US v. Piedrahita

• Decision Date: 19 March 1992
• Docket Number: No. 91 Cr. 652 (DNE).,91 Cr. 652 (DNE).
• Citation: 791 F. Supp. 418
• Parties: UNITED STATES of America, v. John Jairo PIEDRAHITA, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

791 F. Supp. 418

UNITED STATES of America, v. John Jairo PIEDRAHITA, et al., Defendants.

No. 91 Cr. 652 (DNE).

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

March 19, 1992.

Otto G. Obermaier, U.S. Atty., S.D.N.Y. (Kenneth L. Wainstein, of counsel) for the U.S.

Frank J. Hancock, P.C., New York City (Frank J. Hancock, of counsel) for John Jairo Piedrahita.

Jesus Betancruz, pro se.

MEMORANDUM & ORDER

EDELSTEIN, District Judge:

The Government has charged defendants with conspiring to possess with intent to distribute more than five kilograms of cocaine in violation of Title 21, United States Code, section 846. Defendants Piedrahita and Betancruz¹ (the "defendants") have moved to dismiss the indictment due to prosecutorial misconduct and insufficient evidence. In the alternative, defendants seek discovery of a broad range of information in connection with this case, including: (1) the identity and Government's use of a confidential informant; (2) inspection of the minutes of the grand jury presentation of the case; (3) tapes and transcripts that the Government has prepared, and telephone bills depicting telephone conversations between the parties; and (4) an index of all books, papers, documents, photographs and tangible objects that the Government has offered to make available for inspection by the defense. For the reasons stated below, defendants' motions are denied in their entirety.

A. Dismissal of the Indictment

1. Prosecutorial Misconduct

Defendants contend that a co-defendant, Jane Doe, a/k/a "Beatrice," was actually a confidential informant for the Government. They allege that the Government acted improperly by intentionally failing to inform the Grand Jury of her cooperation. Due to this omission, defendants allege that the grand jury erroneously came to believe that Beatrice was a member of the conspiracy.

Dismissal of an indictment is an extraordinary remedy. See United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990); United States v. Thibadeau, 671 F.2d 75, 77 (2d Cir.1982). Prosecutorial misconduct, such as misleading or misinforming the grand jury, compels dismissal of an indictment only where a defendant suffers prejudice as a result of the Government's actions. See Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988); United States v. Brito, 907 F.2d 392, 394 (2d Cir.1990). Prejudice exists where "`it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is `grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 (quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 946, 89 L.Ed.2d 50 (1986)); see United States v. Felton, 755 F.Supp. 72, 74 (S.D.N.Y.1991). Defendants must support a charge of prejudice with specific, definite and detailed factual assertions. The absence of such facts precludes dismissal of an indictment for prosecutorial misconduct. See, e.g., United States v. Cheung Kin Ping, 555 F.2d 1069, 1078 (2d Cir.1977); United States v. Sugar, 606 F.Supp. 1134, 1146 (S.D.N.Y.1985).

In support of their claim, defendants offer the unsubstantiated assertion that Beatrice was a confidential informant at the time of the grand jury proceedings. Vaulting from this lone piece of speculation, defendants would find prosecutorial misconduct in the Government's failure to inform the grand jury of Beatrice's status as a confidential informant. Seemingly content to rest their request for an extraordinary remedy — dismissal of the indictment — on conjecture, defendants do not even hint at possible prejudice. In essence, defendants invite this Court to find prejudice, and thus derive a drastic result, based upon a suspect premise without the aid of either factual support or legal precedent. This Court declines to accept such an invitation.

2. Insufficient Evidence

In the alternative, defendants aver that dismissal of the indictment is appropriate because the evidence before the grand jury was insufficient to support a charge of conspiracy. In support of this claim, defendants rely on the principle that an essential element of an unlawful conspiracy is an agreement, between two or more persons who are not government agents, to commit in concert an unlawful act. They assert that the Government failed to present to the grand jury sufficient evidence of an agreement among people who are not government agents.

It is true, of course, that a government agent is never a co-conspirator, and an agreement between a government agent and a defendant to commit an unlawful act is not a conspiracy. See United States v. Barnes, 604 F.2d 121, 161 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980); see also United States v. Giunta, 925 F.2d 758, 764 (4th Cir.1991); United States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 354, 98 L.Ed.2d 379 (1987); United States v. Giry, 818 F.2d 120, 126 (1st Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987). Nevertheless, this Court must reject defendants' claim without addressing their insufficient evidence argument.

A district court may not dismiss a facially valid indictment based upon a charge of insufficient evidence. See Bank of Nova Scotia, 487 U.S. at 261, 108 S.Ct. at 2377; Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Casamento, 887 F.2d at 1182; United States v. Contreras, 776 F.2d 51, 54 (2d Cir.1985). Defendants fail even to mention, let alone address in a meaningful fashion, the indictment's validity. Instead, this Court can only assume that they wish to attack the indictment's validity by questioning whether it properly charges an essential element of a conspiracy — an agreement among non-government agents.

A cursory perusal of the indictment, however, reveals that defendants' argument is frivolous. The indictment alleges that "the defendants, together and with others known and unknown, unlawfully, intentionally and knowingly combined, conspired, confederated, and agreed together and with each other to commit certain offenses against the United States." (Indictment, ¶ 1). By alleging an agreement among defendants Piedrahita, Betancruz, Perez and others, the indictment properly charges a conspiracy among people who have no affiliation with the government.

B. Discovery Requests

1. Inspection of Grand Jury Minutes and Identity of Confidential Informants

In an earlier motion, defendants sought to inspect the grand jury minutes, and they also requested disclosure of the identity of confidential informants mentioned in the...