Armstrong v. US Attorney General

Filing 96

OPINION AND ORDER - DISMISSING the remaining malicious prosecution claim in plaintiff's 6 Amended Complaint. Signed by Judge Carmen C. Cerezo on 6/20/2016. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ADRIAN ARMSTRONG
Plaintiff
vs
THE UNITED STATES OF
AMERICA, by and through ERIC
HOLDER, Attorney General, in his
official capacity
Defendant

CIVIL 12-1605CCC

OPINION AND ORDER
This is a malicious prosecution claim against the United States brought
under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), by Adrian
Armstrong, a.k.a. “Ruddy” (Armstrong), a defendant in a criminal case filed
before this Court, Criminal No. 04-250(JAG), seeking damages in the amount
of $45,000,000.00. The Amended Complaint filed on February 12, 2012
(d.e. 6) repeatedly avers that there was no probable cause to indict Armstrong
and that any probable cause which the United States had to indict “was a result
of evidence that was deliberately tampered with and made by the DEA and/or
its operatives” (allegations nos. 31, 33, 34 and 37). The following liability
allegations zero in on the United States: “the USA was the legal cause of
plaintiff’s indictment because its duly authorized agent, AUSA Henwood,
through the use of a Grand Jury, wrongfully indicted plaintiff;” “because the
USA indicted the plaintiff with deliberately tampered evidence that was made
by their agents the entire process against plaintiff was vexatious and abusive;”
and, “the United States knew or should have known that the recorded
conversations . . . were intentionally doctored copies . . . that the tapes were
deliberately tampered with . . . and thus, the indictment was based upon

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evidence that was doctored . . . that the tapes were counterfeit and that the
indictment . . . was based upon evidence that was manufactured.”
(See allegations 27, 38, 39, 45, 46 and 50). Plaintiff further claimed at
allegation No. 41 that “[t]he criminal case terminated in [his ] favor . . . by way
of dismissal of the indictment on September 28, 2009.”
PROCEDURAL BACKGROUND
Plaintiff’s malicious prosecution claim was tested by the United States by
way of a motion to dismiss (d.e. 29) filed on April 22, 2013, opposed by
Armstrong on May 30, 2013. An Opinion and Order issued on March 31, 2014
(d.e. 45) addressed defendant’s contention that Armstrong failed to state a
malicious prosecution claim, the only remaining claim in this FTCA lawsuit.
Other claims of false arrest and false imprisonment were dismissed in that
Order, following the reasoning in Wallace v. Kato, 127 S.Ct. 1091, 1095 (2007),
that “since both false arrest and false imprisonment consist of detention without
legal process, they end once the person becomes held pursuant to such
process, when for example he is bound over by a magistrate or arraigned on
charge” and “[i]f there is a false arrest or false imprisonment claim, damages
for these claims cover the time of his detention up until the issuance of process
or arraignment but not more.” It was determined that the 2-year statute of
limitations for the filing of the false arrest and false imprisonment claims began
to run at least as far back as August 10, 2006, when Armstrong made his initial
appearance before a U.S. Magistrate-Judge in this District. He did not present
these two FTCA claims until March 29, 2010, way beyond the applicable 2-year
limitations period after accrual, therefore both were declared barred for failure
to comply with 28 U.S.C. § 2401(b). As to his FTCA claims of abuse of

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process, negligence and intentional infliction of emotional distress, the record
reveals that plaintiff never presented such claims to the agency, thereby
triggering their dismissal for failure to exhaust administrative remedies, as
required by 28 U.S.C. § 2675(a).
The dismissal motion was, however, denied as to the claim for malicious
prosecution. Although Barros v. Villahermosa, 642 F.3d 56 (1st Cir. 2011)
establishes that failure to prove any of the four elements of a malicious
prosecution claim is dispositive, González-Rucci v. United States,
405 F.3d 45, 49 (1st Cir. 2005), held that it is sufficient to rebut the
presumption of probable cause based on the issuance of a grand jury
indictment if, at the pleading stage, allegations are made that law enforcement
defendants wrongfully obtained the indictment by knowingly presenting false
evidence to the grand jury. The malicious prosecution claim survived precisely
because allegations 37 and 39 of the Amended Complaint averred that the
indictment was obtained by presenting to the grand jury “tampered or made
evidence” and “evidence that was doctored.”
The case then moved on to a pretrial conference. An amended proposed
pretrial order was jointly filed by the parties on September 12, 2013 (d.e. 40).
A year later, on September 3, 2014, plaintiff filed an Amended and Reduced
Witness List as per Court Order (d.e. 53). Of the nine trial witnesses there
listed, plaintiff did not present the testimony of the following: DEA Special
Agent Ryan Johnson (described in the amended proposed pretrial order as
responsible for examining the tapes at issue to compare with plaintiff’s known
voice), Alexander Duffis Young (the confidential informant in Criminal
No. 04-250(JAG) who plaintiff claims did the actual tampering of the audio
recordings) and Larene Samuels and Natalie Haynes (as to whom no

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information was provided other than a reference next to their names to “Bank
of Jamaica.”) These last two witnesses were included in the earlier amended
proposed pretrial order (d.e. 40) filed a year before. The proffer then provided
was that they were civilians expected to be knowledgeable about plaintiff’s
lawful business life, business ventures and banking in Jamaica and would
establish his relative wealth, lifestyle and reputation before being indicted.
The bench trial on the malicious prosecution claim commenced on
February 23, 2016. Plaintiff presented five witnesses: James Griffin, DEA
Special Agent Vincent Carpio, Armstrong himself, Assistant U.S. Attorney
Timothy Henwood and defense attorney Juan R. Acevedo-Cruz. Plaintiff
submitted as an exhibit a February 16, 2007 1-page letter from Assistant
U.S. Attorney Henwood regarding Giglio materials. Both parties submitted
Joint Exhibits I to XX, which are core documents filed in Criminal
No. 04-250(JAG), such as the criminal complaint that resulted in his arrest
warrant, the indictment, transcripts of suppression hearings, Report and
Recommendation of the U.S. Magistrate-Judge on the suppression issue,
subsequent Court order adopting it and the judgment of discharge in Criminal
No. 04-250(JAG). Also admitted as Joint Exhibits were relevant documents
filed in Criminal No. 09-309(JAG) in which Armstrong entered into a plea
agreement pursuant to which he pled guilty to an information. Finally, there are
four Court exhibits marked as I through IV, specifically the transcript of the
grand jury testimonies of DEA Special Agent Vincent Carpio and of
C.I. Alexander Duffis-Young, the case agent and the informant in Criminal
No. 04-250(JAG), Armstrong’s motion for change of plea and the transcript of
that change of plea hearing in Criminal No. 09-309(JAG).

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Plaintiff completed his presentation of evidence during the bench trial on
February 26, 2016. At the close of evidence, the United States made a verbal
motion for judgment pursuant to Fed. R. Civ. P. 52(c). It argued that two of the
four essential elements of a malicious prosecution action were missing: (1) the
action did not conclude in a favorable manner to plaintiff and (2) the element
of malice which requires proof of knowingly submitting false information was
also lacking. Government counsel argued that the grand jury testimonies of
DEA Special Agent Vincent Carpio and of the confidential informant as well as
the criminal complaint and supporting Carpio affidavit filed in Criminal
No. 04-250(JAG) (Joint Exhibit I) met the standard of probable cause to indict.
Plaintiff counters that the information to which he pled guilty was for a
misdemeanor that charged him with influencing a grand jury. He describes this
as a second offense that was a consent charge and alleges that the
information charging said offense lacked a factual basis.

He, therefore,

contends that Criminal No. 04-250(JAG) in which he was indicted for a drug
conspiracy and money laundering terminated in his favor since the information
was not a continuing, related part of the initial grand jury indictment.
Our analysis will focus on the two grounds for dismissal advanced
pursuant to Rule 52(c). Having considered the evidence presented in this
case, comprised not only of the testimony of witnesses at the bench trial and
the assessment of their credibility but also the transcriptions of the grand jury
testimonies of case agent Carpio and confidential informant Alexander
Duffis-Young and the relevant documents that are part of the case files of
Criminal Nos. 04-250(JAG) and 09-309(JAG), including the suppression
hearing held in Crim. No. 04-250(JAG), the Court makes the following:

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FINDINGS OF FACT

(1) Armstrong owned several businesses, including 2 check-changing
stores and a money lending store located in Montego Bay, Jamaica, and
4 “cambios” or money exchange stores. Plaintiff testified that he owned all of
these businesses in his individual capacity, that the 4 “cambios” or money
exchange stores were regulated by the government of Jamaica and that a
license was issued by the Bank of Jamaica in his name. According to his
testimony, he started the money exchange business in 1993 with one store in
Montego Bay at 13 Barnett Street and approximately by 1998 he had all 3 other
money exchange stores running, 2 in Montego Bay and 1 in Spanish Town,
Jamaica. The government regulation of the money exchange stores involved
audit every 6 months to ensure that he and his staff complied with license
rules. (Transcript Armstrong’s trial testimony, pp. 5-11)
(2) On May 25, 2004, a criminal complaint was sworn to by Special
Agent DEA Vincent G. Carpio as investigating agent before Chief
U.S. Magistrate-Judge Arenas of this District. This affidavit (Joint Exhibit XX)
mirrors the testimony subsequently provided by Carpio before the indicting
grand jury in Criminal No. 04-250(JAG) against Armstrong, a.k.a. “Ruddy”,
Owen Livingston a.k.a. “John Gotti“ and Neville Claude-Hue, a.k.a. “Flipi.” The
Carpio affidavit in support of the criminal complaint relates to the following
events: (1) the negotiations of a 2 kilogram heroin transaction to be transported
via a crew member of the Galaxy cruiseship from Aruba to Puerto Rico arriving
on February 13, 2004; (2) the method of payment of the narcotics which was
allegedly coordinated with Armstrong and Chris Chow, co-owners of the
money exchange store Grand Central Cambio in Montego Bay, Jamaica and
one “Basil;” (3) the negotiation between the confidential source and Armstrong

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on the percentage that Armstrong would charge for the payment of the drugs,
(4) the delivery of the drug money to co-defendant Livingston’s wife by Grand
Central Cambio where she went to collect the money and provided a receipt
for the same.
(3) Armstrong was arrested on June 19, 2004 and taken to the narcotics
office of the Jamaican police in Kingston. He testified that “members” of the
U.S. government were not involved in his arrest but that a person who
introduced himself as Eric Hill, a DEA agent stationed in Jamaica, was at the
narcotics office when he was taken there.
(4) A Grand Jury empaneled in this District heard the testimony of
DEA Special Agent Carpio and of confidential informant Alexander Duffis
Young regarding the investigation of three individuals, Livingston a.k.a. “John
Gotti,“ Armstrong, a.k.a. “Ruddy” and Claude-Hue a.k.a. “Flipi,”1 as to whom
it issued a two-count indictment on June 27, 2004 in Criminal No. 04-250(JAG).
The relevant period for both counts is from on or about November 2003 up to
and including April 2004. The first count charges a conspiracy to import into
the United States one (1) kilogram or more of heroin and the second count
charges that defendants engaged in monetary transactions through a financial
institution involving the transfer of U.S. currency exceeding the sum of
$10,000.00 which was property derived from a specified unlawful activity, the
importation of a controlled substance.
(5) The crucial moment underlying the malicious prosecution claim is
June 23, 2004 when A.U.S.A. Timothy Henwood presented evidence to the
1

The testimonies of the two government witnesses who appeared before
the Grand Jury were procured by an Order issued in this civil action on
February 22, 2016 (d.e. 83) pursuant to 18 U.S.C. § 3322(b)(2). The
transcriptions of the Carpio and Young testimonies were admitted as Court
Exhibits I and II in this case.

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indicting grand jury in Criminal No. 04-250(JAG). The only two witnesses who
testified before the grand jury were case agent Carpio and confidential
informant Alexander Duffis Young. There was only one session before the
grand jury, that of June 23, 2004. A review of the transcription of the grand jury
proceedings compels the fundamental finding that neither of the audio
recordings identified as N-17 and N-18, challenged by plaintiff as “doctored,”
“manufactured,” “counterfeit” and “fabricated,” were played, or their transcripts
read, to the indicting grand jury, nor submitted as grand jury exhibits.
Assuming, arguendo, that there was tampering, there is an absence of proof
to support the claim that the United States, either through the prosecutor in
charge of the investigation (Henwood) or the case agent (Carpio), had
knowledge that any tampering of the recordings had occurred or that Henwood
or Carpio procured, instigated or instructed the confidential source to engage
in any such wrongdoing. The evidence proves the contrary.
(6) This was a legitimate law enforcement investigation that yielded
incriminating evidence against Armstrong sufficient for a grand jury to find
probable cause and to return an indictment charging him and two others with
conspiracy to import one (1) kilogram or more of heroin and engaging in money
laundering transactions that involved property allegedly derived from the
importation of the heroin. Case Agent Carpio as plaintiff’s trial witness in this
civil action described the scope of the criminal investigation that had ended
prior to his testimony before the grand jury.

He explained that “[t]he

information that we collected from different investigations that were going on
at the time, there were arrests in Tampa . . . and in Miami as well . . . people
were extradited from Jamaica and Colombia to Miami who pleaded to charges
and who were cooperating at the time, indicating that Armstrong was the

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person who facilitate[d] the payments for all the drug transactions according to
that network.” Transcript Carpio trial testimony, p. 129, lines 15-23; that “the
actual probable cause was the coordination efforts that were done by the
network to pick up the money in Miami and deliver it to the targets in Jamaica
by Mr. Armstrong.”

Id., p. 134, lines 15-18.

He explained that the

conversations with Armstrong recorded by confidential informant Alexander
Duffis Young were not the only evidence that the government had to indict
Armstrong on drug conspiracy and money laundering charges. He referred to
surveillance that had been conducted and to recordings, other than the two
found to be inadmissible in Criminal 04-250(JAG), which had been made of
other conversations with Armstrong’s associates. He also alluded to evidence
that had been seized as a result of a search warrant executed at Armstrong’s
residence in Jamaica incidental to his arrest.
Regarding this search warrant, Carpio testified in this case that:
“[t]here was a laptop containing several financial transactions with
different traffickers to include one transaction that we did with him
for the portion of the heroin in Aruba.”
Trial transcript, p. 140, lines 20-23.
The information for this search warrant executed at the time of his
arrest was information we obtained from the office in Jamaica.
Agent Eric Hill was the case agent of that portion of the
investigation.
Id., p. 141, lines 5-10.
I remember there was a computer, I believe it was a laptop. And
that was examined at our office in D.C., DEA Office Headquarters.
They found several transactions with different trafficker
organizations . . . and some of those transactions included the one
that we did here in Puerto Rico . . . the transaction that we
conducted here in Puerto Rico with Mr. Armstrong.
Id., p. 141, lines 23-25; p. 142, lines 1-10.
. . . the transaction with the $10,000, it was also a document in the
computer; that’s the actual drug transaction that we conducted with
Mr. Armstrong and a gentleman from Aruba. We purchased 1 kilo

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of heroin and we paid $10,000.00. Mr. Armstrong is the one who
received the funds. He took a 10% cut from the $10,000.00 and
delivered the rest of the money, if I remember correctly to the
gentleman in Aruba’s wife in Jamaica.
Id., p. 142, lines 18-25; p. 143, lines 1-2.
The criminal investigation that led to Armstrong’s June 23, 2004
indictment in Crim. No. 04-250(JAG) included evidence not only of negotiations
on the cut Armstrong was to be paid on the drug down payment but also of the
delivery of money to codefendant Livingston a/k/a Gotti’s wife (Suphie) at
Grand Central Cambio in Jamaica. The government’s evidence placed Suphie
at the money exchange business owned by Armstrong, where she received the
drug money, thereby culminating that part of the transaction and of the
conspiracy charged in Count One of the Indictment, as it related to Armstrong
and the movement of the drug money.
(7)

The information provided and the events testified to by case agent

Carpio during the civil trial are convincing evidence that the criminal
investigation conducted in 2003-2004 by the DEA, spanning activities in
Aruba, Jamaica and Florida related to the Aruba/Puerto Rico importation of
heroin, did not depart from proper parameters of a law enforcement
investigation. On the contrary, the evidence supports the finding that this was
a bonafide criminal investigation and that neither the investigating agent who
testified before the grand jury nor the prosecutor who presented evidence
before it engaged in improper investigative or prosecutorial practices that
jeopardized the integrity of the grand jury’s investigation. As will be later
discussed, the fact that two audio recordings were found to be inadmissible as
trial evidence in the criminal case does not vitiate either the grand jury
proceedings or the investigation that preceded the presentation of testimony

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to obtain an indictment against Armstrong and two others on a drug and a
money laundering conspiracy.
(8)

This same finding applies to the legitimacy of the grand jury

proceedings that followed. During the presentation of evidence before it the
grand jury heard testimony of two witnesses: investigating agent Carpio and
confidential informant Alexander Duffis Young. Carpio told the grand jury
(Court Exhibit I) that his agency started an investigation involving three
individuals: Livingston (Gotti), Armstrong (Ruddy) and Claude Hue (Flipi); that
a confidential source was introduced into a Jamaican drug organization with
operatives in Aruba; that an undercover task force agent was used to infiltrate
the organization in Aruba and they were able to negotiate a sale of heroin to
be brought into Puerto Rico from Aruba; that as part of the investigation they
were aware that Armstrong and his people in Jamaica were in charge of
laundering proceeds from the United States and Europe through Jamaica to
Panama and Colombia; that the Jamaican drug trafficking organization’s main
objective was to smuggle heroin into Puerto Rico, Miami and other areas.
Using a map of the Caribbean, Carpio told the grand jurors that the area
basically indicated the location of Livingston (Gotti) in Aruba and of Claude
Hue (Flipi), identified as one of Armstrong’s workers, and of Armstrong (Ruddy)
in Jamaica. He continued testifying that: (1) Livingston (Gotti) offered his
facilities to smuggle the heroin from Aruba into Puerto Rico as he had done in
the past; (2) methods of payment were discussed with Livingston during the
negotiations to bring the drugs into Puerto Rico and he agreed to a percentage
on the deal; (3) during negotiations between the undercover agent and
Livingston he was told that “the money is stored in Jamaica, the Grand Central
Cambio, owned by Mr. Armstrong . . . who had the facility to transport money

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from anywhere in the United States to Jamaica or anywhere in the world for
that matter,” and, (4) Armstrong could be contacted; (5) Livingston was asked
if he would be in a position to pick up the money . . . that the money for these
drugs was in Miami, and that he agreed to a percentage on the deal; (6) after
that they continued to negotiate with Livingston to bring the drugs into Puerto
Rico; (7) Livingston was supposed to deliver 2 kilograms of heroin via
crewmembers of the Galaxy cruise ship; (8) he agreed to the deal and was
paid $10,000.00 as down payment for the drugs.

Asked by prosecutor

Henwood about specifics of the criminal investigation, S.A. Carpio went back
to November 2003 and said the following to the grand jury: that he, the
confidential source and an undercover agent traveled that month to Aruba and
met with Livingston to discuss the shipment of the drugs at which time
Livingston said that he had a means to transport the drugs from Aruba to
Puerto Rico; during that meeting they also discussed payment of the drugs and
Livingston was told that they had the money in Miami and the contacts in
Jamaica to be able to transport the money; that Livingston then said that he
recognized the people that they were talking about, that they had done
business in the past or somehow Livingston had word that that money store
was in place to be able to facilitate the protection of currency; that negotiations
with Livingston occurred between November 2003 and January 2004 and in
February 2004 the payment of the $10,000.00 was made: that they had talked
to Livingston and that he needed the $10,000.00 for the down payment; that
he would be able to ship the drugs on Wednesday because the Galaxy cruise
ship leaves Wednesday from Aruba and arrives in Puerto Rico on Friday; that
they told Livingston they were going to call Armstrong in Jamaica and they
were going to make payment in Miami; that they called Armstrong and talked

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to Chris Chow, one of his coworkers who gave them a number for Neville
Claude Hue (Flipi) in Miami and in Miami they used an undercover agent who
dropped the $10,000.00 to Claude Hue and that “there was a conversation with
Mr. Armstrong after the money dropped and he said he would charge us 10%
of the $10,000.00 because that amount being too small he needed to pay the
couriers to bring the money back to Jamaica, so contact was made in Jamaica
with Armstrong and he provided or a number was provided through the Central
Cambio in Jamaica for an individual named Neville Claude Hue in Miami and
money was delivered to Neville Claude Hue in Miami; that the $10,000.00 was
to secure down payment for the 2 kilograms of heroin and after that the heroin
would be released by Livingston in Aruba, the money got dropped off in Miami
and they called Armstrong back to say that it is paid in Miami and called
Livingston and said that “we got payment in Miami already . . . Armstrong
already has it;” Livingston answered that he would send the number of his wife
Suphie in Jamaica and that she would pick up the money; that another member
of the organization, “Mr. Basil,” took Suphie to the Grand Central Cambio, gave
her the money, and that “Basil” was asked to make Suphie sign the money
released to her; that she signed a piece of paper acknowledging that she
received $9,000.00 from Grand Central Cambio; that Livingston was contacted
to verify that his wife got the money and he said “Yes my wife called me. She
says she got the money. I would send you the drugs now;” that when the
couriers arrived on Friday on the Galaxy, they were not able to come down
from the ship and they called Livingston and he said the guy could not come
down for some reason and was going to come back to Aruba and he would talk
to him and “we’ll go on the next trip;” that on February 11, Gotti said that the
drugs were on the way. Carpio ended his testimony before the grand jury

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saying that “throughout all the investigations, all the conversations between
Livingston and the confidential source and the undercover, Adrian Armstrong,
all the conversations were recorded.”
(9)

None of the recorded conversations, however, were played to the

grand jury. The transcription of the one-day grand jury proceeding recorded
reflects that the only exhibit submitted to the grand jury’s consideration was a
map of the Caribbean area.2 (Grand Jury transcript, June 26, 2014, p. 3; Court
Exhibit I). The grand jury testimony of C.I. Alexander Duffis Young was based
on his own recollection of phone conversations that he had with Armstrong and
others, targets of the investigation, regarding the movement of money during
the drug and money laundering conspiracies. On his part, Carpio provided
information to the grand jury that was obtained from sources during his
agency’s investigation. He referred to actions known to the sources to have
been taken, such as the use of an undercover agent in Miami to drop off the
money ($10,000.00) to defendant Neville Claude-Hue and made mention of
several conversations recorded during the span of the investigation, not
conversations recorded only by C.I. Alexander Duffis Young but also by an
undercover agent in Miami and by an undercover Task Force agent in Aruba.
(Grand Jury transcript, June 26, 2014, pp. 4, 7, 12; Court Exhibit I).
(10) Armstrong has repeatedly raised in this civil action that false
evidence was presented to the grand jury in the form of recordings N-17/N-18
of his conversations with the C.I. This argument is flawed. The record
disavows Armstrong’s claim that tapes N-17 and N-18 were submitted to the
grand jury during the presentation of evidence. His fabrication claim has not
2

The disclosure of the grand jury proceedings recorded was authorized
by Court Order pursuant to Fed. R. Crim. P. 6(e)(3)(E).

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been established by a preponderance of the evidence. It is based on two false
premises without which the element of malice is not present as a component
of his malicious prosecution claim. The first premise, that federal agents
A.U.S.A Henwood and S.A. Carpio had knowledge of fabrication or tampering
related to the two recordings, has been discussed and discarded. The second
premise that the two recordings claimed to be altered were presented to the
indicting grand jury is defeated by our prior determination that what actually
transpired was that the C.I. narrated what he remembered of his conversations
with Armstrong and others. Armstrong, on his part, acknowledged during his
trial testimony in this case that: (1) he did speak with C.I. Alexander Duffis
Young during the criminal investigation that led to his indictment, (2) he was
familiar with the C.I’s voice and knew that it was Duffis Young who was
speaking to him, (3) he identified his own voice as one of the speakers in both
N-17 and N-18, and (4) he identified the voice of the third speaker in N-17 as
that of “Basil.” “Basil’s” name was mentioned by S.A. Carpio as a member of
the drug organization when he testified before the grand jury on the movement
of money related to the heroin shipment charged in the indictment. This is the
same name mentioned by Armstrong during his trial testimony.
(11) As to this matter, Armstrong gave the following trial testimony
regarding the voices that he identified in N-17 and N-18:
ARMSTRONG: I told Mr. Acevedo that these tapes – I did not trust
the integrity of these tapes and I had my suspicions and reasons
to suspect that they were edited.
....
THE COURT: Was – did you recognize your voice on – listen to my
question. Did you recognize your voice on the recording identified
as tape N-17?
ARMSTRONG: Yes, Your Honor.

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THE COURT: And did you recognize the voice of the other
speaker?
ARMSTRONG: Yes, Your Honor.
THE COURT: Who was that other speaker?
ARMSTRONG: Alexander Duffis Young
THE COURT: I’m talking about N-17. You’re clear?
ARMSTRONG: Yes, Your Honor.
THE Court: Anybody else was a speaker on that recorded
conversation?
ARMSTRONG: Basil.
THE COURT: Hmm?
ARMSTRONG: Basil. Basil.
THE COURT: How do you spell that?
ARMSTRONG: B - a - s - i - l.
THE COURT: And there was a third speaker who you identify as
Basil?
ARMSTRONG: BASIL, B - a - s - i - l.
THE COURT: You identified him to Mr. Acevedo, your attorney, at
that time?
ARMSTRONG: The voices?
THE COURT: Mm-hmm
ARMSTRONG: He never – no, I didn’t identify the voices to
Mr. Acevedo at the same time, Your Honor.
THE COURT: But my question is if when you listened to those
tapes you recognized your voice in N-17?
ARMSTRONG: Yes, I did, Your Honor.
THE COURT: Did you recognize your voice when you first listened
– the question is first listened to the recorded conversation on
tape N-18?
ARMSTRONG: Yes, Your Honor.

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THE COURT: And when you recognized the voice of the person
you identified as Alexander Duffis Young, was that on the first time
that you listened to N-17?
ARMSTRONG: Yes, Your Honor.
THE COURT: And when you recognized the voice of the third
speaker that you mention is Basil, was that on the first time that
you listened to N-17?
ARMSTRONG: Yes, Your Honor.
THE COURT: All right. You said you recognized the voice – your
voice the first time you listened to N-18. And what about the – any
other speaker on recorded conversation at tape N-18, the first time
you listened?
ARMSTRONG: I recognized Alexander Duffis Young’s voice.
THE COURT: Any other speaker that you recognized when you
listened for the first time to the conversation recorded as
tape N-18?
ARMSTRONG: No, Your Honor.
THE COURT: Was there a third speaker –
ARMSTRONG: No, Your Honor.
THE COURT: – on N-18?
ARMSTRONG: No, Your Honor.
Transcript of Armstrong’s trial testimony on February 25, 2016, p. 26, line 16
through p. 29, line 1.
(12) The following are relevant excerpts of S.A. Carpio’s grand jury
testimony related to calls/contacts made and conversations held during the
criminal investigation:
A.U.S.A. HENWOOD: Okay, Now I’m going to turn your attention
to an investigation involving individuals known as Owen Livingston
a/k/a “John Gotti,” Adrian Armstron a/k/a “Ruddy” and Neville
Claude Hue a/k/a “Flippy.” Are you familiar with that investigation?
CARPIO: Yes, I am.
A.U.S.A. HENWOOD: And how are you familiar with it?

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CARPIO: During November of 2003 we start an investigation on a
Jamaican organization based in Jamaica that has some operatives
in Aruba. The main purpose was to smuggle heroin into Puerto
Rico, Miami, U.S., and other areas. At the same time we were
aware of Armstrong and his people in Jamaica are in charge of
laundering proceeds from the U.S., Europe through Jamaica back
to Panama and Colombia.
S.A. Carpio’s grand jury transcript, Court Exhibit I, p. 2, line 20 through p. 3,
line 12.
A.U.S.A. HENWOOD: Were you able to use a confidential
informant in this case?
CARPIO: Yes. We introduced a confidential source to be
introduced to the organization that was operating in Aruba. We
used an undercover Task Force agent, where we were infiltrating
in Aruba and we were able to negotiate the sale of heroin to be
brought into Puerto Rico. The guy, Owen Livingston a/k/a “Gotti,”
he offered that he has the facilities to smuggle heroing from Aruba
into Puerto Rico. That he has done it in the past many times. We
discussed payment, methods of payment, with him. We told him
that the money’s stored in Jamaica, the Grand Central Cambio, all
by Mr. Armstrong.
S.A. Carpio’s grand jury transcript, Court Exhibit I, p. 4, lines 3-19.
CARPIO: We use an undercover agent in Miami to drop the
money to Neville Claude Hue. We dropped $10,000. There was
a conversation with Mr. Armstrong after the money drop and he
said he would charge us 10% of the $10,000 because that amount
being too small he needed to pay the couriers to bring the money
back to Jamaica.
A.U.S.A. HENWOOD: So, contact was made in Jamaica with
Armstrong and he provided or a number was provided through the
Central Cambio in Jamaica for an individual named Neville Claude
Hue in Miami . . .
CARPIO: Correct.
A.U.S.A. HENWOOD: . . . and money was delivered to Neville
Claude Hue in Miami?
CARPIO: Correct.

...

CARPIO: We call Mr. Livingston and say, okay, we got payment in
Miami already. Armstrong already has it. So. Mr. Livingston say,
okay, I want to send you the number of my wife in Jamaica,
Suphie, and she can pick up the money. And we talk about the

CIVIL 12-1605CCC

19

money and stuff. You’re only going to pick up $9,000 because
10% was charged by Armstrong because being this small amount
he’s going to charge 10% this time. Future shipments of money
would be charged by 6%. Suphie shows up in Jamaica. Another
member of the organization, Mr. Basil (phonetic), takes Suphie to
the Grand Central Cambio, give the money.
S.A. Carpio’s grand jury transcript, Court Exhibit I, p. 7, lines 7-21; p. 8,
lines 11-25.
(13) Carpio’s trial testimony mirrored his previous grand jury testimony
in 2004. He repeated that he traveled to Aruba where the actual transaction
for the drug and the money was conducted between the 2003/2004 time
period. As before, he testified at trial that a search warrant had been executed
at Armstrong’s residence in Jamaica at the time of his arrest (Transcript of
Carpio’s trial testimony, p. 140); that the information for the search warrant was
obtained from the DEA office in Jamaica and that Agent Eric Hill was the case
agent on that portion of the investigation (id., pp. 140-141). He further testified
that he remembered when Armstrong was arrested and that, as a result of the
search warrant, a computer was seized and examined at the DEA office
headquarters in D.C.; that documented in this computer was a $10,000.00
transaction with Armstrong, which Carpio described as the actual transaction
conducted with Armstrong and a gentleman from Aruba when the DEA
purchased 1 kilogram of heroin and paid $10,000.00. Id., p. 142. He further
testified at trial that this was the transaction in which Armstrong received the
funds, took a 10% cut from the $10,000.00 down payment and delivered the
rest to the gentleman’s wife in Jamaica.
(14) Early on in his testimony, Carpio observed that the investigation had
revealed that “Armstrong was involved in the facilitation for payment of drug
shipments from Colombia to Jamaica and Miami” (Transcript of S.A. Carpio’s
trial testimony on February 24, 2016, p. 127) and that Alexander Duffis Young

CIVIL 12-1605CCC

20

was recruited as a confidential informant. The information that the agency
collected as to Armstrong did not come only from Alexander Duffis Young but
from different investigations going on at the time for “[t]here were people that
were extradited from Jamaica and Colombia to Miami, Florida and those
defendants pleaded to the charges and were cooperating at the time, indicating
that Mr. Armstrong was the person who facilitates the payment for all the drug
transactions according to that network.” Id., p. 129, lines 18-23.
(15) Armstrong had announced C.I. Alexander Duffis Young as a trial
witness in this case. He is the one whom Armstrong accuses of creating the
false evidence, N-17 and N-18. He was also the only other witness besides
S.A. Carpio who appeared before the Grand Jury on June 23, 2004. His name
was not included, however, in plaintiff’s final reduced trial witness list.
Therefore, the Court can only refer to the essential parts of his grand jury
testimony (Court Exhibit II).
Alexander Duffis Young was born in San Andres Island in Colombia and
moved to Jamaica in 1998. He had been charged in this jurisdiction in a drug
conspiracy involving 5 or more kilograms of cocaine. In 1994-1995, he helped
“some drug dealers to exchange in U.S. money in San Andres island” and
in 1996 he started helping in the traffic of cocaine from Colombia to
Guatemala.

In 1998 he was based in Jamaica and until 2003 he was

trafficking drugs and moving money through Jamaica.
Regarding the investigation that led to the indictment in Criminal
No. 04-250(JAG), Alexander Duffis Young testified that:
(a)

He started cooperating with the United States in August 2003 and

in November 2003 he was working with the DEA and “we went to meet a guy

CIVIL 12-1605CCC

21

in Aruba on behalf of another trafficker I know in Jamaica . . . that was John
Gotti;”
(b)

He went to him in Aruba to talk of business for Roger Edwards,

moving some cocaine from Curacao to Puerto Rico;
(c)

During this meeting this guy whom he identified as John Gotti . . .

Owen Livingston, came up and said he could move heroin from Aruba to
Puerto Rico;
(d)

At that meeting he was directed by the DEA; that he kept in contact

with Owen Livingston who said he had some heroin to send to Puerto Rico but
needed a deposit to get this heroin;
(e)

Owen was going to get it from another Colombian and needed a

deposit because he was going to get the heroin on consignment which meant
that he was going to do a down payment to get the heroin;
(f)

Owen told him he could get the money in Jamaica and he (Duffis)

told him he had the money in Miami and he was going to talk with “Ruddy” in
Grand Central;
(g)

“Ruddy is a guy that would move money in drug trafficking . . . that

he owns Grand Central Cambio in Jamaica and that he always brings money,
from $500,000.00, $200,000.00, he always do that for me from Miami and
charges a percentage;”
(h)

He (Duffis) told Ruddy he was going to do business with a friend

from Aruba (“Gotti”) and he needed to get some money in Jamaica to be able
to do his business so . . . “I dropped off the $10,000, DEA dropped off money
to Ruddy;
(i)

Ruddy instructs us to give the money to Flipi, he gives us a number

and his partner, Chris Chow, was right at the ‘Cambio’ that day;

CIVIL 12-1605CCC
(j)

22

So he gives us the number and then confirms with Ruddy that that

was the number of the person that was going to bring them the money, take
out the money in Miami.” Answering prosecutor Henwood’s questions “What
was Armstrong a/k/a Ruddy going to make throughout this entire transaction?,”
he answered: “I have an old debt with him, drug debt with Ruddy and I told him
I’m going to do this business so when this business finishes I’m going to give
him $20,00.00 of the business plus he is going to charge me 6% for the rest of
the money, to move the money. We was looking on the business, getting
$120,000.00 . . . so I told him he’s going to get $20,000.00 for his old debt and
he’s going to charge me 6% to move the rest of the money of that business.
The first time I met Ruddy he told me that to move the money to the U.S. went
up, he told me it went up . . . to 8% so I give him a second call and tell him I’m
going to give you $20,000.00, so I need you to drop that percentage, so that’s
when he said o.k., he’ll leave it at 6%.” He was then asked by the prosecutor
if there came a time when the money was delivered to Neville Claude Hue
a/k/a “Flipi” in Miami and if he had had conversations with him and he
answered yes to both questions.
(16) The next Duffis-Young testimony about picking up the money and
the payment is at pages 11-13 of the transcription of his Grand Jury testimony
(Court Exhibit II):
DUFFIS YOUNG: So, when I called him [referring to Flipi] I said
this is Alex, this is “Ruddy” and Chris’ friend. So, he said, okay, it’s
different now because it’s problem to get the money. I said
$10,000 you have no problem to pick up. He said no, there is
problem, even with $10,000. They have to make sure he’s talking
to the right people.
A.U.S.A. HENWOOD: So, he was concerned with who he was
dealing with in picking up that money?
DUFFIS YOUNG: Yeah, he don’t want to be – if it was police or
something like that.

CIVIL 12-1605CCC

23

A.U.S.A. HENWOOD: All right. And so the money is transferred to
Neville Claude Hue in Miami and then there is a credit at the
Central Cambio . . .
DUFFIS YOUNG: Grand Central Cambio.
A.U.S.A. HENWOOD: . . . in Jamaica and $9,000 is provided?
DUFFIS YOUNG: Yes, they told us if the amount is $10,000 they
have to charge us 10%, because they don’t move those amount of
money. So, I call “Ruddy” and tell him “hey, you have to charge
me that amount?” He said yes because he have to pay the people,
the people that pick up at the same time.
A.U.S.A. HENWOOD: Okay. So, when he says he has to “pay the
people” he’s referring to the people in Miami?
DUFFIS YOUNG: Yeah. So, I told him, it’s my guy, referring to
“Gotti,” so he have to work with $9,000. And he said “yes, my guy
has to work with $9,000,” and I told “Gotti” it was $9,000 because
they charged $1,000. That’s why.
A.U.S.A. HENWOOD: All right. So, then that $9,000 is released to
who in Jamaica?
DUFFIS YOUNG: To “Gotti,” “Gotti’s” girlfriend or wife.
A.U.S.A. HENWOOD: And what was her name?
DUFFIS YOUNG: Suphie.
A.U.S.A. HENWOOD: Suphie. And did you contact “Gotti” after the
money was released?
DUFFIS YOUNG: I contact Suphie. I ask Suphie if she went to
“cambio” and she said yes she went to the “cambio” and pick up
the money and I called “Gotti” and told “Gotti” the same.
A.U.S.A. HENWOOD: All right. And then “Gotti” told us that he
would be releasing the heroin on the Galaxy cruise ship?
DUFFIS YOUNG: On the Galaxy.
Alexander Duffis Young’s Grand Jury transcript, Court Exhibit II, pp. 11-13.
(17) The criminal investigation and the testimonial evidence presented
to the grand jury led to the filing of charges on June 23, 2004 in Criminal
No. 04-250(JAG) against Owen Livingston aka “John Gotti,” Adrian Armstrong
aka “Ruddy”and Neville Claude-Hue aka “Flipi” for conspiring to import into the

CIVIL 12-1605CCC

24

United States 1 kilogram or more of heroin and for aiding and abetting money
laundering activities derived from the importation of the controlled substance
charged in Count One which ended with the dismissal of this indictment after
then defendant Armstrong pled guilty to a one count information for attempting
to influence a grand jury and had been sentenced in Criminal 09-309(JAG).
(18) During the pendency of Crim. No. 04-250(JAG), Armstrong filed a
“Motion to Dismiss the Indictment or Suppression of Evidence” on May 17,
2007 (d.e. 146 in Crim. No. 04-250(JAG)), later supplemented on May 21, 2008
(d.e. 225 in Crim. No. 04-250(JAG)). Armstrong imputed in both motions that
N-17

and

N-18,

two

separate

conversations

between

him

and

C.I. Duffis-Young, and recorded by the latter, had been tampered with.
According to an analysis conducted by the expert retained by Armstrong,
Mr. James A. Griffin, tape N-17 had a break at 3:34 minutes which could have
resulted from a later editing of the tape. Griffin also found that it ended
abruptly before the conversation concluded. As to tape N-18, Griffin found that
the tape was an acoustically coupled copy of some other recording, which
contained stops and starts of the recorder in several places and the sound of
someone fumbling with the controls of some other device, most likely the
playback device. Griffin concluded that N-18 was not an original tape and that
it did not contain a complete recording of a conversation but, rather, pieces of
a conversation or of more than one conversation. Armstrong adduced in
support of dismissal of the indictment or suppression of the recordings that the
tampering of both recordings must have been done by “either a government
agent or someone acting on behalf of the government during the investigation.”
Motion to Dismiss, at p. 4.

CIVIL 12-1605CCC

25

(19) Armstrong’s motions were referred to U.S. Magistrate-Judge
Camille L. Vélez-Rivé who, after conducting two hearings where the
testimonies of Griffin and government experts Ryan Johnson and Barry Dickey
were presented, rendered a Report and Recommendation (R&R) on
December 30, 2008 (d.e. 257 in Crim. No. 04-250(JAG)). She recommended
that recording N-17 be suppressed but that the request for dismissal of the
indictment be denied. Recording N-18 was not addressed in said Report as
the government informed that it would not introduce it in evidence.
Magistrate-Judge Vélez-Rivé concluded that the government failed to establish
that tape N-17 was “a true, accurate and authentic recording of the
conversation, at a given time, between the parties involved,” R&R, at p. 7,
given that all experts agreed that “there is a gap in the conversation which
length [could not] be estimated.” R&R, at p. 11. She also highlighted that “all
experts agree[d] that there [was] an abrupt stop at the end of the N-17 tape in
the middle of a conversation while the conversation still appears to be in
progress after approximately seven minutes and four seconds.” R&R, p. 11.
Finally, she noted a discrepancy as to the date of the recording shown in its
header, December 27, 2003, and the date when according to the government’s
Report of Investigation it actually took place, January 7, 2004. She, thus,
concluded that these anomalies made N-17 “unreliable.” As to the dismissal
of indictment request, however, the Magistrate-Judge determined that: “The
reasons for which we find that N-17 is unreliable . . . do not amount to
outrageous government misconduct which was pervasive undermining the
integrity of the investigation. Moreover, the defense has not presented credible
evidence that the recording in question N-17 was intentionally tampered with.”
R&R, p. 14.

CIVIL 12-1605CCC

26

(20) Judge García-Gregory issued an Opinion and Order (O&O) on
May 7, 2009 (d.e. 288 in Crim. No. 04-250(JAG)) which essentially adopted
the factual findings and legal conclusions of the Magistrate-Judge.

He

declared that N-17 was inadmissible as trial evidence in Criminal
No. 04-250(JAG) given the government’s failure to establish its accuracy. He
warned that “[t]he fact that a tape is inadmissible does not necessarily imply
tampering” and specifically concluded that the various factors invoked by
Armstrong as indicative of tampering did not constitute credible evidence of
tampering. O&O, p. 12. The reason for denying Armstrong’s motion to dismiss
the indictment was, precisely, because he failed to present “credible evidence
of tampering.” O&O, at p. 13. The suppression the N-17 tape ordered by
Judge Garcia-Gregory was the appropriate remedy to guarantee Armstrong a
fair trial in Criminal No. 04-250(JAG).
(21) The criminal case continued its progression towards trial. Judge
Garcia-Gregory held a status conference on May 18, 2009, at which time he
denied Armstrong’s motion for reconsideration of the denial of his dismissal
motion (d.e. 291/Crim. No. 04-250(JAG)). The case moved forward to the
July 14, 2009 trial setting. The Court ordered the filing of proposed jury
instructions. The United States filed a set of instructions. This trial setting was
continued at Armstrong’s behest based on a claim of unresolved discovery
issues.

During a July 2, 2009 status conference held by Judge

Garcia-Gregory, the trial was reset for September 14, 2009. The government’s
designation of evidence was filed on August 11, 2009 (d.e. 311), listing
18 items and 7 other recordings of conversations. On September 1, 2009,
Judge Garcia-Gregory held an emergency in-chambers conference at the
parties’ request. He then granted a verbal request for continuance of the

CIVIL 12-1605CCC

27

upcoming trial. The reason for vacating the same was that Armstrong’s
attorney had been unable to prepare due to family matters and his involvement
in another case that had lasted longer than expected.

The trial was

rescheduled for September 29, 2009 (d.e. 314/Crim. No. 04-250(JAG)). On
September 14, 2009, the United States requested and the Court granted the
dismissal of Count Two, the money laundering charge, as to co-defendant
Armstrong. Eight days later, Armstrong filed a change of plea motion on
September

22,

2009

in

Criminal

04-250(JAG)

(d.e.

322/Crim.

No. 04-250(JAG)) where Armstrong “gives notice that he wishes to change his
plea pursuant to an information and plea agreement to be filed with the Court.”
Court Exhibit III.
(22) A one-count information was filed by the United States Attorney of
this District on September 23, 2009 for violation of 18 U.S.C. § 1504 (Joint
Exhibit XII) which reads:

CIVIL 12-1605CCC

28

The relevant portion of 18 U.S.C. section 1504 provides:
Whoever attempts to influence the action or decision of any grand
or petit juror of any court of the United States, upon any issue or
matter pending before such juror . . . by writing or sending to him
any written communication in relation to such issue or matter shall
be fined under this title or imprisoned not more than six months, or
both.
(23) A plea agreement between the United States and Armstrong
followed the next day. Armstrong’s plea agreement, filed on September 23,
2009 in Criminal No. 09-309(JAG) and admitted as Joint Exhibit XIV in this civil
action, had an accompanying statement of facts that was incorporated as part
of said agreement. Paragraph 14 of the plea agreement, Joint Exhibit XIV,
reads:
The accompanying Statement of Facts signed by the defendant is
hereby incorporated into this plea agreement. Defendant adopts
the Statement of Facts and agrees that the facts therein are
accurate in every respect and, had the matter proceeded to trial,
that the United States would have proven those facts beyond a
reasonable doubt.
(24) The transcript of the change of plea hearing on the information
(Court Exhibit IV of this case) reflects that Armstrong was personally
addressed as the defendant regarding his understanding of his rights, the
nature of the charge, the penalties. After this, the Court determined that
Armstrong’s plea was voluntary and that he had waived all of his trial rights with
understanding of the same. The Court determined that there was a factual
basis for Armstrong’s plea of guilty to the information after the following
colloquy:
THE COURT: Okay. And would counsel for the government give
us the explanation of the theory, which is a version of facts
attached to the plea agreement to prove defendant guilty if a trial
were to be held?
A.U.S.A LOPEZ-SOLTERO: Yes, Your Honor. The government
would have proven the defendant’s guilt beyond a reasonable
doubt, specifically that on February 9 of 2004, the defendant did

CIVIL 12-1605CCC

29

knowingly and intentionally attempt to influence the action or
decision of a federal Grand Jury of the United States upon an issue
or matter pending before that jury by providing federal authorities
with an untruthful document. At that time the defendant was aware
that the document he generated would be submitted before a
federal Grand Jury investigating a violation of law. The United
States would have done this introducing documentary evidence, as
well as through the testimony of witnesses.
THE COURT: Very well. And, Mr. Armstrong, do you agree with
the government’s version that you just heard?
ARMSTRONG: Yes, Your Honor.
THE COURT: And is this what you did?
ARMSTRONG: Yes, Your Honor.
THE COURT: And you still want to plead guilty?
THE DEFENDANT Yes, Your Honor.
THE COURT: So, how do you plead to the charge in the
information before the Court, guilty or not guilty?
ARMSTRONG: Guilty, Your Honor.
Transcript of Armstrong’s change of plea hearing held on September 23, 2009
in Crim. No. 09-309(JAG), p. 15, line 23 through p. 16, line 25.
(25) His motion for change of plea was accepted during the
September 23, 2009 hearing. The Court imposed sentence that same day
consisting of the payment of a $500.00 fine and a $10.00 special monetary
assessment for the 18 U.S.C. section 1504 violation.

Defendant never

requested to withdraw his plea of guilty nor contested his plea on direct appeal.
The record reflects that after the Court had accepted his plea of guilty on the
U.S. Attorney’s charge by way of information for attempting to influence a
grand jury in violation of 18 U.S.C. § 1504 and had sentenced him on
September 23, 2009, after he was no longer in custody, Armstrong filed a year
later, on September 28, 2010, a Motion Under 28 U.S.C. Section 2255 and for
Writ of Coram Nobis to Vacate, Set Aside or Correct Judgment. The presiding

CIVIL 12-1605CCC

30

Judge in Criminal No. 04-250(JAG) and in Criminal No. 09-309(JAG), Judge
Garcia-Gregory, issued an Opinion and Order denying the same. This petition
does not contain any statement that would raise concerns about the plea
agreement procedure, the motion for plea of guilty pursuant to the plea
agreement, the adequacy of the plea of guilty hearing or the factual basis for
Mr. Armstrong’s guilty plea to an information for attempting to influence a grand
jury by providing federal authorities with an untruthful document which he knew
at the time that he generated said document that the same would be submitted
to a federal grand jury that was investigating a violation of law.
(26) The development of Criminal No. 04-250(JAG) from beginning to
end reflects that the suppression of the two audio recordings did not halt the
proceedings in that case. Its case history is no different from that of other
cases in this jurisdiction where a defendant reaches a plea agreement
pursuant to which he pleads guilty to an information and upon conclusion of
said proceeding by way of a change of plea motion and sentence on the
information the Court is then requested to order dismissal of the indictment in
the original case.
Plaintiff has attempted to impress upon the Court that the exclusion of the
2 recordings as trial evidence in Criminal No. No. 04-250(JAG) is what led to
the dismissal of the indictment in said case. He classifies this dismissal as a
favorable outcome. There is absolutely no evidence to reach that conclusion.
As previously outlined in this opinion, the prosecution had evidence that went
beyond the N-17 and/or N-18 recordings to present before a petite jury to prove
the charges. The underlying premise advanced has been that because these
2 recordings were suppressed, confidential informant Duffis-Young would be
precluded from testifying about what he stated he had directly spoken to

CIVIL 12-1605CCC

31

Armstrong regarding the payment of money for the heroin transaction to be
imported from Aruba to Puerto Rico with the down payment being made
through Grand Central Cambio and Armstrong in Jamaica. There is no indicia
that, had the Court rejected Armstrong’s plea of guilty on the information for
tampering the jury, the indictment in Crim. No. 04-250(JAG) would have been
dropped. These are two criminal cases that are coexisting at a given moment
in time. Before Armstrong was tried by a jury on the indictment in Crim.
No. 04-250(JAG) he started negotiating a plea to an information of a totally
different offense. Granted that he pled to a misdemeanor which is a lesser
crime than the offenses for which he was indicted.

What is, however,

ultimately important as far as the favorable outcome element of his malicious
prosecution claim is that only because and after he self-convicted on the
misdemeanor charge of jury tampering and had been sentenced for it were the
charges in Crim. No. No. 04-250(JAG) dismissed. The Court’s determination
as to the favorable outcome element of a malicious prosecution claim cannot
ignore the reality of his plea of guilty in Crim. No. 09-309(JAG).

When

Armstrong’s indictment was dismissed his status was that of a convicted
offender by way of a coetaneous information for a serious violation of law given
the threat posed to the integrity of the jury system in federal courts.
Based on the preceding findings of fact, the Court reaches the following:
CONCLUSIONS OF LAW
(1)

The FTCA requires application of the “law of the place” where the

alleged wrongful actions occurred, so Puerto Rico law provides the relevant
standards for Armstrong’s malicious prosecution claim. 28 U.S.C. § 1346(b);

CIVIL 12-1605CCC
González-Rucci

v.

32
U.S.

Immigration

and

Naturalization

Service,

495 F.3d 45, 49 (1st Cir. 2005).
(2)

To succeed on a claim for malicious prosecution under Puerto Rico

law, a plaintiff must prove four elements: (1) that a criminal action was initiated
or instigated by the defendants; (2) that the criminal action terminated in favor
of plaintiff; (3) that defendants acted with malice and without probable cause;
and (4) that plaintiff suffered damages. Failure to prove any element is
dispositive. Barros-Villahermosa v. United States, 642 F.3d 56 (1st Cir. 2011).
(3)

Armstrong did not submit any evidence during the bench trial

showing that any of the United States’ agents, particularly S.A. Carpio or
A.U.S.A. Henwood, acted with malice during either the criminal investigation
or the grand jury proceedings. In reaching this legal conclusion, we reaffirm
the factual findings stated above which establish that:
(a)

the evidence does not support the allegation that the N-17 tape was
fabricated:

(b)

the criminal investigation that preceded Armstrong’s indictment was
a legitimate law enforcement endeavor that was based on sources
and information which reached way beyond this single recording:

(c)

the same conclusion applies to the testimonies presented to the
indicting grand jury:

(d)

the N-17 recording was not played to the grand jury nor a
transcription of the same provided to the grand jurors:

(e)

the confidential informant’s testimony to the grand jury was based
on his own recollection of conversations which he had not only with

CIVIL 12-1605CCC

33

Armstrong but with others charged as his

co-conspirators in

Criminal No. 04-250(JAG) on importation of heroin to Puerto Rico
and related to actions taken with regard to drug money payments,
and:
(f)

there is no evidence whatsoever that AUSA Henwood or
S.A. Carpio, referred to by Armstrong as “agents of the United
States” in this case, had knowledge of or instigated, furthered or
facilitated the tampering of N-17 or of any other evidence or that
they presented any false evidence to the grand jury. What the
evidence has established is that neither the investigating agent who
testified before the grand jury nor the prosecutor who presented
evidence before it engaged in improper investigative or
prosecutorial practices that jeopardized the integrity of the grand
jury’s investigation.

Therefore, the Court finds that malice, the linchpin of Armstrong’s
malicious prosecution claim, is nowhere to be found.
(4)

The circumstances outlined in the factual findings numbered 21

to 26 shatter another essential element of Mr. Armstrong’s malicious
prosecution claim, to wit: that the outcome of the criminal case must have been
favorable to him. Thus, the favorable outcome element of the criminal case is
also missing in this malicious prosecution action.

CIVIL 12-1605CCC

34

For the reasons stated, the remaining malicious prosecution claim of
plaintiff’s complaint is DISMISSED. Judgment in conformity with the findings
set forth in this Opinion and Order will follow.
SO ORDERED.
At San Juan, Puerto Rico, on June 20, 2016.

S/CARMEN CONSUELO CEREZO
United States District Judge