U.S. v. Giraldo

• Decision Date: 25 March 1996
• Docket Number: Nos. 872,1048,842,D,s. 872
• Citation: 80 F.3d 667
• Parties: UNITED STATES of America, Appellee, v. Gilberto GIRALDO, Andres Emilio Fermin, and Jose Angel Tellez, Defendants-Appellants. ockets 94-1713(L), 95-1005, 95-1382.
• Court: U.S. Court of Appeals — Second Circuit

Page 667

80 F.3d 667

UNITED STATES of America, Appellee, v. Gilberto GIRALDO, Andres Emilio Fermin, and Jose Angel Tellez, Defendants-Appellants.

Nos. 872, 1048, 842, Dockets 94-1713(L), 95-1005, 95-1382.

United States Court of Appeals Second Circuit.

Argued Jan. 17, 1996.

Decided March 25, 1996.

Appeals from judgments of the United States District Court for the Eastern District of New York, Denis R. Hurley, Judge, convicting defendants of narcotics offenses, 21 U.S.C. §§ 841(a)(1), 846, and firearms offenses, 18 U.S.C. §§ 922(g)(1), 924(a), 924(c).

Ilene Jaroslaw, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

B. Alan Seidler, Nyack, New York, for Defendant-Appellant Giraldo.

Harvey B. Baum, New York City, for Defendant-Appellant Fermin.

Jeffrey M. Cohn, New York City, for Defendant-Appellant Tellez.

Before: KEARSE, WALKER, and HEANEY ^*, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Gilberto Giraldo, Andres Emilio Fermin, and Jose Angel Tellez appeal from judgments of the United States District Court for the Eastern District of New York, Denis R. Hurley, Judge, convicting them of distributing and conspiring to distribute narcotics, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994), and 18 U.S.C. § 2 (1994); and of using or carrying a firearm during and in relation to narcotics trafficking, in violation of 18 U.S.C. § 924(c) (1988 & Supp. II 1990) and 18 U.S.C. § 2. Fermin was also convicted of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (1988 & Supp. II 1990). On the narcotics counts, Giraldo, Fermin, and Tellez were sentenced to prison terms of 188 months, 108 months, and 78 months, respectively; on the § 924(c) count of using or carrying a gun in connection with narcotics trafficking, each defendant was sentenced to 60 months' imprisonment, to be served consecutively to his prison term on the narcotics counts; each defendant's prison term was to be followed by a five-year term of supervised release.

On appeal, all three defendants principally challenge the sufficiency of the evidence to support their convictions under § 924(c), and Giraldo and Fermin challenge the sufficiency of the evidence to support their convictions on the narcotics counts. In light of the Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), we reverse the convictions of Giraldo and Tellez under § 924(c), and we remand for dismissal of those counts and for resentencing in light of the dismissals. In all other respects, we affirm.

I. BACKGROUND

The present prosecution centered on events that culminated in the arrests of Giraldo, Fermin, and Tellez at the scene of an attempted narcotics transaction in Hempstead, New York, in early 1994. The evidence at trial included testimony by law enforcement agents and by government informant Blaise Gibson, tape-recorded conversations, a videotape of the attempted transaction, narcotics, and a firearm found in the car in which defendants brought the narcotics. Viewed in the light most favorable to the government, the evidence included the following.

Gibson began selling drugs in the late 1980s and began to use Giraldo as his exclusive supplier in 1988 or 1989. Starting in 1989, he contacted Giraldo to make purchases at intervals of two weeks to two months. Giraldo usually delivered the drugs to Gibson in the parking lot of a "Wings 'N Things" restaurant in Hempstead. In November 1993, Gibson was arrested on federal narcotics charges, and he agreed to cooperate with the Federal Bureau of Investigations ("FBI") in an investigation of Giraldo.

In February 1994, acting on the instructions of FBI Special Agent Stuart McArthur, Gibson telephoned Giraldo from the Metropolitan Correctional Center in Manhattan. Gibson said he would be coming home soon and would have more business for Giraldo. On March 2, in a coded conversation explained by Gibson at trial, Giraldo agreed to sell Gibson two kilograms of cocaine for $45,000. Later that day, Giraldo called Gibson on his beeper; when Gibson returned the call, Giraldo informed him that the transaction would be delayed because delivery of the cocaine to Giraldo had been held up due to bad weather. Additional calls followed, in which Giraldo confirmed further delays. At 8:41 p.m. on March 3, Giraldo called to say that he was leaving right away to pick "it" up and indicated that he would page Gibson's beeper when Giraldo was 10 minutes away from Wings 'N Things.

When Gibson received the promised page, he was en route to meet McArthur and other law enforcement agents. The agents searched Gibson and his car and equipped him with a radio transmitter and a tape recorder. Gibson then proceeded to Wings 'N Things.

During the afternoon of March 3, law enforcement agents had observed Giraldo enter a building in Queens, New York. Shortly before 9:00 p.m., Giraldo emerged accompanied by Fermin. Both were empty-handed. They got into a two-door Pontiac Grand Prix (the "Pontiac") that was parked on the street, and, with Fermin driving, went to an indoor parking garage a few blocks away. After about five minutes, Giraldo and Fermin exited the garage in the Pontiac, with Tellez now in the back seat. The men drove to the Southern State Parkway and proceeded toward Hempstead. At about 9:30 p.m. they pulled into a rest area where Giraldo used a pay telephone for 15-20 seconds. Some 10 minutes later, defendants arrived at the Wings 'N Things parking lot. The Pontiac moved slowly through the parking lot; Gibson was not yet there, and the Pontiac left.

Seven or eight minutes later, Gibson arrived. After another 10-15 minutes, the Pontiac returned, still with Fermin at the wheel, Giraldo in the front passenger seat, and Tellez in the back. Gibson walked to the passenger side of the Pontiac; Giraldo opened the door and reached around behind him; Tellez removed from under the seat a large package which he gave to Giraldo; the package proved to contain two kilograms of cocaine. Giraldo handed the package to Gibson, who asked whether it was "one or two," to which Giraldo responded "two, number one material." He told Gibson to "hurry up," meaning that Gibson should quickly test the quality of the cocaine and return with the purchase money. Fermin, from the driver's seat, peered intently at Gibson during the transaction.

Gibson walked away, and defendants got out of the Pontiac. Gibson took off his hat as a signal to the agents, and moments later, defendants were placed under arrest. In searching Fermin, the agents found, inter alia, a wallet containing a vehicle registration and an insurance card for the Pontiac. These documents listed the owner of the Pontiac as one Miguel Zuluaga; however, the address shown for Zuluaga turned out to be only a "mail drop," and no such person was ever located.

In a later search of the Pontiac at police headquarters, a fully loaded and ready-to-fire semiautomatic 9-millimeter gun, with its serial number defaced, was found. The searching officer discovered the gun some 15 minutes into his search, after noticing that the change dish in the console between the two front seats seemed loose. He pulled up the change dish and saw the butt of a gun in the cavity below; the gun was not visible unless the dish was removed. The officer was able to lift the change dish out easily with one hand while sitting in the driver's seat.

Giraldo, Fermin, and Tellez were indicted on the narcotics and firearm charges described above, were convicted on all counts, and were sentenced as indicated above. These appeals followed.

II. DISCUSSION

On these appeals, defendants principally challenge the sufficiency of the evidence to support their convictions of using or carrying a firearm in violation of § 924(c). Giraldo

                and Fermin also contend that the evidence was insufficient to support their convictions of conspiracy to distribute narcotics;  and all defendants make various individual challenges to their convictions or sentences.   For the reasons below, we find merit only in some of the § 924(c) contentions
                

A. Sufficiency of the Evidence on the Narcotics Counts

Giraldo contends that his conspiracy conviction should be overturned because it was against the weight of the evidence. Fermin contends that the evidence showed only that he was present at the time Giraldo handed the cocaine to Gibson, not that he was guilty of conspiracy. Their contentions have no merit.

In order to prove a conspiracy, the government must present " 'some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it.' " United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir.1989) (quoting United States v. Gaviria, 740 F.2d 174, 183 (2d Cir.1984)). Both the existence of the conspiracy and a given defendant's participation in it with the requisite criminal intent may be established through circumstantial evidence. See, e.g., United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). Although a defendant's "mere presence" at the scene of a crime will not be enough to show that he was a member of the conspiracy, United States v. Soto, 716 F.2d 989, 991-92 (2d Cir.1983), his presence may establish his membership in the conspiracy if all of the circumstances considered together show that by his presence he meant to advance the goals of that conspiracy, see, e.g., United States v. Gordils, 982 F.2d 64, 71 (2d Cir.1992), cert. denied, 507 U.S. 1054,...