U.S. v. Lopez

Decision Date09 June 2004
Docket NumberDocket No. 02-1746(L).,Docket No. 02-1748(CON).
Citation372 F.3d 86
PartiesUNITED STATES of America, Appellee, v. Carlos LOPEZ, also known as Charlie Chan, also known as Chan; Rafael Lopez, also known as Tito, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Kelly T. Currie and Christina B. Dugger, Assistant United States Attorneys (Susan Corkery, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Lawrence Mark Stern, New York, NY, for Defendant-Appellant Carlos Lopez.

Daniel M. Felber, Balsam Felber & Goldfield, New York, NY, for Defendant-Appellant Rafael Lopez.

Before: NEWMAN, CALABRESI, and B.D. PARKER, Circuit Judges.

Judge NEWMAN dissents in a separate opinion.

B.D. PARKER, JR., Circuit Judge.

Carlos Lopez and his brother, Rafael Lopez, appeal from judgments of conviction entered by the United States District Court for the Eastern District of New York (John Gleeson, Judge). Following a two-week trial, a jury convicted both defendants of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count I) and conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 (Count II). The jury also convicted Carlos Lopez of obstruction of justice murder in violation of 18 U.S.C. § 1512(a)(1)(C) (Count III). The District Court subsequently sentenced Carlos and Rafael Lopez principally to concurrent terms of life imprisonment on each of the counts for which they were respectively convicted. Both appeal, raising various challenges to their convictions and sentences. We write solely to explain our reversal of Carlos Lopez's conviction of obstruction of justice murder on the basis of insufficiency of the evidence, and we affirm as to all other issues raised in this appeal in a summary order issued with this opinion.1

BACKGROUND

In early 1999, the Federal Bureau of Investigation and the New York City Police Department learned through a cooperating witness, Victor Cruz, that Carlos Lopez murdered an individual named Edward Montalvo in 1991 and that from 1989 through 1996 Lopez led a violent crew of crack cocaine dealers operating principally in the vicinity of a flower shop in the East New York section of Brooklyn, New York. Other leaders of the organization included his brother, Rafael Lopez, and Jose Salcedo.

With respect to the murder of Montalvo (the sole focus of this opinion), NYPD Officer Brenda Soto-Ramos testified at trial that, on August 17, 1991, she took a complaint from Montalvo, who reported that he had been threatened at gunpoint by Lopez. Soto-Ramos testified that Montalvo provided her with Lopez's nickname, "Charlie," and with a detailed physical description.

In addition, NYPD Officer Brian Connolly testified that, on the following day, he went to Montalvo's home, where Montalvo lodged another complaint against Lopez. In that complaint, Montalvo again provided a detailed description of Lopez, renewed his complaint about Lopez's prior threat, and stated that Lopez had returned that day with another man, that both were armed and that both had threatened him. Montalvo also informed Connolly that Lopez could be found at the corner of Pennsylvania and Flatlands Avenues, the location of a flower shop from which the defendants ran their narcotics operation.

After receiving this information from Montalvo, Connolly went to the flower shop and found Lopez sitting on a milk crate. After identifying Lopez, Connolly searched the vicinity and discovered two loaded handguns in the milk crate. Connolly then arrested Lopez for criminal possession of the weapons and menacing.

Following Lopez's arrest, the Kings County District Attorney's office decided not to prosecute him for criminal possession of the guns and, instead, charged him with the less serious crimes of assault, menacing, and attempted criminal mischief. Montalvo was present when the decision was made not to charge Lopez with the gun crimes and nervously reacted to that decision, exclaiming that "they're going to get out and they'll kill me." In an effort to ensure his safety, on August 19, the day after Lopez's arrest, Montalvo obtained a temporary order of protection against Lopez from a state court.

After he was released from police custody, Lopez complained to fellow members of his drug organization that Montalvo was bringing "heat," or police presence, to the flower shop and that Montalvo intended to testify against him in state court criminal proceedings. Salcedo testified at trial that Lopez repeatedly told him that Montalvo had told the police about the threats, that Montalvo was making him and the flower shop drug sale location "hot," and that he had to "get rid" of him. Another associate of Lopez, Andre Eugene, similarly testified that Lopez asked him in the summer of 1991 to kill Montalvo because Montalvo had caused Lopez's arrest for possessing firearms.

The government's trial evidence established that Lopez murdered Montalvo. On August 30, Lopez enlisted the aid of two members of the flower shop organization, one acting as a getaway driver and the other as a lookout, and went to Montalvo's apartment building. Lopez waited in the stairwell on the floor where Montalvo's apartment was located, and when Montalvo came out of his apartment, Lopez approached him in the hallway and shot him repeatedly. Lopez subsequently described to other flower shop members how he had murdered Montalvo.

In April 2001, a grand jury indicted Lopez for, among other things, the obstruction of justice murder of Montalvo in violation of 18 U.S.C. § 1512(a)(1)(C), a count on which he was subsequently convicted at trial. Lopez appeals.

DISCUSSION

Lopez contends that the evidence at trial was insufficient to convict him under section 1512(a)(1)(C), which makes it unlawful to commit murder to prevent communications to a federal official about a federal crime. In challenging the sufficiency of the evidence, Lopez bears a "heavy burden." United States v. Diaz, 176 F.3d 52, 89 (2d Cir.1999); accord United States v. Romero, 54 F.3d 56, 61 (2d Cir.1995). In reviewing such a challenge, we must "view the evidence, whether direct or circumstantial, in the light most favorable to the government and credit every inference that could have been drawn in its favor." Diaz, 176 F.3d at 89; accord Romero, 54 F.3d at 61. Moreover, we "assess the evidence not in isolation but in conjunction ... and the convictions must be affirmed, so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt." Diaz, 176 F.3d at 89 (internal citation omitted); accord Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Podlog, 35 F.3d 699, 705 (2d Cir.1994). In other words, a conviction will be affirmed if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original).

Lopez contends that, at most, the evidence demonstrated his intention to obstruct a state investigation and that the government adduced no evidence that the murder might impact a federal investigation because no such investigation existed. The government maintains that it established the requisite federal nexus under section 1512(a)(1)(C) because it proved that Lopez committed a crime punishable under federal as well as state law, and, since Montalvo repeatedly turned to the local police for personal security, it is reasonable to assume that he might eventually have turned to federal law enforcement officials. We believe that the proof was inadequate to establish a violation of the statute, though for reasons that differ from those urged by Lopez.

We begin our analysis with the text of the statute. Specifically, section 1512(a)(1)(C) makes it unlawful to kill or attempt to kill another person "with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States of information relating to the commission or possible commission of a Federal offense." 18 U.S.C. § 1512(a)(1)(C). Section 1515 defines a "law enforcement officer" as "an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant." Id. § 1515(a)(4). Section 1512(g) further provides that in a prosecution for an offense under section 1512, "no state of mind need be proved with respect to the circumstance ... that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant." Id. § 1512(g)(2).

We previously have explained that, because section 1512(g) expressly does not require that the government prove a defendant's "state of mind" with respect to the federal employment of the law enforcement officer, it is irrelevant that a defendant only intends to prevent the victim from speaking with local or state, as opposed to federal, law enforcement officers. Diaz, 176 F.3d at 90-91; United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir.1991). As we made clear in Diaz, " `the government is not obligated to prove that the defendant knew or intended anything with respect to this federal involvement.'" 176 F.3d at 91 (quoting United States v. Bell, 113 F.3d 1345, 1349 (3d Cir.1997)).2 Therefore, we reject Lopez's argument that the evidence was insufficient because it proved only his intention to obstruct a local investigation.

We also reject Lopez's contentions that a federal investigation must be underway or that Montalvo must have been willing or available to cooperate with federal officials. As we held in Romero:

[T]he government did...

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