U.S. v. Vasquez

• Decision Date: 29 December 1980
• Docket Number: 1460,1461,1458,Nos. 1439,1454,1457,D,s. 1439
• Citation: 638 F.2d 507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orlando VASQUEZ, Carlos Sanchez, Fernando Eugenio Medina, Amparo Valencia Medina, Clara Inez Mesa and Hernando Mesa, Defendants-Appellants. ockets 80-1168, 80-1169, 80-1170, 80-1171, 80-1183 and 80-1184.
• Court: U.S. Court of Appeals — Second Circuit

Page 507

638 F.2d 507

UNITED STATES of America, Plaintiff-Appellee, v. Orlando VASQUEZ, Carlos Sanchez, Fernando Eugenio Medina,

Amparo Valencia Medina, Clara Inez Mesa and

Hernando Mesa, Defendants-Appellants.

Nos. 1439, 1454, 1457, 1458, 1460, 1461, Dockets 80-1168,

80-1169, 80-1170, 80-1171, 80-1183 and 80-1184.

United States Court of Appeals,

Second Circuit.

Argued Aug. 21, 1980.

Decided Dec. 29, 1980.

Domenick J. Porco, New York City (Martin L. Schmukler, Barry Asness, and Diller, Schmukler & Asness, New York City, on briefs), for defendants-appellants Vasquez and Sanchez.

Samuel H. Dawson, New York City (Dawson, Kimelman & Clayman and Paul G. Lieber, New York City, on brief), for defendants-appellants Fernando Medina and Amparo Medina.

Richard I. Rosenkranz, Brooklyn, N. Y., for defendant-appellant Clara Mesa.

Martin Jay Siegel, New York City, for defendant-appellant Hernando Mesa.

Laurence A. Urgenson, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. New York and Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y., on brief), for plaintiff-appellee.

Before NEWMAN and KEARSE, Circuit Judges, and DUMBAULD, District Judge. ^*

KEARSE, Circuit Judge:

These are appeals from judgments of conviction entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge. Defendants-appellants Carlos Sanchez, Fernando Medina, Amparo Medina, Clara Mesa and Hernando Mesa pleaded guilty to charges of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). ¹ Their pleas of guilty were entered pursuant to a court-approved agreement preserving their right to appeal certain decisions to this Court. Defendant-appellant Orlando Vasquez was convicted after a jury trial of possession of cocaine with intent to distribute it and conspiracy to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

On their appeals from the convictions, the defendants contend principally that certain arrests, searches and seizures violated their rights under the Fourth Amendment and that evidence derived therefrom should have been suppressed. In addition, Vasquez contends that the evidence against him was insufficient for a conviction; Vasquez and Hernando Mesa contend that they were sentenced in an illegal manner; and Hernando Mesa contends that Judge Bramwell should have recused himself. For the reasons set forth below, we affirm the convictions of Vasquez, Sanchez, Hernando and Clara Mesa, and Fernando Medina, but vacate the conviction of Amparo Medina and the sentence of Vasquez and remand for further proceedings.

I

The case arises out of investigations by members of the New York Drug Enforcement Task Force ("Task Force") which came to a head on the evening of November 29, 1979, when each of the defendants was arrested. The first to be arrested were Hernando Mesa ("Hernando") and his sister Clara Mesa ("Clara"), who had just come from a building at 633 Grand Street in Brooklyn, and from whose car the officers seized a package containing approximately one-half pound of cocaine and a photograph of four of the six defendants. Within the hour, other Task Force members in Queens arrested Fernando Medina ("Fernando") whose wife Amparo Medina ("Amparo") had shortly before left 633 Grand Street; from his car the officers seized a bag containing approximately one pound of cocaine. Fernando was then taken to his home, where Amparo was arrested, the Medina home was searched, and a handgun and various papers were seized. Shortly after the arrest of Fernando, Task Force members still in Brooklyn arrested Sanchez, who had just left 633 Grand Street, and seized from him a bag containing a pound of cocaine. Later, Task Force members arrested Vasquez as he was leaving that address, and conducted a search of the apartment Vasquez was believed to occupy; there they seized, inter alia, more than a pound of cocaine, as well as scales, plastic bags and other paraphernalia associated with the processing of narcotics for distribution.

A. The Suppression Hearing

All of the appellants moved to suppress the items seized on November 29; the Medinas also sought suppression of statements made by them in the course of the evening. The district court conducted some seven days of hearings on the motions. The government called as witnesses seven members of the Task Force: Marvin Siegel and Robert Palombo, Special Agents of the United States Drug Enforcement Agency ("DEA"); and Luis Ramos, William J. Frawley, John Heckmann, Patrick Skelly, and Vincent Palazzotto, officers of the New York Police Department assigned to the Task Force. Vasquez called two witnesses: Task Force member Anthony Jacaruso, and Dora Wright, the owner of the building at 633 Grand Street. None of the defendants testified. The following description is based on the testimony of the government's witnesses, unless otherwise indicated.

The events leading to the November 29, 1979, arrests had their genesis in March 1979 when members of the Task Force searched the apartment of suspected cocaine dealer Rubin Dario Valencia and seized a pound of cocaine, together with documents thought to be records of Valencia's narcotics operation. Among these documents were a customer list identifying "Amparo" as a purchaser of substantial amounts of cocaine and an address book listing Amparo's address and telephone number. Task Force agents therefore concluded that Amparo Medina, whom they later learned was Valencia's sister, was one of Valencia's major customers, and they began to monitor her activities.

As part of the ensuing investigation, on November 14, 1979, DEA agent Palombo was conducting a surveillance of an apartment building at 35-50 81st Street, Queens, known to be the residence of Eugenio Hurtado. At approximately 10:50 p. m. he observed Amparo and Fernando arrive at the intersection of 81st Street and 37th Avenue in a blue Chevrolet. Amparo parked, and Fernando got out and made a call from a telephone booth at the next corner; he then returned to the vehicle, and the Medinas proceeded to square the four-block area bounded by 80th and 83rd Streets, stopping to park at the corner of 80th Street and 35th Avenue. A few moments later Palombo saw Eugenio Hurtado, then empty-handed, enter the Medina vehicle, which proceeded back to Hurtado's building, where Hurtado got out and entered his building, carrying a white paper bag.

1. Afternoon and Early Evening Observations on November 29

On November 29, 1979 a team of Task Force agents established a surveillance at the Medinas' residence at 53-20 195th Street, Queens. At approximately 5:00 p. m. Amparo and a man later identified as Vasquez entered the Medinas' blue Chevrolet and proceeded first to Baxter Street, and then to the vicinity of 82nd Street and 37th Avenue, where they parked the car and went into a shoe store. When they left the shoe store they were followed by some of the Task Force members to Brooklyn, where at approximately 6:30 p. m. Frawley saw them enter the building at 633 Grand Street. This four-story building, which housed a store on the ground floor and one apartment on each of the other three floors, had not theretofore figured in Task Force investigations.

At approximately 6:45 p. m. Siegel observed Vasquez and Essau Correa enter the building together. At about 7:10, Amparo exited 633 Grand Street carrying a large handbag, got into her car and drove away. Jacaruso attempted unsuccessfully to follow Amparo, who was next seen, by other Task Force members, entering her home at approximately 7:35.

2. The Arrest of the Mesas

After Amparo left 633 Grand Street, Siegel and Heckmann remained and continued surveillance of the building from some 75-100 feet away. Heckmann observed that lights were visible only on the fourth floor. At approximately 8:00 p. m. Siegel and Heckmann saw the Mesas, whom they had never seen before, exit 633 Grand Street and enter a car parked in front of the building. After the Mesas got into their car the inside dome light was turned on, and they appeared to examine something inside the car for several minutes. The dome light was then turned off and the automobile was driven several blocks, with Siegel and Heckmann following some distance behind in Siegel's car. In those few blocks the Mesas' car, unimpeded by any traffic, stopped in mid-block at least three times for no apparent reason. Siegel considered such stops and starts a possible counter-surveillance effort, and during one of the pauses Heckmann saw Clara, the driver, look into the rear view mirror. Heckmann determined that their surveillance had been detected and the agents decided to stop the Mesas and interrogate them.

Immediately thereafter, when the Mesa car stopped behind another vehicle at a red light, Siegel stopped his car directly behind the Mesas' car and he and Heckmann got out and approached the Mesas' car. At

first Siegel did not have his gun drawn, and Heckmann had his gun in his right hand at his side. As Heckmann reached the front bumper of the agents' car, he saw Hernando open the passenger door of the Mesa car and, looking back at Heckmann, start to place a package under the car. As Heckmann hastened forward with shield and gun in hand, Hernando pulled the carton back into the car, closed and locked the door, and placed the carton under the front seat. Heckmann and Siegel identified themselves and asked the Mesas to get out of the car

Hernando continued to reach under the front seat, a position in which he remained for some 30-45 seconds while he talked to Clara, before complying with the officers' order. Based on his experience with prior narcotics investigations, Heckmann believed that Hernando might well have been armed and that he was groping for a gun. Accordingly, when Hernando finally stepped out of the car, Heckmann immediately reached under the seat. He removed an object which turned out to be half a Marlboro...