U.S. v. Yu-Leung

• Decision Date: 07 April 1995
• Docket Number: D,No. 258,YU-LEUNG,258
• Parties: 41 Fed. R. Evid. Serv. 1274 UNITED STATES of America, Appellee, v. Kon, also known as Johnny Kon, Defendant, John Ruotolo, Defendant-Appellant. ocket 94-1045.
• Court: U.S. Court of Appeals — Second Circuit

Page 1116

51 F.3d 1116

41 Fed. R. Evid. Serv. 1274

UNITED STATES of America, Appellee, v. Kon YU-LEUNG, also known as Johnny Kon, Defendant John Ruotolo, Defendant-Appellant.

No. 258, Docket 94-1045.

United States Court of Appeals Second Circuit.

Argued Dec. 19, 1994.

Decided April 7, 1995.

Joel A. Brenner, East Northport, NY, for appellant.

Catherine E. Palmer, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Peter A. Norling, Patricia A. Pileggi, Asst. U.S. Attys., on the brief), for appellee.

Before: MINER, ALTIMARI and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

John Ruotolo appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Platt, Chief Judge). After a trial, the jury found him guilty on one count of conspiracy to import heroin in violation of 21 U.S.C. Sec. 963, and on two counts of heroin importation in violation of 21 U.S.C. Secs. 952 and 960. The district court sentenced Ruotolo to three consecutive ten year prison terms, a lifetime term of special parole, and a $150 special assessment.

On appeal, Ruotolo presents a catalogue of claims. In addition to his contention that there was insufficient evidence to sustain the jury's verdict, Ruotolo maintains that the district court: (1) erroneously denied his motion to suppress evidence; (2) improperly admitted evidence of uncharged crimes; (3) made several other erroneous evidentiary rulings that, cumulatively, denied him a fair trial; (4) wrongfully disqualified his first trial counsel; (5) sentenced him unlawfully; and (6) that the district judge erroneously failed to recuse himself after being informed that Ruotolo had allegedly threatened his life. Having closely examined the record, we summarily reject all but three of these arguments as frivolous. Although the remaining three claims--one based on the district court's denial of his suppression motion, one based upon the district judge's failure to recuse himself, and the last stemming from the district court's admission of allegedly irrelevant and prejudicial evidence at trial--do merit some discussion, we conclude that they do not warrant a reversal of the conviction. We therefore affirm the district court's judgment and sentence in all respects.

BACKGROUND

In December 1987, Ruotolo, along with 9 others, was indicted and charged with participating in an international heroin trafficking organization that conspired to import hundreds of pounds of heroin into the United States. Ruotolo played the middleman. On several occasions he obtained heroin shipments from the conspiracy's couriers, delivered them to customers and collected the proceeds.

Although the indictment charged that the overall conspiracy lasted from January 1984 to December 1987, Ruotolo's participation ended sometime in August 1984. At that point, Ruotolo's co-conspirators began to believe that he had stolen $400,000 and 14 kilograms of heroin from them. Thereafter, they refused to deal with Ruotolo and, in fact, planned to murder him.

In the evening of March 13, 1988, agents of the Drug Enforcement Administration arrested Ruotolo at his home in Montclair, New Jersey. Six other members of the conspiracy were also arrested in New York, Hong Kong and Japan. After substantial litigation over the suppression of physical evidence seized from Ruotolo's home at the time of his arrest, see United States v. Yu- At trial, the government presented four cooperating witnesses: Kon Yu-Leung ("Kon"), the conspiracy's leader, and three other self-declared participants in the conspiracy, Lau Shu Ming ("Lau"), Ronnie Yin ("Ronnie") and Luk Pong-Ki ("Luk"). These witnesses testified to Ruotolo's membership in the drug ring and more. It is the additional content of their testimony that Ruotolo strenuously contests.

Leung, 910 F.2d 33 (2d Cir.1990), ¹ Ruotolo's trial began on September 30, 1991. Ruotolo was the only defendant to stand trial; all of his former associates who had been arrested had already pleaded guilty to various heroin trafficking offenses.

Despite the fact that Ruotolo's participation in the drug scheme was unilaterally terminated by Kon in August 1984, Kon testified at trial about his own continued criminal activities after August 1984. Kon described the seizure by the police of approximately 300 pounds of heroin in November 1984, the shipment of approximately 1000 pounds of heroin between January and June 1985, the successful importation of 92 pounds of heroin in November 1986, a "big, big" heroin seizure in December 1986, a 90-pound cocaine seizure in January 1988, and a 95-pound heroin shipment later in 1988--all of which involved Kon's actions after Ruotolo had been excluded from the gang. Kon also testified to five drug-related killings that he orchestrated, none of which involved Ruotolo.

Similarly, the other co-conspirators testified as to the drug operation and their involvement in it well after Ruotolo was no longer a participant. Lau recounted for the jury several post-August 1984 heroin transactions, including the November 1984 seizure, the receipt of $10 million in drug sales between November 1984 and December 1986, a 1985 drug seizure in Seattle, the removal of $1 million in drug money from the United States in October and November 1986, and a 1986 drug seizure in Thailand. Ronnie also testified about the November 1984 heroin seizure, four or five drug importations in 1985 and the collection of approximately $1 million in related proceeds, as well as to the murder of a friend of his by Kon. And finally, Luk capped-off this line of testimony by describing the November 1984 seizure, the laundering of millions of dollars in foreign drug money between October and December 1986, the purchase of drug smuggling paraphernalia in Thailand in November and December 1986, the Thailand seizure in January 1987 and a cocaine seizure in February 1987.

Ruotolo's trial counsel ² did not object to the admission of any of this testimony regarding drug transactions and murders that Ruotolo concededly had nothing to do with. Nevertheless, Ruotolo now claims on appeal that the district court's admission of such evidence was extremely prejudicial to his defense and that, even in the absence of an objection, it constitutes reversible error. He also maintains that his consent to the search of his house was coerced, and that the evidence found there should have been suppressed. Finally, Ruotolo argues that the district judge should have recused himself after learning that he, Ruotolo, allegedly threatened his life.

Given the facts of this case, we disagree with all three of these claims.

DISCUSSION

A. The Voluntariness of Ruotolo's Consent to the Search

In our earlier decision in this case, after reversing the district court's sixth amendment suppression of certain evidence seized by government agents at the time of Ruotolo's arrest, we remanded for a review of "the totality of the circumstances" surrounding the search of Ruotolo's home and for a determination of whether it was voluntary or coerced in light of fourth amendment principles. See Yu-Leung, 910 F.2d at 41. We recounted, at length, the facts regarding Ruotolo's arrest, the agents' treatment of Ruotolo's family and the manner by which the agents obtained Ruotolo's and his wife's written consent to search their home. See id. at 35-36. We need not repeat that discussion here. It is enough to say that Ruotolo continues to maintain that the agents terrorized his family and that their refusal

to allow him to contact his attorney, the lateness of the hour, the presence of six DEA agents in his home, and the assurance that they would remain there indefinitely pending the availability of a search warrant combine to require a finding that his consent was not voluntarily given.

Id. at 41.

On remand, the district court conducted a supplemental suppression hearing. Despite Ruotolo's claims of government coercion, Chief Judge Platt determined that Ruotolo's consent to the search of his home was not coerced. With respect to the agents' alleged abuse of the Ruotolo family, Judge Platt adhered to his prior credibility evaluations and found that most of the family members' testimony was either "mistaken, contrary to common sense or persuasively contradicted by other testimony." And noting that Ruotolo was, himself, a retired New York City police officer, Judge Platt further determined that

[a]lthough perhaps reluctant, in view of the totality of the circumstances, Ruotolo's consent was voluntary. In essence Ruotolo's consent was a deal struck between a former experienced police officer and the arresting agent, after full Miranda warnings and notice that consent could be refused. The agent's agreement to Ruotolo's conditions that the consent could be withdrawn at any time during the search and that the agents were to be accompanied by both elder Ruotolos as they searched through the house further reveals a "bargained for" consent.

Ruotolo challenges these findings on this appeal. It is well established, though, that "[w]e 'will not overturn a district court's finding that a defendant voluntarily consented to a search, unless the finding was clearly erroneous,' " United States v. Hernandez, 5 F.3d 628, 632 (2d Cir.1993) (quoting United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir.1987) (per curiam)), and on this record, we cannot say that the district court's voluntariness ruling is erroneous. We therefore affirm the district court's denial of Ruotolo's suppression motion.

B. Ruotolo's Recusal Claim

For the first time on appeal, Ruotolo argues that Chief Judge Platt committed reversible error by failing to recuse himself from the case after we reversed his initial suppression ruling and remanded for further proceedings. Ruotolo bases this claim, in part, on the fact that the government advised Judge Platt that Ruotolo had allegedly threatened his life. The government also told Judge...