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United States of America v. Sergio Velazquez

June 11, 2012

UNITED STATES OF AMERICA
v.
SERGIO VELAZQUEZ



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Defendant Sergio Velazquez is charged by Superseding Indictment with one count of conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and one count of distribution of five kilograms or more of cocaine. Presently before the Court is defendant's Motion to Dismiss the Indictment for Denial of Right to Speedy Trial ("Speedy Trial Motion"). The Court held an evidentiary hearing and heard oral argument on April 27 and June 6, 2012. For the reasons set forth below, the Court denies defendant's motion.

II. BACKGROUND

A. Investigation, Offense Conduct, and Initial DEA Efforts to Locate Defendant The charges in this case arise from information that Drug Enforcement Administration ("DEA") Special Agent David Pedrini received from a confidential informant ("CI") in June 2005. (April 27, 2012, Hr'g Tr. ("4/27/12 Tr.") 6.) The CI informed Agent Pedrini that defendant had offered to sell cocaine to the CI. (Id.) Defendant traveled from California to Philadelphia to meet with the CI to discuss the potential transaction. (Id. at 6--7.) DEA agents monitored the meeting, which took place at a Mexican restaurant at 9th Street and Washington Avenue on July 3, 2005. (Id. at 6--8.) Defendant was accompanied by co-defendant Pedro Curiel, who was to be "the person receiving the cocaine here in Philadelphia and eventually . . . giv[ing] it to the CI." (Id.) DEA agents arranged for the CI to wear a recording device during the July 3, 2005, meeting, and the device captured, inter alia, an agreement that defendant would sell the CI "between five and ten" kilograms of cocaine. (Id. at 7, 10.)

DEA agents arranged for Philadelphia Police Department officers to stop the car in which defendant and Curiel were traveling after they left the Mexican restaurant. (Id. at 7--8.) The purpose of the traffic stop was to "identify the occupants" of the vehicle. (Id.) Defendant showed the police officers a California driver's license with the name "Sergio Velazquez." (See id.) The police officers conveyed that information to the DEA, which obtained a copy of defendant's driver's license from the California Department of Transportation, including his photograph and the address of "PO Box 2901, Bell Gardens, CA, 90201" (hereinafter "PO Box 2901 address"). (Driver's License, Gov't Hr'g Ex. 1, at 1.) Defendant was not arrested during the traffic stop, and he returned to California. (4/27/12 Tr. 9.) By monitoring defendant's telephone conversations with the CI, DEA agents learned that defendant arranged for the cocaine transaction to take place on July 27, 2005. (Id.)

On July 27, 2005, the DEA covertly monitored Curiel as he met with the CI in Philadelphia. (Id.) They then watched Curiel meet with another co-defendant, Nelson Gutierrez-Gainza, at a truck stop in Philadelphia. (Id. at 9--11; see also Superseding Indictment 2.) Gutierrez-Gainza gave a sack to Curiel, who entered a car and drove away. (4/27/11 Tr. 9--11.) DEA agents stopped Curiel and determined that the sack contained nine kilograms of cocaine. (Id.) The agents arrested Curiel and Gutierrez-Gainza immediately. (Id.) On August 3, 2005, government agents issued a Complaint and warrant for defendant, charging him with offenses related to the July 27, 2005, drug transaction. (Id. at 11--12.)

Agent Pedrini testified to the initial efforts the DEA made in August 2005 to locate and arrest defendant. When the Complaint and warrant were issued, Agent Pedrini had two addresses for defendant: the PO Box 2901 address and an address that was associated with defendant's name in a law enforcement database, 6340 Woodward Avenue in Bell, California ("Woodward Avenue address"). (Id. at 12--14.) Agent Pedrini also determined that the Woodward Avenue address was "associated with the PO Box 2901 address somehow." (Id. at 28.) Agent Pedrini contacted DEA Special Agent Scott Pascoe-his DEA academy roommate, who was stationed in Los Angeles-and asked him to look into the Woodward Avenue address. (Id. at 12.) Agent Pascoe went to the address in early August 2005 and spoke to "a male, a female, and two children," who told him that defendant did not live there. (Id.) Pursuant to DEA protocol, because he was unable to locate defendant, Agent Pedrini declared defendant a fugitive and transferred apprehension authority to the United States Marshals Service ("USMS") fugitive squad in Philadelphia on August 12, 2005. (Id. at 12--13.) During this transfer, Agent Pedrini gave the USMS a "DEA personal history report" regarding defendant and the charges. (Id. at 14.) The report contained the PO Box 2901 address, and Agent Pedrini verbally informed the assigned Deputy U.S. Marshal, William "Billy" Degan, about the Woodward Avenue address. (Id.)

B. USMS Efforts-August to November 2005

Deputy Degan was responsible for the fugitive investigation of defendant from the time that the DEA transferred the case until he left his position with the USMS in late November 2005. (June 6, 2012, Hr'g Tr. ("6/6/12 Tr.") 9, 19.) Deputy Degan spoke with the DEA case agents after being assigned defendant's case and learned what efforts the DEA had made to locate defendant. (Id. at 9--10, 13.) He entered the defendant's warrant into the National Crime Information Center ("NCIC") Wanted Persons database*fn1 on August 17, 2005. (NCIC Records 12--13; 6/6/12 Tr. 11--12.) On August 19, 2005, Agent Pedrini also entered defendant's information into the NCIC Wanted Persons database. (NCIC Records 12.) Then, Deputy Degan entered defendant's biographical information into the Warrant Information Network ("WIN"). (6/6/12 Tr. 6--7; see also Add'l USMS Records, Gov't Hr'g Ex. 4, at 5--6.) Deputy Degan entered, inter alia, defendant's name, aliases, alien registration number, Social Security number, physical description, driver's license information, and PO Box 2901 address. (Add'l USMS Records 5--6.)

Deputy Degan also researched defendant's background using NCIC and other commercial and law-enforcement databases, such as Lexis-Nexis and Autotrack. (See 6/6/12 Tr. 8, 16.) These databases aggregate publicly available information associated with persons, such as applications for credit, DMV reports, and purchases of property or vehicles. (4/27/12 Tr. 42, 52--53.) With the information he gathered, Deputy Degan prepared a collateral request for law enforcement assistance in the Central District of California, where he believed defendant to be located. (6/6/12 Tr. 13--14.) Collateral requests are requests to USMS offices in other jurisdictions for assistance in an investigation. (4/27/12 Tr. 32; see also 6/6/12 Tr. 13.) In this case, according to Deputy Degan, the request would have been assigned to a USMS deputy or to a member of a Los Angeles--area law enforcement agency that participated in a Los Angeles Task Force. (6/6/12 Tr. 13, 18, 36--37.)

Deputy Degan's collateral request was dated October 7, 2005. (Add'l USMS Records 1-- 2; see also 6/6/12 Tr. 14.) The request summarized the alleged offense conduct and provided the names of defendant's mother and father, an address for defendant's mother in Pico Rivera, California, and defendant's driver's license information. (Add'l USMS Records 1.) The collateral request further stated that DEA agents in Los Angeles had gone to the Woodward Avenue address, which the DEA understood to be associated with the PO Box 2901 address, and interviewed the occupants of the Woodward Avenue address. (Id.) The request noted that "[a]gents from Los Angeles also checked a number of other addresses" and provided DEA Special Agent Scott Pascoe as a contact for more information on those efforts. (Id.)

The collateral request listed six addresses that Deputy Degan believed could be associated with defendant based on his searches of Autotrack and Lexis-Nexis. (Id. at 2.) Those addresses included: (1) "7937 Jaboneria Road, Bell Gardens, CA," which allegedly was a home defendant purchased in 1999; (2) the PO Box 2901 address; (3) "15159 El Camino Avenue, Paramount, CA"; (4) the Woodward Avenue address, which was "associated with Elias Velazquez . . . possible brother of [defendant]"; (5) "2584 Sale Place, Apt. H, Huntington Park, CA," which was "also associated with Cecilio Vasquez," whose relationship to defendant was unknown; (6) "6623 Priam Drive, Bell, CA," which was associated with defendant's mother.

(Id.) The collateral request stated, "This office asks that you attempt to locate [defendant] in your district. . . . If all leads for [defendant] are exhausted, please interview his parents . . . and his brother." (Id.)

Deputy Degan testified that he had no specific recollection of his contacts with law enforcement in the Central District of California and did not make any notes of those conversations. (6/6/12 Tr. 18--19.) However, he stated that it was his practice to contact someone at the receiving jurisdiction to determine the best manner for submitting the collateral request and to "follow up a day or two later to make sure they received everything they needed." (Id. at 19.) Deputy Degan also said that once the request was submitted, further communication between the requesting officer and the receiving jurisdiction would generally be informal contact by telephone. (Id. at 27.) Although the receiving jurisdiction likely would submit a written report of their efforts to respond to a collateral request and the USMS "standard practice" is to make a written record of "pertinent" information, Deputy Degan opined that it was possible that no report would be submitted if the receiving jurisdiction were still working on the request. (Id. at 27--28 (testimony of Deputy Degan that "if they were still working on it I wouldn't expect them to close out an ongoing case"); see also 4/27/12 Tr. 84 (testimony of Deputy Ilagan that "[t]he protocol would be to advise the lead Deputy in this case . . . I don't get a response through a formal letter through NCIC, I would get a phone call advising me that an intel information was gained, at what address it is, so I can further investigate and go on from there").

Deputy Degan stated that he did not receive a response to the collateral request before leaving the Philadelphia office of the USMS in late November 2005. (6/6/12 Tr. 29.) However, he believed that work was underway on the request because the Los Angeles Police Department ran a query for defendant in the NCIC Wanted Persons database on October 31, 2005. (Id. at 18; see also NCIC Records 12.) Although Deputy Degan stated that responsibility for this case would have been transferred to another deputy marshal, the person to whom this case was transferred was not identified by the witnesses. (6/6/12 Tr. 19.) However, the USMS records confirm that someone was working on the case. (E.g., USMS Records 1.)

C. Contact Between Government and Defendant's Counsel; Superseding Indictment and Charges

On November 1, 2005, the Assistant United States Attorney ("AUSA") assigned to the case sent a copy of the Complaint and warrant by facsimile to defendant's counsel, Jerry Kaplan, Esquire, who is based in California. (4/27/12 Tr. 88.) Defendant's counsel stipulated that he received the documents, but the parties agreed that, if defendant's counsel had any communication with defendant in regards to those documents, such communications were protected from disclosure by attorney-client privilege.*fn2 (Id. at 89.)

Defendant, Curiel, and Gutierrez-Gainza were charged by Superseding Indictment filed November 22, 2005. Defendant was charged with one count of conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and one count of distribution of five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Arraignment was held on December 15, 2005. Defendant did not appear, although a local attorney who had been appointed to represent him entered an appearance. During the arraignment, the AUSA stated, "[M]y understanding from my last conversation with Mr. Kaplan [defendant's California counsel] was that he was planning to surrender Mr. Velazquez, but that has not happened. And I have had no further contact with Mr. Kaplan . . . ." (Dec. 15, 2005, Hr'g Tr. 3.) Curiel and Gutierrez-Gainza were arraigned, and the warrant for defendant remained outstanding.*fn3

D. USMS and DEA Efforts-November 2005 to November 2010

The efforts of the USMS and DEA to locate defendant between November 2005 and November 2010 were limited to periodic checks of the NCIC Wanted Persons database and the commercial databases. (See, e.g., 4/27/12 Tr. 64 (cross-examination of Deputy Ilagan: "Q. So when you go back to 2005 and 2010, five years that this gentleman had a warrant out, the only thing that was done on any of these forms is an NCIC check, correct? A. And commercial database."). Those checks took place in January 2007, September 2007, November 2007, January 2008, February 2008, October 2008, September 2009, and October 2010. (See NCIC Records 1--12; USMS Records 1.)

In addition, between November 2005 and November 2010, no law enforcement agency contacted the USMS or DEA to inform them that defendant had been arrested or otherwise located. All of the government's witnesses conceded that between November 2005 and November 2010 no law enforcement agency attempted to visit the addresses associated with defendant. (E.g., 4/27/12 Tr. 60.) The USMS did not take any further action because the database searches "came up with the same things" that they had already checked. (Id. at 83 (testimony of Deputy Ilagan).)

Because the USMS had assumed responsibility for the fugitive investigation, Agent Pedrini had limited involvement in the efforts to apprehend defendant. Nonetheless, he followed up on the case annually in October by doing three things: (1) contacting the U.S. Attorney's Office to ensure they were still willing to prosecute; (2) making sure the warrant for defendant was still active in the NCIC; and (3) contacting the USMS. (See id. at 15--18.) Agent Pedrini noticed in 2008 that the warrant had been removed from the NCIC and contacted a USMS representative to make sure it was reactivated.*fn4 (Id.) Agent Pedrini also, on an unspecified date, had defendant's name and photograph placed on the "most wanted" list on the DEA's Philadelphia office's website. (Id. at 17.)

E. USMS Efforts-November 2010 to December 2011

Deputy U.S. Marshal Enrico Ilagan assumed responsibility for the fugitive investigation in November 2010. (4/27/12 Tr. 31.) He performed an NCIC and database check, and one of the databases returned a result for a new place of employment-a car or truck repair business in California-that was possibly associated with defendant. (Id.; USMS Records 1.) Deputy Ilagan conducted a "ruse," in which he contacted the business and "asked for [defendant] by ...


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