United States v. Soriano

401 F.Supp.3d 396

UNITED STATES of America

v.Emma SORIANO, Defendant.

18 CR 389 (RJD)

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

Signed August 14, 2019

Oren Gleich, United States Attorney's Office, Brooklyn, NY, for United States of America.

Samuel Jacobson, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM OF DECISION

DEARIE, District Judge

Defendant Emma Soriano was indicted for importation and possession of heroin with intent to distribute after Customs and Border Protection ("CBP") officers recovered heroin from two plastic containers of food found in her carry-on and checked luggage upon her return from a trip to Mexico. On July 9, 2019, less than two weeks before trial was set to begin, Ms. Soriano filed a motion seeking dismissal of the indictment and an evidentiary hearing after the Government informed her that most of the items seized, including her belongings, had been destroyed by CBP officers, who also failed to prepare any written or photographic inventory of the materials before destroying them. Ms. Soriano argues she has been deprived of the ability to present her defense because the destroyed evidence was the only means available for her to corroborate that she had no knowledge about the contraband in her luggage, and the officers' actions were purposeful and evidencing bad faith.

After hearing the Government's account of the circumstances under which Ms. Soriano's items were destroyed and reviewing the limited evidence that remains available for her defense, the Court cannot find that Ms. Soriano would be afforded a fair opportunity to defend herself at trial. For the reasons stated below, and with considerable reluctance, Ms. Soriano's motion to dismiss the indictment is granted.

BACKGROUND

I. Arrest and Recovery of Contraband

Ms. Soriano works as a "paquetera", or professional food courier, transporting items that are not generally available in the United States from Puebla, Mexico to migrants who live in New Jersey and New York. On July 15, 2018, Ms. Soriano arrived at John F. Kennedy airport from a trip to Mexico for her paquetera business. After retrieving her luggage from baggage claim, she presented her purse, a carry-on bag and three checked duffle bags for examination to a CBP Agricultural Specialist, along with receipts of the items she planned to deliver and prior notice of food importation paperwork required by the Food and Drug Administration. During an X-ray of her luggage, the CBP officer noticed an anomaly in the contents of her carry-on bag and subsequently found two egg-shaped packages containing heroin inside a plastic tupperware of green-powdery seasoning in her carry-on bag.

CBP officers escorted Ms. Soriano to a private room where they searched the remainder of her luggage. Ms. Soriano's checked bags were filled with various packages containing perishable food items and other non-perishable goods she was transporting for her clients and other paqueteros, and many of the packages were labeled with the intended recipient's name. Inside a container of mole, a traditional Mexican sauce, in one of Ms. Soriano's checked bags, CBP officers found two additional egg-shaped packages containing heroin. The officers also recovered additional paperwork for Ms. Soriano's paquetera business from her carry-on and purse, including invoices and power of attorney forms from prior trips with names and addresses of clients for whom she had transported packages.

Ms. Soriano was arrested and brought to an interrogation room to speak with Homeland Security Investigation ("HSI") agents. During the interview, Ms. Soriano denied any knowledge of the contraband in her luggage and explained that she worked as a paquetera transporting items for clients and other paqueteros.¹ She also explained that she did not pack any of her luggage because she had to take her mother to the hospital in another city in Mexico, so one of the workers from her paquetera business, Raul, packed the carry-on and brought it to her before she left for the airport. Similarly, the duffel bags were delivered to her fully packed with items for another paquetera by a woman named China before she went to the airport. Ms. Soriano explained she did not check any of the contents of the bags when they were delivered to her because she was running late to catch the bus to the airport.

II. Destruction of Ms. Soriano's Belongings

According to the Government, CBP does not routinely store perishable food items recovered from seized luggage. Thus, after CBP officers searched the contents of Ms. Soriano's luggage and recovered the contraband, with the HSI agent's permission and without consulting the United States Attorney's office, they destroyed all the perishable items in the luggage along with other items which, according to the Government, the officers deemed to have no evidentiary value. This included all the contents of the three checked duffel bags, including non-perishable items, and the three duffel bags themselves. The only items the officers retained were the contraband, Ms. Soriano's carry-on bag, one empty plastic container and the paperwork recovered from Ms. Soriano's purse and carry-on bag.

The officers did not create an inventory or photograph Ms. Soriano's luggage as it was originally presented for inspection, and only took three photographs of the duffel bags after they had been searched. Court Exs. 1, 2, 3, ECF No. 59. The photos show some of the items which were destroyed, including shoes and wooden crafts, but the Government conceded that these items had already been removed from the duffels and were randomly placed back for the photographs. The officers also took two photographs of Ms. Soriano's open carry-on bag with a large open plastic tupperware inside containing two of the egg-shaped packages of heroin. Gov't Opp. to Mot. for Hr'g., ECF No. 52, Ex. B. In the corner of these two photographs, there is an open cardboard box containing a label with an individual's name written on it. Id. None of the discarded items were individually photographed or inventoried before they were destroyed, and there is no record of what each piece of luggage contained prior to being searched or how the items were packaged inside the luggage.

III. The Instant Motion

On July 9, 2019, Ms. Soriano filed this motion seeking dismissal of her indictment, or in the alternative, an evidentiary hearing prior to the July 22 trial date. The Government opposed both of Ms. Soriano's requests, arguing there was no need for an evidentiary hearing because there were no material facts in dispute and the undisputed facts showed dismissal was not warranted. On July 16, 2019, the Court held a conference to hear from the parties on this issue.

At the conference, the Government disclosed an email written and disseminated by the Chief Enforcement Officer of the Passenger Operations at JFK Airport to CBP officers at the airport on March 14, 2014, which states, in part:

The U.S. Attorney's Office, New York, has requested that when we seize narcotics/currency and the violator has items that we routinely examine and subsequently dispose of (perishables, food, etc.), that we now take pictures of those items prior to their disposal. Any other nonperishable items should remain with the luggage, this includes containers of items that we may have disposed of during our examination, such as alcoholic beverages, shampoo, powder, etc. This will ensure that all items that were present when the violator arrived in or departed the United Stated are either present or a record their presence exists. The U.S. Attorney's Office states that there have been a number of cases where those non-essential items have become an essential part of their prosecution.

Id. at Ex. A.

The Government also informed the Court it had produced surveillance videos of Ms. Soriano at the airport with her bags, though the videos only show the unopened duffels and carry-on on a luggage cart and going through the X-ray machine. Id. at Exs. C, D. Finally, the Government disclosed that none of the officers or agents present during the search would be able to testify as to whether the packages in Ms. Soriano's luggage were labeled and what those labels said because too much time had elapsed, but the case agent could testify about some of items found, at least after the luggage had been searched. After expressing concerns about proceeding to trial without developing the record regarding what the officers recalled about the contents of Ms. Soriano's luggage, the Court granted the Government's request to file supplemental briefing on the matter.

Following the conference, the Government again urged the Court to deny Ms. Soriano's request for an evidentiary hearing, arguing there was no material factual dispute for the Court to resolve. The Government expressed its willingness to stipulate that (1) Ms. Soriano worked as a professional food courier, (2) at least some of the items in the destroyed checked bags were labeled with names that matched food courier paperwork recovered from her at the time of her arrest, and (3) at least some of the food contained in the destroyed bags matched the description of food listed in her paperwork. Nonetheless, the Government intended to present evidence that the food courier paperwork Ms. Soriano presented to CBP officers, as well as some other food courier paperwork found in her possession, contained false information about the senders and recipients of the items she was purporting to deliver. It also proffered that it intended to present evidence that Ms. Soriano did not submit the required prior notice paperwork for the individual whose name is written on the one label seen in the photographs of Ms. Soriano's carry-on bag, and that the individual would testify he was not expecting to receive the food items listed in the corresponding paperwork, his address is incorrect on that paperwork and he does not know the supposed sender of the package.

LEGAL STANDARD

A...