United States v. Espinal

UNITED STATES OF AMERICA v. JOSE ESPINAL, Defendant.

10 Cr. 905 (DC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 10, 2015

OPINION

APPEARANCES:

PREET BHARARA, Esq.

United States Attorney for the Southern District of New York

By: Margaret M. Garnett, Esq.

Laurie A. Korenbaum, Esq.

Harris M. Fischman, Esq.

Assistant United States Attorneys

One Saint Andrew's Plaza

New York, New York 10007

GOTTLIEB & GORDON LLP

Attorneys for Defendant Jose Espinal

By: Robert C. Gottlieb, Esq.

Celia A. Gordon, Esq.

Justin F. Heinrich, Esq.

Ravi Kantha, Esq.

111 Broadway, Suite 701

New York, New York 10006

CHIN, Circuit Judge:

In this case, defendant Jose Espinal moves in the interest of justice to dismiss the indictment against him for prosecutorial misconduct. In particular, he alleges that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Massiah v. United States, 377 U.S. 201 (1964). He also contends that the government made misrepresentations in wiretap and search warrant applications and in presentations to the grand jury.

While I conclude that the government did engage in a pattern of troubling and overly aggressive conduct in this case, for the reasons set forth below, Espinal's motion to dismiss is DENIED. The following constitute my findings of fact and conclusions of law.¹

STATEMENT OF THE CASE

A. Background

1. The Enterprise

The government alleges that Manuel Geovanny Rodriguez-Perez ("Rodriguez") and more than fifty co-defendants participated in a substantial criminal enterprise (the "Enterprise") that engaged in narcotics trafficking, acts of violence (including murders and attempted murders), money laundering, illegal money transmitting, and bank fraud, from the mid-1990s through 2013, primarily in the Washington Heights and Inwood neighborhoods of Upper Manhattan. (Gov't Exs. C at ¶¶ 1-3, D at 5, 12, Z at ¶¶ 1-4,). Indeed, the government alleges that the Enterprise committed ten murders from 1997 through 2006. (Gov't Ex. Z at 12-31).

2. Espinal's Alleged Participation

In the S31 Indictment, which is the operative indictment, the government charges that Espinal participated in and associated with the Enterprise. (Gov't Ex. D at 8; see Dkt. No. 879). Count One charges Espinal and others with racketeering and alleges seventeen racketeering acts, including narcotics trafficking, murder, and money laundering. (Gov't Ex. D at 9). Count Two charges Espinal and others with conspiracy to commit racketeering. (Id. at 10). Count Twenty-Eight charges Espinal with participating in a money laundering conspiracy from 2009 through 2011. (Id.). The government contends that, beginning in 2009, Espinal played a"key role" in laundering the Enterprise's proceeds from its narcotics sales. (Id. at 13). Espinal purportedly accepted large amounts of cash from members of the Enterprise and then, concealing the source of the cash, made investments in real estate, including a tract of land in upstate New York. (Id.). Espinal allegedly masked Rodriguez's involvement by making it appear as though other individuals were the sources of the funds. (Id.). Espinal and Rodriguez purportedly tunneled cash through intermediaries, who wrote checks to make it seem as if they were investing in real estate controlled by Rodriguez and Espinal. (Id. at 13-14). Counts Thirty-Four and Thirty-Five allege that Espinal engaged in obstruction of justice in 2010 by asking a lay witness to prepare false receipts that understated the amounts of cash Rodriguez and Espinal had paid him for hunting trips and taxidermy work. (Id. at 15-16). In addition, Counts Thirty-Seven and Thirty-Eight allege that in the fall of 2011, Espinal engaged in obstruction of justice by creating false documents that suggested that certain checks he received from intermediaries were "loans." (Id. at 16).

B. The Government's Investigation

In February 2009, the government intercepted certain telephone calls that eventually led to Rodriguez. (See Gov't Ex. B at 3-18). Two brothers were intercepted discussing the need to pay money to "Shorty" for marijuana they had purchased from him. Shorty was later identified as Rodriguez. (Id. at 1, 5). Agents arranged for surveillance of a planned cash handoff between one of the brothers and Shorty. When Shorty drove away from the meeting, agents stopped his vehicle, identified him as Rodriguez, and found $25,000 in cash. (Id. at 5-6). After Rodriguez told the agents that the money was from a restaurant, the agents seized the money and allowed Rodriguez to drive away. (Id. at 6; Def. Ex. HH ¶ 28). Approximately twenty minutes after the stop, Rodriguez made two unsuccessful telephone callsto Espinal. Fifteen minutes later, Espinal returned the call and spoke to Rodriguez for approximately eight minutes. (Def. Ex. HH ¶ 29).

In the course of the investigation, agents uncovered evidence that Rodriguez and Espinal had engaged in real estate transactions together and were cosignatories on a bank account. They had used money in the account to purchase a property in Sullivan County, New York, which they dubbed Fly Fisherman's Heaven ("FFH"). (Gov't Ex. B at 18). The government contends that the account was being used to launder drug money. (Id.).

On July 19, 2010, the government applied for authorization to intercept Rodriguez's "money phone," a cellphone Rodriguez allegedly was using to discuss laundering his dirty cash. (Gov't Ex. F). This was the same phone that Rodriguez had used to call Espinal after the $25,000 had been seized during the vehicle stop. On September 23, 2010, the government sought leave to intercept Espinal's cellphone. (Def. Ex. HH). The wiretap authorizations were granted and later reauthorized for an additional month.

C. Prior Proceedings and Trial Delays

The government indicted Espinal on December 8, 2011, and filed superseding indictments on February 7, 2012, and July 26, 2012. (Dkt. Nos. 686, 877).

On January 22, 2014, the charges against Espinal were severed from those of the more than fifty other defendants. (Dkt. No. 1362). On February 13, 2014, Judge Swain, before whom the case was then pending, set trial for April 28, 2014. (Dkt. No. 1374). On February 26, 2014, Espinal's case was reassigned to me. On March 6, 2014, I set a trial date of August 4, 2014.

The government filed a "Trial Indictment," S31-R 10 Cr. 905, on July 16, 2014, redacting many of the allegations. (Dkt. No. 1565-1). The Trial Indictment, which sets forthonly charges against Espinal, contains seven counts, as follows: Count One (racketeering, based on three racketeering acts), Count Two (racketeering conspiracy), Count Three (money laundering conspiracy), Counts Four and Six (obstruction of justice), and Counts Five and Seven (conspiracy to obstruct justice). (Id.).

On July 24, 2014, I heard oral argument on the parties' motions in limine. I excluded some of the government's proposed evidence, allowed some, and deferred decision on other evidence. On July 26, 2014, nine days before trial was to begin, the government produced to defense counsel a computer disk containing more than 1,500 recorded telephone phone calls, most or all in Spanish, and more than 2,000 pages of line sheet summaries of the calls. (Dkt. No. 1582 at 15-16). At a conference on July 29, 2014, defense counsel argued that some of the newly disclosed 3500 material might in fact be Brady material, and that they needed additional time to review the calls. I adjourned the trial until September 8, 2014. (Dkt. No. 1582).

On September 4, 2014, just four days before the start of the rescheduled trial, the government made additional disclosures to counsel; defense counsel contended that these included Brady material that should have been disclosed much earlier. (Dkt. No. 1611 at 9-14). Also on September 4, 2014, the government notified counsel by letter that it had just learned that one of the potential government witnesses had been asked by the government in 2012, after Espinal had been indicted and was represented by counsel, to wear a recording device during a conversation with Espinal. The government advised that it was in the process of trying to determine whether the recording still existed. (Dkt. No. 1611 at 14-21, 25).

I saw the parties the next day, September 5, 2014. Defense counsel indicated that they intended to file a motion to dismiss the indictment. In contemplation of this motion and briefings from both parties, and in part because there was an open question of whether thereexisted a recording of Espinal, I again adjourned the trial, until October 14, 2014. (Dkt. No. 1611). Thereafter, by letter dated September 17, 2014, the government notified defense counsel that it did not intend to proceed at trial on Counts One, Six, or Seven. (Def. Ex. Y).

Espinal filed the instant motion to dismiss on September 24, 2014. (Dkt. No. 1618). On October 7, 2014, in light of the motion, I once again adjourned trial until February 2, 2015. I heard oral argument on October 21, 2014, at the conclusion of which I reserved decision. (Dkt. No. 1628 ("10-21-2014 Oral Arg. Tr.") at 44).

On January 21, 2015, at the request of the parties, I adjourned the trial again, until April 27, 2015. The government advised that two new AUSAs would be taking over the case.

DISCUSSION

Espinal moves to dismiss the indictment on the grounds that the government engaged in such egregious prosecutorial misconduct that his right to due process was violated. (Def. Mem. at 49 (citing United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008)). In Chapman, the Ninth Circuit held that while the appropriate remedy for a Brady violation and other constitutional violations "will usually be a new trial, a district court may dismiss the indictment when the prosecution's actions rise . . . to the level of flagrant prosecutorial misconduct." 524 F.3d at 1086 (citation omitted). Espinal argues in the alternative that even if the government's misconduct here did not violate his constitutional rights, the...