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February 22, 1993


The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN


 On April 22, 1992, following a two-day jury-trial before this court in Easton, Pennsylvania, defendants Jose Robles and Jose Croussett were both found guilty of conspiring to distribute cocaine-base and possessing cocaine-base with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. Defendant Robles was found not guilty of possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Presently before this court are post-trial motions by both defendants for a new trial. Neither defendant has been sentenced.


 The following facts were elicited during trial from the testimony of Detectives Chaves, Perricone, Clements and Reynolds, all members of the Philadelphia District Attorney's Office, Narcotics Unit.

 On December 2, 1991, the Philadelphia District Attorney Narcotics Unit received information from a confidential informant that two Hispanic males would be in the Burger King parking lot located at 100 West Erie Avenue at approximately 3:30 p.m. with a quantity of cocaine-base ("crack") to sell. The Narcotics Unit was informed that the two males would be operating a blue Chevrolet Monte Carlo and a blue Buick Regal. Detective Freddie Chaves, in an undercover capacity, was to pose as a drug buyer and purchase between 4 1/2 and 9 ounces of crack.

 At approximately 3:20 p.m., several other detectives arrived at the Burger King parking lot and set up surveillance. Approximately five minutes later, the detectives observed a blue Buick enter the parking lot followed immediately by a blue Monte Carlo. As the detectives watched, the drivers parked the two cars near each other. Defendant Jose Robles exited the blue Monte Carlo and defendant Jose Croussett exited the blue Buick. The two men then walked over to a silver Chevrolet with tinted windows. Defendants Robles and Croussett spoke briefly to the occupant of the silver Chevrolet before they entered the back seat of the car. Approximately a minute later, defendant Robles exited the car, walked back to the blue Buick originally driven by defendant Croussett and drove off the parking lot.

 Between five and ten minutes later, defendant Robles returned to the parking lot and re-entered the silver Chevrolet. The surveillance detectives, who were in radio communication with Detective Chaves, relayed this information to the undercover detective. Detective Chaves then entered the parking lot and walked over to the unoccupied blue Buick. As the surveillance detectives observed, defendants Robles and Croussett exited the silver Chevrolet and together approached Detective Chaves. The undercover officer told defendants Robles and Croussett that he was instructed to meet two males driving a blue Monte Carlo and a blue Buick. Robles and Croussett told the detective that they were the males.

 Detective Chaves then asked the defendants if they had the "cook stuff" (crack) and remarked that he had enough money for nine ounces. Defendant Robles informed the undercover officer that they had only 6 1/2 ounces and the price would be $ 4,700.00. After Detective Chaves asked to see the crack, defendant Croussett asked the detective whether he had the money. Detective Chaves said he did but insisted that the defendants show him the crack before proceeding. Defendant Robles agreed. As defendant Robles was opening the passenger-side door of the blue Buick to show the detective the drugs, a marked police car entered the Burger King parking lot. Both Detective Chaves and defendant Croussett warned defendant Robles of the marked police car.

 After the marked police car left the parking lot, defendant Robles told defendant Croussett to show the crack to Detective Chaves, while he acted as a lookout. Defendant Croussett then entered the driver's-side of the blue Buick while both Croussett and defendant Robles instructed Detective Chaves to enter the passenger-side of the car. Meanwhile, defendant Robles assumed a position at the rear of the Buick where he could act as lookout. With Detective Chaves seated in the front passenger seat, defendant Croussett reached under the front seat and brought out a brown paper bag, which he then handed to the detective. Detective Chaves opened the bag, looked into it and removed a large baggie containing an off-white chunky substance which he believed to be crack.

 Acting as if he had forgotten the purchase price, Detective Chaves asked the cost. Defendant Croussett responded, telling the detective that the price was $ 4,700.00, whereupon Detective Chaves asked defendant Croussett if he could give him a better price since the detective would be buying more from the two defendants in the future. Defendant Croussett signaled to defendant Robles, who approached the driver's-side door of the Buick, and the two defendants had a brief conversation regarding the price. Defendant Robles indicated to defendant Croussett that they might be able to offer Detective Chaves a better price next time. Defendant Croussett relayed this to Detective Chaves. The detective then agreed to purchase the crack for $ 4,700.00.

 Detective Chaves returned the brown bag containing the crack to defendant Croussett, who placed the bag under the front seat. The detective then exited the Buick under the guise of returning to his vehicle to retrieve the money. Once outside the car, Detective Chaves gave a pre-arranged signal, whereupon the backup officers proceeded towards the blue Buick and assisted Detective Chaves in arresting the defendants. The detectives confiscated the brown paper bag containing the off-white chunky substance from the blue Buick. The off-white chunky substance was tested by the Philadelphia Police Department Chemistry Laboratory, which established it to be cocaine-base (crack) weighing 171.1 grams. During the course of the arrest, the detectives searched the defendants and confiscated the car keys and ownership documents to the blue Chevrolet Monte Carlo and to the blue Buick Regal from defendant Robles and defendant Croussett, respectively.

 Following the arrest, Detective Clements entered the blue Chevrolet Monte Carlo driven to the parking lot by defendant Robles, for the purpose of transporting the vehicle to a secure location. As the detective depressed the accelerator, he felt a lump, looked down on the floor and noticed a clear plastic packet containing a white powder substance. Detective Clements confiscated the packet. The white powder was also tested by the Philadelphia Police Department Chemistry Laboratory and was found to be cocaine weighing 54.5 grams.

 Based on the foregoing facts, defendants Robles and Croussett were charged by a grand jury in a three count indictment. Count One charged co-defendants Robles and Croussett with knowingly and unlawfully conspiring to distribute in excess of fifty grams of cocaine-base. 21 U.S.C. §§ 841(a)(1), 846. Count Two charged Robles and Croussett with knowingly and intentionally possessing with the intent to distribute more than fifty grams of cocaine-base. 21 U.S.C. § 841(a)(1). Count Three charged Robles with knowingly and intentionally possessing with the intent to distribute approximately sixty grams of a mixture or substance containing a detectable amount of cocaine. 21 U.S.C. § 841(a)(1). A two day jury-trial was held in which the defendants were found guilty of Counts One and Two of the indictment. Defendant Robles was found not guilty of Count Three.

 On September 16, 1992, nearly five months after trial, defendant Croussett filed a motion, pro se, for a new trial. Subsequently, on November 18, 1992 Croussett again filed a motion for a new trial, this time through his new attorney. Defendant Croussett bases his motion on: (1) the alleged ineffectiveness of his trial counsel; (2) the court's alleged error in permitting Government witnesses to refer to conversations occurring prior to the police arriving on the crime scene; and (3) the defendant's unknowing waiver of his right to testify. Defendant Croussett also filed a motion for disclosure of the confidential informant.

 Similarly, on October 21, 1992, approximately six months after trial, defendant Robles filed a motion for a new trial. This motion is based on the following grounds: (1) the alleged ineffectiveness of his trial counsel; (2) the court's alleged error in refusing to order disclosure of the identity of the confidential informant; (3) the court's alleged error in allowing the defendant to waive his right to testify without ascertaining that the waiver was knowing and voluntary; (4) that the defendant has uncovered exculpatory evidence that was not available to him at the time of trial; and (5) in the interests of justice.

 On November 20, 1992, we held a hearing to give the defendants a full opportunity to present evidence in support of their claims. At the hearing, defendant Robles and the former attorneys for both defendants gave extensive testimony. After giving careful consideration to that testimony, defendants' motions and accompanying papers, and the evidence elicited at trial, we deny the defendants' motions for a new trial and defendant Croussett's motion for disclosure of the confidential informant for the reasons stated below.


 The defendants raise several overlapping challenges to their convictions. To the extent possible, we will consider these challenges together.

 1. Defendants' Motions For a New Trial

 Each defendant has brought a motion for a new trial based primarily on claims of ineffective assistance of counsel and alleged errors committed by this court. We note initially that a motion for a new trial must be made within seven days after the verdict, unless the trial court grants an extension of time within these seven days. Fed. R. Crim. P. 33. *fn1" The only exception to this rule is where the motion is based on "newly discovered evidence." Id. *fn2" Where, as here, the motion for a new trial is based on facts known to the defendant at the time of trial, it is not based on "newly discovered evidence" and is untimely if filed more than seven days after the verdict. *fn3" United States v. Ellison, 557 F.2d 128, 132-33 (7th Cir.), cert. denied, 434 U.S. 965, 98 S. Ct. 504, 54 L. Ed. 2d 450 (1977). Accordingly, the motions for new trial made by defendants Robles and Croussett are untimely. *fn4" Because the time limits of Rule 33 are jurisdictional, we are without authority to entertain these motions. Nonetheless, in the interest of judicial economy, we find that even if the motions were timely made, they would be denied because, as discussed below, disclosure of the confidential informant is not warranted and defendants have not established their claim of ineffective assistance of counsel. *fn5"

 2. Confidential Informant

 Both defendants rest their claims for a new trial on the disclosure of the confidential informant. Defendant Croussett brings a motion for disclosure approximately seven months after conviction. Defendant Robles assigns error to the court's alleged "refusal" to order disclosure of the informant's identity. Given that no motion for disclosure has ever been brought in this case by either defendant, we cannot comprehend Robles' placement of error.

 Defendant Croussett has moved for disclosure of the name, address, criminal and psychiatric record and drug habits of the informant. Defendant maintains, without support, that the informant "orchestrated", "actively participated" and "witnessed" the conduct that the Government alleges is criminal; therefore, this court must order disclosure because the informant can give testimony that is relevant ...

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