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United States v. Herevia

United States District Court, D. Maryland

September 23, 2014

UNITED STATES OF AMERICA,
v.
JORGE ALAN HEREVIA, et al., Defendants.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

In this case, Defendants Bruce Winston and Joe Payne are charged with (1) conspiracy to distribute and possess with intent to distribute cocaine and (2) possession with intent to distribute cocaine. The Defendants have filed a number of pre-trial motions that remain pending at this time, including Defendant Winston's Motion to Suppress Tangible and Derivative Evidence (ECF No. 38), Defendant Payne's Motion to Sever (ECF No. 40), Defendant Payne's Motion to Suppress Search and Statement (ECF No. 44), Defendant Winston's Motion to Suppress Evidence Taken from the Defendant's Cellular Phone (ECF No. 72), Defendant Payne's Motion to Adopt Motion of Other Defendant and Supplement Motion to Suppress Evidence from Cell Phone (ECF No. 75), and Defendant Winston's Motion to Suppress Statements (ECF No. 95). Additionally, the Government filed a Motion in Limine to Admit Rule 404(b) Evidence (ECF No. 67) pertaining to a search and seizure of a trailer owned by Defendant Winston in North Carolina in 2010.[1] The parties' submissions have been reviewed, and this Court held a hearing on August 25 and September 18, 2014.[2] While this Court resolved some additional pending motions during the hearing, it withheld a ruling on the motions listed above. For the reasons that follow, this Court will order accordingly:

• Defendant Winston's Motion to Suppress Tangible and Derivative Evidence (ECF No. 38) is DENIED;
• Defendant Payne's Motion to Sever (ECF No. 40) is DENIED but the Government is prohibited from using Defendant Winston's statement concerning involvement in the drug trafficking business at trial;
• Defendant Payne's Motion to Suppress Search and Statement (ECF No. 44) is DENIED;
• Defendant Winston's Motion to Suppress Evidence Taken from the Defendant's Cellular Phone (ECF No. 72) is DENIED;
• Defendant Payne's Motion to Adopt Motion of Other Defendant and Supplement Motion to Suppress Evidence from Cell Phone (ECF No. 75) is DENIED;
• Defendant Winston's Motion to Suppress Statements (ECF No. 95) is DENIED; and
• The Government's Motion in Limine to Admit Rule 404(b) Evidence (ECF No. 67) is GRANTED.

FINDINGS OF FACT

Defendants Joe Howard Payne and Bruce Dwayne Winston are charged with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (Count One); and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Two). The charges developed out of a major investigation of a cocaine trafficking conspiracy based in Texas. As part of that investigation, law enforcement agents seized approximately 18 kilograms of cocaine from a truck in which Payne and Winston were traveling on I-70 in Howard County, Maryland on June 3, 2013.

The government's investigation began in January 2013 when a cooperating defendant informed law enforcement that s/he was purchasing large amounts of cocaine from a Mexican source of supply. The cooperating defendant explained that, on more than one occasion, an individual working for the Mexican supplier, whom the cooperating defendant identified as "George, " would deliver cocaine to Delaware in a pickup truck with a hidden compartment. The cooperating defendant recounted that the individual who delivered the cocaine would fly to Philadelphia and stay at a Holiday Inn in Harrington, Delaware. During a subsequent meeting with law enforcement, the cooperating defendant identified the individual who delivered the cocaine as Jorge Herevia.

Following the cooperating defendant's identification of Herevia, the DEA determined that Herevia had stayed at the Holiday Inn in Harrington, Delaware on multiple occasions in September 2012. On one of those occasions, Herevia paid for two rooms at the hotel, the second of which was occupied by Winston. Law enforcement is aware that in January 2010, investigators stopped a truck registered to Winston's wife (and driven by an individual who was an employee of Winston) in Asheville, North Carolina. During the course of the traffic stop, investigators recovered approximately $1 million and 1, 000 pounds of marijuana from a hidden compartment in a trailer attached to the truck.

On May 31, 2013, the DEA sought information relating to the Bank of America account used by Herevia while staying at the Holiday Inn in Harrington, Delaware. Using credit card information, the DEA discovered that Herevia was staying at a Holiday Inn in Baltimore's Inner Harbor, and that Herevia had booked his hotel room on May 26, 2013. Law enforcement officers from multiple agencies, including the DEA, the FBI, and the Wicomico County Narcotics Task Force, subsequently established surveillance in and around the Holiday Inn.

On June 2, 2013, officers conducting surveillance observed two white males, whom they later identified as Winston and Payne, checking into the Holiday Inn. At least one officer saw Winston and Payne meet with Herevia that day. During the meeting, the officer overheard Winston and Payne stating that they were from Arkansas. Officers subsequently observed a white GMC truck, bearing Arkansas registration 588OCX, in the parking lot outside the hotel that was registered to Winston and his wife.

On the morning of June 3, 2013, Herevia drove the white GMC truck from the Holiday Inn to a Wal-Mart in Randallstown, Maryland. Officers followed him and observed Herevia leaving the Wal-Mart carrying what appeared to be a heat sealer.[3] Herevia then returned to the Holiday Inn and parked the white GMC truck in the lot outside the hotel.

Approximately 15 minutes later, Winston and Payne left the Holiday Inn, carrying the same bags that they brought with them when they checked into the hotel. Winston and Payne got into the white GMC truck and drove away. Officers followed Winston and Payne from the hotel to I-70 West.

As Winston and Payne merged onto I-70 West, a member of the surveillance team contacted the Maryland State Police and explained that investigators believed Winston and Payne were transporting narcotics in their truck. The surveillance team member also identified the white GMC truck in which Winston and Payne were traveling and provided the truck's current location. This information was conveyed to Maryland State Police Sergeant Christopher ("Mike") Conner, who in turn notified Maryland State Police Trooper Ryan McNeely, an on-duty officer working in the area where the truck was traveling. Conner contacted a canine officer to indicate that a traffic stop was imminent.

At approximately 11:47 a.m., the white GMC truck passed by McNeely as he was sitting in his vehicle on a service road in the median of the highway.[4] McNeely then exited the median and followed the truck as it continued along the highway. McNeely then initiated a traffic stop of the white GMC truck.

During the course of the traffic stop, McNeely and his colleagues, including Sgt. Conner, noticed that Payne's hands were visibly shaking, and that Payne and Winston gave conflicting stories about where they had started their trip. (Payne stated that he and Winston were coming from New Holland, PA, where they had been working and had spent the previous night at a Holiday Inn. Winston, by contrast, stated that he and Payne were coming from Baltimore, where they had gone to a strip club the previous evening, and that he and Payne were traveling to-rather than coming from-New Holland, PA). The officers further observed that the license plate number on the white GMC truck did not match the license plate number on the vehicle's registration card, and that the license plate number on the truck was not on file with the Arkansas Department of Motor Vehicles.

Approximately five minutes into the traffic stop-at 11:55 a.m.-Maryland State Police Senior Trooper Connolly conducted a canine scan of the white GMC truck. The result of the scan was positive for the presence of narcotics. Officers subsequently searched the truck, and they discovered approximately 18 kilograms of cocaine hidden in a secret compartment. The officers ...


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