Case 1:22-cr-00522-GHW Document 495 Filed 09/17/24 Page 1 of 9
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`ALVIN EUSEBIO,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`UNITED STATES,
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`Defendant.
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #: _________________
`DATE FILED: 9/17/24
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`1:22-cr-522-GHW-5
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`MEMORANDUM
`OPINION & ORDER
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`GREGORY H. WOODS, United States District Judge:
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`Alvin Eusebio is charged with conspiracy to traffic narcotics and possession and discharge
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`of a firearm. On May 22, 2020, Mr. Eusebio was arrested by officers from the New York Police
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`Department. Mr. Eusebio was carrying illegal narcotics and over $2,000 in cash at the time of his
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`arrest. Mr. Eusebio has moved to suppress that evidence, contending that he was arrested without
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`probable cause. Because the arresting officer saw Mr. Eusebio with dice and exchanging money
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`with a group of others on a public sidewalk, there was probable cause to arrest Mr. Eusebio for
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`loitering for the purpose of gambling. Therefore, Mr. Eusebio’s motion to suppress is DENIED.
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`I.
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`PROCEDURAL HISTORY
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`On January 25, 2023, Alvin Eusebio was charged in a two-count indictment with
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`participation in a conspiracy to distribute illegal narcotics and possession of a firearm in furtherance
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`of the alleged drug trafficking conspiracy. Dkt. No. 22 (S1 1:22-cr-522 Superseding Indictment). As
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`the case progressed toward trial, the Government filed a sixth superseding indictment. Dkt. No. 393
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`(S6 1:22-cr-522 Superseding Indictment or the “Superseding Indictment”). The Superseding
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`Indictment charges that Mr. Eusebio participated in a long-running conspiracy to distribute illegal
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`narcotics in violation of 21 U.S.C. § 846. The Superseding Indictment also charges that Mr. Eusebio
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`possessed a firearm in furtherance of that conspiracy, and that he brandished and discharged a
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`firearm in violation of 18 U.S.C. § 924(c)(1)(A)(i), (ii), and (iii) and 2.
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`On July 12, 2024, Mr. Eusebio filed a motion to suppress. Dkt. Nos. 387 (notice of motion),
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`390 (memorandum of law or “D. Mem.”). The motion asked the Court to suppress illegal narcotics
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`that had been found on his person on May 22, 2020 after he was arrested by officers from the New
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`York Police Department (the “NYPD”), and also to suppress statements made by Mr. Eusebio
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`following his arrest. Mr. Eusebio’s motion was predicated on an argument that the officers who
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`arrested him lacked probable cause to do. In particular, he contended that the officers did not have
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`sufficient information to believe that Mr. Eusebio had been promoting gambling at the time of his
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`arrest. D. Mem. at 11.
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`Mr. Eusebio submitted a sworn declaration to the Court in support of his motion. Dkt. No.
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`388 (the “Eusebio Declaration”). In his declaration, Mr. Eusebio acknowledged that a group of
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`people were playing dice outside of his apartment building on May 22, 2020. Id. ¶ 3. Police officers
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`began driving down the street toward his building. Id. ¶ 4. Mr. Eusebio recounted the events that
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`followed as follows:
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`I was not playing dice when the police turned the corner. I was not touching
`the dice, nor did I have any money in my hand. Indeed, I did not have anything in
`my hands when the officers arrived. I was observing the game as a spectator and
`was not participating.
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`At the time that the police turned the corner, most of the people who had
`been playing dice began to run in the opposite direction. They grabbed the dice and
`the money that they had been playing with. Because I did not think I was doing
`anything wrong, I did not run away.
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`Id. ¶¶ 6–7.
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`The United States filed its opposition to the defendant’s motion to suppress on August 2,
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`2024. Dkt. No. 416 (“Opposition”). In support of its opposition, the Government presented
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`evidence showing that the officers involved in the arrest had seen Mr. Eusebio gambling, including
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`grand jury testimony of one of the officers, and the sworn criminal complaint filed by one of the
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`officers shortly after the arrest. Dkt. Nos. 416-1, 416-2. Notwithstanding the fact that Mr.
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`Eusebio’s account of events conflicted with the Government’s account of events, the Government
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`took the position in its opposition that the Court should resolve the motion without an evidentiary
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`hearing.1 The defendant filed his reply brief on August 16, 2024. Dkt. No. 431.
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`The Court scheduled an evidentiary hearing by order on August 19, 2024. The Court held
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`that evidentiary hearing on September 6, 2024. During the evidentiary hearing, the Court heard
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`testimony from two of the officers who were involved in the arrest: Detective Vianny Madera and
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`Lt. Commander Gabriel Zambrano. The Court also received physical and documentary evidence
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`offered by the parties, including video taken from officers’ body worn cameras on the date of the
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`arrest—both at the time of arrest, and in the police precinct after the defendant’s arrest. The
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`defendant offered the Eusebio Declaration into evidence, which the Court accepted without
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`objection by the Government. Mr. Eusebio did not testify.
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`1 The Government argued that the Court should apply an approach to the resolution of the motion that is fairly
`analogized to the procedural method used by the Court to evaluate a summary judgment motion in a civil action
`pursuant to Federal Rule of Civil Procedure 56. The Government argued that, rather than resolving the factual dispute
`through an evidentiary hearing, the Court should use the facts presented in the “defendant’s declaration, combined with
`the undisputed evidence” to evaluate whether that assemblage of facts would permit a finding of probable cause.
`Opposition at 7. The Government’s proposal that the Court resolve the motion based on the “undisputed” evidence
`presented to the Court by the Government raises profound issues: it presumes that the Court must accept as true all
`facts presented to it by the Government unless the defendant has sufficient information to controvert the Government’s
`evidence. The adoption of such a practice would place the burden on the defendant to disprove the Government’s
`account of events, rather than on the Government to prove it. The Government cited no legal authority supporting its
`position that the Court can resolve a motion to suppress that raises disputed issues of fact using that approach. Lacking
`citation to clear legal precedent supporting the Government’s proposed approach, the Court views it as an invitation to
`error that is best declined.
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`II.
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`FACTUAL FINDINGS
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`A.
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`Findings of Fact
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`On May 22, 2020, a group of NYPD officers from the 33rd Precinct’s anti-crime unit was on
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`patrol in unmarked police vehicles in Washington Heights. Five NYPD officers were assigned to
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`the unit: then-Officer Madera and three other officers, led by then-Lt. Zambrano. Both Officer
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`Madera and Lt. Zambrano were experienced. At that time, Officer Madera had been a member of
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`the police force for approximately twelve years. He had been a member of the 33rd Precinct’s anti-
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`crime unit for several years. Lt. Zambrano had worked for the NYPD for approximately 12 years.
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`Before his appointment to lead the 33rd Precinct’s anti-crime unit, he had worked as a detective,
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`squad sergeant and police officer in the Bronx.
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`In the period leading up to the defendant’s arrest, the 33rd Precinct had been “having
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`issues” in the area between 168th Street and 178th Street on Audubon Avenue: the issues included
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`territorial incidents resulting from drug sales in the area, shootings, slashings, and robberies. The
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`block on 174th Street between Amsterdam Avenue and Audubon Avenue was an area of particular
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`focus for the unit because of drug activity and shots fired in the area.
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`On May 20, 2020, the anti-crime unit was patrolling West 174th Street. Officer Madera was
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`riding in an unmarked police car. The car drove past a building on West 174th Street. Officer
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`Madera saw a group of 8 to 10 people playing dice on the sidewalk in front of the building. Officer
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`Madera saw players in the group exchanging money. The defendant was one of the players. Officer
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`Madera saw Mr. Eusebio holding money and throwing dice.
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`After the officers observed the dice game, they drove around the area. The officers then
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`drove back to the building, intent on taking “police action”—namely arresting or providing
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`summons to the people who were participating in the game. Some of the participants in the game
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`fled. Mr. Eusebio did not. He was placed under arrest and was handcuffed. After Mr. Eusebio was
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`handcuffed, Lt. Zambrano searched Mr. Eusebio and found a plastic bag containing illegal narcotics.
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`On the sidewalk near where Mr. Eusebio was arrested, officers found three plastic dice.
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`Following his arrest, Mr. Eusebio was taken to the 33rd Precinct. Before he was placed in a
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`holding cell, he was searched again, and officers found that he had over $2,000 in cash on his
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`person.
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`On May 23, 2020—the day after the arrest—Officer Madera swore out a criminal complaint.
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`That complaint stated that Mr. Eusebio and Alex Montilla, who had been arrested with him, had
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`been charged with five crimes. Three of the charges related to the defendants’ possession of a
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`controlled substance—the narcotics found following the arrest. Two of the charges related to the
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`gambling activity that Officer Madera had observed: violations of PL 225.05, “Promotion of
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`Gambling in the Second Degree,” and PL 240.35(2), “Loitering.”
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`In the complaint, which was prepared in collaboration with the assigned assistant district
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`attorney, Officer Madera wrote the following about his observations that led to the arrest:
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`I observed the defendants at the above described location throwing dice on
`the ground with unapprehended individuals. I observed the defendants holding
`sums of United States currency and exchanging currency with each other and with
`the unapprehended individuals. I recovered three dice on the ground in front of the
`defendants.
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`I know, based on my training and experience as a police officer, that dice are
`used in games of chance and used for the purpose of gambling. I know . . . that the
`defendants’ actions are indicative of their participation in a game of “dice”, which is
`a game of chance where players bet money that may be won or lost depending on
`the outcome of dice rolls.
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`Dkt. No. 416-1.
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`B.
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`Credibility of Witnesses and the Eusebio Declaration
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`In reaching these findings of fact, the Court has evaluated all of the evidence presented to it
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`during the evidentiary hearing. The Court found the testimony of the two officers to be fully
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`credible. While the Government was unable to produce video showing the dice players, the video
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`recordings of the officer’s interactions with Mr. Eusebio strongly support their account of events.
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`Significantly, in the immediate aftermath of the arrest, one officer is heard explaining that “you all
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`playing dice and drinking liquor . . . .” Mr. Eusebio is later heard asking “why you all searching me
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`in the first place, though?” The answer: “You all been drinking liquor and you were playing dice in
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`front of the building.” Mr. Eusebio responded that he had not been drinking, and that it was his
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`building—not that he was not playing dice.
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`After the passage of four years, and many arrests, the officers testified credibly that they did
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`not have a specific recollection of the activities of the defendant himself on the date of the arrest.
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`But Officer Madera swore out a complaint just one day after the arrest asserting that he had seen the
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`defendant “holding sums of money and exchanging currency.” The officer provided consistent
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`testimony when he later testified before the grand jury about the arrest. The officers’ testimony, and
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`supporting documentary and video evidence, strongly support the Court’s findings.
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`There is no credible evidence before the Court suggesting that the officers did not have the
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`opportunity to see the events that they described. The defendant did not challenge the officer’s
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`ability to see the gambling activity from their car. Even the defendant’s self-serving affidavit—
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`which notes that there were parked cars between the road and the sidewalk—states that the
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`participants in the game began to run after they saw a police car turn the corner. If the gamblers
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`could see the police, the police could see the gamblers.
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`The Court affords Mr. Eusebio’s declaration very little weight. His account of events was
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`not subjected to the test of cross-examination. His narrative is self-interested. It is contradicted by
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`the credible testimony of the officers who testified during the evidentiary hearing, the body camera
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`footage, and sworn statements from Officer Madera from shortly after the arrest. Mr. Eusebio’s
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`declaration is also contradicted by tangible evidence. In his declaration, Mr. Eusebio states that the
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`dice players who fled “grabbed the . . . dice that they had been playing with.” However, the NYPD
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`collected three plastic dice at the scene. They were presented to the Court during the evidentiary
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`hearing. The dice bore scratch marks of the type that the Court would expect to see on dice that
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`had been rolled multiple times on a Manhattan sidewalk. The Court does not credit Mr. Eusebio’s
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`account of his conduct.2
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`III. DISCUSSION
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`A.
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`Legal Standard
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`The officers arrested Mr. Eusebio without a warrant. “Such an arrest must be supported by
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`probable cause or else it violates the Fourth Amendment.” United States v. Valentine, 539 F.3d 88, 93
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`(2d Cir. 2008). “A police officer ordinarily has probable cause to arrest when he or she ‘ha[s]
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`knowledge of, or reasonably trustworthy information as to, facts and circumstances that are
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`sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being
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`committed by the person to be arrested.’” United States v. Diaz, 854 F.3d 197, 203 (2d Cir. 2017)
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`(quoting Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010)). “While probable cause
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`‘requires only a probability or substantial chance of criminal activity, not an actual showing of such
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`activity,’ mere suspicion is not enough.” U.S. v. Valentine, 539 F.3d 93 (quoting Illinois v. Gates, 462
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`U.S. 213, 244 n.13 (1983)). “In determining whether probable cause exists to arrest a suspect, ‘[t]he
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`experience of a police officer is a factor to be considered . . . but the relevance of the suspect’s
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`2 In the memorandum of law presented to the Court in support of the defendant’s motion, counsel asserted the
`following: “And the officers never attempted to articulate any reason why Mr. Eusebio’s supposed participation in the
`game could qualify as promotion of gambling . . . . Instead, the officers told Mr. Eusebio that they were concerned about
`loitering.” D. Mem. at 11 (emphasis in original). As noted, in the body camera footage, officers can be heard at least
`twice explaining that they had stopped the defendant and another person because they saw them participating in
`gambling. It is perhaps fair on the record presented to the Court to say that the officers did not explain to the defendant
`why the defendant’s conduct would qualify as promotion of gambling (the defendant does not argue that the officers
`were required to provide a legal analysis of the elements of his crime to the defendant on the spot during the arrest). But
`it is not accurate to suggest that the body camera footage supports the conclusion that the officers were concerned about
`loitering and not gambling.
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`conduct should be sufficiently articulable that its import can be understood by the average
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`reasonably prudent person.’” Id. (quoting United States v. Fisher, 702 F.2d 372, 378 (2d. Cir. 1983)).
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`B.
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`Analysis
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`There was probable cause to arrest Mr. Eusebio for a violation of New York Penal Law
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`§ 240.35(2) because Officer Madera personally observed Mr. Eusebio gambling. Under New York
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`Penal Law § 240.35(2), “[a] person is guilty of loitering when he . . . [l]oiters or remains in a public
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`place for the purpose of gambling with cards, dice or other gambling paraphernalia.” Under New
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`York Penal Law § 225.00(2), “[a] person engages in gambling when he stakes or risks something of
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`value upon the outcome of a contest of chance or a future contingent event not under his control or
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`influence, upon an agreement or understanding that he will receive something of value in the event
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`of a certain outcome.” “As one New York court explained, ‘[t]o break it down to its simplest terms,
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`in New York State it is a violation for people to roll dice for money even if they are only players, if
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`they do so in a public place.’” Kee v. City of New York, 12 F.4th 150, 159 (2d Cir. 2021) (quoting
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`People v. Greenhill, 94 N.Y.S.3d 539, 2017 WL 6601862, at *3 (Crim. Ct. Dec. 26, 2017)).
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`“It is also important to note that loitering for the purpose of gambling is a violation under
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`New York Law; it is not a crime.” Id. “Pursuant to New York law, because loitering for the
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`purpose of gambling is only a violation, the offense must occur in the officer’s presence to provide
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`probable cause to arrest.” Id.
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`Officer Madera had probable cause to arrest Mr. Eusebio for a violation of New York Penal
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`Law § 240.35(2) because he saw Mr. Eusebio gambling. Officer Madera personally observed Mr.
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`Eusebio in a group of 8 to 10 people. He was rolling dice and exchanging money with others in the
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`group. The game was happening on the sidewalk in a public place. This provided the officers
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`probable cause to arrest Mr. Eusebio for a violation of that statute.3 Because the search was
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`conducted incident to a lawful arrest, it did not violate the Fourth Amendment.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, the motion to suppress is DENIED. The Clerk of Court is
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`directed to terminate the motion pending at Dkt. No. 387.
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`SO ORDERED.
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`Dated: September 17, 2024
`New York, New York
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`__________________________________
`_____________________________________________________________________________________________________________________________________________________________________________________________________ __
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`GREGORY H. WOODS
`GREGOGOGOGOGOGOGOGOGGOGGOGG RYRYRYRYRYRYRYRYRYRYRRR HHHHHHHHHHHH. WOODS
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`United States District Judge
`United States District Judge
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`3 Officer Madera’s observations would also likely support a finding of probable cause for other violations of the New
`York Penal Law—in particular, New York Penal Law §§ 225.30 and 225.05. The Court need not engage in an analysis
`of those alternatives here.
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