United States v. Peters

          RULING ON POST-TRIAL MOTIONS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         After a two-day trial, a jury found Norman Peters guilty of possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1) and (b)(1)(C) and use of a telephone to facilitate a drug trafficking felony under 21 U.S.C. § 841(a)(1). Jury Verdict, ECF No. 90.

         Following the verdict, Mr. Peters moved for a judgment of acquittal, alleging insufficient evidence of his intent to distribute cocaine. Memorandum of Law in Support of Judgment of Acquittal and for New Trial, ECF No. 116. Alternatively, Mr. Peters moves for a new trial, alleging that the jury wrongfully convicted him. Id.

         For the following reasons, the Court DENIES Mr. Peters's motions for judgment of acquittal and for a new trial.

         I. FACTUAL AND PROCEDURAL HISTORY

         A. DEA Investigation

         This case evolved from a larger Drug Enforcement Administration (“DEA”) investigation of Bobby Gutierrez for allegedly operating a drug trafficking conspiracy. Notice of Related Case, ECF No. 10; see also United States v. Gutierrez, No. 16-cr-114 (VAB), ECF Nos. 145, 308.

         DEA agents intercepted wire and electronic communications involving Mr. Gutierrez under Title III warrants approved by United States District Judge Stefan R. Underhill.^[1]

         B. Mr. Peters's Arrest

         On April 1, 2016, law enforcement officers intercepted a phone call to Mr. Gutierrez's cell phone from the number (646) 887-5350, made by a person identified as “Ski, ” later determined to be Mr. Peters:

GUTIERREZ: Hello?

PETERS: Yo?

GUTIERREZ: Yo?

PETERS: This is Ski. What up?

GUTIERREZ: What up? Oh, oh okay, I know. What's going on with you?

PETERS: Ain't shit. You around?

GUTIERREZ: Yeah, what's good?

PETERS: Shit, I'm about to be out there in, like, but I'm almost out there. But I'm about to go eat first. So like 45 minutes.

GUTIERREZ: Alright, what exit you going to be on?

PETERS: Uh, 14.

GUTIERREZ: Alright.

PETERS: Alright.

         Transcript of Call No. 467, Gov't Ex. 1.

         From this call, the officers believed that Mr. Peters was arranging a drug sale. DEA Special Agent Ryan McHugh testified that Exit 14 related to the amount of cocaine Mr. Peters intended to purchase: fourteen grams of cocaine. Suppression Hearing Transcript, ECF No. 74, at 23:22-24:6.

         About forty-five minutes later, “Ski” called Mr. Gutierrez again:

GUTIERREZ: Hold up, Michael! Hold up! [Pause]

GUTIERREZ: Hello!

PETERS: Yo!

GUTIERREZ: What up?

PETERS: Shit! Where you want me to come?

GUTIERREZ: Shit. I'll be by my job in a couple of minutes. Like 10, 15 minutes.

PETERS: Alright. [Voices overlap]

GUTIERREZ: 15, 20 minutes, 15, 20 minutes, really.

PETERS: Alright, I'm already out here. So I'll wait for you.

GUTIERREZ: Alright.

Transcript of April 1, 2016 Call No. 473, Gov't Ex. 3-T.

         At that point, Agent McHugh testified that officers believed Mr. Peters would be meeting Mr. Gutierrez at B&B Deli, located at 988 State Street in Bridgeport, Connecticut, which is the location previously intercepted phone calls indicated Mr. Gutierrez met distributors for illegal drug sales. Suppression Hearing Transcript, ECF No. 74, at 28:6-10.

         Agent McHugh then testified that he contacted several police departments to see if they had police units available, and Stamford Police sent Officer Jose Alvarez to conduct surveillance on 988 State Street. Id. at 29:1-19.

         Agent McHugh also testified that the investigative team conducted a motor vehicle records check to discover whether Mr. Peters had a valid driver's license, a routine investigative technique used to identify whether local law enforcement could have reasonable suspicion to stop a vehicle unrelated to the Title III investigation. Id. at 29:20-30:24. The officers learned that Mr. Peters did not have a valid driver's license. Id. The police officers could then stop the vehicle lawfully without jeopardizing the larger DEA investigation. Id. at 30:25-31:25.

         Officer Alvarez arrived at 988 State Street in an unmarked car and in plain clothes to conduct surveillance. Id. at 45:2-16. A gray 2008 Toyota Avalon with Connecticut license plate 692-YHN pulled into the parking lot of the store. Id. at 32:10-20; 54:23-25. From his vantage point, he could not see if Mr. Peters was the driver. Id. at 58:6-10.

         Agent McHugh recalls that Officer Alvarez identified the license plate number for the investigative team through his Nextel device, which allowed him to communicate with other investigative team members.^[2] A motor vehicle records search indicated that the car was registered to a woman identified as a relative of Mr. Peters. Suppression Hearing Transcript, ECF No. 74, at 38:23-39:4.

         Officer Alvarez testified that, a few minutes later, Mr. Gutierrez drove into the parking lot. Mr. Gutierrez briefly went into the store at 988 State Street, before leaving and getting into the gray Toyota. 65:23-66:11. The car then left the parking lot with Mr. Gutierrez, drove two hundred yards down the street and parked. Id. Mr. Gutierrez then got out of the car, and the car pulled away. Id. at 66:12-16. Officers later identified Mr. Peters as the driver of the gray Toyota. Id. at 67:19-68:10.

         Officer Alvarez followed the car onto I-95 South and informed the other officers on the investigative team of what he had observed at 988 State Street. Id. at 71:10. According to Agent McHugh, the team decided not to conduct the stop in Bridgeport to protect the broader drug trafficking investigation, but instead directed Officer Alvarez to continue following him back to Stamford. Id. at 71:1-3. At some point during the drive, Officer Alvarez was close enough to the car to identify Mr. Peters as the driver. Id. at 80:24-81:5. Officer Alvarez recalled that he reported this to the central wire room and that Stamford Police Sergeant O'Brien^[3]-another member of the investigative team-helped coordinate the vehicle stop. Id. at 83:22-84:5.

         According to Officer Alvarez, Sergeant O'Brien coordinated the stop, and directed Stamford Police Officer Luis Velez to be at Exit 9, if Mr. Peters got off I-95 at that exit. Id. at 84:16-19.

         Unlike Officer Alvarez, Officer Velez was driving a marked patrol vehicle and had no knowledge of the investigation. Id. at 125:20-126:3. Officer Velez testified that the narcotics unit of the Stamford Police Department told him the description of the car, the plate number, and that the driver did not possess a valid license, and then directed him to be in position to stop the vehicle, if it got off the freeway at Exit 9. Id. at 125:23-125:19.

         Officer Velez followed the car a short distance after it left the highway before stopping the car in front of 38 Home Court in Stamford, Connecticut, a relatively secluded area with little traffic. 126:13-24.

         As he approached the car on the driver's side, Officer Velez observed Mr. Peters making movements to hide something between his legs. Id. at 127:4-13. When he approached the driver's window, Officer Velez saw a plastic bag with a green leafy substance between Mr. Peters's legs, what Officer Velez believed to be marijuana.127:14-22. At that point, Officer Velez contacted Officer William Garay for additional assistance. Id. at 127:23-25. After Officer Garay arrived, Officer Velez directed Mr. Peters to get out of the car. 128:3-7. Mr. Peters admitted to Officer Velez that the substance was marijuana. 128:14-18. Officer Velez also retrieved Mr. Peters's learner's permit, ^[4] registration, and insurance from the car. 128:19-129:11.

         Officer Velez then requested a K-9 unit at the location; a few minutes later, Sergeant Phelan arrived with Cronin, a dog trained to identify drugs by its scent. Cronin signaled in such a way as to suggest the presence of illegal drugs in the car's console, but the officers found no narcotics. Id. at 129:23-130:22. Officer Velez then approached Peters and asked if he had anything illegal on him. Id. at 130:23-131:3. When Mr. Peters denied this, Sergeant Phelan had Cronin sniff Mr. Peters. Cronin detected and alerted the officers to the presence of narcotics near Mr. Peters's groin area. Id. at 131:4-7. Mr. Peters denied that he had any drugs hidden near his groin area. Id. at 131:8-12.

         By this time, another Stamford Police Officer, Brendan Phillips, had arrived on the scene to provide additional assistance with the search. 131:13-21. Then-Officer Phillips, like Officer Alvarez, had been working with the DEA task force and knew about a potential drug transaction that had occurred between Mr. Peters and Mr. Gutierrez in Bridgeport, about the planned stop, and Mr. Peters's identity through a previous narcotics investigations. Id. at 165:11-169:24.

         As a result, Officer Phillips determined that he should conduct a further search of Mr. Peters for the drugs. Id. at 171:5-16; 173:17-23. He instructed Mr. Peters to keep his hands on the trunk, and to take one step back from the vehicle, and to spread his feet. Id. at 174:3-8. He then patted down the outside of Mr. Peters's clothing. Id. at 174:12-17. As he moved toward Mr. Peters's legs, he felt Mr. Peters's lower body tense up; specifically, the muscles in his thighs, hamstrings, and buttocks, and Mr. Peters began to push the front of his waistband towards the car, as if he was clenching his legs together. Id. at 174:18-24.

         See Conn. Gen. Stat. § 14-36(b) (“An adult instruction permit shall entitle the holder, while such holder has the permit in his or her immediate possession, to operate a motor vehicle on the public highways, provided such holder is under the instruction of, and accompanied by, a person who holds an instructor's license issued under the provisions of section 14-73 or a person twenty years of age or older who has been licensed to operate, for at least four years preceding the instruction, a motor vehicle of the same class as the motor vehicle being operated and who has not had his or her motor vehicle operator's license suspended by the commissioner during the four-year period preceding the instruction.”).

         From his training and experience, Officer Phillips believed Mr. Peters was trying to hide something within his buttocks. Id. at 174:25-175:6. In Officer Phillip's experience, it was difficult for parties to maintain a clench after squatting, which reveals items individuals attempt to hide. Id. at 175:18-176:7. He continued the search by asking Mr. Peters to squat down and searching again with a “bladed hand” to continue the search of his groin and buttocks area. Id. at 175:7-17. During this search, Officer Phillips felt an object inside Mr. Peter's pants, between the top of his buttocks. Id. at 176:8-11. Officer Phillips then reached into Mr. Peters's pants and grabbed the suspected cocaine, which was wrapped in napkins. Id. at 176:18-177:16.

         The police arrested Mr. Peters, and charged him with possession of narcotics and possession with intent to sell narcotics in violation of Conn. Gen. Stat. §§ 21a-278a and 21a-279, possession of marijuana in violation of Conn. Gen. Stat. § 21a-279a, and operating a motor vehicle without a license in violation of Conn. Gen. Stat. § 14-36a. Gov't Opp. at 6. Later that evening, Mr. Peters posted bond Id.

         C. Post-Arrest Communication

         Following his release, Mr. Peters called Mr. Gutierrez at 7:56 p.m. and told him about the stop, search, and arrest, and speculated that he may have been the subject of an undercover ...