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United States v. Roman

United States District Court, D. Massachusetts

April 18, 2018

JAMIL ROMAN, Defendant.



         I. Introduction

         In applying for a warrant to search the business and residence of Jamil Roman (“Defendant”), the Government alleged in an affidavit that a confidential informant (“CS”) obtained four kilograms of cocaine at Defendant's business, TWC Auto Body, located at 56 Jackson Street, Holyoke, Massachusetts. However, CS-upon agreeing to cooperate with federal law enforcement-affirmed in a written statement that the cocaine was actually delivered to CS's business, located at 712 Boston Road, Springfield, Massachusetts. In light of this discrepancy, concerning the only allegation in the search warrant affidavit providing a sufficient nexus between the alleged criminal activity and Defendant's business address, this court previously held that Defendant satisfied his burden, under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), to obtain an evidentiary hearing. See United States v. Roman, 2017 WL 4517963 (D. Mass. Oct. 10, 2017).

         Following the Franks hearing-which occurred on multiple days spread out between November of 2017 and January of 2018-the court will grant Defendant's motion to suppress as to the search of his business. The court finds the Government[1] committed a series of easily avoidable errors which, combined with the admittedly high risk of the harm that occurred here, amounted to reckless disregard for the truth. In addition, the court finds that the “reformed” affidavit fails to establish probable cause to search Defendant's business. As a result, the warrant to search Defendant's business “must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Franks, 438 U.S. at 156.[2]

         II. Findings of Fact

         In 2013 and early 2014, DEA Special Agent John McGrath and Robert Alberti (then an Easthampton police officer temporarily assigned to the DEA Task Force) assisted the FBI Gang Task Force in an investigation targeting CS. The DEA Task Force's focus was on identifying the supply sources of narcotics coming into western Massachusetts from outside the region. In contrast, the FBI Gang Task Force focused on street level gang activity (albeit often related to narcotics).

         On January 14, 2014, the FBI Gang Task Force prepared to execute search warrants for CS's residence and business. At around the same time, McGrath and Alberti conducted surveillance on CS near Western New England University, where CS was pulled over by Springfield police officers at the behest of the FBI Gang Task Force. CS agreed to cooperate with law enforcement and informed agents that he had three kilograms of cocaine at his business on 712 Boston Road, Springfield, Massachusetts. CS also stated that the cocaine ultimately came from Javier Gonzalez but that CS actually obtained the narcotics from Defendant.

         After FBI agents secured the cocaine from CS's business, CS provided a detailed statement at the FBI office. McGrath and Alberti as well as agents from the FBI Gang Task Force were present during CS's statement. Alberti used an FBI laptop computer to transcribe CS's statement into a typed document. CS explained early in the interview that he “got these 4 kilos a few days ago from Javier Gonzalez. Javier had [Defendant] drop the kilos off to me around 712 Boston Road.” (Ex. 2 ¶ 5.)[3] Although Alberti testified he could not recall CS making this statement and expressed doubts as to its accuracy, both Alberti and McGrath witnessed CS read and initial each paragraph as well as certify under penalty of perjury that CS had an opportunity to make corrections and that the statement was accurate. Moreover, although CS appeared nervous during the course of his interview, he acted calm and lucid while reading and initialing the written statement.[4]

         During his typing of the statement, Alberti struggled at times keeping up with CS's responses because of significant disorganization in the multi-agent questioning process. Agents asked questions rapidly and seemingly in random fashion, with the FBI agents focused on gang-related information and the DEA agents focused more on the source of the cocaine. In response, CS provided a broad range of information dating back to 2000 and involving numerous individuals and organizations. Alberti attempted to draft the statement in chronological order and so had “to go back and forth in the statement” when typing to keep it organized. (Dkt. No. 153, Tr. of Ev. Hr'g Dec. 15, 2017, at 23.) Moreover, at least one agent repeatedly entered and exited the room during the interview, further contributing to the chaotic atmosphere. After the interview, the FBI maintained CS's written statement, despite “handing off” CS to the DEA Task Force as a cooperating informant. Neither Alberti nor McGrath obtained or requested a copy of the statement, and it was not entered into the DEA electronic filing system.

         Following CS's decision to cooperate, the joint investigation of the FBI and DEA continued to diverge. The DEA Task Force, which previously operated in a supporting role in the investigation of CS, began investigating international drug trafficking by Gonzalez.[5] Approximately one week after CS gave his written statement, DEA Special Agent Scott Smith joined Alberti and McGrath in the Gonzalez investigation. Smith would eventually draft the affidavit in support of the warrant to search Defendant's Holyoke business (among other locations). Crucially, however, Alberti and McGrath did not inform Smith about the existence of CS's written statement or its content (specifically, that CS received the kilograms of cocaine at 712 Boston Road in Springfield). In addition, no DEA reports reference CS's written statement.[6] For example, McGrath wrote three DEA Form-6 Reports (“DEA-6s”) between January 21, 2014 and January 28, 2014 (an Initial Debriefing Report, a Case Initiation Report, and another Debriefing Report), and none mention CS's January 14th written statement. (Exs. 6-8.) Moreover, none of the DEA reports state that CS received the kilograms of cocaine at CS's business in Springfield.[7]

         The failure to apprise Smith of the existence of CS's written statement or the fact that CS reported having received the kilograms in Springfield, either orally or through a DEA report (or via the written statement itself), was a serious error, as McGrath, Alberti, and Smith each acknowledged in their testimony. Smith testified that when he is assigned to an investigation already underway, he first speaks with the agents previously assigned to the investigation and then reads the reports in DEA's electronic case file. The electronic case file, Smith explained, is meant to encapsulate all the documents written regarding the investigation. Thus, Smith testified, it was important to maintain a complete and accurate case file because agents rely on the information at later points in the investigation-for example, when applying for search warrants or testifying in court-and could be misled by any omissions. Moreover, Smith explained that it was particularly important for the case file to include a report reflecting the location of a drug transaction between a confidential informant and a target. Smith further testified that if he had been aware of the written statement provided by CS, he would have read it, included it in the case file, and divulged its existence in the search warrant affidavit.

         Alberti and McGrath echoed Smith's concerns. Alberti testified that the location where an individual obtained narcotics is important, and such information should be accurately summarized and placed in the file so someone in Smith's position would be able to rely on the file to obtain accurate information. McGrath acknowledged that CS's written statement (or any confidential informant's signed statement) is an important piece of evidence and anyone looking at the electronic case file would not have been aware that CS gave a written statement. McGrath also testified it was his responsibility to ensure the case file was accurate, he was aware other agents may have to rely on DEA-6s in the file in the future, and he should have maintained an accurate case file to alert Smith to the existence of CS's statement that he received the cocaine in Springfield.

         The DEA Task Force, armed with the assistance of CS, conducted its investigation of Gonzalez between January and March of 2014. During that time, McGrath, Alberti, and Smith met with CS regularly and used him to surveil Gonzalez and Defendant. At CS's meetings with Gonzalez and Defendant, most of which were recorded, there was no mention of TWC Auto Body in Holyoke as the location of the four kilogram cocaine transaction between CS and Defendant (or any other drug transaction), even though CS was never instructed by the DEA Task Force not to discuss it.

         Smith began drafting the search warrant affidavit in early March of 2014. Both McGrath and Alberti reviewed the affidavit for its content prior to its submission. Of central importance to the Franks issue, the affidavit at paragraph 54 alleged: “As previously stated, [CS] relayed that [TWC Auto Body, on 56 Jackson Street in Holyoke, Massachusetts] is the location where he would obtain kilogram quantities of cocaine from the Gonzalez Organization to include the three kilograms which were seized from [CS] in January of 2014.” (Ex. 1 ¶ 54.) At the Franks hearing, Smith could not identify the source of this information. Smith testified that although he thought this information came from CS, McGrath, or Alberti, he could not recall where he heard the information and had no specific recollection of CS telling him this.

         Alberti and McGrath, for their part, provided inconsistent testimony regarding the source of this information. In attempting to explain why he did not inform Smith about CS's written statement, Alberti stated that “[t]he 712 Boston Road portion of that statement . . . did not resonate with me, ” and “[a]s the investigation continued, CS would tell us that he got those kilos from TWC.” (Dkt. No. 153, Tr. of Ev. Hr'g Dec. 15, 2017, at 42.) However, on cross examination, Alberti conceded that CS did not tell Alberti directly that he received the cocaine at TWC Auto Body. McGrath first testified he could not recall CS stating that CS and another individual, Donald Duarte, [8] visited TWC Auto Body in the days leading up to January 14, 2014. Later, however, McGrath testified he did believe CS provided that information during one of their meetings. In addition, as previously noted, no DEA-6s reported that CS stated he received cocaine at TWC Auto Body in Holyoke.

         Apart from the specific four kilogram transaction referenced in the affidavit, the Government witnesses also provided vague testimony regarding their prior knowledge of TWC Auto Body and Defendant. Alberti testified on direct examination that he “was familiar with [Defendant] and his place of business on Jackson Street in Holyoke as a location that narcotics are distributed and sold from.” (Dkt. No. 153, Tr. of Ev. Hr'g Dec. 15, 2017, at 17.) However, when asked on cross examination the basis for that statement, Alberti testified it was only his “general understanding of that address” and he had never witnessed narcotics being distributed from TWC Auto Body. (Id. at 56.) Alberti and McGrath both testified they observed CS in the parking lot of TWC Auto Body on one occasion, prior to CS cooperating with the Government. But neither wrote a report memorializing the event, and McGrath testified they never saw CS outside of his vehicle. In addition, Smith testified that when he drafted the affidavit, he had not learned CS and Defendant were ever seen meeting together and could not recall being aware that CS had been observed at TWC Auto Body prior to the recorded meetings.

         In a separate portion of the search warrant affidavit, Smith wrote that, at a March 13, 2014 recorded meeting at Gonzalez's business, Defendant stated “they were currently ‘dry.'” (Ex. 1 ¶ 38.) Smith then wrote in the affidavit: “I am aware that drug trafficker[s] often use the term ‘dry' to mean that they do not currently have a supply of drug.” (Id.) At the March13, 2014 meeting, however, Defendant actually stated: “There is nothing around brother, nothing.” (Ex. 5 at 12.) Although the transcript of the recorded meeting was not available when Smith wrote the affidavit, he did have access to the recording itself. Smith testified that the language quoted in the affidavit was equivalent to the actual words spoken by ...

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