121 F.3d 841 (3rd Cir. 1997), 95-5554, United States v. Palma-Ruedas

Docket Nº:Milton PALMA-RUEDAS, Appellant No. 95-5554.
Citation:121 F.3d 841
Party Name:UNITED STATES of America v.
Case Date:July 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 841

121 F.3d 841 (3rd Cir. 1997)

UNITED STATES of America

v.

Milton PALMA-RUEDAS, Appellant No. 95-5554.

UNITED STATES of America

v.

Jorge Luis PACHECO, Appellant No. 95-5601.

UNITED STATES of America

v.

Omar TORRES-MONTALVO, Appellant No. 96-5160.

UNITED STATES of America

v.

Jairo PEDROZA-ORTIZ, Appellant No. 96-5161.

UNITED STATES of America

v.

Randy ALVAREZ-QUINONES, Appellant No. 96-5162.

UNITED STATES of America

v.

Jacinto RODRIGUEZ-MORENO, a/k/a Joel Moreno, Joel Moreno-Llanos, Arturo Torres Celorio, Jacinto Rodriguez-Moreno, Appellant No. 96-5163.

Nos. 95-5554, 95-5601, 96-5160--5162, 96-5163.

United States Court of Appeals, Third Circuit.

July 30, 1997

Argued Nov. 12, 1996.

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Camille M. Kenny (argued), Fleming, Roth & Fettweis, Newark, NJ, for Milton Palma-Ruedas.

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Jerome A. Ballarotto, Trenton, NJ, for Jorge Luis Pacheco.

Mark W. Catanzaro (argued), Moorestown, NJ, for Omar Torres-Montalvo.

Dennis A. Durkin, Robert S. Cosgrove, Durkin & Durkin, West Caldwell, NJ, for Jairo Pedroza-Ortiz.

Daniel A. Greenstone, Greenstone & Greenstone, Hackensack, NJ, for Randy Alvarez-Quinones.

John P. McDonald, McDonald, Rogers & Rizzolo, Somerville, NJ, for Jacinto Rodriguez-Moreno.

Kevin McNulty, Office of United States Attorney, Newark, NJ, George S. Leone (argued), Office of United States Attorney, Camden, NJ, for Appellee.

Before: ALITO, ROTH and LEWIS, Circuit Judges.

OPINION

LEWIS, Circuit Judge.

Defendants--Omar Torres-Montalvo ("Montalvo"), Jorge Luis Pacheco ("Pacheco"), Randy Alvarez-Quinones ("Quinones"), Milton Palma-Ruedas ("Palma-Ruedas"), Jairo Pedroza-Ortiz ("Ortiz"), and Jacinto Rodriguez-Moreno ("Moreno")--appeal their convictions on charges arising from a drug conspiracy and kidnapping scheme. All six defendants were convicted by a jury in the United States District Court for the District of New Jersey of kidnapping and conspiracy to kidnap, in violation of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 1201(c). Montalvo, Pacheco, and Quinones were also convicted of conspiracy to distribute and possess cocaine, in violation of 21 U.S.C. § 846. In addition, Moreno was convicted of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). In this consolidated appeal, defendants challenge their convictions on numerous grounds. We will discuss each of these challenges in turn, focusing in more detail on Moreno's claim that venue in New Jersey was improper to try the § 924(c)(1) count.

We will conclude that venue was improper in New Jersey and, accordingly, we will reverse Moreno's conviction under 18 U.S.C. § 924(c)(1). We will affirm the defendants' convictions on all other counts.

I.

Defendant Montalvo ran a cocaine distribution enterprise out of Texas. In July of 1994, Ephrain Avendano ("Avendano"), the kidnapping victim, introduced Montalvo to Fanol Ochoa ("Ochoa"), a New York drug dealer, so that Montalvo and Ochoa could discuss a possible cocaine transaction. Thereafter, Avendano served as the middleman between Montalvo and Ochoa.

In October of 1994, Montalvo and another defendant, Pacheco, arranged to sell Ochoa fourteen kilograms of cocaine. Avendano acted as the middleman in this deal. Montalvo hired Raul Lopez ("Lopez"), who later became a key witness for the government, and another friend to "do the run" from Texas to New York because Lopez owned a car with a secret compartment. On October 29, 1994, while en route to New York, Lopez was arrested and the fourteen kilos of cocaine were seized. Montalvo called Avendano to let him know that the deal had been thwarted and that he had hired lawyers to represent Lopez.

In November of 1994, Montalvo and his cousin, Defendant Quinones, met with Avendano. Montalvo told Avendano that the seizure of the fourteen kilos and the legal fees were "a big loss" and that he needed to make a new deal to compensate for it. Avendano conveyed this information to Ochoa, who agreed to strike another deal with Montalvo for twenty kilograms of cocaine. Avendano, again acting as the middleman, agreed to fly to Houston and help Ochoa execute the deal with Montalvo. Avendano arrived in Houston on December 11, 1994, and was met at the airport by Ochoa and another man named "Baldy." Ochoa told Avendano that the deal had been increased to thirty kilograms of cocaine and that Montalvo had agreed to give Ochoa the extra ten kilograms on credit. Ochoa then informed Avendano of the plan to get the cocaine from Montalvo: Avendano and Baldy were to meet Montalvo, Baldy would put the cocaine in his car, and Avendano would call Ochoa, who would then

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deliver the money. Ochoa explained that he was not meeting Montalvo personally because of "reasons of security."

Pursuant to this plan, Montalvo and Pacheco met Avendano and Baldy. Baldy instructed Montalvo and Pacheco to place the thirty kilos of cocaine in a suitcase, and Baldy drove away with the drugs. When Avendano tried to execute the last phase of the deal--to call Ochoa to secure payment for Montalvo--Ochoa did not answer his pager.

Obviously, Montalvo was not happy about being taken advantage of by Ochoa for the price of the drugs, which was nearly half-a-million dollars. And, in response, Montalvo and Pacheco informed Avendano that he was "responsible" for the money, warning him that they may have to turn him over to the "Medellin people."

On December 12, 1994, Montalvo called Avendano's wife, Marbel Avendano, and told her that he was holding Mr. Avendano. Montalvo informed Mrs. Avendano that he could not let Mr. Avendano go until he found Ochoa because Avendano was "his only guarantee." Montalvo and Pacheco then moved Avendano to an apartment in Houston and then to a house. Avendano was kept in the house for two weeks. Montalvo was armed at all times.

After hearing that Ochoa was in New York boasting about how he had "ripped-off" Montalvo, Montalvo forced Avendano to disclose the address of his mother and cousin in Columbia and the address of his home in New Jersey. Montalvo then informed Avendano that they were all going to travel to Avendano's home in New Jersey to continue the search for Ochoa. Montalvo warned Avendano not to try anything "because it could work out worse for him."

That same day, Pacheco showed up at the apartment with three men, Defendants Ortiz, Palma-Ruedas, and Moreno, who had been hired to help look for Ochoa and keep Avendano captive. Ortiz, Palma-Ruedas, and Moreno travelled with Pacheco, Montalvo, and Avendano from Texas to New Jersey. They arrived in New Jersey at Avendano's apartment on December 28, 1994. Using Avendano's apartment as a home base, the defendants spent the next few days looking for Ochoa.

On January 1, 1994, they all went to Quinones's house in Newburgh, New York. Mrs. Avendano stayed at the Avendanos' apartment in New Jersey. Both Mr. Avendano and Mrs. Avendano testified at trial that at this point they thought they would never see each other again.

Before Avendano arrived with Pacheco at Quinones's house, Montalvo had decided that the house was not safe because police had inquired about the car with Texas plates in the driveway. Montalvo then informed the group that they were going to travel to Maryland that night. As they got ready to leave, Montalvo told Avendano to carry the guns so that if they were pulled over on the way, Avendano would be responsible for the guns.

Montalvo, Pacheco, and Avendano travelled in one car, and Ortiz, Palma-Ruedas, Moreno, and Quinones travelled in another. Early in the morning on January 2, 1995, they all arrived at a house in Maryland owned by Mr. Morillo. Soon after their arrival in Maryland, Morillo showed off his .357 magnum revolver to the men. Meanwhile, Montalvo continued his search for Ochoa from the house in Maryland. Once it became clear that Montalvo's search for Ochoa was fruitless, tensions among the men began to run high. At one point, Moreno told Montalvo that they "were just wasting time" and that they should "just get it over with and kill Avendano." Moreno then put Morillo's .357 magnum to the back of Avendano's neck, making it clear that he was going to kill him. Shortly thereafter, Avendano was able to escape from the rear of the house.

Avendano ran to a neighbor's house, where he frantically begged the neighbor in broken English to let him use the phone. Avendano called his wife in New Jersey, and his wife got on the phone with the neighbor and asked him to call the police because her husband was in danger. Mrs. Avendano also called the police in New Jersey.

When the police arrived at the neighbor's house, Avendano related the story of his kidnapping to the police. Meanwhile, back in

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New Jersey, the police had also shown up at the Avendanos' apartment with the FBI. The Maryland police were able to corroborate Avendano's story with the police in New Jersey. The Maryland police put the Maryland house under surveillance, secured a search warrant, and entered the house. All six defendants were arrested, and the police seized the .357 magnum with Moreno's fingerprints on it, Montalvo's pager, Montalvo's cell phone, a faxed photograph of Ochoa, and papers bearing the telephone numbers of Avendano's and Ochoa's beepers.

All six defendants were indicted for: (1) kidnapping Avendano; (2) conspiring to kidnap Avendano and his wife; and (3) conspiring to distribute and possess with intent to distribute cocaine. All defendants except Quinones were indicted for kidnapping Mrs. Avendano. In addition, Moreno was indicted for...

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