16 F.3d 1324 (2nd Cir. 1994), 102, United States v. Valdez

Docket Nº:102 to 104, Docket 92-1742, 92-1744 and 93-1015.
Citation:16 F.3d 1324
Party Name:UNITED STATES of America, Appellee, v. Pedro H. VALDEZ, Defendant, Wasang Tomas Mock, Jorge Garcia, and Raul Rodriguez, Defendants-Appellants.
Case Date:February 17, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1324

16 F.3d 1324 (2nd Cir. 1994)

UNITED STATES of America, Appellee,


Pedro H. VALDEZ, Defendant,

Wasang Tomas Mock, Jorge Garcia, and Raul Rodriguez,


Nos. 102 to 104, Docket 92-1742, 92-1744 and 93-1015.

United States Court of Appeals, Second Circuit

February 17, 1994

Argued Sept. 2, 1993.

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Nancy Northup, Assistant United States Attorney, Southern District of New York, New York, N.Y. (Roger Hayes, United States Attorney, Southern District of New York, New York, N.Y., Nelson W. Cunningham, Assistant United States Attorney, Southern District of New York, New York, N.Y., of counsel), for Appellee.

Todd D. Greenberg, Addabbo & Greenberg, Forest Hills, N.Y., for Defendant-Appellant Wasang Tomas Mock.

Philip R. Edelbaum, New York, N.Y., for Defendant-Appellant Jorge Garcia.

Benjamin Heinrich, Bronx, N.Y., for Defendant-Appellant Raul Rodriguez.

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Before: FEINBERG, CARDAMONE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendants-appellants Wasang Tomas Mock, Jorge Garcia, and Raul Rodriguez [collectively "the appellants"] appeal from judgments of conviction entered by the United States District Court for the Southern District of New York (Leisure, J.), following a three-week jury trial. The appellants were convicted on a six-count indictment charging the appellants with participating in a large scale crack and cocaine distribution organization ("the organization"). They were also charged with weapons offenses, and Mock was charged with perjury based on testimony he gave at an earlier trial of his co-appellants. After their convictions, Mock and Garcia were principally sentenced by the district court to life imprisonment, and Rodriguez to 248 months' imprisonment.

Mock, Garcia, and Rodriguez now appeal their convictions and the sentences imposed on a variety of issues. Although most of these claims are completely without merit, and are not worthy of further discussion, there are several issues that require discussion. The most significant is Mock's contention that testimony he gave at an earlier trial of his co-appellants was involuntary, in that he testified without knowledge that the district court (Lowe, J.) had delayed the execution of an arrest warrant for him in order to ensure his testimony. Mock argues that his lack of knowledge about his impending arrest rendered his testimony involuntary and therefore inadmissible at his later trial. Additionally, Mock contends that the district court in the second trial erred when it admitted the testimony into evidence without allowing the admission of the circumstances under which it was given. Although we find both those contentions ultimately unpersuasive, we will discuss them in depth.

Additionally, appellants contend that the district court erred in charging the jury, and they challenge to the sentences imposed upon them. For the reasons stated below, we affirm the judgement of the district court as to all the issues on appeal.


Evidence accepted by the jury at trial demonstrated that, between 1986 and 1990, Mock, Garcia, Rodriguez, and others participated in a retail and wholesale crack and cocaine distribution organization located in Manhattan. Mock and Garcia were partners in running the organization, and Rodriguez performed various services for the organization.

There are two trials involved in this case. In the first, in July 1991 before Judge Lowe of the Southern District, Garcia and Rodriguez were tried for their involvement in the conspiracy. Mock had not yet been arrested, and he testified at that trial on behalf of Garcia. At the time of his testimony, he was not aware that there was a warrant out for his arrest, a warrant that was executed immediately following his testimony as per the instructions of Judge Lowe. Judge Lowe delayed the execution of the warrant until Mock testified out of concern that arresting Mock prior to his testimony would disadvantage the defendants. This first trial ended in a hung jury on August 2, 1991.

After the mistrial, a second indictment was filed on August 13, 1991 against all three appellants charging them with the following: conspiracy to possess with intent to distribute 50 grams and more of crack cocaine and five kilograms and more of cocaine, in violation of 21 U.S.C. Sec. 846; possession with intent to distribute approximately 2.9 kilograms of crack cocaine and approximately 3.7 kilograms of cocaine, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B), and in violation of 18 U.S.C. Sec. 2; and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Secs. 924 and 2. The indictment also charged Mock with perjury, in violation of 18 U.S.C. Sec. 1623, for his testimony at the first trial of his co-appellants.

The second trial began before Judge Leisure of the Southern District on January 6, 1992. At the second trial, the government substantiated to the jury's satisfaction the involvement of the appellants in the drug conspiracy. The government's witnesses at trial included an accomplice witness, Pedro

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Valdez, who began working for the organization in January 1990 and cooperated with the government after an unrelated arrest. The government also presented the testimony of Nelson Almonte, a Drug Enforcement Agency ("DEA") confidential informant, who attested to his involvement in a purchase of crack from the organization. Other witnesses, including experts, also testified on behalf of the government. Physical evidence introduced included extensive drug paraphernalia, lease and rent payment records, wire transfer records, a rolodex seized from Mock's home, and tape recordings of conversations between Almonte and Mock after the appellants had been arrested.

The second trial ended on January 24, 1992, when the jury returned a verdict of guilty against the appellants on all counts. On July 23, 1992, the district court sentenced both Mock and Garcia to life imprisonment, plus a mandatory five-year consecutive sentence on the weapons count and special assessments. On December 8, 1992, the district court denied Garcia's and Mock's motion for a new trial pursuant to Fed.R.Crim.P. 33, based on newly discovered evidence. On January 5, 1993, the district court sentenced Rodriguez to 248 months' imprisonment, including a mandatory five-year sentence on the weapons count, a five-year term of supervised release, and a special assessment.

The appellants have appealed their convictions and sentences on a variety of grounds. Most of these grounds do not merit any discussion, because the legal standards for their resolution are well-established and unchallenged. A few of the issues, however, present novel questions for our consideration, and will be discussed at length. The background involving those claims will be recounted as necessary in the appropriate Discussion sections.


I. Mock's Testimony at the First Trial

Mock argues that the district court erred in allowing the government to introduce his testimony from the earlier trial of his co-appellants.

  1. Background

    As noted above, appellants Garcia and Rodriguez were tried in July 1991 before Judge Lowe in the Southern District. Mock at that time was not a co-defendant, and had not yet been arrested in connection with this case. On July 30, 1991, Garcia called Mock as his first witness. At sidebar, the government informed Judge Lowe that there was a warrant for Mock's arrest. The court denied the government's request to execute the warrant immediately, mainly because executing the warrant would deprive the defendants of the benefit of Mock's testimony. The judge then excused the jury, and adjourned with counsel to the robing room.

    In the robing room, the district judge indicated that if the warrant was executed prior to Mock's testimony, "the defendants would have a legitimate claim that the government prevented this man's testimony." The Assistant United States Attorney ("AUSA") representing the government agreed that there was a problem, and noted that Mock had rights that were implicated in the situation.

    The record indicates that the AUSA then declared that although Mock and other possible witnesses for the defense were not at that time represented by an attorney, they had been told that "they might subject themselves to arrest if they come to court." Additionally, an attorney for the defense stated that the witnesses had been warned to hire an attorney. The government agreed to forestall Mock's arrest until Mock had testified, and Judge Lowe made arrangements to have Mock arrested out of sight of the defendants or the jury once he had testified.

    Mock, who was not represented by counsel at the time, proceeded to testify on Garcia's behalf. He stated that he did odd jobs to support himself, denied being a drug dealer, had known Garcia for 20 years and had never known him to sell or use drugs, and had visited Garcia's apartment (which the government showed was the headquarters for the organization). Mock did testify that he was aware that there was "always a chance" of being arrested if he came to testify, but that he wanted to "clear his name." After Mock's testimony, he was arrested outside the courtroom.

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    At the second trial, Mock's testimony at the first trial was admitted into evidence to support the perjury charges and to show that he had been in the apartment in which the drug operation was organized. After a motion to suppress, Judge Leisure denied the motion and admitted the testimony:

    Mock is a high school graduate and a former partner in a business. He is 32 years old, and is no stranger to the Federal criminal justice system, having already...

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