11 F.3d 315 (2nd Cir. 1993), 92-1064, United States v. Rosa

Docket Nº:92-1064 and 92-1504.
Citation:11 F.3d 315
Party Name:UNITED STATES of America, Appellee, v. Oscar ROSA, Vincent Lopez, Ricardo Rodriguez, Hector Hernandez, and Armando Velasquez, Defendants-Appellants. Nos. 954, 961, 992, 996, 1061, Docket 91-1729 to 91-1731,
Case Date:December 03, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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11 F.3d 315 (2nd Cir. 1993)

UNITED STATES of America, Appellee,

v.

Oscar ROSA, Vincent Lopez, Ricardo Rodriguez, Hector

Hernandez, and Armando Velasquez, Defendants-Appellants.

Nos. 954, 961, 992, 996, 1061, Docket 91-1729 to 91-1731,

92-1064 and 92-1504.

United States Court of Appeals, Second Circuit

December 3, 1993

Argued April 19, 1993.

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Edward A. Rial, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty., E.D.N.Y., Peter A. Norling, Emily Berger, Susan Corkery, Asst. U.S. Attys., on the brief), for appellee.

Casey Donovan, New York City, for defendant-appellant Oscar Rosa.

David Gordon, New York City, for defendant-appellant Vincent Lopez.

Robert S. Wolf, New York City, for defendant-appellant Ricardo Rodriguez.

Hal Meyerson, New York City (Meyerson & Ramos, New York City, on the brief), for defendant-appellant Hector Hernandez.

Philip R. Katowitz, New York City, for defendant-appellant Armando Velasquez.

Before: KEARSE and ALTIMARI, Circuit Judges, and SWEET, District Judge [*].

KEARSE, Circuit Judge:

Defendants Oscar Rosa, Vincent Lopez, Ricardo Rodriguez, Hector Hernandez, and Armando Velasquez appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Thomas C. Platt, Chief Judge, convicting them of various narcotics, racketeering, and weapons offenses. Each of these defendants was convicted of conspiring to distribute and to possess with intent to distribute more than one kilogram of heroin and more than five kilograms of cocaine, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A) (1988). In addition, Rosa was convicted of conspiring to travel interstate for the purpose of purchasing firearms in aid of unlawful activity, in violation of 18 U.S.C. Secs. 371

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and 1952(a)(3) (1988); receiving a firearm without a license, in violation of 18 U.S.C. Secs. 922(a)(3), 924(a)(1)(D), and 2 (1988); attempting to possess with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(B) (1988); possessing an unregistered firearm, in violation of 26 U.S.C. Secs. 5841, 5845(a), 5861(d), and 5871 (1988); and possessing a defaced firearm, in violation of 26 U.S.C. Secs. 5841, 5845(a), 5861(i), and 5871 (1988). Lopez was convicted of committing violent crimes, to wit, kidnaping, assault with a dangerous weapon, and assault resulting in serious bodily injury, for the purpose of maintaining or increasing his position in a racketeering enterprise, in violation of 18 U.S.C. Secs. 1952B(a)(1) and 1952B(a)(3) (Supp. II 1984) (18 U.S.C. Sec. 1952B renumbered 18 U.S.C. Sec. 1959 (1988) (collectively "Sec. 1959") by Pub.L. 100-690, Sec. 7053(b), 102 Stat. 4181, 4402 (1988)), and 18 U.S.C. Sec. 2. Rodriguez and Velasquez were convicted of possessing with intent to distribute more than one kilogram of heroin, in violation of 21 U.S.C. Sec. 841(a)(1) (1988), 21 U.S.C. Sec. 841(b)(1)(A), and 18 U.S.C. Sec. 2. Hernandez was convicted of committing violent crimes, including murder, conspiracy to kidnap, and conspiracy to assault with a dangerous weapon, for the purpose of maintaining or increasing his position in a racketeering enterprise, in violation of 18 U.S.C. Secs. 1959 and 2; and using a firearm during and in relation to drug trafficking, in violation of 18 U.S.C. Secs. 924(c)(1) and 2 (1988).

Rosa was sentenced principally to life imprisonment and was ordered to pay a $1,000,000 fine. The remaining defendants were sentenced principally to the following terms of imprisonment, each to be followed by five years' supervised release: Lopez 405 months, Rodriguez 170 months, Hernandez 405 months, and Velasquez 262 months.

On appeal, defendants make numerous challenges to their convictions, including challenges to evidentiary and procedural rulings, the sufficiency of the evidence, the district judge's conduct, and the prosecutor's rebuttal summation. They also challenge various aspects of sentencing. For the reasons below, we reverse Rosa's conviction for attempted possession of heroin on the ground that the evidence was insufficient; we vacate his sentence and remand for recalculation in light of that reversal and for explanation of the sentence chosen, as required by 18 U.S.C. Sec. 3553(c) (1988); and we vacate the sentences imposed on Rodriguez and Hernandez and remand for findings as to their roles in the offenses. In all other respects, we affirm.

I. BACKGROUND

The present appeals arise out of the prosecution of Rosa, Lopez, Rodriguez, Hernandez, Velasquez, and some 34 other individuals, including the defendants whose appeals were decided in United States v. Concepcion, 983 F.2d 369 (2d Cir.1992) ("Concepcion "), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 124 (U.S. Oct. 4, 1993), and Geraldo Vega, whose appeal was heard in tandem with the present appeals and has been decided separately, see United States v. Vega, 11 F.3d 309 (2d Cir.1993), in connection with their operation primarily in the Bushwick, Williamsburg, and East New York sections of Brooklyn, New York, of a wholesale and retail narcotics organization known as the "Unknown Organization" ("Organization"). The evidence presented at the trial of Rosa, Lopez, Rodriguez, Hernandez, and Velasquez included the testimony of 57 witnesses, including 13 accomplices. One of the latter was Ricardo Melendez, who was the founder of the Organization and, until his arrest in September 1988, its leader. Convicted of, inter alia, racketeering and narcotics conspiracy at the trial described in Concepcion, Melendez thereafter began to cooperate and testified for the government in the trial of the present appellants. Taken in the light most favorable to the government, the evidence revealed the following.

The Organization consisted of a highly structured distribution network that purchased relatively pure narcotics, diluted them, packaged them in glassine envelopes at locations known as "mills," and sold them through 24-hour street sales locations known as "spots." At its peak, the Organization received gross income from heroin sales of more than $8 million a month.

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Rosa, a charter member of the Organization who had known Melendez for many years, was a lieutenant who controlled spots in Bushwick, where he sold an average of $200,000 worth of heroin a week. Rosa was also, with Vega and Hernandez, responsible for making wholesale purchases of heroin. Lopez was a "runner" for the organization in 1987, responsible for distributing narcotics to various spots, and over the years played several roles, including that of enforcer. Sometime after the March 1989 arrest of Manuel Concepcion, who had succeeded Melendez as leader after the latter's 1988 arrest, Lopez, along with Hernandez and two other codefendants, became leaders of the Organization. Hernandez, in addition to being responsible for wholesale purchases of heroin, supervised a heroin bagging operation in his home and was an enforcer. Velasquez and Rodriguez were involved in bagging heroin. Velasquez eventually became a manager of one bagging mill when it was moved into a building in which he was the resident superintendent.

The Organization employed hundreds of people and maintained employee loyalty and discipline principally by means of violence and intimidation. For example, Todd Middleton, who worked for the Organization as, inter alia, a runner, testified that in early 1987 he was accused of stealing Organization money. His supervisor, with the assistance of other members, cut off part of one of Middleton's fingers. Later that year, Middleton was loitering near a spot where he did not belong and was accused of stealing from Organization customers. Lopez and other Organization members kidnaped Middleton, beat him senseless, and stabbed him with an ice pick 80-100 times. Similarly, in July 1986, defendant Hector Hernandez ("Hernandez"), who was then performing a variety of functions for the Organization, arranged the kidnaping and beating of one Pedro Hernandez ("Pedro"), an Organization runner suspected of robbing another worker. Hernandez had Organization members forcibly take Pedro to an apartment where they beat and stabbed him and pulled out one of his teeth with pliers. In the summer of 1989, Hernandez got into an argument with one Walter Hambrick about an Organization spot run by Hernandez. Hernandez shot the unarmed Hambrick four or five times, killing him.

Following an investigation by a United States Drug Enforcement Administration ("DEA") task force, Rodriguez and Velasquez were arrested in May 1989 in connection with a raid by agents on an Organization mill located on the fifth floor of a building at 244-46 Roebling Street in Brooklyn, of which Velasquez was the superintendent. The arrests were made after Rodriguez and other workers, as the agents were attempting to enter, fled down the fire escape and into Velasquez's apartment one floor below. From the mill, the agents recovered, inter alia, thousands of glassine bags stamped "Unknown" and containing a total of more than one kilogram of heroin, heroin cutting materials, and time records. In Velasquez's apartment, following the acquisition of a search warrant, agents found thousands of empty glassine envelopes stamped with "Unknown" and other Organization "brand names." Rosa, Lopez, Hernandez, and numerous other Organization members were arrested at various times in 1989.

In September 1989, indictments...

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