U.S. v. Tracy
| Decision Date | 23 December 1993 |
| Docket Number | Nos. 122,123,D,s. 122 |
| Citation | 12 F.3d 1186 |
| Parties | 38 Fed. R. Evid. Serv. 1318 UNITED STATES of America, Appellee, v. Michael TRACY and Francisco Luis Aguilar, Defendants-Appellants. ockets 92-1313, 92-1375. |
| Court | U.S. Court of Appeals — Second Circuit |
James I. Glasser, Asst. U.S. Atty., Bridgeport, CT (Albert S. Dabrowski, U.S. Atty., D.Conn., New Haven, CT, Michael E. Runowicz, Asst. U.S. Atty., Bridgeport, CT, on the brief), for appellee.
Robert C.E. Lainey, Westport, CT (Stanley P. Atwood, Sherwood, Garlick, Cowell, Diviney & Atwood, on the brief), for defendant-appellant Michael Tracy.
Colleen P. Cassidy, New York City (The Legal Aid Society, Federal Defender Services Unit, on the brief), for defendant-appellant Francisco Luis Aguilar.
Before KEARSE and WINTER, Circuit Judges, and POLLACK, District Judge *.
Defendants Michael Tracy and Francisco Luis Aguilar appeal from judgments entered in the United States District Court for the District of Connecticut following a jury trial before Warren W. Eginton, Judge, convicting them of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1988), and convicting Aguilar on five counts of distribution of and possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988), one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), and one count of continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (1988). Tracy was sentenced principally to 327 months' imprisonment, to be served consecutively to a term of imprisonment imposed on him in 1991 on related charges, and to be followed by a five-year term of supervised release. Aguilar was sentenced principally to 480 months' imprisonment, to be followed by a four-year term of supervised release. Aguilar contends principally that he was deprived of his Sixth Amendment right to counsel, that his conviction should be reversed for various trial errors, and that the court erred in computing his sentence. Tracy principally challenges various aspects of his sentence. For the reasons below, we conclude that the court applied the wrong Guidelines section in considering whether Tracy's sentence should be consecutive to his prior sentence, and we
vacate the judgment as to Tracy and remand for resentencing. In all other respects, we affirm.
The current prosecution arose out of an investigation begun by the United States Drug Enforcement Administration ("DEA") in Florida in June 1989 and continued in Connecticut with the assistance of the Federal Bureau of Investigation and local law enforcement agents until 1991. Evidence of the events was presented at trial principally through (a) testimony of surveillance agents and agents to whom, in their undercover roles, Aguilar sold cocaine, (b) tape recordings of conversations in which Aguilar or his associates discussed the distribution of cocaine, (c) physical evidence including cocaine, drug paraphernalia, a large array of weapons, and voluminous drug records, and (d) testimony of two coconspirators who, after being arrested, pleaded guilty and entered into cooperation agreements with the government.
Taken in the light most favorable to the government, the evidence, whose sufficiency is not disputed, showed that Aguilar was the leader of a narcotics organization that he aptly described as a factory-size operation. See Part II.B.2. below. During the course of the investigation, Aguilar negotiated to have undercover agents sell him, or import for him, hundreds of kilograms of cocaine. He told agents he was looking for a source that could provide him with 100 kilograms a week. Aguilar himself negotiated several sales of cocaine and distributed cocaine to other undercover agents. Tracy was the organization's chief enforcer, responsible for its security and for collecting debts owed to it.
Aguilar and seven other members of his organization, not including Tracy, were arrested on October 25, 1990, pursuant to an October 24, 1990 Complaint supported by a 45-page affidavit (collectively the "Complaint") detailing the offenses with which they were to be charged and evidence supporting the charges. They and Tracy were eventually named in a superseding indictment handed down in January 1991. Aguilar was charged with the eight counts of narcotics violations indicated above; Tracy was charged with one count of narcotics conspiracy as indicated above.
Tracy was arrested on February 1, 1991. In executing a search warrant for Tracy's home in January 1991, agents found a loaded .44 caliber Magnum revolver, ammunition for .44 and .38 caliber weapons, and a copy of the Complaint, with annotations on ten of its pages in handwriting later stipulated to be that of Tracy. The notations identified informants who were referred to in the Complaint only in code and promised death to the informants and to DEA Special Agent Terrence Sprankle who had signed the Complaint. For example, on the first page of the document, Tracy had written, "all informants will die a bad death [expletive] snitches before I die I will kill all your [sic ] lousy [expletive] scum." Under a reference to an informant to whom the Complaint referred only as "CI#1," Tracy had written, "I know you you will get it the worst put in a barrel of acid scum [expletive] put in acid real slow you lousy bastard." Next to another reference to CI#1, Tracy had written, Under Sprankle's signature on the Complaint, Tracy had written, "you must go also cop your family too." For this threat to Sprankle and his family, Tracy was convicted, under a separate indictment, on two counts of threatening a law enforcement officer and his family, respectively, in violation of 18 U.S.C. Sec. 115(a)(1) (1988), and was sentenced in May 1991 to two consecutive five-year terms of imprisonment (the "1991 sentence").
Of the nine individuals named as defendants in the superseding indictment in the present case, seven entered pleas of guilty. Tracy and Aguilar went to trial.
As discussed in Part II.A. below, prior to trial Aguilar informed the district court that he was dissatisfied with the services of his attorney Howard Eckenrode and moved to represent himself for purposes of the suppression After a five-week trial, the jury found both defendants guilty of all charges against them. The Probation Department's presentence reports ("PSRs") prepared on Tracy and Aguilar concluded that the imprisonment ranges prescribed by the federal Sentencing Guidelines ("Guidelines") were 324-405 months for Tracy and 360 months to life for Aguilar. After evidentiary hearings as to each defendant, the district court agreed with these recommendations. Finding Aguilar responsible for conspiring to distribute 50-150 kilograms of cocaine, the court sentenced him to 480 months' imprisonment, stating that it had chosen that sentence principally because of the size and sophistication of the drug organization, Aguilar's decision-making role, the violent aspects of the organization, and Aguilar's persistent denial of any role in the operation. The court overruled Tracy's objections to various aspects of his PSR, see Part II.E.2 below, and sentenced him to 327 months' imprisonment. As discussed in Part II.E.3. below, the court ordered Tracy to serve the present sentence consecutively to his 1991 sentence.
hearing or to have a "hybrid" representation. The court, after advising Aguilar against proceeding pro se, warning him of the dangers of doing so, and conducting an inquiry as to Aguilar's awareness of his rights and the vulnerability of those rights during self-representation, allowed Aguilar to proceed pro se and appointed Eckenrode as stand-by counsel to provide advice upon Aguilar's request. Largely on the basis of these earlier proceedings, the court also permitted Aguilar to represent himself at trial.
These appeals followed.
On appeal, Aguilar contends principally (1) that he was deprived of his Sixth Amendment right to the effective assistance of counsel when the district court allowed him to proceed pro se at trial, and (2) that the court erred in admitting the Tracy threats into evidence against him and in making certain comments to the jury. He also challenges his sentence. Tracy's principal challenges are to his sentence; he also contends that the document bearing his threats should not have been admitted in evidence against him because it was unduly prejudicial, and that he should have been tried separately from Aguilar because of the latter's pro se status. Except with respect to Tracy's challenge to the imposition of his sentence consecutively to his 1991 sentence, we find no basis for disturbing the judgments.
Aguilar contends that the district court, although properly allowing him to represent himself at the pretrial stage, should not have allowed him to represent himself at trial. He contends that the court's inquiry into his ability to make the latter choice was inadequate and that his self-representation was extremely prejudicial. Though the court's inquiry could have been more extensive, we conclude that it was adequate; given that adequacy, the fact that Aguilar's choice proved to be imprudent is not a basis for relief from the judgment.
The Sixth Amendment guarantees the accused in a criminal prosecution the right to counsel. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). The defendant also has a right under the Sixth Amendment to defend himself without the assistance of counsel if that decision is made intelligently and knowingly, with full awareness of the right to counsel and...
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