US v. Torres
| Decision Date | 23 September 1988 |
| Docket Number | No. S 87 Cr. 593 (JMW).,S 87 Cr. 593 (JMW). |
| Citation | 699 F. Supp. 419 |
| Parties | UNITED STATES of America, v. Victor TORRES, a/k/a "Victor Torres Lebron," Jorge Torres, a/k/a "Jorge Torres Lebron," Nelson Flores, Ray Coffie, a/k/a "Meno," Dennis Rivera, Reginald Velez, a/k/a "Reggie," et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Gerald Shargel, New York City, for Victor Torres.
Eli Cohen, Robert I. Lesser, New York City, for Ray Coffie.
Helen Gredd, Catherine Gallo, Asst. U.S. Attys., for the Government.
Gary Becker, Gerald Lefcourt, New York City, for Nelson Flores.
Thomas Nooter, Freeman, Nooter & Ginsberg, New York City, for Reginald Velez.
William Mogulescu, Lewinson Mogulescu & Kaplan, New York City, for Efrain Arcelay.
Robert Ellis, New York City, for Jesus Santiago.
Thomas White, New York City, for Louis Rivera.
Michael Ross, LaRossa, Mitchell & Ross, New York City, for Jorge Torres.
Michelle Jacobs, New York City, for Fernando Padron.
Zoilo P. Silva, College Point, N.Y., for Dennis Rivera.
Maurice Sercarz, Sercarz, Schecter & Lopez, Brooklyn, N.Y., for Natalie Vazquez.
Jack Lipson, New York City, for Rosa Flores.
Roger Adler, New York City, for Pedro Cruz.
Benicio Sanchez, Puerto Rico, for George & Victor Torres.
This narcotics case was tried to a jury over 33 trial days and resulted in guilty verdicts on July 6, 1988, as to 12 defendants. Before the Court are post-trial motions of six defendants: Victor Torres, Jorge Torres, Nelson Flores, Ray Coffie, Dennis Rivera, and Reginald Velez. For the reasons stated below, all the motions are denied.
The motions may be divided into two categories. First, in what the Court believes to be an issue of first impression in this Circuit, defendants Victor Torres, Jorge Torres, and Nelson Flores claim that the mandatory sentence of life imprisonment without parole, mandated by 21 U.S. C. § 848(b), violates the Eighth Amendment's ban against cruel and unusual punishment and violates the due process clause of the Fifth Amendment. Second, defendants Victor Torres, Jorge Torres, Nelson Flores, Ray Coffie, Dennis Rivera, and Reginald Velez move for acquittal on one or more counts pursuant to Fed.R.Crim.P. 29(a); in the alternative, defendants Nelson Flores and Ray Coffie also move for a new trial under Fed.R.Crim.P. 33. These motions will be addressed in turn.
Constitutionality of Sentence Under 21 U.S.C. § 848(b)1
Victor Torres, Jorge Torres, and Nelson Flores challenge the constitutionality of the sentence imposed under 21 U.S.C. § 848(b). Specifically, they contend that life imprisonment without the possibility of parole violates the Eighth Amendment to the Constitution. These defendants also argue that the sentence, as applied to them, violates the due process clause of the Fifth Amendment. After careful consideration of these issues, the Court denies the defendants' motions.
The Eighth Amendment proscribes "cruel and unusual punishment."2 The Supreme Court has held that the Eighth Amendment is infringed only when the penalty is "grossly disproportionate to the severity of the crime." The Court has also emphasized that when cases other than those involving the death penalty are considered, holdings of unconstitutionality "have been exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 271-72, 100 S.Ct. 1133, 1137-38, 63 L.Ed.2d 382 (1980); Solem v. Helm, 463 U.S. 277, 284-290, 103 S.Ct. 3001, 3006-3010, 77 L.Ed.2d 637 (1983). It is true, as defendants contend, that the principle of proportionality is applicable to prison terms. Solem, 463 U.S. at 288-90, 103 S.Ct. at 3008-10. Nevertheless, this Court is convinced that this case in not one of those "exceedingly rare" instances in which the penalty is "grossly disproportionate" to the crime committed.
In its recent opinion of Solem v. Helm, the Supreme Court enunciated several factors that a court should consider in determining whether a sentence of imprisonment violates the Eighth Amendment. Paramount among those concerns is the "gravity of the offense and the harshness of the penalty." Id. at 290-91, 103 S.Ct. at 3009-10. The Court also suggested two other areas of inquiry that courts may find instructive in assessing the constitutionality of a prison term: a comparison to both the "sentences imposed on other criminals in the same jurisdiction" and "the sentences imposed for commission of the same crime in other jurisdictions."3 Id. at 291-92, 103 S.Ct. at 3010-11. The Court emphasized that objective factors must be employed in the analysis lest the judiciary improperly intrude on the role of the legislative branch, and reviewing courts were instructed to "grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes ..." Id. at 290, 103 S.Ct. at 3009.
Thus, any determination of the constitutionality of the sentence mandated by § 848(b) must begin with an analysis of the offense committed. To have convicted the defendants in this case of violating 21 U.S. C. § 848(b), the jury was required to find beyond a reasonable doubt as to each defendant that the government had proved each of the following elements: 1) that the defendant was a member of the conspiracy charged in the indictment; 2) that the conspiracy was part of a series of three or more offenses committed by the defendant in violation of the federal narcotics laws; 3) that the defendant committed the series of violations with five or more persons; 4) that the defendant obtained substantial income or resources from the series of violations; 5) that the defendant acted as a "principal administrator, organizer, or leader" of the criminal enterprise; and 6) that the enterprise received at least $10 million in gross receipts from the sale of heroin during the period from June 24, 1986, to June 23, 1987.
Before even examining the facts of this case, it is evident that to be subject to the sentence imposed by § 848(b) the defendants here had to have been engaged in extremely serious wrongdoing of a continuous nature. The statute in this case could not be more different than that successfully challenged in Solem. There a recidivist and chronic alcoholic was sentenced to life imprisonment without parole for passing a bad check and other nonviolent felonies. Unlike Solem, the statute at issue here does not involve "minor criminal conduct." Id. at 303, 103 S.Ct. at 3016. Rather, the challenged statute is aimed at combatting the devastating effect that the use of illegal narcotics is having on our society. To achieve this result, Congress has chosen to punish those at the top of extraordinarily successful continuing criminal enterprises with life imprisonment without parole. The purposes of imposing this penalty are evident: To deter individuals from heading such enterprises and to ensure that once convicted, such persons are never again given the opportunity to recommence their illegal activities. The overarching goal, of course, is to limit the available supply of illicit narcotics. The Second Circuit has repeatedly recognized the severity of the drug problem in this nation and has not hesitated to uphold severe sentences for defendants convicted of drug-related crimes. See, e.g., Carmona v. Ward, 576 F.2d 405 (2d Cir.1978), cert. denied 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979).
The enormity of the offense committed by the defendants as well as the harm they visited upon their neighborhood become even clearer when the extensive evidence admitted at trial is reviewed in accordance with the analysis. In performing this analysis, the Court is guided by the inquiry performed by the Supreme Court in Solem. Id., 463 U.S. at pp. 293-94, 103 S.Ct. at pp. 3011-12. The enterprise which the defendants headed was remarkably sophisticated. The organization operated several heroin mills, including one that functioned out of Flores' apartment, where workers would cut the heroin to the desirable purity, measure it and package it into glassine envelopes, so-called "dime bags," which were then bundled into groups of ten and held together by a rubber band. Each day, at many locations in the South Bronx, "street managers" were given a quantity of heroin to distribute to street salesmen. The enterprise branded its heroin by stamping each bag for easy recognition on the street. Telephonic communication among the workers in the enterprise was facilitated by the use of beepers.
The goal of this enterprise was the accumulation of wealth. Careful book-keeping was a hallmark of the enterprise. The three ledgers admitted into evidence at trial established that from February 25, 1987, to June 24, 1987, sales exceeded $4.6 million. Average sales were $40,000 or 4,000 "dime bags" per day. Sales climbed as high as $90,000 in one day. By the time the Torres brothers were arrested, they had amassed an empire based on heroin proceeds. They owned a multi-million dollar shopping center, bowling alleys, three gas stations, seven homes, fine jewelry including one woman's ring with a four carat diamond worth $17,000, a yacht and several sports cars including a $156,000 Lamborghini. In addition, more than $500,000 in cash and bank checks was seized from the Torres brothers at the time of their arrest.
The intercepted telephone conversations revealed that Nelson Flores applied his considerable managerial skills in running the day-to-day operations of the enterprise. In the nature of a chief operating officer, he coordinated the wholesale purchase of heroin, managed the workers at the mills, distributed the heroin to the street managers, and maintained the books for the organization. The police recovered more than $100,000 in cash from Flores' apartment. Several hundred thousand dollars worth of pure heroin was recovered from apartments controlled by Flores. There was evidence that, in one day, he structured,...
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U.S. v. Torres
...charges against them under 21 U.S.C. Sec. 848(b) (1988) and seeking a bill of particulars; and a posttrial opinion, reported at 699 F.Supp. 419 (S.D.N.Y.1988), denying motions by the Torres brothers and Flores attacking the constitutionality of the sentence of life imprisonment without paro......