901 F.2d 205 (2nd Cir. 1990), 88-1455, United States v. Torres

Docket Nº:88-1455, 88-1460, 88-1475 and 88-1476.
Citation:901 F.2d 205
Party Name:UNITED STATES of America, Appellee, v. Victor TORRES, George Torres, Nelson Flores, Jesus Santiago, Louis Rivera, Natalie Vazquez, Fernando Padron, Dennis Rivera, Reginald Velez, Pedro Cruz, Efrain Arcelay and Raymond E. Coffie, Defendants-Appellants. Nos. 1244 to 1255, Dockets 88-1441, 88-1444 to 88-1450,
Case Date:April 03, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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901 F.2d 205 (2nd Cir. 1990)

UNITED STATES of America, Appellee,

v.

Victor TORRES, George Torres, Nelson Flores, Jesus Santiago,

Louis Rivera, Natalie Vazquez, Fernando Padron, Dennis

Rivera, Reginald Velez, Pedro Cruz, Efrain Arcelay and

Raymond E. Coffie, Defendants-Appellants.

Nos. 1244 to 1255, Dockets 88-1441, 88-1444 to 88-1450,

88-1455, 88-1460, 88-1475 and 88-1476.

United States Court of Appeals, Second Circuit

April 3, 1990

Argued June 20, 1989.

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Gerald L. Shargel (Alan S. Futerfas, Gail E. Laser, New York City, of counsel), for defendant-appellant Victor Torres.

Michael Ross (LaRossa, Mitchell & Ross, New York City, of counsel), for defendant-appellant George Torres.

Abraham L. Clott (The Legal Aid Society Federal Defenders Unit, New York City, of counsel), for defendant-appellant Nelson Flores.

Thomas D. White, New York City, for defendant-appellant Louis Rivera.

Maurice H. Sercarz, New York City, for defendant-appellant Natalie Vazquez.

Zoilo I. Silva, Elmhurst, N.Y., for defendant-appellant Dennis Rivera.

Thomas H. Nooter (Freeman, Nooter & Ginsberg, New York City, of counsel), for defendant-appellant Reginald Velez.

Roger Bennet Adler, New York City, for defendant-appellant Pedro Cruz.

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William Mogulescu, New York City, for defendant-appellant Efrain Arcelay.

Robert I. Lesser (McDonough, Marcus, Cohn & Tretter, New York City, of counsel), for defendant-appellant Raymond E. Coffie.

Robert L. Ellis, New York City, for defendant-appellant Jesus Santiago.

Michelle S. Jacobs, New York City, for defendant-appellant Fernando Padron.

Helen Gredd, Asst. U.S. Atty., S.D.N.Y. (Benito Romano, U.S. Atty., Celia Goldwag Barenholtz, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before MESKILL, PIERCE and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Appellants Victor Torres ("V. Torres"), George Torres ("G. Torres") (collectively the "Torres brothers"), Nelson Flores ("Flores"), Jesus Santiago ("Santiago"), Louis Rivera ("L. Rivera"), Natalie Vazquez ("N. Vazquez"), Fernando Padron ("Padron"), Dennis Rivera ("D. Rivera"), Reginald Velez ("Velez"), Pedro Cruz ("Cruz"), Efrain Arcelay ("Arcelay") and Raymond E. Coffie ("Coffie") appeal from judgments of conviction for various violations of the federal narcotics, firearm and tax laws entered, after a jury trial, in the United States District Court for the Southern District of New York, John M. Walker, Jr., Judge.

A thirty-two count indictment, S 87 Cr. 593, 1 filed on January 21, 1988, charged that the twelve appellants 2 were members of a multimillion dollar, street level heroin organization (the "Torres Organization" or the "Organization") which functioned primarily in the South Bronx. Count one charged all defendants with conspiring to distribute, and to possess with intent to distribute, more than a kilogram of heroin in violation of 21 U.S.C. Sec. 846 (1988). Counts two through four charged V. Torres, G. Torres and Flores, respectively, with operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848(a) and (b) (1988). Counts five through eleven charged various defendants with distributing heroin, or possessing heroin with the intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and related provisions. Counts twelve and thirteen charged Flores and D. Rivera with possession of cocaine with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and related provisions. Counts fourteen through eighteen charged various defendants with using and carrying a firearm in connection with drug trafficking in violation of 18 U.S.C. Sec. 924(c)(1) (1988). Counts nineteen and twenty charged Flores, and count twenty-one charged L. Rivera, with making apartments controlled by them available for the unlawful manufacture, distribution and storage of heroin in violation of 21 U.S.C. Sec. 856 (1988). Counts twenty-two through twenty-nine charged the Torres brothers with tax evasion for the years 1983 through 1986 in violation of 26 U.S.C. Sec. 7201 (1982). Counts thirty through thirty-two charged the Torres brothers, Flores and N. Vazquez, respectively, with obtaining specified property constituting and derived from proceeds of drug trafficking, and sought forfeiture of that property pursuant to 21 U.S.C. Sec. 853(a) (1988).

Following a jury trial, the appellants were convicted on a variety of counts, all of which (together with the sentences imposed) are summarized in the appendix attached to this 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

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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 parole mandated by section 848(b), and motions by these defendants and D. Rivera, Velez and Coffie for acquittal on one or more counts pursuant to Fed.R.Crim.P. 29(a), or, in the case of Flores and Coffie, a new trial pursuant to Fed.R.Crim.P. 33.

The claims on appeal are fully outlined in the discussion that follows. For the reasons set forth therein, we affirm the judgments of conviction, except that (1) we reverse the conviction of Velez on count fourteen for violation of 18 U.S.C. Sec. 924(c)(1) (1988); and (2) we vacate the convictions of the Torres brothers and Flores on counts two through four for violation of 21 U.S.C. Sec. 848(b) (1988), which mandates a sentence of life without parole, and remand for resentencing on these counts pursuant to 21 U.S.C. Sec. 848(a) (1988).

Background

The Torres Organization was a highly organized and extremely profitable heroin operation begun by the Torres brothers early in 1981 in the lower east side of Manhattan. Sometime early in the 1980's, the Torres brothers moved this operation into the south Bronx and began distributing the "Checkmate" brand of heroin, signified by the sketch of a chess piece--at times, the rook; at other times, the knight--which was stamped on each glassine envelope of heroin sold.

The Torres Organization purchased bulk quantities of unprocessed heroin, which were taken to a network of processing points, referred to as "mills," where the bulk quantities of heroin were "cut" or diluted and then packaged in glassine envelopes for street level distribution. Electronic surveillance revealed, for example, that the Torres organization conducted heroin milling operations at at least two locations in May and June of 1987. One was a vacant apartment in the south Bronx that had been rented by Flores. The other was a cooperative apartment in the same area owned by L. Rivera.

After the heroin was packaged in the glassine envelopes, the envelopes were repackaged in groups of ten known as "bundles." These bundles were then picked up by "runners" who delivered them to the managers of various street locations, where the sales were conducted. The proceeds of the sales were then returned to the overseers at the mills by the runners.

These transactions were recorded in ledgers. Each street manager was required to provide Flores daily with a slip of paper noting how much heroin had been received that day, how much had been sold, how much money had been deducted for expenses, and how much cash was being remitted with the slip. Flores would then enter the figures in a ledger, and tape the slip of paper over the part of the ledger page containing the entries for that location.

Some of these ledgers were seized in the course of arrests and searches on June 24, 1987 that effectively terminated the operations of the Torres Organization. One was found at Flores' apartment, another was found at Manuel Vazquez' apartment, and a third was found at 2700 Grand Concourse, an apartment leased by Flores. The three ledgers were primarily in Flores' handwriting, identical in appearance and format, and consecutive to one another with respect to the time periods covered, a four-month period ending with the defendants' arrest on June 24, 1987. The expenses reported on the manager's slips included payroll for "runners," "pitchers" and "lookouts," money spent for beepers, guns and bail, and losses arising from arrests, near-arrests (during which heroin was jettisoned) and stickups.

Many of the managers' slips included notes regarding operational matters, in addition to the numerical data. For example, one manager assured Flores in a March 29, 1987 slip: "Don't worry, I will do much better." Velez wrote to Flores on May 29, 1987, stating: "[M]aybe today we could have done more if we get it faster." Elsewhere

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in the ledgers, there is a note from Velez thanking "Nelson + Crew" for showing interest in a "problem" Velez was encountering; another explaining: "Nelson we had a bad day ... cops all over the place;" and still another stating: "Nelson look yesterday we had a bad day. My pitcher got caught. The other pitcher I put got beat up by the cops so today I had nobody to work until 2:30 p.m. so we're sorry for the bad day but we'll get it together." Similarly, Velez and other street managers sent Flores messages reminding him that he had authorized the taking of a cab, approved the deduction of a particular...

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