown further alleges that at that time he was unaware of Leonard's dealings with the CI in the current case. In any event, Brown came to New York in September of 1991 "to see his parents and to conduct a further search for a restaurant location." Aff. of Donald Brown at ¶ 12. During that visit, Brown met Leonard at a bar in Queens, New York, at which time Leonard allegedly revealed his scheme to broker the hashish transaction which forms the basis for the current indictment. Brown asserts that he expressed no interest in the deal, although he took a small sample of the hashish at Leonard's insistence.
The following day, Brown again spoke to Leonard, and informed Leonard of his (Brown's) suspicions that the arrangements of the potential transaction "sounded like a government sting." Id. at ¶ 13. On the next day, Brown returned to Texas, where he was searched by DEA agents at the airport in Dallas. Brown contends that the search prompted him to contact Leonard and urge him to abandon the hashish transaction, although eventually Leonard allegedly informed Brown that he was going to proceed with the participation of defendant Seyfert. At that point, Brown asserts that he called Seyfert, another long-time acquaintance, and cautioned him to terminate the deal.
After Brown learned of the arrests of Leonard and Seyfert for the instant offense, he was allegedly told by Leonard that Agent Cipriano inquired of Leonard as to Brown's role in the conspiracy. Id. at ¶ 15. Consequently, according to Brown, he returned to New York and spoke to Agent Cipriano, who advised Brown to...
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