U.S. v. Estrada
| Decision Date | 12 February 2003 |
| Docket Number | Docket No. 02-1173. |
| Citation | 320 F.3d 173 |
| Parties | UNITED STATES of America, Appellee, v. Frank ESTRADA, also known as The Terminator, also know as Big Dog, also known as "Mustard"; Edward Estrada, also known as French Fry, also know as Susan Kock Fry, Isaias Soler, also known as Eso, also known as "Dog"; Nelson Carrasquillo; William Rodriguez, also known as Billy Rodriguez, also known as William Gomez, also known as Billy Gomez, also known as Billy the Kid; Felix DeJesus, also known as Dino; Charles DeJesus, also known as Chino; Eddie Lawhorn, also known as Fat Boy; Yamarr Shipman, also known as Country; also known as Pak Chong Mar; Michael Hilliard, also known as Mizzy; Pablito Cotto; Rosario Cotto, also known as Sato; Benito Rosario; Ricardo Rosario, also known as "Q"; Jermaine Jenkins, also known as "Fats"; Makene Jacobs, also known as Madee; Joseph Butler, also known as Pee Wee; Viviana Jiminez; Kelvin Vereen, also known as Nino; Daniel Herredia, also known as D-Nice; Felipe Santana, also known as Omar Soto; Tamarius Maner, also known as Trigger; Gloria Vargas; Victor Cruz, also known as Casper; Enrique Martinez, also known as Ricky Zapata; Carmen Coto, also known as "CC," Defendants, Hector Gonzalez, also known as June Bug, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Christopher J. McCarthy, Brown, Paindiris & Scott, LLP, Glastonbury, CT, for Defendant-Appellant.
Robert M. Spector, Assistant United States Attorney for the District of Connecticut, New Haven, CT (Alex Hernandez, Assistant United States Attorney, Alina P. Marquez, Assistant United States Attorney, and John A. Danaher III, United States Attorney, on the brief), for Appellee.
Before: WALKER, Chief Judge, and OAKES and MINER, Circuit Judges.
Defendant-appellant Hector Gonzalez appeals from an order of the United States District Court for the District of Connecticut (Underhill, J.) denying a motion by Gonzalez to dismiss on double jeopardy grounds so much of a sixteen-count indictment filed in the District of Connecticut as charges him with two counts of narcotics conspiracy ("Connecticut Indictment"). In Count Twelve, Gonzalez was one of a number of named defendants, along with "others known and unknown to the Grand Jury" charged with conspiracy to "possess with intent to distribute 1000 grams or more of a mixture or substance containing a detectable amount of heroin." In Count Thirteen, Gonzalez and a number of other named defendants "and others known and unknown to the Grand Jury" are charged with conspiracy to "possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine base or `crack.'"
In an indictment previously filed in the United States District Court for the Eastern District of New York, Gonzalez was charged in a two-count indictment ("New York Indictment"), along with two named co-defendants, with conspiracy to possess with intent to distribute cocaine and attempting to possess with intent to distribute cocaine. Gonzalez entered a plea of guilty to the conspiracy count of that indictment, pursuant to a written agreement dated November 13, 1997 with the office of the United States Attorney for the Eastern District of New York. The District Court, faced with the motion to dismiss Counts Twelve and Thirteen of the Connecticut Indictment for double jeopardy as a consequence of the New York Indictment and plea, entered the order denying dismissal subject of this appeal. The District Court determined that the heroin conspiracy charged was distinct from the earlier indictment. As to the cocaine conspiracy charged, the District Court reasoned that, although the same conspiracy was charged in the New York Indictment, the Government did not know and could not reasonably have known of the facts supporting the Connecticut Indictment when the New York Indictment was filed. We affirm the order as to both of the counts subject of the District Court's ruling but for reasons different from those given by the District Court in regard to the cocaine conspiracy charged.
In May of 1997, Special Agents of the Drug Enforcement Administration ("DEA") in the Eastern District of New York learned that one Cano-Lopez was interested in purchasing up to ten kilograms of cocaine. This information was furnished by confidential informants who represented that they were prepared to act as suppliers. Cano-Lopez informed them that he knew of an unidentified buyer from Connecticut who would come to New York to purchase the cocaine, but he provided no further information. Appellant Gonzalez was arrested on June 4, 1997 in Queens, New York when he came to make a ten-kilogram cocaine purchase from Cano-Lopez. A search of Gonzalez' vehicle produced approximately $125,000 in United States currency, and over $1,600 in cash was seized from his person. Cano-Lopez was arrested at the same time and gave a post-arrest statement to the DEA. In the statement, he described the role of Gonzalez in the conspiracy to purchase the cocaine to be supplied by the confidential informants. He also implicated a man named Jose Mota, who apparently acted as a lookout during the attempted cocaine transaction.
DEA Special Agent Mark Tully testified before the grand jury in the Eastern District on June 17, 1997. He was the only witness to testify in regard to the events leading to the arrest of Gonzalez and Cano-Lopez. He testified that a meeting took place on May 30, 1997 in the Northern Boulevard area of Queens, New York between Cano-Lopez and the two confidential informants. The meeting was conducted under the surveillance of agents of the DEA and was tape-recorded. According to Tully, Cano-Lopez agreed to purchase ten kilograms of cocaine at $25,000 per kilogram from the informants. On June 2, 1997, the informants received a telephone call from Cano-Lopez, who advised that "his people" in Connecticut were putting the money together and would not be able to complete the purchase until later in the week. Further negotiations regarding the purchase price resulted in an agreed price of $23,000 per kilogram for the ten kilograms of cocaine.
On June 4, 1997, Cano-Lopez called the informants and advised that he and his people from Connecticut were ready to complete the ten-kilogram deal, and arrangements were made to meet at a Burger King Restaurant on Northern Boulevard. DEA agents set up surveillance at that location and, at approximately 5:00 p.m., observed two individuals arrive in a 1988 Corsica automobile driven by Cano-Lopez. The Corsica was followed into the parking lot of the restaurant by a red 1997 Dodge Intrepid automobile driven by Gonzalez. After a conversation between Cano-Lopez and the two informants, Cano-Lopez signaled Gonzalez to approach. Then all present walked over to Gonzalez' vehicle. Gonzalez opened the trunk, in which the informants saw a bag containing a box with United States currency inside. The confidential informants advised that they were going to get the ten kilograms of cocaine, whereupon the agents arrested Cano-Lopez and Gonzalez.
Following the testimony of Agent Tully before the grand jury, the grand jury charged Gonzalez and Cano-Lopez, as previously noted, with "conspir[ing] to possess with intent to distribute cocaine, a Schedule II narcotic drug controlled substance in violation of Title 21 United States Code, Section 841(a)(1)" (Count One) and with "attempt[ing] to possess with intent to distribute cocaine, a Schedule II narcotic drug controlled substance, in violation of Title 21 United States Code, Section 841(a)(1)" (Count Two). Both offenses were alleged to have been committed "between May 30, 1997 and June 4, 1997, both dates being approximate and inclusive." On July 3, 1997, Special Agent Tully made another grand jury appearance. Again, he was the only witness to testify, and his testimony paralleled that given on June 17. There were only two differences. One was that he identified Mota as an individual who arrived with Gonzalez and acted as a lookout during the transaction on June 4. He testified that Mota was arrested at the same time as Gonzalez and Cano-Lopez. The other difference in Tully's testimony was his description of the exact amount of cash found in Gonzalez' vehicle — $125,185. Thereafter, a superseding indictment was issued charging Mota along with Gonzalez and Cano-Lopez with the same crimes covering the same time period charged in the first indictment.
By plea agreement entered into with the office of the United States Attorney for the Eastern District of New York dated November 13, 1997, Gonzalez agreed to enter a plea of guilty to the conspiracy count in return for the dismissal of the attempt count. In the agreement, the office of the United States Attorney agreed to make certain sentencing recommendations, and Gonzalez agreed not to appeal his conviction or sentence if the sentence were to be within or below the range of imprisonment terms specified in the agreement. Among other things, the agreement provided that it "is limited to the United States Attorney's office for the Eastern District of New York and cannot bind other federal, state or local prosecuting authorities." With respect to further administrative proceedings involving Gonzalez, the agreement provided that he "waives any claim of double jeopardy in the event that said proceedings have been, are, or will be initiated." After his guilty plea was accepted in accordance with the agreement, Gonzalez was allowed to remain at liberty until April 9, 1998, when his sentence was imposed. Gonzalez presently is serving that sentence, which provides principally for imprisonment for a term of 87 months, and five years of court-supervised release.
On another track, it appears that Special Agents of the Federal Bureau of Investigation in Connecticut had initiated an investigation in August of 1999 into the...
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