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January 5, 1994


The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, District Judge:

I. Introduction and Procedural History

 The defendants were convicted by a jury on May 11, 1993 of conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 846, and possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendants Jorge Galvis-Valderamma and Cesar Vergara-Jiminez moved orally for a judgment of acquittal under Rule 29(c), Fed. R. Crim. P., on the grounds that the prosecutor has violated its obligation to disclose information to the defendants that was exculpatory under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), that impeaches the credibility of the principal prosecution witness and should have been disclosed under Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), together with certain post-arrest statement of defendant while in custody which should have been disclosed under Rule 16(a)(1)(A), Fed. R. Crim. P.

 The central issue at trial, identified by the prosecution and defense counsel alike in closing arguments, was whether the defendants had knowledge that heroin was present in the vehicle, in which defendant Jose Galvis-Valderamma ("Galvis") was the driver and defendant Cesar Vergara-Jiminez ("Vergara") was the passenger, which a third person had asked defendant Vergara to retrieve as a way to earn some money.

 On May 20, 1993, this court held a hearing to take testimony relevant to this post-trial motion, to explore the precise contours of the non-disclosure. This dispute had its origins while the jury was deliberating and the court was called upon to review in camera an untimely-disclosed DEA report prepared by Investigator Salvatore Iurato (Ex. J-8, later Ex. M-2) regarding events on the night of defendants' arrests, September 16, 1992. The Iurato report ( Ex. M-2) had not been disclosed to defendants, even though it contained post-arrest statements of each defendant and those statements were consistent with innocence, denying knowledge that heroin was present in the automobile they were occupying when arrested. The Iurato statement also placed the heroin in question at a location "under the front seat," based upon a conversation between the arresting local police officer, Leonard Cottrell, and DEA Special Agent Brian Collier. Defendants argue this new information was contrary to Officer Cottrell's testimony at pretrial suppression hearings and at trial, namely, that Officer Cottrell found the heroin at the feet of passenger Vergara and that the heroin was itself in plain view to him (Officer Cottrell) as he stood outside the passenger window of the vehicle questioning Vergara. Iurato's report mentioned that at the September 16th interrogation, Bergen County Narcotics Task Force Investigator Carmen Espinal advised defendants of their rights and obtained the statements from them.

 The second new piece of evidence was the Memorandum of Investigator Espinal to Lieutenant Robert Scanlon dated September 17, 1992, marked Exhibit M-1, which first came to light at the May 20th hearing. Espinal's Memorandum explains her activities on September 16th in rendering assistance to the Ft. Lee Police Department and interrogating the two suspects. Espinal's report also mentioned that DEA Special Agent Brian Collier and other agents of the DEA questioned Vergara and Galvis, and it memorializes a fairly detailed statement by Vergara stating the circumstances under which he says he retrieved the automobile with Galvis from Queens, New York to bring it to North Bergen, New Jersey for money, but he did not know anything was in the vehicle.

 At the post-trial hearing, the court heard testimony from Investigator Iurato, Special Agent Collier and Investigator Espinal. Only Iurato had testified at trial, having been called by defendant Galvis. Special Agent Collier's testimony at the post-trial hearing disclosed that he had spoken to Officer Cottrell shortly after the arrests and questioned him carefully, and that Cottrell told him that he could not see what was in the bag he seized from under the passenger's seat, but that he seized it when he became suspicious about it and then opened it up to discover the heroin. This is directly contrary to Officer Cottrell's testimony at trial, as discussed below.

 To understand the context and significance of the new information, the background of defendants' arrests and of the seizure of the heroin by Patrolman Cottrell must be set forth at some length.

II. Evidence Relating to Search of Vehicle and Post-Arrest Statements of Defendants

 In pretrial motions, defendants moved to suppress evidence consisting of approximately one kilogram of heroin seized from a bag contained in the passenger compartment of an automobile in which Galvis was the driver and Vergara was a passenger. Vergara and Galvis also sought to suppress their post-arrest statements, including a statement by Vergara to Detective Rivera (Ex. G-11) given on the night of the arrest (September 16, 1992) at the Ft. Lee Police Department and a statement by Galvis given to DEA Special Agent Ogden and Investigator Iurato (Ex. G-2) given the next morning (September 17, 1992) at the DEA Office. The suppression motions were denied after two days of hearings in an Opinion and Order filed April 23, 1993.

 A. Search of Vehicle and Seizure of the Heroin

 The factual background of Officer Cottrell's traffic stop of defendants' automobile, his questioning of defendants, and his seizure of heroin from their car in plain view as he questioned them is set forth in detail at pp. 3-10 of the Opinion filed April 23, 1993. This court's Opinion found probable cause to stop the vehicle for the traffic violations of reckless driving and improper taillight and that this was the reason for the traffic stop, crediting Office Cottrell's testimony. Opinion at 9. I also found that during the course of routine questioning about the vehicle's ownership (prompted by the fact that neither occupant was the registered owner), while standing outside the vehicle, Officer Cottrell observed a white plastic Levi's shopping bag "in plain view at the passenger's feet forward of the right front seat." Id. I found that the white Levi's bag was in plain view and that neither defendant had asserted a protectable Fourth Amendment interest in the bag's contents (which included a shirt, another bag, and two zip-lock inner bags each containing heroin), id. at 9-10. From the facts of the seizure described by Officer Cottrell and post-arrest denials by Vergara and Galvis regarding the Levi's bag or its contents, I found "that these defendants had no expectation of privacy in the interior of the Levi's bag, even though the bag reposed at Vergara's feet." Id. at 17. Accordingly, the court held that:

The defendants have not shown from the circumstances of this case that they had a reasonable expectation of privacy in the contents of the Levi's bag where it appears that neither defendant asserts [for purposes of the suppression hearing] any knowledge of the bag's origins or linkage to any of its contents. To the contrary, the defendants' post-arrest statements distance themselves from any relationship to the bag. The defendants' assertions on this subject add up, for purposes of this suppression motion, to a claim that they did a favor for a stranger to transport his car and, unbeknownst to them, his bag containing heroin. This does not give rise to any reasonable expectation of privacy in that bag. That the defendants were lawfully in the presence of this bag when it was searched and seized by Officer Cottrell is likewise insufficient to confer standing.

 Id. at 17-18 [citation and footnote omitted].

 Officer Cottrell's recitation of the events leading to the defendants' arrests and his seizure of the heroin was the key testimony at the suppression hearing and at trial. He related how he observed defendants' Buick from Ft. Lee into Ridgefield, because he observed the driver make an unsafe lane change. After following the car for 1 1/2 miles, he pulled the Buick over by activating his flashing lights. Officer Cottrell testified that as he sat in his police vehicle behind the Buick, he saw the driver and passenger bend down, out of sight, and then reappear.

 He testified he approached the driver, Mr. Galvis, to examine his license, registration and insurance papers, and that Galvis's hand was shaking so much from nervousness that he dropped the papers. From the driver's side, he first noticed the white plastic bag with lettering on it under the passenger's legs, according to his testimony.

 He required Galvis to step out of the vehicle and continued questioning Galvis about the vehicle's ownership, when he allegedly observed Vergara bend over in the passenger's seat two more times out of sight, believing him to be pushing the bag under the seat.

 Officer Cottrell testified that he then approached the passenger's side to inquire of Vergara about the vehicle's ownership, since Galvis told him Vergara might know the answer. Vergara appeared to be very nervous, nearly poking himself in the eye with a pen, according to Office Cottrell. (A backup police car with Officer Buda appeared on the scene, but Buda was not a witness at the suppression hearing or trial.)

 While questioning Vergara, Officer Cottrell testified that he stood at the passenger's side, and that he was able to see not only the large white plastic Levi's bag on the floor under Vergara's legs, but also its contents, because the bag was open at the top and angled toward the passenger's side so he could see into it. He testified at the suppression hearing, and at trial, that he could see a white bag inside, containing a black shirt and a green bag (like a green/black garbage bag) which contained a rip in it, through which he could plainly see two clear plastic bags, each with a white powdery substance in it that he suspected was a controlled substance. He testified that nothing blocked his view -- not Vergara's legs, nor the white outer bag, nor the smaller white inner bag or black shirt on the torn green/black garbage bag containing the drugs. He testified that he then had Vergara step outside the vehicle and he seized the drugs in plain view.

 Although the defendants could and did argue that Officer Cottrell's version of being able to see the heroin within the multiple bags was implausible and therefore incredible, the defendants did not have the benefit at the suppression hearing or at trial of Special Agent Collier's post-trial testimony concerning the contrary statements Officer Cottrell made about this seizure. *fn1" Likewise, defendants argue that Special Agent Collier's version of Cottrell's debriefing was confirmed in Investigator Iurato's report, Ex. M-2, repeating Special Agent Collier's observation that the bag in question was "under the front seat," and not in plain view by the passenger's legs.

 Special Agent Collier testified that he was summoned to the Ft. Lee police station on September 16th, following the arrests of the defendants. He testified that Cottrell told him that the defendants had been trying to push the bag under the seat, but that "the bag was too large, apparently, to go under the seat fully." (Tr. 5/20/93 at 42:16.) Collier emphasized, that "from where he [Cottrell] was he could not see into the bag to see white powder, but he did see this bag that the passenger was trying to place and push under the seat." (Id. at 42:17-20.) In response to questioning by the court, Special Agent Collier testified that Cottrell told him that he first learned there was a suspected controlled substance in the bag when he reached into the car, seized the bag and checked it. (Id. at 43:10-11.) Collier believed the bag itself was "quite visible" to ...

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