AFFIDAVIT IN SUPPORT OF PROBABLE CAUSE by gtu20753

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									                      AFFIDAVIT IN SUPPORT OF PROBABLE CAUSE

        I, James B. Hurley, Jr., being duly sworn, deposes and states as follows:

        1.      I am a Special Agent (SA) with the Federal Bureau of Investigation (FBI), United

States Department of Justice, and have been so employed for over eight years. I am currently

assigned to the FBI's New Orleans Field Office, where I am a member of the New Orleans Gang

Task Force (NOGTF). This Task Force includes federal, state, and local law enforcement officers

investigating illegal gang activity in the Metropolitan New Orleans area.

        2.      I have participated in numerous investigations involving narcotics, street gangs and

violent crimes, as well as investigations of alleged illegal narcotics trafficking and racketeering

offenses. I am thoroughly familiar with the investigative techniques used in these investigations,

such as the use of undercover agents, the use of cooperating witnesses, the use of confidential

informants, the analysis of telephone toll and pen register information, search and seizure warrants,

grand jury investigations, and interception of wire and oral communications.

        3.      I am an "investigative or law enforcement officer" as defined in Section 2510(7) of

Title 18, United States Code; that is, an officer of the United States who is empowered by law to

conduct investigations of, and to make arrests for, offenses enumerated in Section 2516 of Title 18,

United States Code. I am a Special Agent of the Federal Bureau of Investigation (FBI) within the

meaning of Title 28, Code of Federal Regulations (CFR), Section 0.85, which authorizes the Director

of the FBI, concurrently with the Administrator of the Drug Enforcement Administration (DEA), to

investigate violations of the criminal drug laws of the United States. These violations are outlined

in Title 21, United States Code, Section 801 et seq. The information contained in this Affidavit is

either personally known by me or was relayed to me by other law enforcement officers involved in

this investigation.
                                      STATUTORY AUTHORITY

       4.      This investigation concerns alleged violations of Title 21, United States Code,

Sections 841(a)(1) and 846 which criminalize, among other things, the manufacture, distribution,

dispensing and/or possession with the intent to manufacture, distribute and/or dispense a controlled

substance, to wit, cocaine and/or heroin and/or marijuana as well as conspiracy to manufacture,

distribute and/or dispense controlled substances. Further, as detailed below, this investigation has

revealed the distribution of controlled substances to individuals under the age of 21, in violation of

Title 21, United States Code, Section 859.

                             BACKGROUND OF THE INVESTIGATION

       5.      This investigation was initiated following the overdose death of MADELEINE

PREVOST, a 16 year old female who died of a massive acute hemorrhagic pulmonary edema caused

by a drug overdose (hereinafter "MADELEINE"). Through this investigation, your affaint and other

FBI Agents have identified HENRY DEEB GABRIEL, III (DOB 10/30/1984) as the individual who

provided the controlled substances to Madeleine that she ingested the night before she died. During

this investigation, your affiant has secured three separate search warrants, dated January 25, 2008,

February 1, 2008, and February 25, 2008, all signed by United States Magistrate Judge Louis Moore,

Jr., to obtain text messages involving DIEGO A. PEREZ through the use of his cellular telephone,

(504) 905-8992. These text messages, along with interviews of witnesses, demonstrate that

GABRIEL was the source of supply for the heroin that was ingested by MADELEINE the night

before she died. These text messages, along with interviews of witnesses, also demonstrate that

GABRIEL purchased the heroin from DIEGO A. PEREZ, who, in turn, purchased it from DAVID

C. BATTENBERG also known as (AKA) "BIRD".


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       6.     MADELEINE was last seen alive on Saturday, January 5, 2008. According to

Michael Prevost, MADELEINE’S father, MADELEINE spent Friday night at his house, at 5418

Annunciation Street, New Orleans, Louisiana. At some point on the afternoon of January 5, Mr.

Prevost returned to 5418 Annunciation Street after doing some errands and found a note from

MADELEINE stating that she was with "DEEB". Mr. Prevost knew "DEEB" to be HENRY DEEB

GABRIEL, III, a former employee at Lusher Charter School in New Orleans, where MADELEINE

was enrolled and MADELEINE's mother, Mary Prevost, worked as a school counselor. In addition

to working at Lusher, GABRIEL, a 23-year old student at Boston College, who was taking time off,

had been tutoring MADELEINE in Spanish.

       7.     A review of MADELEINE'S text messages also indicates that she was with

GABRIEL on the afternoon of January 5, 2008. For example, at 3:49 p.m., GABRIEL text messaged

MADELEINE "Im gonna come get you after i drop my bro off. And im taking him now." At 4:05

p.m., MADELEINE text messaged GABRIEL "You here?", to which GABRIEL responded "Five

blocks" and then, at 4:06 p.m. "Go outside".

       8.     Mr. Prevost indicated that he called MADELEINE at approximately 7 p.m. and asked

where she was and what her evening plans were. MADELEINE told her father that she was still with

GABRIEL, that she would be with him the remainder of the evening, and that she would be home

before her 11:00 p.m. curfew. At approximately 10:45 p.m. that night, MADELEINE called her

father and told him that she was running late because GABRIEL needed to put gas in his car.

       9.     At about 11:15 p.m., MADELEINE arrived at her father’s house and Mr. Prevost

observed that MADELEINE'S behavior was impaired and that she was leaning slightly as she stood

to talk with him. Mr. Prevost asked MADELEINE if she had been drinking, to which she responded


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"no", and then walked up to her father and breathed in his face so that he could smell there was no

alcohol on her breath. Mr. Prevost told his daughter to go to bed, thinking she might just be tired

and/or getting ill.

        10.     Around 9:00 a.m. on January 6, 2008, Mr. Prevost checked on MADELEINE and

observed her asleep, but snoring very loudly. At approximately 11:30 a.m., Mr. Prevost attempted

to wake up MADELEINE. She was non-responsive and cold to the touch, with bluish skin and lips.

Mr. Prevost immediately dialed 911 and began cardio-pulmonary resuscitation ("CPR"). Shortly

thereafter, paramedics arrived and transported MADELEINE to Children’s Hospital in New Orleans.

        11.     While the paramedics were attempting to revive MADELEINE, before she arrived

at Children's Hospital, MADELEINE'S mother, Mary Prevost, telephoned DEEB GABRIEL and

asked him what illegal drugs or prescription medications MADELEINE might have taken the night

before. GABRIEL denied having any knowledge whatsoever that MADELEINE had taken any sort

of drug. While medical personnel were attempting to resuscitate, GABRIEL was contacted again

regarding his knowledge of any controlled substances MADELEINE may have ingested and he again

falsely responded he did know of any. MADELEINE was pronounced dead at the hospital at 2:00

p.m. on January 6, 2008.

        12.     On January 23, 2008, Special Agent (SA) Ketrick Kelley of the FBI interviewed

Doctor (Dr.) Richard Tracey from the Orleans Parish Coroner’s Office. Dr. Tracey advised SA

Kelley that he had personally conducted an autopsy on MADELEINE on January 7, 2008. Dr.

Tracey advised that there were no visible signs of organic disease or physical injury, although the

laboratory had not completed the formal toxicology examination of MADELEINE'S tissue samples,

which would scientifically determine the cause of MADELEINE'S death; a preliminary screening


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had revealed the presence of heroin, cocaine, and marijuana in MADELEINE'S body. On February

14, 2008, the Orleans Parish Coroner's Office issued a final autopsy protocol on MADELEINE, the

report confirmed the presence of the controlled substances in MADELEINE's body, citing the cause

of death as "massive acute hemorrhagic pulmonary edema", which your affiant has confirmed with

personnel from the Coroner’s Office is consistent with a drug overdose. Toxicology results revealed

that MADELEINE had amounts of heroin and cocaine in her system at the time of her death.

       13.     Mary Prevost provided your affiant with MADELEINE'S cell phone (which is

subscribed to in Mrs. Prevost's name), along with written consent for your affiant and/or other agents

of the FBI to search the contents of the phone (telephone number (504) 638-1430). Your affiant’s

review of MADELEINE'S cell phone revealed numerous text messages to and from telephone

number (504) 905-8992, which is listed in MADELEINE'S address book as "DIEGO"; Virgin

Mobile (the service provider for PEREZ’s cellular telephone) has confirmed that this phone is

subscribed to DIEGO A. PEREZ, 6064 Cameron, New Orleans, Louisiana 70122.

       14.     Your affiant’s review of MADELEINE'S cell phone also revealed hundreds of text

messages to and from telephone number (504) 261-3069, which is listed in MADELEINE'S address

book as "Deeb"; T-Mobile has confirmed that this phone is subscribed to HENRY GABRIEL, 526

Pine Street, New Orleans, Louisiana 70118.

       15.     A review of MADELEINE'S text messages from January 5, 2008 (the day before

MADELEINE'S death), revealed the following text messages that occurred between MADELEINE

((504) 638-1430) and DEEB GABRIEL ((504) 261-3069), shortly before GABRIEL picked her up:




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        3:43 p.m. (MADELEINE to GABRIEL):            “Can we just get doped up and lay around
                                                    all day”

        3:43 p.m. (GABRIEL to MADELEINE):           “Thats the plan”

        3:43 p.m. (MADELEINE to GABRIEL):           “Good”

        3:44 p.m. (GABRIEL to MADELEINE):           "Don't tell your friends where your going"

        3:44 p.m. (MADELEINE to GABRIEL):           "Im not"

        (Typographical errors in original.) Based on my training and experience, and my knowledge

of this investigation, your affiant believes that MADELEINE and GABRIEL were planning to get

together that evening and do heroin, and that GABRIEL did not want MADELEINE'S friends to

know.

        16.    A further review of MADELEINE PREVOST'S phone also revealed the following

text messages sent and received that same day, January 5, 2008, between MADELEINE ((504)

638-1430) and DIEGO PEREZ ((504) 905-8992):

        5:27 p.m. (PEREZ to MADELEINE):             “How long can deeb wait. I cant leave my
                                                    friends house without this being suspicious.
                                                    But its gonna happen cause I need to go
                                                    anyway”

        5:28 p.m. (MADELEINE to PEREZ):             “Hes not in a big hurry”

        5:29 p.m. (PEREZ to MADELEINE):             “Cool tell him im workin on getting outta here
                                                    asap. Ill call you guys when I know"

        5:29 p.m. (MADELEINE to PEREZ):             “Alright just let me know”

        5:29 p.m. (PEREZ to MADELEINE):             “Hows 9!”

        5:40 p.m. (MADELEINE to PEREZ):             “That’s straight”

        5:55 p.m. (MADELEINE to PEREZ):             “Is there any way you can get it before 9”



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       5:56 p.m. (PEREZ to MADELEINE):                “Maybe like 830. But probably not why”

       5:56 p.m. (MADELEINE to PEREZ):                “I need to be home in a few hours”

       5:57 p.m. (PEREZ to MADELEINE):                "Its not deeb getting it? Whatt time exactly do
                                                      you have to go home”

       5:59 p.m. (MADELEINE to PEREZ):                “Welll we are almost done [with] the brown you
                                                      got him last night and he is buying this shit for
                                                      me”

       7:13 p.m. (PEREZ to MADELEINE):                “Just a half right?”

       (Typographical errors in original.) Based on my training and experience, and my knowledge

of this investigation, I believe that MADELEINE and DIEGO PEREZ were using text messages to

arrange for GABRIEL to purchase an additional half-gram of heroin ("a half") from PEREZ, because

GABRIEL and MADELEINE had almost finished the heroin that GABRIEL had purchased from

PEREZ the night before. Further, PEREZ was agreeing to do the drug transaction with GABRIEL

(for GABRIEL to give to MADELEINE) later that evening (between 8:30 and 9:00 p.m.).

       17.     Your affiant has also learned that, following MADELEINE'S death, DIEGO PEREZ

sent a threatening electronic mail ("email") through the internet, to known individual who was a

close friend of MADELEINE. On January 8, 2008, at 8:51 a.m., DIEGO PEREZ emailed the known

individual and admitted he was one of the only people who knew what happened to MADELEINE

and was the second to last person to see her alive.

       18.     On January 25, 2008, the Honorable Louis Moore, Jr., United States Magistrate

Judge, Eastern District of Louisiana, issued a Search Warrant (Case No. 08 MAG 1/25-1) requiring

Virgin Mobile Corporation to produce telephonic communications and other records relating to

cellular telephone (504) 905-8992, subscribed to DIEGO A. PEREZ. On January 30, 2008, Virgin



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Mobile Corporation provided such records to me.

       19.    My review of PEREZ’ phone records revealed a flurry of text messages between

PEREZ and other acquaintances of MADELEINE in the days immediately following her death,

including 14 text messages between PEREZ and DEEB GABRIEL. The following texts occurred

on January 6, 2008, the day of MADELEINE'S death, between DIEGO PEREZ, (504) 905-8992, and

DEEB GABRIEL, (504) 261-3069:

       12:35 p.m. (PEREZ to GABRIEL): “Wtf [what the fuck] happened to maddy”

       12:36 p.m. (GABRIEL to PEREZ): "She died. We never saw you.”

       12:37 p.m. (PEREZ to GABRIEL): “She didnt die... What exactly iswrong with her”

       12:41 p.m. (PEREZ to GABRIEL): “Is she really fucking ddead dude”

       3:28 p.m. (PEREZ to GABRIEL):      “Shit man are you in trouble”

       3:32 p.m. (GABRIEL to PEREZ):      “No. No one knows what happened.
                                          But lets never talk about it again”

       3:35 p.m. (PEREZ to GABRIEL):      “Well everyones blaming her death on me. This
                                          is fucked up”

       3:38 p.m. (GABRIEL to PEREZ):      "It was not you. It wasnt that. She stopped breathing
                                          this afternoon. It was something else”

       3:39 p.m. (PEREZ to GABRIEL):      “Dude it was the dope”

       3:44 p.m. (PEREZ to GABRIEL):      “Everyone keeps calling me telling mee she
                                          overdosed on dope and that this is all my fault”

       3:45 p.m. (GABRIEL to PEREZ):      "Thats not what happened”

       4:21 p.m. (PEREZ to GABRIEL):      “How you holdin up?”

       4:22 p.m. (GABRIEL to PEREZ):      "Bad... I don't really want to talk”




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        4:23 p.m. (PEREZ to GABRIEL):         “Hang in there man. I feel responsible.
                                              Time heals everything”

       (Typographical errors in original.) Based on my training and experience, and my knowledge

of this investigation, I believe that PEREZ and GABRIEL are referring to the fact that they each

played a role in providing the lethal drugs to 16 year-old MADELEINE, and they wished to conspire

to conceal their roles in supplying the drugs that caused her death.

       20.     DIEGO PEREZ sent another pertinent text message to DEEB GABRIEL on January

21, 2008, wherein PEREZ texted: "Dude im getting in a fuckload of trouble over this. im acting like

i don't even know you. Please do the same". This communication, and those in the preceding

paragraph clearly illustrate DEEB GABRIEL AND DIEGO PEREZ's intent to hide the facts

surrounding MADELEINE'S death.

       21.     On February 7, 2008, Special Agent Ketrick Kelley and your affiant interviewed

GABRIEL on the Boston College campus, in Brighton, Massachusetts. GABRIEL had in his

possession the cell phone assigned the number (504) 261-3069. GABRIEL agreed to speak with

your affiant and SA Kelley, and provided the following information:

       (a) GABRIEL admitted that he and MADELEINE PREVOST had had an intimate emotional

relationship, and that they had spent most of the afternoon and evening together on Saturday, January

5, 2008. GABRIEL also confirmed that he and MADELEINE had done heroin together, on multiple

occasions, that day, in his bedroom at his parents' house. (Writers' note: GABRIEL's parents, Henry

and Hollis Gabriel, reside in Uptown New Orleans, at 3121 Joseph Street, New Orleans, Louisiana.)

       (b) GABRIEL admitted that the heroin ingested by MADELEINE that day had been

purchased by him (GABRIEL), from DIEGO A. PEREZ, on two separate occasions. GABRIEL



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knew PEREZ' source of supply on both occasions to be an individual named "BIRD". (Writer's note:

BIRD has since been identified as DAVID C. BATTENBERG.) GABRIEL knew the drugs came

from BIRD because PEREZ had told him so, and also because, on each occasion that GABRIEL

bought drugs from PEREZ, GABRIEL had picked PEREZ up and driven him to and from BIRD's

house to get the drugs. GABRIEL had purchased both heroin and cocaine from PEREZ (and BIRD)

in this manner.

       (c) On or about Friday, January 4, 2008, GABRIEL paid $100.00 to PEREZ in exchange for

one-half gram of heroin. On this occasion, GABRIEL drove his father's Mitsubishi Galant to Mid-

City New Orleans to pick up DIEGO PEREZ. GABRIEL then drove PEREZ to BIRD's house in

Metairie. PEREZ instructed GABRIEL to park at the end of BIRD's street, then PEREZ exited the

car with GABRIEL's money and returned shortly thereafter with approximately one-half gram of

heroin for GABRIEL. In addition to the heroin, DIEGO returned with approximately one and one-

half grams of powdered cocaine, which he was purchasing to sell to someone else. Your affiant has

learned that the cocaine purchased by PEREZ on January 4th was later consumed by a group of

people familiar to PEREZ and GABRIEL and included MADELEINE. Both the heroin and the

cocaine were packaged separately in the corners of clear plastic, sandwich-type bags. Following the

drug purchase, DEEB returned DIEGO to the place where he had picked him up.

       (d) On Saturday, January 5, 2008, GABRIEL spent most of the afternoon and evening with

MADELEINE.        GABRIEL initially picked MADELEINE up from her father's house, on

Annunciation Street in New Orleans. The two then went to GABRIEL's parents' house, where

GABRIEL's mother was at home. GABRIEL and MADELEINE went to GABRIEL's bedroom,

where they each proceeded to snort lines of GABRIEL's remaining heroin (previously purchased on


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January 4th from PEREZ (and BIRD)). They used a credit card to break-up and line-up the heroin

on the glossy cover of a hardback book. They then snorted the drug directly off of the book.

       (e) At some point in the evening on January 5th, GABRIEL and MADELEINE left

GABRIEL's house to get more heroin from PEREZ. GABRIEL again drove his father's Galant to

the Metairie home of PEREZ's girlfriend. GABRIEL then drove PEREZ and MADELEINE to

BIRD's street, giving PEREZ $100.00 and requesting that PEREZ get him an $80.00 bag of heroin

and a $20.00 bag of cocaine. PEREZ exited the vehicle while GABRIEL and MADELEINE

remained in the car. PEREZ returned shortly thereafter with both heroin and cocaine, which were

each packaged separately in the corners of clear plastic, sandwich-type bags (similar to the heroin

and cocaine most recently purchased from BIRD). After PEREZ gave GABRIEL the drugs,

GABRIEL returned DIEGO to where he had picked him up, and then GABRIEL and MADELEINE

drove back to GABRIEL's parents' house on Joseph Street.

       (f) Once back in GABRIEL's bedroom, GABRIEL and MADELEINE placed the new heroin

on the same hard-back book they had used previously that evening, again breaking it into a powder

with a credit card. GABRIEL observed MADELEINE ingest a large amount of the heroin.

GABRIEL also snorted the heroin and some of the cocaine; MADELEINE did not snort any of the

cocaine.

       (g)   Shortly before 11:00 p.m., which was MADELEINE's curfew, GABRIEL and

MADELEINE left GABRIEL's parents' residence, and GABRIEL drove her back to her father's

house. That was the last time GABRIEL saw MADELEINE alive.




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                                      CONCLUSION

       22.)    Because of my personal knowledge, as well as reports made to me by other Special

Agents of the FBI, I am thoroughly familiar with the information obtained during this investigation.

Based on this familiarity, I allege that the facts contained herein show that there is probable cause

to believe that HENRY DEEB GABRIEL, III, violated Title 21 U.S.C. 841 (a)(1), 846 and 859.




                                                              _____________________________
                                                              James B. Hurley, Jr.
                                                              Special Agent
                                                              Federal Bureau of Investigation


       Sworn to and subscribed before me this 11th day of March, 2008, New Orleans, Louisiana



                                                              ______________________________
                                                              Louis Moore, Jr.
                                                              United States Magistrate Judge
                                                              Eastern District of Louisiana




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