Showing posts with label Crab Catcher Restaurant. Show all posts
Showing posts with label Crab Catcher Restaurant. Show all posts

Tuesday, March 3, 2009

Cuadra Trial... Day 5 Overview

Grant Roy

The Citizens' Voice reports that Grant Roy publicly criticized Bryan Kocis in the months leading to Kocis’ death on Jan. 24, 2007, because the two men were in a legal dispute over an actor. Roy had created an Internet site called “Cobra Killer,” referring to Kocis’ gay pornography business, Cobra Video.

But when Roy met with Harlow Cuadra and Joseph Kerekes at a Las Vegas restaurant two weeks before Kocis’ death, he made it very clear that Kocis shouldn’t be harmed.

“I told them, ‘If something happened to Bryan, they’re going to show up at my door the next day,’” Roy testified Monday in Cuadra’s capital homicide trial. “If something happened to either one of us, they’re going to show up at his door the next day.”

Five witnesses were called in the fifth day of testimony, but Roy stayed on the witness stand for the majority of the day. Four witnesses testified to electronic and financial records pertaining to the case.

Jurors heard the first of two recorded conversations that Roy had with Cuadra, Kerekes and his business partner, Sean Lockhart.

Cuadra, 27, could face the death penalty if found guilty of first-degree homicide in Kocis’ stabbing death. Kerekes, 35, pleaded guilty in December to second-degree homicide and is serving a life sentence.

Jurors listened to a more than four-hour audio recording of an April 27, 2007, conversation among the four men that occurred primarily at the Crab Catcher restaurant in La Jolla, Calif., outside San Diego.

Cuadra and Kerekes came to San Diego, Roy testified, to try to cement a deal in which Cuadra and Lockhart would act in pornographic films together. Cuadra and Kerekes owned a male escort service and gay pornography business in Virginia Beach, Va.

Roy, who was cooperating with police, wore a recording device inside his shirt when he and Lockhart, who was also cooperating, met with the two Virginia men. Jurors wore headphones and followed a transcript as they listened to the recording. Cuadra scribbled notes in a legal pad and motioned to his attorneys several times.

Roy and Kerekes spoke during most of the tape, which focused on a potential deal between the two parties. Kerekes didn’t directly speak about Kocis’ death, and jokes once about the fact he isn’t revealing more.

“You understand why I’m not talking more about anything, right?” he said during the recording. “I don’t know if there’s a wire on you.”

At times, Kerekes sounds overly eager to make a deal with Roy, offering to pay him and Lockhart up front to shoot a couple of scenes.

“What I was gonna say is this: If you guys can give us like a word right now, and a time right tomorrow, I’ll give you an extra grand, 7 grand,” Kerekes said.

Kerekes and Cuadra speak about investigators raiding their home in Virginia Beach, but the two men later say they believe the investigation was coming to a close.

“Our neighbor was … giving us play by play, and now the fire department’s here, and they’re bringing out all this equipment …,” Cuadra said.

Cuadra spoke relatively little on the tape compared to Kerekes. Roy, pushing for information about Kocis, asks at one point, “Did he suffer? Or was it quick? Sean’s wondering?”

Kerekes avoided the question, but Cuadra later responds:

“I’ll tell you what, when we’re nude on that beach you can ask me whatever the hell you want.”

The men had agreed to meet at Black’s Beach, also in La Jolla, the next day. Roy also recorded conversations that day, using a digital recorder hidden in a key chain, a previous witness testified. Jurors will likely hear that more than two-hours-long recorded conversation today.

Before the recording was played Monday, Roy testified Kerekes and Cuadra were very pushy to make a film. Kerekes, using Cuadra’s MySpace Web site, sent threatening messages to Lockhart, Roy said. The messages included comments such as, “We had an agreement” and had a threatening tone.

“Harlow and both Joe seemed a little eager to get this production under way,” Roy testified about the first time he met with the two men in Las Vegas. “I didn’t see the need to rush. At various times, I expressed to them I didn’t think it’d be a problem if we could get out from this mediation (with Kocis).”

Cuadra’s attorneys have yet to cross-examine Roy.
---
Meanwhile, according to the Times Leader... adult-film producer Grant Roy excused himself from the dinner table to use the restroom.

Once inside, Roy called investigators, who told him to continue talking with Harlow Cuadra and Joseph Kerekes.

Investigators were recording their conversation at the Crabcatchers Cafe outside San Diego through a receiver placed on Roy’s belt buckle.

Roy and his business partner, Sean Lockhart, had agreed to cooperate with investigators probing the death of gay pornographic movie producer Bryan Kocis, 44, in Dallas Township in January 2007.

Cuadra, 27, and Kerekes, 35, were suspects in Kocis’ murder when Roy and Lockhart invited them to San Diego in April 2007 to discuss filming movies together.

Unbeknown to Cuadra and Kerekes, investigators recorded their conversations at the cafe and at a nude beach outside San Diego.

Three weeks after investigators alleged Cuadra and Kerekes made several “admissions” to the homicide, they were charged with Kocis’ murder in May 2007.

Kerekes pleaded guilty in December to second-degree murder and was sentenced to life in prison without parole.

Assistant district attorneys Michael Melnick, Shannon Crake and Allyson Kacmarski on Monday played the Crabcatchers recording to the jury deciding the fate of Cuadra, who faces the death penalty if convicted of first-degree homicide.

His trial before Judge Peter Paul Olszewski Jr. is in its second week.

For more than three hours, the jury listened and read the 184-page transcript of the Crabcatchers conversation on the trial’s fifth day of testimony. Most of the conversation involved Roy and Kerekes, who was pressuring Roy into filming several scenes involving Lockhart and Cuadra.

Roy was reluctant to begin filming, telling Kerekes and Cuadra he wanted to think about their plan. Kerekes discussed ways to pay Roy and Lockhart royalty fees under the table to avoid paying Kocis’ company.

Cuadra discussed losing his filming equipment that was seized when authorities searched his and Kerekes’ Virginia Beach home on Feb. 10, 2007.

When Roy excused himself from the dinner table to use the restroom, he used a cell phone to call investigators. After he returned to the table, Roy changed the conversation’s topic to the fallout on their business due to Kocis’ death.

“My career is ruined, now I … once everyone wanted to work with me, and everyone wanted to be involved with me, and now no one wants to touch me,” said Lockhart, according to the transcript.

Kerekes apologized to Roy and Lockhart “for hurting you guys and messing things up; I really do, I messed up our lives too,” the transcript says.

In an attempt to settle the concerns of Roy and Lockhart, Kerekes told them, according to the transcript, that authorities in Pennsylvania put the investigation “on the back burner.”

At one point during the conversation, Roy asked Kerekes, “Did he suffer. Or was it quick? Sean’s wondering.”

Kerekes responded, “I don’t know nothing about … ha, ha, ha,” the transcript says.

Lockhart testified on Friday that Cuadra told him after dinner, “Don’t worry, it was quick; he went quick.”

Cuadra’s alleged comment to Lockhart wasn’t recorded.

After Roy and Lockhart departed, Lockhart told Roy that “Harlow said some stuff to me,” according to the transcript.

Prosecutors are expected to play to the jury today the recorded conversation the four men had at the nude beach.

Also on Monday, testimony from two hotel representatives alleged Cuadra stayed at the Hilton Norfolk Airport, Norfolk, Va., hotel from Jan. 30 to Feb. 2, 2007, and at the Springhill Suites by Marriott in Norfolk from Feb. 2 to Feb. 10, 2007.

Crake said the hotels are minutes from Cuadra’s home.

Monday, March 2, 2009

Harlow Cuadra's Trial... Day 5

5:47 PM: I'm told that the meeting in the judge's chamber is aparently the result of 30 mins., or so of conversation that was heard by the jury (Sean and Grant), after Harlow and Joe were dropped off at their hotel. I'm not sure if this is in the original transcripts... so who knows.

5:39 PM: There's a meeting in the judge's chamber.

5:25 PM: I'm told that the BBT's won't be played until tomorrow... more shortly.

5:15 PM: While we await an update as to what's going on... I wanted to take a moment to mention that another witness that's expected to testify for the prosecution this week is Attorney Sam Hall, which I'm told was a mediator for the settlement agreement between Bryan Kocis, Sean Lockhart and Grant Roy.

3:25 PM: A court watcher tells me that the CCT's are still being played.

2:38 PM: More updates from a court watcher... I'm told that the tone of the conversation during the CCT's sounded friendly... definitely not chipper, but nothing really stood out. The courtroom isn’t nearly as packed as it was for Sean’s testimony, and Grant looks drawn.

1:57 PM: A court watcher tells me that the CCT's are still being played, and that it'll be a little while before the BBT's.

12:20 PM: The Citizens' Voice reports that Jurors in the Harlow Cuadra capital homicide trial began listening this morning to the first of two recorded conversations Cuadra and his business partner, Joseph Kerekes, had with two other men regarding the death of Bryan Kocis.

The recording of an April 27, 2007 meeting between Cuadra, Kerekes and Grant Roy and Sean Lockhart, takes place primarily at the Crab Catcher restaurant in San Diego, Cal. The recording lasts about three hours. Jurors listened to the first 30 minutes of the tape before breaking for lunch and are expected to listen to the remaining portion when they return.

Roy, who was business partners with Lockhart, a well-known gay pornography star, took the stand this morning in the fifth day of testimony. Lockhart and Roy were cooperating with police in the investigation of the killing of Kocis at his Dallas Township home in Jan. 24, 2007. Cuadra, 27, could face the death penalty if convicted of first-degree homicide in Kocis’ stabbing death. Kerekes, 35, Cuadra’s former partner of gay pornography and male escort businesses in Viginia Beach, Va., pleaded guilty to second degree homicide. He is serving a life sentence.

Roy was wearing a recording device when he and Lockhart met the two Virginia Beach men. Cuadra and Kerekes came to San Diego, Roy testified, to try to cement a deal where Cuadra and Lockhart would act in pornographic films together.

In the first 30 minutes of the tape jurors heard Roy and police testing the recording equipment. Lockhart and Roy are also heard driving to meet Kerekes and Cuadra and some idle introductory conversations when they pick Cuadra and Kerekes at their hotel. Jurors are wearing headphones and following a transcript of testimony.

County Judge Peter Paul Olszewksi Jr. told jurors testimony will resume at 1:15 p.m. and will likely continue past 4:30 p.m. today until Roy’s testimony is finished.

11:43 AM: According to the Times Leader, prosecutors are playing the conversation between Grant Roy and Sean Lockhart with Harlow Cuadra and Joseph Kerekes to the Luzerne County jury.

The three hour conversation was intercepted by investigators from a recording device Roy wore on his belt buckle at Crabcatchers Restaurant outside San Diego, Calif., on April 27, 2007. The restaurant recording was one of two intercepts where investigators alleged Cuadra and Kerekes made "admissions" to the murder of gay pornographic movie producer Bryan Kocis.

Roy, an adult film producer, told the jury in his testimony that he cooperated with investigators, and voluntarily agreed to wear a recording device when the four men met at the restaurant.

Roy testified Cuadra and Kerekes wanted to film movies with Lockhart, his business partner and former lover.

After Kocis was killed, Roy told the jury that Cuadra called Lockhart and referred him to wnep.com on Jan. 25, 2007.

"Lockhart was concerned that we were next," Roy testified. During that phone call on Jan. 25, Lockhart had testified Cuadra said to him, "I guess my guy went overboard."

Roy further told the jury that there were a number of phone calls and e-mails from Cuadra and Kerekes after Kocis' death, pushing them into filming.

"I told them just keep away from us." Roy said.

At some point in April, Roy said Kerekes sent him an e-mail and the four men agreed to meet in San Diego on April 27. That's when Roy volunteered to wear a recording device for investigators.

A second recorded conversation the four men had on a nude beach on April 28 is also expected to be played to the jury.

11:34 AM: A court watcher tells me that they're playing the tapes right now… breaking at noon for lunch and then playing the remaining 2 ½ hrs of tape.

10:35 AM: Reports from the Citizens' Voice say that Grant Roy testified today that he made it clear during his first meeting with Harlow Cuadra and Joseph Kerekes that he wanted no one to harm Bryan Kocis.

Roy and his partner Sean Lockhart, who were involved in a highly publicized legal dispute with Kocis, met Cuadra and Kerkes at a dinner meeting in a Las Vegas restaurant in early January 2007, Roy testified this morning during Cuadra’s capital homicide trial.

Cuadra could face the death penalty if found guilty of first-degree homicide in Kocis’ Jan. 24, 2007, stabbing death. Five witnesses, including Roy, were called today by prosecution in the fifth day of testimony.

“I told them ‘If something happened to Bryan, they’re going to show up at my door the next day. If something happened to either one of us they’re going to show up at his door the next day,’” Roy said.

Cuadra, 27, and Kerkes, 35, owned an escort and gay pornography business in Virginia Beach, Va. They were meeting with Roy and Lockhart in hopes of forming a business relationship where Cuadra and Lockhart would act in films together, Roy said.

“Harlow and both Joe seemed a little eager to get this production under way,” Roy said. “I didn’t see the need to rush. At various times, I expressed to them I didn’t think it’d be a problem if we could get out from this mediation (with Kocis).”

Roy said a settlement between Lockhart and Kocis was nearly finished.The settlement would allow Lockhart to act again under his screen name Brent Corrigan. Because the settlement was still being negotiated, Roy said, he couldn’t reveal that information to Cuadra or Kerekes. But as

the seven-course dinner progressed, he said, both men were drinking excessively and became more insistent.

“(Kerekes) said, ‘Harlow has this guy who will do anything for him,'” Roy testified. Roy said he took this statement to mean murder.

Roy’s testimony was stopped for a brief recess. When jurors return, prosecutors are expected to play a taped conversation Roy had with Cuadra and Kerekes at a nude beach near San Diego in April 2007, when Cuadra discusses Kocis’ death.

9:35 AM: The Times Leader is reporting that Adult film producer Grant Roy testified he went to the FBI with information that gay pornographic movie producer Bryan Kocis filmed movies involving a minor.

Roy said he was involved in federal litigation with Kocis who filed a civil lawsuit alleging his model, Sean Lockhart, violated trademark rights in February 2006. Roy and Lockhart were named in the lawsuit, including their production company, LSG Media, LLC.

Roy told the jury that he was upset with Kocis about the lawsuit, and went to federal authorities that Kocis filmed movies with Lockhart, who was 17 years old at the time.

Roy said the lawsuit with Kocis was settled in January 2007.

Roy is likely to stay on the witness stand for much of Monday, the fifth day of the capital murder trial of Harlow Cuadra, charged in the killing of Kocis.

Two representatives from hotels in Virginia Beach testified earlier Monday that Cuadra stayed at the Hilton near the Norfolk, VA, airport and at the Springhill Suites by Marriott in Norfolk from Jan. 30, 2007 to Feb. 10, 2007.

Prosecutors said Cuadra's home in Virginia Beach is near the two hotels.

Roy is expected to tell the jury that he wore a recording device when he met with Cuadra in San Diego, Calif., in late April 2007. Prosecutors alleged in court records that Cuadra made "admissions" to Kocis' killing.

8:28 AM: Harlow Cuadra's fifth day of trial is scheduled to begin in just a few minutes. Grant Roy is expected to testify today, and prosecutors are expected to play two recorded conversations he and Sean Lockhart had with Cuadra and Joseph Kerekes in San Diego, Calif., on April 27 and April 28, 2007. Stay tuned for further updates throughout the day.

Monday, September 8, 2008

We Have Some Rulings!

News flashes coming shortly (done)...

Update 1:29 PM: A Luzerne County judge has ruled prosecutors can not use certain statements homicide suspect Joseph Kerekes made to police regarding the investiation into the death of Brian Kocis.

Update 1:44 PM: PPO also rules that there will be one trial, denying requests by attorneys for homicide suspects Joseph Kerekes and Harlow Cuadra to have separate trials.

Update 2:12 PM: Two recorded conversations Cuadra and Kerekes had with Sean Lockhart and Grant Roy in California can be used by prosecutors, Olszewski ruled.

Update 2:55 PM: The Citizen's Voice is reporting that Harlow Cuadra and Joseph Kerekes will stand trial together for the January 2007 killing of Bryan Kocis in Dallas Township, and prosecutors will be allowed to present nearly all the evidence they planned to use against the defendants, including recorded conversations and e-mail messages, Judge Peter Paul Olszewski Jr. ruled today.

Prosecutors will be permitted to introduce recordings and transcripts of April 2007 conversations in which Cuadra and Kerekes shared details of the killing with two acquaintances in San Diego.

They will be able to introduce a series of e-mail messages Cuadra sent to Kocis under a pseudonym in the days before the killing and physical evidence seized from the defendants' home in Virginia Beach, Va.

But, they will not be allowed to use any of the statements Kerekes made to investigators hours after his arrest in Virginia Beach in May 2007.

Kerekes' attorneys argued those statements, which included references to the killing, were elicited after Kerekes asked for an attorney, as he provided Cpl. Leo Hannon of the Pennsylvania State Police with "biographical information" and listened to an informal reading of the affidavit filed against him.

"At no time did Cpl. Hannon permit the defendant to consult with counsel prior (to) questioning regarding the aforementioned information," Olsewski wrote in a 50-page answer to motions filed earlier this year by Kerekes' attorneys.

Olszewski filed a similar 40-page answer to motions filed by Cuadra's attorneys.

Update @ 4:28 PM: The Times Leader also reports that a Luzerne County judge ruled that there will be one trial, denying requests by attorneys for homicide suspects Joseph Kerekes and Harlow Cuadra to have separate trials.

The ruling by Court of Common Pleas Judge Peter Paul Olszewski Jr. is one of several pre-trial issues in anticipation for the scheduled January capital murder trial.

Kerekes, 34, and Cuadra, 27, both from Virginia Beach, Va., are charged in the killing of Bryan Kocis, 44, at Kocis' Dallas Township home in January 2007.

Investigators allege they killed Kocis, whom they considered their main rival in the gay movie production industry.

Attorneys for Kerekes and Cuadra attempted to have separate trials, claiming they may incriminate the other in the murder.

Two recorded conversations Cuadra and Kerekes had with two men in California can be used by prosecutors, Olszewski ruled.

Olszewski did prohibit prosecutors from using statements Kerekes allegedly made to state police Cpl. Leo Hannon Jr.

Kerekes was arrested by Virginia Beach authorities and allegedly made statements while Hannon read him the criminal complaint.

Wednesday, August 6, 2008

Defendants Joint Reply Brief to Commonwealth's Brief in Opposition to Motion to Supprress April 2007 Interceptions

DEFENDANTS KEREKES’ AND CUADRA’S JOINT REPLY BRIEF TO COMMONWEALTH’S BRIEF IN OPPOSITION TO MOTION TO SUPPRESS APRIL 2007 INTERCEPTIONS AT CRABCATCHER’S RESTAURANT AND BLACK’S BEACH


I. Statement of Facts
II. Law and Argument: California Electronic Eavesdropping Law
III. Law and Argument: Pennsylvania Electronic Eavesdropping Law
IV. Law and Argument: Pennsylvania Law Controls
V. Law and Argument: Analysis Under California Law
VI. Conclusion

Statement of Facts

I. Statement of Relevant Facts

On April 27, 2007, Luzerne County District Attorney’s Office Detective Lieutenant Daniel Yursha, Pennsylvania State Police Corporal Leo Hannon, San Diego City Police Department Detectives Robert Donaldson, Lynn Rydalch and Laurie Agnew, San Diego District Attorney’s Office Investigator Ronald Thill, Drug Enforcement Agency Special Agent Andrew Pappas and Naval Criminal Investigative Service Special Agent Kim Kelly, electronically intercepted conversations between Grant Roy, Seañ Lockhart, Joseph Kerekes and Harlow Cuadra as they traveled to several locations in La Jolla, California, including Crabcatcher’s Restaurant. Such intercept was executed without a warrant. Such intercept was executed only upon the “consent” of one party to the conversation, Grant Roy. Homicide Investigation Action Report 4/27/07 attached hereto as “Exhibit 1.”

On April 28, 2007, Detective Yursha, Trooper Hannon, Sergeant Donaldson, Agent Pappas and Special Agent Kelly again electronically intercepted conversations between Grant Roy, Sean Lockhart, Joseph Kerekes and Harlow Cuadra at Black’s Beach in California. Such intercept was executed without a warrant. Such intercept was executed only upon the consent” of one party to the conversation, Grant Roy. Homicide Investigation Action Report 4/28/08 attached hereto as “Exhibit 2.”

Upon information and belief, Grant Roy was at all relevant times a resident of California. Neither defendant Kerekes nor defendant Cuadra were at any time residents of California or Pennsylvania.

Both interceptions were conducted in California at the request of Pennsylvania law enforcement officials in connection with the investigation in Pennsylvania of the death of Bryan Kocis, for which Pennsylvania authorities eventually arrested the defendants.

Defendants believe, and therefore aver, that the Commonwealth intends to use the intercepts and/or the transcripts of the intercepts at trial in this matter, Further, the Commonwealth has alleged that the intercepts contain potentially incriminatory statements made by defendants Kerekes and/or Cuadra.

Upon information and belief, Grant Roy never gave written consent to the recording of the conversations of April 27 or 28, 2007 to authorities. Upon information and belief, Grant Roy was approached by Pennsylvania law enforcement. He was interviewed several times regarding his knowledge about the death of Bryan Kocis and his prior business dealings with Bryan Kocis by Pennsylvania law enforcement officials prior to acting as an informant in this matter. Such interviews were conducted in the presence of Grant Roy’s counsel and at least one interview was recorded by Grant Roy’s attorney. Grant Roy was solicited by Pennsylvania law enforcement officials to act as an informant.

According to filed legal papers, Grant Roy’s company LSG Media, LLC, was involved in a lawsuit initiated by Bryan Kocis and his company Cobra Video regarding, inter alia, the trademark of Sean Lockhart’s (aka Brent Corrigan’s) name in the gay porn industry. Such lawsuit was ongoing at the time of Bryan Kocis death. Complaint caption Cobra v. Lockhart et al attached hereto as “Exhibit 3.”

Exhibit 3

Pennsylvania law enforcement considered Grant Roy a “known enemy” of Bryan Kocis. Excerpt of Victim Checklist attached hereto as “Exhibit 4.” Grant Roy had a blog spot and email address titled, “Cobra Killer.” See Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 123-124.

Further, the team of authorities assembled to conduct the electronic intercept did not possess prior approval from an attorney general, deputy attorney general, district attorney, assistant district attorney who independently reviewed the facts and determined that Grant Roy’s “consent” was voluntary.

1. The Commonwealth's document also contains a section titled "Statement of Facts." The Commonwealth's "facts" are not facts at all. Rather, they are conclusions of law and rehtoric of counsel, wholly unsupported by citations to any evidentaiary record.

2. The fact that Kerekes was not a resident of Pennsylvania at the time of the intercept should not impact the analysis. The holdings of the cases discussed infra do not turn on a finding of residency, although as a practical matter in most cases the parties are residents. However, the conflict exists between the forum state and the state where the evidence was collected.

Law and Argument: California Electronic Eavesdropping Law

II. Law and Argument: California Electronic Eavesdropping Law

The relevant portion of California Penal Code §632 states:

§ 632. Eavesdropping on confidential communication; Punishment

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication... shall be punished...

(c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(Emphasis supplied.)

California Penal Code § 633 creates an exception for law enforcement:

§ 633. Lawful Activity of Law Enforcement Officer

Nothing in Section... 632 [forbidding electronic eavesdropping],... prohibits the Attorney General, any district attorney, or any assistant, deputy or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff, regularly employed and paid in that capacity by a county, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter.

Pursuant to statutory interpretation by subsequent case law, in California warrantless electronic eavesdropping is authorized where an informant has given voluntary consent and is acting at the direction of one of the law enforcement officers enumerated above. See People V. Towery, 174 Cal.App.3rd 1114, 220 Cal.Rptr. 475 (1985).

In California, Courts analyze whether informant consent is voluntary after the electronic eavesdropping has occurred and factors to consider are whether the informant approached the police or the police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by the police. See ld. at 1124.

3 is an appendix containing the applicable California electronic intercept law for the Court’s convenience, California Penal Code § 632 and 633 and case law referred to in this Brief.

4 phrase “prior to the effective date of this chapter” refers to part 1, title 15, chapter 1.5 of the California Penal Code, which sets forth California’s Invasion of Privacy Act. The effective date of chapter 1.5 was November 8, 1967. See People v. Chavez, 44 Cal 4 1144, 52 CaL.Rptr.2d 347 (1996) citing 49 West’s Ann.Pen.Code (1988 ed,) Effective Dates of Laws, p. XXI.

Law and Argument: Pennsylvania Electronic Eavesdropping Law

III. Law and Argument: Pennsylvania Electronic Eavesdropping Law

Title 18 PaC § 5704 regarding Exceptions to Prohibition of interception and Disclosure of Communications states:

It shall not be unlawful and no prior court approval shall be required under this chapter for:

...

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities. where:

(ii) one of the parties to the communication has given prior consent to such interception. However, no Interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General or the district attorney, or an assistant district attorney designated In writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the Interception...

in Pennsylvania, one of the government attorneys enumerated above engages in an analysis of the facts surrounding the intercept and the circumstances surrounding the informant’s consent before electronic eavesdropping occurs. The eavesdropping can only occur if the government attorney gives prior approval for the interception. Further, our courts have imposed an affirmative duty for an authorized government attorney to meet with and/or speak to the consenting party personally throughout the period of surveillance and before obtaining consent for each new period of surveillance. See Commonwealth v. Clark, 374 Pa.Super. 308, 313, 542 A 1036, 1039 (1988). The Commonwealth’s attorneys cannot rely on information supplied by others to ascertain the informant’s consent. See Id. at 1040.

* * *

In the instant case, the electronic intercepts were conducted by a team of law enforcement officials that did not contain a government attorney. No government attorney reviewed the facts surrounding the intercept or the circumstances surrounding the purported consent of the informant, Grant Roy, prior to the eavesdrop. No government attorney met with Grant Roy at all before or during the electronic eavesdrop to discuss the facts and determine if his consent was voluntary.

Here, the Court must determine whether California or Pennsylvania law controls the electronic intercept. It is the defendants’ contention that Pennsylvania law controls this situation, Pennsylvania electronic eavesdrop procedure was not followed and therefore the tapes and or transcripts of the electronic eavesdrops should be suppressed. However, if this Court ultimately concludes that California law controls, the defendants assert that the informant Grant Roy was acting at the direction of the appropriate law enforcement officials, but his consent was not voluntary and the communication was intended to be confidential and therefore the tapes and/or transcripts of the electronic eavesdrops should be suppressed.

Law and Argument: Pennsylvania Law Controls

IV. Law and Argument: Pennsylvania Law Controls

The law regarding electronic eavesdropping in California is substantially different than the law in Pennsylvania. Therefore, the Court must decide which law applies to the analysis of the tapes and/or transcripts in the instant case. Contrary to the Commonwealth’s position, Pennsylvania law controls.

The defendants agree that the Commonwealth has articulated the appropriate standard in its brief regarding analysis of conflict of laws. This matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa 111, 750 A.2d 895 (2000) (holding that an conflict question between New York and Pennsylvania wiretap statutes involved substantive law.)

“In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Airlines, 416 Pa.1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal Issues arising from a particular factual context, thereby allowing the forum to apply the policy of the JurIsdiction most intimately concerned with the outcome. ld. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez, et a!, 552 Pa. 570, 576, 716 A.2d 1221, 1224 (1998) (Emphasis supplied).

Therefore, this Court must determine which state, California or Pennsylvania, has the most interest in the outcome and apply that state’s law. This analysis compels the result that Pennsylvania law should apply.

The Commonwealth cites to Larrison, supra, Sanchez, supra, and United States v. Geller, 560 F.Supp. 1309 (E.D. Pa. 1963) as support for their position that California law controls. The Commonwealth is wrong. The facts in the cases they cite are distinguishable from the facts in this case in determining which state has the most interest in the outcome.

In Larrison, a New York resident tape recorded a phone conversation with a Pennsylvania resident which was later admitted into evidence in a custody trial against the Pennsylvania resident. Larrison, 750 A.2d at 897. In New York, a resident who receives a telephone call may tape record the conversation without violating New York’s wiretap law. ld. at 898. Such recording would be a violation of Pennsylvania’s wiretap law, ld.

The Larrison recording was made by a private individual in her own residence in New York using her own recording device, not at the behest of or supervised by another state’s law enforcement officers using a concealed electronic eavesdropping device. The purpose of the Larrison recording was not to seek evidence related to an anticipated homicide prosecution, as is the instant case. Pennsylvania was not involved in the recording. Pennsylvania only came upon the recording after it had already occurred.

These are core differences between the Larrison case and the instant case. In arriving at the conclusion that New York law applied in Larrison, the court stated that in that circumstance, Pennsylvania, “ha[s] no power to control the activities that occur within a sister state.” Larrison at 888. In the instant case, Pennsylvania law enforcement officials from both the Luzerne County District Attorney’s Office and the Pennsylvania State Police were intimately involved in both electronic intercepts occurring in California. As representatives of Pennsylvania, they concocted the plan to intercept, initiated the intercepts, assembled the team to conduct the intercepts, solicited the informant, determined the method and location in which the intercepts would occur, supervised the intercepts, anticipating that prosecution would occur in Pennsylvania and eventually, they used the intercepts to support the charges filed against the defendant in Pennsylvania. It is only because the informant lives in California that the intercepts occurred in that state.

Because Pennsylvania initiated and orchestrated the electronic eavesdropping and because the result of the eavesdropping was a Pennsylvania prosecution, Pennsylvania has the greatest interest in the outcome.

The Sanchez case makes this distinction even more clear. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. ld. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania ld. at 1224.

In reaching this conclusion, the Sanchez court reasoned:

No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved In the canine sniff.

* * *

Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.

ld. at 1224, 1225. (Emphasis supplied)

An analysis of the cases in this context compels the result that Pennsylvania law should be applied to the instant case. The involvement of Pennsylvania authorities from the planning stage of the intercept until its completion demonstrates Pennsylvania’s interest. As such, it was incumbent on Pennsylvania authorities to have a government attorney engage in an analysis of the facts surrounding the intercept and the circumstances surrounding the informant’s consent before the intercepts occurred and give prior approval for the interception. Further, the authorized government attorney should have met with and/or spoke to the consenting party personally throughout the period of surveillance and before obtaining consent for each new period of surveillance. See Clark, 542 A.2d at 1039.

Because the appropriate Pennsylvania procedure was not followed, the tapes and/or transcripts of the electronic intercepts from both April 27 and 28, 2007 should be suppressed by this Court.

In anticipation of filing homicide charges because of the death of a Luzerne County resident, it is unbelievable that the Luzerne County District Attorney’s Office would assign one of its detectives to initiate and supervise this intercept without first familiarizing itself with Pennsylvania electronic intercept procedure and, in an abundance of caution, sending an assistant district attorney to follow Pennsylvania procedure in case admissibility issues are raised. The Commonwealth now asks this Court to remedy its failure when a human being’s very life is at stake.

5 The defendant is aware that this issue is arguable. In his dissenting opinion in Commonwealth v. Sanchez, 552 Pa. 570, 716 A 1221 (1998), Justice Nigro argued that the canine sniff at issue in that case raised issues of procedural and not substantive law. Justice Nigro quoted Commonwealth v. Dennis, 421 Pa.Super 600, 616, 618 A 972, 980 (1992) on the issue: “It is a fundamental principal (sic) of the conflicts of laws that a court employs its own procedural rules. That is true in both civil in criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law. . . The law of evidence, including the admissibility of specifically offered evidence, has traditionally been characterized as procedural law.” If this Court believes that, in the instant case, the electronic eavesdropping is a matter of procedural law, no further analysis is necessary as the seizure clearly did not comport with Pennsylvania law on the issue. “In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state.” Sanchez at 1223 The Pennsylvania procedure regarding electronic eavesdropping was clearly not followed here. Suppression would therefore be required.

6. ln its brief, the Commonwealth misstates the holding of Sanchez. Offering no analysis, the Commonwealth drops a comparative cite to Sanchez and summarizes its holding, conveniently omitting the operative language boldfaced above The limiting language in the Sanchez holding makes it clear that another state’s search and seizure laws apply in Pennsylvania only when no Pennsylvania officer is involved in the search or seizure. Such is not the case here, as Detective Yursha and Corporal Hannon initiated and were intimately involved in the electronic eavesdrop at issue.

The Commonwealth’s third cited case, United States v. Geller, 560 F.Supp. 1309 (E.D.Pa. 1983) (which the Commonwealth actually uses to quote Commonwealth v. Bennett, 245 Pa Super 457, 369 A 2d 493 (1976)) similarly offers no assistance to them as the wiretap in that case was conducted in New Jersey by New Jersey authorities. The Commonwealth cites two other cases which simply apply Bennett.

Law and Argument: Analysis Under California Law

V. Law and Argument: Analysis Under California Law

In the event this Court decides that California law controls the analysis of the question presented, the tapes and/or transcripts should still be suppressed because Grant Roy’s consent was invalid and/or there was an expectation of privacy in the conversations.

As discussed above, in California an electronic eavesdrop of a confidential communication can be conducted where one party voluntarily consents and is acting at the direction of an enumerated law enforcement officer. See Cailfornia Penal Code § 632 and 633; People v. Towery, 174 Cal.App.3rd 1114, 220 Cal.Rptr. 475 (1985). Grant Roy’s Consent Was Not Voluntary.

California Courts state that factors to consider in assessing whether the informant’s consent is voluntary include whether the informant approached the police or the police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by the police. See Towery at 1124.

Grant Roy was sought out by Pennsylvania law enforcement shortly after Bryan Kocis’ death because Grant Roy was involved in a lawsuit against Bryan Kocis. According to filed legal papers, Grant Roy’s company LSG Media, LLC, was involved in a lawsuit initiated by Bryan Kocis and his company Cobra Video regarding, inter alia, the trademark of Sean Lockhart’s (aka Brent Corrigan’s) name in the gay porn industry. Such lawsuit was ongoing at the time of Bryan Kocis’ death. Complaint Caption Cobra v. Lockhart et al attached hereto as “Exhibit 3.” Pennsylvania law enforcement considered Grant Roy a “known enemy” of Bryan Kocis. Excerpt of Victim Checklist attached hereto as “Exhibit 4.” Grant Roy was interviewed several times regarding his knowledge about the death of Bryan Kocis and his prior business dealings with Bryan Kocis by Pennsylvania law enforcement officials prior to acting as an informant in this matter. Such interviews were conducted in the presence of Grant Roy’s counsel and at least one interview was recorded by Grant Roy’s attorney. Grant Roy was solicited by Pennsylvania law enforcement officials to act as an Informant.

Grant Roy had a blog spot and email address titled, “Cobra Killer.” Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 123-124.

Grant Roy never gave written consent to the recording of the conversations of April 27 or 28, 2007 to authorities, Grant Roy never gave oral consent previous to or during any taped intercept.

From these facts, an inference can be drawn that Grant Roy was initially a person of interest in the homicide of Bryan Kocis. In fact, as Grant Roy himself stated, he thought Bryan Kocis to be “a demon or a pervert,” who he “fuck[ed] with... all the time.” Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 122. Further, Grant Roy recalls that when, “the mother fucker [ Kocis] ends up dead. . . whose got a Cobra Killer blog spot and a Cobra Killer URL?" When Mr. Kerekes states, “You?” Grant Roy replies, “Yeah.” Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 124.

Clearly, Grant Roy perceived that he would be investigated regarding the murder of Bryan Kocis. Grant Roy harbored bad feelings and ill will toward Bryan Kocis. Grant Roy was involved in an intense legal battle with Bryan Kocis during the time of his death. Amidst these circumstances, neither the Commonwealth nor the state of California did anything to document or assure that Grant Roy’s “consent” to wear a wire was voluntary.

If the Court finds that the consent of Grant Roy was involuntary, the Court must also decide whether the communications recorded were “confidential” before it can suppress.

The Conversations Were Confidential and Kerekes Had an Expectation of Privacy

The Commonwealth cites Lieberman v. KCOP Television, Inc., 1 Cal.Rptr.3d 536 (Cal 2003) to explain the parameters of the definition of “confidential communication” contained in California Penal Code §632(c):

The statute defines “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded... The concept of privacy is relative. (Sanders, supra, 20 Cal4th at p. 916). Whether a person’s expectation of privacy is reasonable may depend on the identity of the person who has been able to observe or hear the subject interaction. ( at p. 923; Shulman, supra, 18 Cal.4th at pp. 233-235). The presence of others does not necessarily make an expectation of prsvacy objectively unreasonable, but presents a question of fact for the jury to resolve,

(Emphasis supplied.)

During both intercepts, Grant Roy, Sean Lockhart (aka Brent Corrigan), Joseph Kerekes and Harlow Cuadra were present.

The Commonwealth suggests that because the intercepts occurred at a restaurant and on a beach that, per se, there can be no reasonable expectation of privacy. This argument must fail.

Corporal Hannon states in his report following discussion with Grant Roy regarding the Crabcatcher intercept that during a portion of the conversation, Harlow Cuadra leaned towards Sean Lockhart and silently responded to a question asked of him. This evidences that, at least for portions of the Crabcatcher conversation, the speakers had an expectation of privacy. See Report of Cpl. Hannon attached hereto as “Exhibit 5.” Further, according to the Commonwealth, the second intercept took place at Black’s Beach—a nude beach in California specifically chosen as a meeting location by Cuadra and Kerekes where they would answer any questions because they did not expect either Grant Roy or Sean Lockhart to wear a body wire on a nude beach. See “Exhibit 5’:

Exhibit 5

Simply because a conversation takes place in a location open to the public does not prove that the speaker intends for his words to be made public, overheard or recorded. The law is clear that it is a factual determination to be made after examining all of the circumstances.

7 In furtherance of this argument, the Commonwealth makes quantum assumptive leaps such as “one can be easily overheard” at the restaurant and that ‘one’s voice can be projected and carried by wind” on the beach. These assertions are wholly speculative and are the unsupported creation of counsel.

Conclusion

VI. Conclusion

For the reasons stated more fully above, Pennsylvania law controls analysis of the electronic eavesdropping because Pennsylvania law enforcement was involved in the surveillance and Pennsylvania has the greater interest in the outcome. Pennsylvania electronic eavesdrop procedure was not followed and therefore the tapes and or transcripts of the electronic eavesdrops should be suppressed. However, if this Court ultimately concludes that California law controls, suppression is still warranted because Grant Roy’s consent was not voluntary and the communication was intended to be confidential. The defendants request preclusion of any evidence, references to or argument regarding all fruits of the intercept.


Respectfully Submitted,

Shelly L. Centini, Esq.
Attorney for Defendant Kerekes

John Pike, Esq.
Attorney for Defendant Kerekes

Steven Menn, Esq.
Attorney for Defendant Cuadra

Michael B. Senape, Esq.
Attorney for Defendant Cuadra

Sunday, August 3, 2008

Homicide Investigation Action Report: Crab Catcher Restaurant Intercept

Consensual wire (#1) with confidential informant Grant A. ROY on April 27, 2007, San Diego, (La Jolla), Califbrnia. Locations: Marriott Hotel, Crab Catcher Restaurant, La Jolla Park, Prospect Street, Starbucks back to the Marriott Hotel. All of the above locations are in the La Jolla area.

SYNOPSIS: On April 27, 2007 at 8:00 AM. Luzerne County District Attorney’s Office Detective Lieutenant Daniel YURSHA and Pennsylvania State Police Corporal Leo HANNON, met with San Diego Law Enforcement personnel in preparation for a wire tap that was going to occur with a San Diego resident, Grant A. ROY being used as a confidential informant to obtain information (via wiretap) from two (2) homicide suspects Harlow CUADRA and Joseph KEREKES of Virginia Beach, Virginia. Participants for the initial meeting were Det. Lt. YURSHA and Corporal HANNON, San Diego City Police Department Detectives Robert DONALDSON, Lynn RYDALCH, and Laurie AGNEW, San Diego District Attorney’s Office Investigator Ronald THILL, and Drug Enforcement Agency (DEA), Special Agent Andrew PAPPAS. Naval Criminal Investigative Service (NCIS), Special Agent Kim Kelly who was not present for the initial meeting is also part of the wiretap team. A prep meeting is scheduled with ROY at 12:30 P.M. at the San Diego City Police Headquarters.

DETAILS: On April 27, 2007 at 12:45 P.M.; Dot. Lt. YURSHA and Corporal HANNON met with Grant A. ROY at the San Diego City Police Department Headquarters in preparation for the consensual wire that was to occur on the same date at approximately 2:45 P.M.; Det. Lt. YURSHA and Corporal HANNON reviewed all of the preliminary details with ROY, and then invited Det. DONALDSON, investigator THILL and Special Agent KELLY to join the meeting with ROY, and finalize ROY’S instruction plan, including execution, security, and safety measures in the event of a problem. ROY was advised to meet Law Enforcement personnel at Marian Bear Park, La Jolla, at 2:15 P.M. where he would be properly wired.

On April 27, 2007 at 2:22 P.M.; ROY arrived at Marian Bear Park with his partner Sean LOCKHART. ROY was wired by Special Agent PAPPAS and was given final instruction by Law Enforcement personnel. Roy was being monitored at this point by Special Agent Pappas, Special Agent KELLY assisted by Det. Lt. YURSHA. ROY was followed at all times by Law Enforcement from the beginning to the end of the wiretap.

On April 27, 2007 at 2:45 P.M.; ROY with LOCKHART drove his black Ford Expedition, Texas registration number XXXXXX (see ATTACHMENT #1) to the La Jolla Marriott Hotel and picked up Harlow CUADRA and Joseph KEREKES.

On April 27, 2007 at 3:07 P.M.; ROY, LOCKHART, CUADRA and KEREKES arrived at the Crab Catcher Restaurant where Law Enforcement personnel were strategically placed inside, Law Enforcement personnel were also placed at both exits. All four (4) of the above were seated at a designated table in front of the large window pane in full view of the monitor team during their entire meal.

On April 27, 2007 at 4:42 P.M.; ROY, LOCKHART, CUADRA and KEREKES left the Crab Catcher Restaurant and walked to the La Jolla Cove Park.

On April 27, 2007 at 5:11 P.M.; ROY, LOCKHART, CUADRA and KEREKES walked up to the La Jolla Shopping District on Prospect Street, and were window shopping.

On April 27, 2007 at 5:25 P.M.; ROY, LOCKHART, CUADRA and KEREKES went into Starbucks Coffee Shop, purchased some coffee and continued to window shop.

On April 27, 2007 at 5:40 P.M.; ROY, LOCKHART, CUADRA and KEREKES returned to ROY’S Ford Expedition parked in front of the Crab Catcher Restaurant, and proceeded to the Marriott Hotel.

On April 27, 2007 at 6:02 P.M.; ROY and LOCKHART dropped off CUADRA and KEREKES at the La Jolla Marriott Hotel.

On April 27, 2007 at 6:10 P.M.; ROY and LOCKHART returned to Marian Bear Park to meet with Law Enforcement Personnel.

Saturday, August 2, 2008

Harlow Cuadra & Joseph Kerekes: This Upcoming Week

While this past week has been very busy, I don't really see the reporting/posts slowing down anytime soon with the Cuadra/Kerekes/Kocis case... here's what I have planned for this upcoming week:

1. Crab Catcher's Transcripts... (behind the scenes details) - homicide investigation action report.

2. Black's Beach Transcripts... (behind the scenes details) - homicide investigation action report.

3. Victim (Bryan Kocis) Checklist done by the Pennsylvania State Police.

4. Copy of defendants' Joseph Kerekes' and Harlow Cuadra's joint reply to DA's brief in opposition to motion to suppress April 2007 interceptions at Crab Catcher's Restaurant and Black's Beach.

... and as usual... I'm sure there will be more.

I've also updated the 'look' in the hopes of making things a little easier to read and follow... a special thanks to a friend of my mine for the assistance.