US v. Torres, S 87 Cr. 593 (JMW).

Citation683 F. Supp. 56
Decision Date30 March 1988
Docket NumberNo. S 87 Cr. 593 (JMW).,S 87 Cr. 593 (JMW).
PartiesUNITED STATES of America v. Victor TORRES, a/k/a "Victor Torres Lebron," George Torres, a/k/a "George Torres Lebron," Nelson Flores, Manuel Vasquez, a/k/a "Manny," Jesus Santiago, a/k/a "Chu," a/k/a "Chuito," Efraim Arcelay, a/k/a "Negro," Louis Rivera, Natalie Vasquez, a/k/a "Tita," Raymond Coffie, a/k/a "Meno," Fernando Padron, Dennis Rivera, Reginald Velez, a/k/a "Reggie," Rosa Flores, Pedro Cruz, Carlos Nunez, Efraim Quinones, Irene Quinones, a/k/a "Irene Montalvo," and Edwin Colon, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., Helen Gredd, Catherine Gallo, Asst. U.S. Attys., New York City, for plaintiff.

Gerald L. Shargel, New York City, for Victor Torres.

Michael Ross, New York City, for George Torres.

Gerald B. Lefcourt, New York City, for Nelson Flores.

MEMORANDUM AND ORDER

WALKER, District Judge:

Defendants Victor Torres, George Torres, and Nelson Flores have filed supplemental motions with this Court attacking the superseding indictment in which each is charged as a "principal" of a massive, multimillion dollar heroin distribution organization pursuant to 21 U.S.C. § 848(b) ("§ 848(b)").1 Defendants also seek a bill of particulars to supplement the indictment. For the reasons stated below, defendants' motions are denied. The Court will defer its decision on defendants' claim that § 848(b) unconstitutionally contravenes the Eighth Amendment until such time as that issue becomes justiciable.

STATUTORY FRAMEWORK

The continuing criminal enterprise provisions of Title 21 reflect Congress' desire to prescribe stiff penalties for those convicted of participating in large-scale drug enterprises. Originally, individuals convicted of engaging in certain narcotics offenses "in concert with five or more other persons with respect to whom such person occupies a position of organizer ... and from which such person obtains substantial income" faced a sentence ranging from a mandatory imprisonment of ten years to life without parole. The statute withstood several attacks alleging that it was violative of the Constitution. See, e.g., United States v. Manfredi, 488 F.2d 588, 602-3 (2d Cir.1973), cert. denied sub nom. La Cosa v. United States, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974) (vagueness attack rejected); United States v. Johnson, 537 F.2d 1170, 1175 (4th Cir.1976) (§ 848, as applied, not violative of the Ex Post Facto clause); United States v. Erwin, 793 F.2d 656, 668-69 (5th Cir.1986) (statute does not violate the Eighth Amendment).

In 1986, the statute was amended to provide for mandatory life imprisonment without parole if certain aggravating factors are present. According to § 848(b), as amended, an individual who is found to be a "principal administrator, organizer, or leader of the enterprise ... and the enterprise ... received $10 million dollars in gross receipts during any twelve-month period of its existence ..." faces the enhanced sentence of life imprisonment. §§ 848(b)(1) and (b)(2)(B) (emphasis added).2 Thus, Congress equipped law enforcement officials not only with § 848(a) but also with § 848(b) which was aimed at those heading large-scale CCEs. As far as we know, defendants' motion represents the first challenge to the constitutionality of § 848(b).

VAGUENESS AND ARBITRARINESS

Defendants contend that § 848(b) runs afoul of the Fifth Amendment because it is impermissibly vague and arbitrary. Defendants maintain that because § 848(b)(1) fails to define the terms therein and incorporates by reference other provisions of Title 21 the Court must find § 848(b) violative of the Fifth Amendment. Defendants' argument, however, is without merit.

The Court notes at the outset that vagueness challenges to criminal laws requiring specific intent are rarely successful in the Second Circuit. United States v. Hescorp, Heavy Equipment Sales Corp, 801 F.2d 70, 77 (2d Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 672, 93 L.Ed.2d 723 (1986); United States v. MacKenzie, 777 F.2d 811, 816 (2d Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 977 (1986). Such challenges have been largely unsuccessful because, as the Supreme Court stated, "a mind intent upon willful evasion is inconsistent with surprised innocence." United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 379, 86 L.Ed. 383 (1942). In other words, a party that engages in conduct with criminal intent should not be surprised that the proscribed behavior is subject to punishment.

In drafting statutes, Congress is not required to define all material terms. Rather, a penal statute will be upheld provided that it "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Furthermore, simply because Congress "might, without difficulty, have chosen `clearer and more precise language' equally capable of achieving the end which it sought does not mean that the regulations which it in fact drafted are unconstitutionally vague." United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 321, 46 L.Ed.2d 228 (1975) (citation omitted). Moreover, in evaluating this vagueness challenge, the Court is limited to the facts of the specific case; facial attacks of a statute for vagueness are only permitted in the First Amendment context. MacKenzie, 777 F.2d at 816; Manfredi, 488 F.2d at 603.

Given the foregoing standards, the Court concludes that § 848(b) is not unconstitutionally vague. Although the terms in the phrase "principal administrator, organizer or leader" are not defined, their meanings are easily understood and applied by ordinary individuals. The aim of the statute is to address the serious problem of large-scale drug enterprises in this nation. Through the use of the word "principal," Congress sufficiently indicated at whom the statute was targeted, and it is not the responsibility of this Court to draft more precise language. Thus, the Court rejects defendants' argument that there is no difference between §§ 848(a) and (b). Clearly, by inserting the word "principal" into § 848(b), Congress intended to create a subcategory within § 848(a) which is subject to greater punishment. In addition, the statute provides sufficient guidance to law enforcement officials so that arbitrary and wholly discretionary decision-making will be avoided. Kolender, 461 U.S. at 358, 103 S.Ct. at 1858. The discretion of law enforcement officials in prosecuting individuals under § 848(b) is successfully limited by the use of the word "principal."3

Defendants further contend that §§ 848(b)(2)(A) and (B) are arbitrarily drafted and thus are unconstitutional.4 However, defendants concede that "Congress may legislate by degrees."5 Indeed, when creating categories to address its concerns, the sole limit on Congress is that the categories established be rationally related to the intended purpose. United States v. Agilar, 779 F.2d 123, 125-26 (2d Cir.1985), cert. denied, 475 U.S. 1068, 106 S.Ct. 1385, 89 L.Ed.2d 609 (1986). Here, Congress sought to deter and punish those who head drug enterprises grossing more than $10 million dollars in any twelve month period by creating a severe penalty for such conduct. Although defendants are correct that Congress has selected an arbitrary dollar figure, the Court concludes that Congress acted rationally in fixing a cut-off point above which it wished to apply a severe punishment. It is not the province of this Court to re-draft legislation, especially since all lines are to some degree arbitrarily drawn and the statute at issue here rationally furthers the goal of deterring and punishing those heading large drug networks.

Accordingly, defendants' motion to dismiss the § 848(b) counts under the Fifth Amendment is denied.

VINDICTIVE PROSECUTION

Counsel for Flores argues that the government chose to indict him under § 848(b) for impermissible reasons, namely prosecutorial vindictiveness. Accordingly, Flores argues that the § 848(b) charge against him must be dropped from the superseding indictment. For the reasons stated below, this motion is denied.

Where the bringing of an indictment is motivated solely by the prosecutor's vindictiveness, it is subject to dismissal. However, in both United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), and Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed. 2d 604 (1978), the Supreme Court refused to create a presumption of vindictiveness to pretrial decisions to alter an indictment.6 Rather, the Court concluded that the criminal defendant must come forward with evidence sufficient to prove improper motivation. Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494.7 Accord, United States v. Khan, 787 F.2d 28, 30-3 (2d Cir.1986); United States v. Hinton, 703 F.2d 672, 678-79 (2d Cir.), cert. denied, 462 U.S. 1121, 103 S.Ct. 3091, 77 L.Ed.2d 1351 (1983). In this case, however, Flores has failed to meet this burden.

Flores argues that the government was insistent that he cooperate with the government as a condition to a plea to a lesser charge and that when he refused, the government impermissibly hit him with the heavy artillery of § 848(b). There is no showing, however, that the § 848(b) charge was brought in retaliation for Flores' refusal to cooperate or, indeed, for any reason other than to further the public interest. Moreover, the government is entitled to condition such a plea on whatever grounds it chooses so long as they are constitutionally permissible. Flores does not, and cannot, argue that it is unconstitutional to require cooperation with the government before such a plea will be accepted.

Flores further contends that because the government never indicated that he would be charged with a § 848(b) vi...

To continue reading

Request your trial
4 cases
  • US v. Schneiderman
    • United States
    • U.S. District Court — Southern District of New York
    • October 29, 1991
    ...definition can lead to the imposition of a penalty of life imprisonment without parole. See 21 U.S.C. § 848(b); United States v. Torres, 683 F.Supp. 56 (S.D.N.Y.1988). When Congress enacted its drug paraphernalia statute in 1986, it had an abundance of prior interpretations of paraphernalia......
  • U.S. v. Torres
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 3, 1990
    ...opinion. In the course of the litigation, the district court rendered two published opinions; a pretrial opinion, reported at 683 F.Supp. 56 (S.D.N.Y.1988), which denied motions by the Torres brothers and Flores attacking the charges against them under 21 U.S.C. Sec. 848(b) (1988) and seeki......
  • US v. Torres, 87 Cr. 593(JSR).
    • United States
    • U.S. District Court — Southern District of New York
    • December 28, 2009
    ...Torres, 901 F.2d at 214; see also id. at 246 ("we note that this is a pre-Sentencing Guidelines case"); United States v. Torres, 683 F.Supp. 56, 62 n. 9 (S.D.N.Y.1988) (order disposing of pretrial motions) ("The initial indictment alleges that the enterprise functioned up to the filing of t......
  • Williams v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...a federal court considered an attack upon the federal statute based upon the argument that it was unconstitutionally vague. Torres, 683 F.Supp. 56 (S.D.N.Y.1988), rev'd in part on other grounds, 901 F.2d 205 (2d Cir.1990) (Torres II ). In Torres, the defendants argued that the federal statu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT