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United States v. Caballero

United States District Court, D. Massachusetts

December 20, 2017

THE UNITED STATES OF AMERICA
v.
CHRISTOPHER CABALLERO (1), NATHAN CABALLERO (2), RAYMOND CARRASQUILLO (3), SEAN KRASIN (5), Defendants.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS AND MOTIONS TO SUPPRESS (DKT. NOS. 146, 147, 148, 150, 151, 156, 157, 158, 159)

          MARK G. MASTROIANNI UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Since early 2016, the Federal Bureau of Investigation's (“FBI”) Western Massachusetts Gang Task Force (“GTF”) investigated a particular ring of heroin trafficking in Holyoke, MA.[1] As part of that investigation, cooperating witnesses made more than ten controlled purchases from each Christopher Caballero, Nathan Caballero, Sean Krasin, and Louis Roman Soler (collectively, with Raymond Carrasquillo, the “Defendants”), between March and May of 2016. The quantity purchased ranged from “half packs” (150 bags) to “10 packs” (1000 bags). Partially on that basis, this court authorized electronic surveillance of cellular phones used by Defendants Krasin, Soler, and Christopher Caballero. Based on intercepted communications, the investigation led the government to believe that Nathan and Christopher Caballero sold heroin in their residence at 53 Samosett Street in Holyoke, MA.

         Ultimately, communications surveilled on July 25, 2017, suggested Christopher Caballero and Carrasquillo would effect a particularly large deal by the end of that day. Through text messages or voice calls, Caballero asked to purchase “100 packs” (10, 000 bags) of heroin, causing the government to believe Carrasquillo represented a main supplier, a then unknown target of the investigation. Although timing appears to be in dispute, [2] by no later than 7:40 p.m. agents learned the exchange would occur at 53 Samosett Street in Holyoke. By 8:00 p.m., physical surveillance and/or pole cameras observed Carrasquillo exit a BMW at that address and enter the residence carrying a black backpack. Moments later, law enforcement agents from the FBI GTF, the Holyoke Police Department, Massachusetts State Police, and the Bureau of Alcohol, Tobacco, and Firearms entered the residence without a warrant, performed a protective sweep[3] of the entire residence and secured everyone present. (146 ¶ 4). According to an FBI FD-302 Warrant Service Report attached to Christopher Caballero's motion to suppress, agents found a 100 packs of heroin lying in plain view between Caballero and Carrasquillo, who were seated on a living room couch, and $15, 000 inside a backpack lying within Carrasquillo's reach.

         The government contends (unchallenged by the defendants) that by approximately 6:30 p.m.-before entry into the house-an FBI agent and an Assistant United States Attorney began preparing a search warrant affidavit for 53 Samosett Street and notified the magistrate of the impending warrant application. The magistrate eventually granted that application and signed a warrant at approximately 10:30 p.m. at a state trooper barracks in Northampton. In the interim, agents had arrested the Caballero brothers and Carrasquillo under 21 U.S.C. § 841 and searched their persons. Keys to an Infinity sedan parked in the yard of the residence were found on Nathan Caballero. Later, either before or after the warrant issued, agents searched the house and the Infinity sedan.[4] They recovered a variety of firearms, ammunition, drugs, and an additional $8, 056.00 in safes and rooms throughout the house. In total, they seized 15, 294 bags of heroin, 28.5 grams of cocaine, and a small amount of marijuana.

         Just over a week later, a grand jury indicted the movant-Defendants for a violation of 21 U.S.C. § 841 (Conspiracy to Distribute and Possess Heroin). (Dkt. No. 16.) Several months later, on February 17, 2017, the grand jury issued a superseding indictment charging the Defendants with a collective 19 substantive counts for conspiracy, distribution, possession, aiding and abetting, and felon in possession charges. (Dkt. No. 116). The foreperson for the grand jury in each instance was a county Assistant District Attorney (“ADA”).[5]

         Defendants Carrasquillo, Krasin, Christopher Caballero, and Nathan Caballero have each moved under Rule 6 of the Federal Rules of Criminal Procedure to dismiss the indictment based on the ADA's inclusion on the grand jury and to suppress all evidence recovered at 53 Samosett Street. For the reasons and to the extent explained below, the court DENIES each Defendants' motion to dismiss, (Dkt. Nos. 147, 148, 150, 156), and DENIES Defendant Carrasquillo's motion to suppress (Dkt. No. 146) for lack of standing. As discussed during oral argument, the remaining motions to suppress will receive an evidentiary hearing.

         II. Carrasquillo's motion to suppress (DKT. NO. 146)

         Carrasquillo's motion must be dismissed for lack of standing. When moving to suppress under the Fourth Amendment, a defendant “carries the burden of establishing that he had a reasonable expectation of privacy with respect to the area searched or . . . the items seized.” United States v. Lipscomb, 539 F.3d 32, 35-36 (1st Cir. 2008) (citing United States v. Salvucci, 448 U.S. 83, 91-92 (1980)). An expectation of privacy is the “threshold standing requirement that a defendant must establish before a court can proceed with any Fourth Amendment analysis.” United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir.1994). To establish this,

“a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”

United States v. Samboy, 433 F.3d 154, 161 (1st Cir. 2005) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998).

         Defendant Carrasquillo has not done so here with respect to 53 Samosett Street. His counsel was forthright in conceding the point during oral argument when signaling that Carrasquillo would not seek an evidentiary hearing on the matter. His affidavit, moreover, simply states that he arrived at that location at approximately 8 p.m. and that within “a few minutes . . . numerous members of law enforcement entered the residence with their guns drawn.” (Dkt. No. 146-1). Therefore, because Carrasquillo has not challenged the government's representations that he was present for purely commercial purposes and a “casual visitor for a brief period, ” the court concludes that he cannot establish a reasonable expectation of privacy in that residence. United States v. Rodríguez-Lozada, 558 F.3d 29, 37 (1st Cir.2009).

         III. MOTIONS TO DISMISS (DKT. NOS. 147-48, 150, 156)

         Defendants argue that dismissal is warranted because a county ADA served as the foreperson of the indicting grand jury.[6] (Dkt. Nos. 147, 150). Although Defendants' briefs attempt to posture arguments under two distinct headings and two distinct grounds for dismissal-violation of the court's jury selection plan and the alleged bias of the ADA-their motions invoke only Rule 6(b)(2) of the Federal Rules of Criminal Procedure and section 1867 of the Jury Selection and Service Act of 1968, codified at 28 U.S.C. § 1861 et seq., (the “JSSA” or “Act”). As explained below, the Court concludes Defendants have not established grounds for dismissal under Rule 6(b)(2) and the JSSA and denies their motions. As further explained below, the court denies these motions without prejudice to the extent they invoke Rule 12 or some other ground for dismissal relating to the ADA's alleged bias.

         A. Defendants have failed to establish a substantial failure to comply with the JSSA under Rule 6(b)(2).

         As a threshold matter, the court determines the Defendants have thus far only moved for dismissal for violations of the JSSA, although vague assertions in their briefs invoke other grounds for dismissal related to the ADA's alleged bias. Nevertheless, because each motion is explicitly made “pursuant to Rule 6(b)(2) of the Federal Rules of Criminal Procedure and 18 ...


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