U.S. v. Villegas
| Decision Date | 27 March 1990 |
| Docket Number | 571,484,478,Nos. 477,500,480,481,479,s. 477 |
| Citation | 899 F.2d 1324 |
| Parties | UNITED STATES of America, Appellee, v. Ricardo VILLEGAS, Carlos Gomez-Sanchez, Cesar Garcia-Marin, Pedro Jaramaillo, Jaime Cortez, Johana Torrez, John Berrio, Meliton Valbuena, Harold Gomez, Martin Bolivar, Heriberto Torrez, Defendants-Appellants. to 483 and 508, Dockets 89-1089, 89-1090 and 89-1092 to 89-1100. |
| Court | U.S. Court of Appeals — Second Circuit |
David R. Homer, Asst. U.S. Atty., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., on the brief), for appellee.
Dennis B. Schlenker, Albany, N.Y. (Feit & Schlenker, Albany, N.Y., on the brief), for defendant-appellant Ricardo Villegas.
Thomas J. Spargo, Albany, N.Y., for defendant-appellant Carlos Gomez-Sanchez.
David A. Lewis, New York City (The Legal Aid Society, Federal Defender Services Appeals Unit, New York City, on the brief), for defendant-appellant Cesar Garcia-Marin.
Matthew J. Kelly, Albany, N.Y. (Roemer Featherstonhaugh, Albany, N.Y., on the brief), for defendant-appellant Pedro Jaramaillo.
Stephen W. Herrick, Albany, N.Y., for defendant-appellant Jaime Cortez, joined the arguments of defendant-appellant Villegas, et al.
Fernande Rossetti, Albany, N.Y., for defendant-appellant Johana Torrez.
Elena C. Vaida, Albany, N.Y., for defendant-appellant John Berrio.
Gaspar M. Castillo, Jr., Albany, N.Y., for defendant-appellant Meliton Valbuena.
Richard L. Mott, Albany, N.Y., for defendant-appellant Harold Gomez.
Stanley B. Segal, Albany, N.Y. (Segal, Sherrin & Glasel, Albany, N.Y., of counsel), submitted a brief for defendant-appellant Martin Bolivar.
Terence L. Kindlon, Albany, N.Y., submitted a brief for defendant-appellant Heriberto Torrez.
Before KEARSE, ALTIMARI, and MAHONEY, Circuit Judges.
Defendants Ricardo Villegas, Carlos Gomez-Sanchez ("Gomez-Sanchez"), Cesar Garcia-Marin ("Garcia"), Pedro Jaramaillo, Jaime Cortez, Johana Torrez, John Berrio, Meliton Valbuena, Harold Gomez ("Gomez"), Martin Bolivar, and Heriberto Torrez appeal from final judgments entered in the United States District Court for the Northern District of New York, after a jury trial before Con. G. Cholakis, Judge, convicting each of them on one count of conspiracy to manufacture and distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1988); and one count of possession of cocaine base with intent to manufacture cocaine, one count of possession of cocaine with intent to distribute, and one count of manufacture of cocaine, all in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Each defendant was sentenced to concurrent terms of imprisonment on each of the four counts as follows: Heriberto Torrez 25 years; Villegas 20 years; Garcia, Johana Torrez, and Bolivar 13 years; and the remaining defendants 10 years.
On appeal, defendants raise numerous claims of error. Villegas, Cortez, and Berrio contend that evidence against them should have been suppressed because it was the product of a search warrant that violated their rights under the Fourth Amendment to the Constitution. Villegas also challenges the district court's ruling that he was competent to stand trial; Berrio challenges the court's preclusion of his defense of duress. Other contentions include arguments by Villegas, Johana Torrez, Berrio, Bolivar, and Heriberto Torrez that the district court erred in denying their motions to sever their trials from the trial of their codefendants, and challenges by Gomez-Sanchez, Jaramaillo, Johana Torrez, Valbuena, and Heriberto Torrez to the sufficiency of the evidence to support their convictions. For the reasons below, we reject all of defendants' contentions and affirm the judgments of conviction.
The present prosecution arises out of the investigation of a suspected cocaine manufacturing operation in Herkimer County, in the Northern District of New York. The 11 defendants were arrested on July 14, 1987, at a farm at which massive amounts of cocaine and cocaine manufacturing materials were found.
In 1985, Villegas, a Colombian native who had been employed full-time since 1968 as a custodian at a New York City hospital at an annual salary of less than $18,000, went shopping for a farm. In early 1986, in the name of B & V Village Farms, Inc., Villegas bought a 377-acre dairy farm on Johnnycake Road in Herkimer County ("Johnnycake farm"). Villegas paid the $310,000 purchase price in several installments, consisting of cash and checks; there was no mortgage. At one meeting with the sellers, Villegas paid them $11,000 in cash pulled from his parka.
Soon after Villegas took possession of the premises, local residents, including During the period April 1985 to May 1987, local agents of the United States Drug Enforcement Administration ("DEA") ferreted out three operating cocaine factories on farm-type properties in the Northern District of New York. These properties had been purchased by natives of Colombia, with title placed in the names of nominal individuals or entities; two were purchased for cash without mortgages, and one was financed with a private mortgage; some of the persons associated with the operations lived or worked in the New York City area; the factory equipment included plastic barrels; the operations involved the importation of workers and materials at irregular times.
some hired by Villegas to tend the farm, began noticing a number of unusual occurrences at the farm, including arrivals and departures of rental trucks; arrivals of large numbers of Hispanic men, women, and children, with the men remaining at the farm for three or four weeks; in the garage, large numbers of grey rubber trash barrels ("[m]aybe 75"), though only three were needed at any one time for farming operations; and unusual smells not associated with farming.
In April 1987, a confidential informant advised a DEA agent that there was an operational cocaine factory located approximately 25 minutes from Utica, New York. The informant stated that the factory was being operated by a person named Ricardo, who transported chemicals to the farm in a red Ford van, and whose New York City telephone number was (718) 805-2872. Investigation revealed that that telephone number, which was unlisted, belonged to Villegas; further investigation revealed that Villegas had subscribed to telephone service for the Johnnycake farm, which was less than a 30-minute drive from Utica. Toll records showed, inter alia, that calls had been made (1) from Villegas's New York City number to (a) a telephone number used by a person believed to control a cocaine distribution organization, (b) the business number of a person suspected of smuggling cocaine paste into the United States from South America; and (2) from Johnnycake farm to a number used by a suspected purchaser of chemicals used in cocaine factories.
The agents learned of Villegas's purchase of the farm for cash and checks. They attempted to observe the goings-on at the farm by driving past it. On one drive-by, they saw a red vehicle similar to that described by the informant. On another drive-by they saw a stack of plastic garbage cans of the type known to be used in clandestine cocaine factories and a black 55-gallon drum of the type known to contain ether.
On May 12, 1987, the agents applied for a warrant to search the Johnnycake farm premises. The affidavit of Special Agent Ulises R. Delgado, submitted in support of the application, included a recitation of the above information known to the agents. It also stated, inter alia, that covert physical surveillance of the premises was difficult by reason of the farm's remote location, that pen register surveillance revealed only infrequent use of the farm telephone, that there was no informant who could infiltrate the operation, and that numerous coconspirators remained to be identified. Accordingly, the Delgado affidavit stated that the agents did not wish to seize the evidence believed to be on the premises; rather, the agents requested authorization to conduct a search, at any time in the day or night, in order "to take photographs but not physically to seize any tangible items of evidence at this time." The agents also requested permission to postpone giving Villegas notice of the search for seven days, or for a longer period if the period were extended by the court.
Judge Cholakis signed the search warrant, as requested, on May 12 ("May 12 warrant"), and it was executed on May 13. The agents entered the premises late at night when no one else was present. They observed that "[t]he place looked like a camp when you close it down for the winter," with few dishes in the kitchen, no clothes in the closets, and no linen on the beds or in any of the drawers. In the basement, the agents observed a stack of 10 to 15 plastic garbage cans, a multi-gallon container containing a greenish substance The agents seized nothing tangible but took photographs of various parts of the house, the garage, and their contents. The agents did not leave a copy of the May 12 warrant at the house, and thereafter they repeatedly sought extensions, eight in all, to allow them to continue the investigation without alerting the targets. In support of each request, they filed an affidavit reporting on the progress of the investigation and explaining the need for the additional delay. The extensions were granted, authorizing delay of service of notice through July 15.
and a large hydraulic press of the type used in other laboratories for compacting finished cocaine for packaging, storage, and transportation. In the garage, were, inter alia, 40-50 more plastic garbage cans; a large ceramic pot in which there was a white powdery residue; several empty 55- and 30-gallon drums of a type known to be used for ether and acetone, which are necessary to the manufacture of cocaine; a rack for drying cocaine, consisting...
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