USA v. Padilla, Albizu, Colon, et al, Docket Nos. 98-1360

Citation203 F.3d 156
Decision Date10 September 1999
Docket NumberDocket Nos. 98-1360
Parties(2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ANGEL PADILLA, aka "Cuson"; JAMES ALBIZU, aka "Pito"; ROBERTO COLON, aka "Papo"; DARRELL CAMPBELL, aka "D"; ANTHONY MORALES, aka "Cuba", aka "Tony Cuba"; JAMES BOGGIO, aka "Jay"; DIONISIO MOJICA, aka "Little Johnny"; EDWIN GONZALEZ, aka "Peachy"; MARTIN KORTRIGHT, aka "Supreme"; JAMES RODRIGUEZ, aka "Spanky"; WILSON RODRIGUEZ, aka "Opie"; RAFAEL TORRES, aka "Ski"; STEVEN CAMACHO, aka "Spanky", aka "Spank"; JAIME RODRIGUEZ, aka "Jay"; ANNA RODRIGUEZ, aka "Momma Calderon"; RICARDO FONTAN; RAFAEL CRUZ; MARVIN JENKINS; JOSEPH PILLOT, aka "Joey"; ANTONIO FELICIANO, aka "Jamaican Tony", aka "Pat A. Guess", aka "Christopher Guest"; and TRUMONT WILLIAMS, Defendants, ANGEL PADILLA, aka "Cuson"; IVAN RODRIGUEZ, and GREGORY CHERRY, aka "G",aka "Ninja", Defendants-Appellants. (L), 98-1374, 98-1543(con) August Term 1999
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from a judgment in the United States District Court for the Southern District of New York (Haight, J.), convicting defendants-appellants of numerous crimes stemming from their participation in a violent gang that extorted payments from heroin dealers in the Bronx and protected its own organization through murder. Most of defendants-appellants' arguments on appeal are addressed in a separate order filed concurrently with this opinion. The questions here considered are (1) whether the district court violated defendants-appellants' Sixth Amendment right to counsel by ordering defense counsel during the trial not to reveal to their clients an ongoing investigation into alleged jury and witness tampering, (2) whether the district court denied defendant-appellant Padilla's right to be present at all stages of his trial by excluding him from the conferences regarding the obstruction of justice investigation, and (3) whether the evidence of witness and jury tampering uncovered by the investigation was properly admitted against defendant-appellant Padilla.

AFFIRMED.

DAVID WIKSTROM, Esq., New York, New York, for Defendant-Appellant Angel Padilla.

WILLIAM J. STAMPUR, Esq., Hurwitz Stampur & Roth New York, New York, for Defendant-Appellant Ivan Rodriguez.

AZRA RAYCHES FELDMAN, Esq., Feldman & Feldman, Roslyn, New York, for Defendant-Appellant Gregory Cherry.

MARGERY B. FEINZIG, Esq., Assistant United States Attorney (MARY JO WHITE, United States Attorney for the Southern District of New York, ALEXANDER A.E. SHAPIRO, on the brief) for Appellee.

Before : WALKER and CALABRESI, Circuit Judges, and BERMAN,*. District Judge.

JOHN M. WALKER, Circuit Judge:

Defendants-appellants Angel Padilla and Ivan Rodriguez appeal from a June 30, 1998 judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Senior District Judge. They allege numerous errors in the proceedings below, all but three of which are rejected in a separate summary order filed concurrently with this opinion. We summarize only the facts relevant to the issues addressed in this opinion.

I.

The evidence adduced at trial proved that Padilla, also known as "Cuson," was a leader of a racketeering enterprise called C&C which extorted "rent" from neighborhood drug dealers in the Bronx and committed many violent crimes both to further its extortionate goals and to discipline its own members. In 1992, after a rift formed within C&C's ranks, Padilla hired Rodriguez, a professional hitman, to kill his onetime partner Calderon. A shooting war broke out, leaving Calderon and many C&C members dead before the police arrested Padilla, Rodriguez, and sixteen of their co-defendants. All of the defendants save Padilla and Rodriguez pled guilty prior to trial.

Following a twelve-week jury trial, Padilla was convicted of numerous violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 U.S.C. 1951 et seq., including murder, kidnapping, and conspiracies to commit murder and kidnapping in violation of 18 U.S.C. 1951, 1959, 1962; he was also convicted of conspiracy to aid and abet the distribution of heroin in violation of 21 U.S.C. 846, and of carrying a firearm during and in relation to crimes of violence and drug trafficking in violation of 18 U.S.C. 924(c). He was sentenced to life imprisonment, a consecutive term of 185 years' imprisonment, mandatory assessments, and five years' supervised release. Rodriguez was convicted of murder and conspiracy to commit murder in violation of 18 U.S.C. 1959(a)(5), (a)(1), and of carrying a firearm during and in relation to other crimes in violation of 18 U.S.C. 924. He was sentenced to life imprisonment, a consecutive term of five years' imprisonment, mandatory assessments, and five years of supervised release.

Appellants now challenge their convictions on numerous grounds, most of which we reject in the separate summary order. In this opinion, we address only the following issues: (1) whether the district court violated defendants-appellants' Sixth Amendment right to counsel by ordering defense counsel during the trial not to reveal to their clients an ongoing investigation into alleged jury and witness tampering, (2) whether the district court denied defendant-appellant Padilla's right to be present at all stages of his trial by excluding him from the conferences regarding the ongoing investigation, and (3) whether the evidence of witness and jury tampering developed by the investigation was properly admitted against Padilla. We find that none of these issues merit overturning the convictions of Padilla and Rodriguez. Accordingly, we affirm the district court's judgments as to both defendants.

II.

During the trial, Judge Haight received a letter from an inmate at the Metropolitan Correction Center who was a defendant in an unrelated proceeding pending before the judge. The inmate revealed a plan by Rodriguez and Padilla to purchase perjured witness testimony and further indicated that a juror had been bought off. The letter concluded with a plea to Judge Haight not to reveal the information to the defendants or defense counsel "because the danger for me in this instance is very real and the risk large, also my family's safety is at stake."

Judge Haight met with the prosecutor and both defense counsel to discuss the issues raised in the inmate's letter. The government proposed establishing a protective "Chinese Wall" within the United States Attorney's office that would shield the Assistant United States Attorneys who were trying the case against Padilla and Rodriguez from those who would be assigned to investigate the inmate's allegations. The government expressed its belief that revealing the allegations to Padilla and Rodriguez would compromise their investigation and asked the district judge to order defense counsel not to reveal the information to their clients. Defense counsel countered that they had a duty to advise their clients of the investigation and to instruct them not to discuss the matter with anyone. They argued that failing to discuss the pending investigation with their clients would erode their clients' trust and, ultimately, impair their ability to represent them. After carefully considering both arguments, Judge Haight ordered defense counsel not to reveal the investigation to Padilla or Rodriguez. He also ordered the record of this and all other closed conferences with counsel on the subject to be sealed.

The government's preliminary inquiries into the inmate's allegations soon revealed that they were well founded. The district court authorized further investigation but ordered the government not to interview either defendant or contact any juror without the court's permission. Six days later, the district court informed defense counsel that the investigation was proceeding and reiterated its order that defense counsel not disclose any of this information to their clients. Defense counsel renewed their objections.

Sixteen days after the district court's initial meeting with counsel, and one week before the defense case was expected to begin, defense counsel asked for the results of the investigation to enable them to settle upon a defense strategy, to decide which witnessess to call, and to otherwise prepare their defenses. Judge Haight agreed and ordered the government to reveal to defense counsel the results of the investigation. He simultaneously lifted the restrictions on defense counsels' communications with their clients.

III.

On appeal, Padilla and Rodriguez both argue that the district court's order precluding counsel during the trial from revealing to their clients the allegations and subsequent investigation of witness and jury tampering violated their Sixth Amendment right to counsel. Padilla also claims that his Fifth Amendment due process rights were also violated by restricting his communication with his attorney.

We note at the outset that the district court might have chosen to withhold the information both from defendants and from defense counsel. Had he done so, there is little doubt in our minds that there could be no claim of a constitutional violation. Such investigations are appropriately secret matters. See, e.g., Fed. R. Crim. P. 6. The question here is a different one, however. The district court chose to inform defense counsel of the inmate's allegations, the government's initial response that they were well founded, and the ensuing full investigation. Thus, the question presented is, once the district court revealed the investigation to defense counsel, did it violate the defendants' Sixth Amendment rights by forbidding counsels' disclosure of the investigation to the defendants. We are therefore called upon to draw further the admittedly "thin line" between constitutional and unconstitutional restrictions on defendants' right to consult with counsel during their trial. See Perry v. Leeke, 488 U.S. 272, 280 (19...

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