U.S. v. Gonzalez

Decision Date09 January 1991
Docket NumberNo. 338,D,338
Citation922 F.2d 1044
PartiesUNITED STATES of America, Appellee, v. Hector GONZALEZ, Defendant-Appellant. ocket 90-1283.
CourtU.S. Court of Appeals — Second Circuit

Joel A. Brenner, East Northport, N.Y., for defendant-appellant.

Stephen C. Robinson, Asst. U.S. Atty. S.D. New York (Otto G. Obermaier, U.S. Atty., Debra Ann Livingston, Asst. U.S. Atty. S.D. New York, New York City, of counsel), for appellee.

Before CARDAMONE and MINER, Circuit Judges, and POLLACK, District Judge *.

CARDAMONE, Circuit Judge:

Hector Gonzalez appeals from a February 9, 1990 judgment of the United States District Court for the Southern District of New York (Ward, J.) following a jury trial that convicted him of tampering with--in this case murdering--an informant in violation of 18 U.S.C. Secs. 1512(a)(1)(C) and 1111 (1988). Gonzalez also appeals from an April 29, 1990 order which, as a result of the tampering conviction, sentenced him to life imprisonment without parole. On this appeal we are asked for the first time to determine whether such sentence imposed on the 21-year-old appellant is mandated by the statute under which he was convicted, and whether it is within the constitutional bounds of the Eighth Amendment that proscribes the infliction of cruel and unusual punishment. Crime and punishment, as Dostoevsky memorably linked these concepts, presents today as it always has a dilemma in the use of criminal sanctions: how egregious must an offense be before the law may inflict--save for a sentence of death--the most extreme kind of sanction? Our principal discussion therefore focuses on murder and the imposition of a life sentence without parole.

FACTS

In the spring and summer of 1989 the United States Attorney for the Southern District of New York and the U.S. Drug Enforcement Administration (DEA) conducted an investigation into a narcotics operation on the Lower East Side of Manhattan. On August 13, 1989 a confidential informant involved in the investigation, Felix Pichardo, was shot and killed in Brooklyn. The government arrested the defendant, Hector Gonzalez, and charged him with killing Pichardo to prevent him from giving information to the DEA regarding Gonzalez' narcotics activities.

The evidence at trial established that Pichardo had been arrested in 1988 for violation of federal narcotics laws, and subsequently agreed to plead guilty and cooperate by becoming a confidential informant for the DEA. Acting in that capacity, Pichardo arranged to purchase 700 grams of heroin on May 9, 1989 from David Delvalle and Nelson Arroyo, two men who were suspected of being involved in drug transactions with defendant Gonzalez, both of Meanwhile, several months earlier in February or March 1989, Gonzalez had a meeting with Maximo Nunez, a drug dealer he had met through Pichardo. Gonzalez told Nunez not to contact Pichardo about any more drug deals, but to deal directly with him because Pichardo was an informant and not to be trusted. He gave Nunez a beeper number where he could be reached. These two kept in touch with each other and during one of their conversations, Gonzalez told Nunez he intended to kill Pichardo.

                whom were later arrested in Manhattan and charged with conspiracy to sell heroin.  Pichardo was aiding federal officials as part of an on-going narcotics investigation focusing on 22 Jackson Street (Gonzalez' Manhattan residence).  When Delvalle, just freed on bail, was walking with his girlfriend and two family members toward his home on New York's Lower East Side, he saw Gonzalez passing by on a motorcycle and flagged him down.  Delvalle accused Gonzalez of setting him up;  Gonzalez denied it and told Delvalle that Pichardo was the informant, adding that he thought Pichardo had marked him (Gonzalez) to be arrested next and that he was afraid Pichardo would "rat him out."    Gonzalez then said he would kill Pichardo.  Over the next two months, Gonzalez repeatedly told Delvalle of his intention to kill Pichardo
                

Pablo Morales testified that he was with Pichardo on the day of the murder--August 13, 1989--when Pichardo's beeper sounded and Pichardo left him to place a telephone call. Records produced at trial show a telephone call from Gonzalez' home number to Pichardo's beeper number at 4:01 p.m. on August 13. Upon returning, Pichardo told Morales he was waiting for someone. A little later, Gonzalez and an unidentified man arrived in a Nissan Pathfinder automobile.

Gonzalez, who was wearing a black sweater, black pants, a gold chain, and a gold Rolex, told Pichardo and Morales to follow the Pathfinder in Pichardo's car, and led them to South Fifth Street between Hooper and Hewes Street, in Brooklyn, where they stopped. When Pichardo got out to speak with Gonzalez, Morales stayed in the car. Pichardo went to the trunk of his car, took out a brown paper bag, and returned to talk to Gonzalez. Pichardo then walked back towards the trunk of his car still holding the brown bag. As he was putting the bag back into the trunk, Gonzalez pulled out a gun and shot him in the back of the head. At that, Morales jumped from the car, fled to a neighborhood grocery store and hid in the bathroom. The storekeeper told Gonzalez--who was in pursuit--that Morales had gone out the back door.

Maximo Nunez also saw defendant that same day. He described him as dressed in dark clothing and running down Hooper Street, where he saw him push the driver of a Nissan Pathfinder into the passenger seat and then drive the Pathfinder quickly around the corner. A Pathfinder was found abandoned several blocks from the murder scene. The day after the murder, Nunez called Gonzalez and asked him if he knew what happened "in the south." Gonzalez said he knew "it" was going to happen, and told Nunez: "do not call anybody else. I am now number one."

Alex Rodriguez, a delivery man, stated he was riding as a passenger in his delivery truck around 6:30 p.m. the day of the murder. While stopped at a traffic light he saw a man running down the street, but did not get a good look at him. The driver of the truck said: "Look at the guy with the gun," and Rodriguez saw a man he identified at trial as Gonzalez running past the truck holding a gun. Rodriguez testified that he saw Gonzalez cross in front of the truck and pass the gun to a man on the corner. The man on the corner threw the gun across the street into a vacant lot, where the police later recovered it. A bullet fired from the gun matched the one recovered from Pichardo's body. Both Delvalle and Arroyo identified the gun the police recovered as belonging to Gonzalez, though a latent print on the gun was not his.

Dennis Goodman, an inmate at Otisville prison, where Gonzalez was detained after his arrest, testified that Gonzalez told him Upon the jury's returning a guilty verdict finding that Gonzalez had committed premeditated, first degree murder, he was sentenced to life imprisonment without parole. We affirm.

that he was in jail for murder, that he had made an appointment with an informant somewhere in Brooklyn, and that he had "hit" the informant in the head. Goodman said Gonzalez also told him that he had chased another man into a bodega (a store), and that he had carried a gun, but that it had been wiped clean of prints. Consistent with the descriptions given by Morales and Nunez, police testified that Gonzalez was wearing a gold chain with a medallion and a Rolex at the time of his arrest. These items, as well as $4,763 found on defendant at the time of his arrest, were admitted into evidence.

DISCUSSION
I Life Sentence Without Parole
A. Discretion under 18 U.S.C. Sec. 1111

Gonzalez contends the district court misread 18 U.S.C. Sec. 1111 as affording it no discretion and requiring it to impose a life sentence without parole. The district court's interpretation of its authority under the Sentencing Guidelines and Sec. 1111 presents a question of law that is reviewed de novo. See United States v. Lara, 905 F.2d 599, 602 (2d Cir.1990); United States v. Stroud, 893 F.2d 504, 506-07 (2d Cir.1990).

Section 1111 provides that, "[w]hoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto 'without capital punishment', in which event he shall be sentenced to imprisonment for life...." 18 U.S.C. Sec. 1111(b). Since the Supreme Court held the discretionary imposition of a death penalty unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), defendants convicted of first degree murder under Sec. 1111 have automatically been sentenced to life imprisonment. United States v. Donley, 878 F.2d 735, 739 n. 8 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990).

The issue posed is whether the passage of the Sentencing Reform Act of 1984, as amended, 18 U.S.C. Sec. 3551 et seq. (1988) and 28 U.S.C. Secs. 991-998 (1988), and the Sentencing Guidelines promulgated under that Act supersede the express terms of Sec. 1111, and confer discretion on the sentencing court to impose a lesser sentence. In urging this proposition Gonzalez points to the Commentary to Sec. 2A1.1 of the Guidelines--for which Sec. 1111 is the underlying statute--as evidence that the Sentencing Reform Act's abolition of parole does not mean that the only sentence a judge may impose under Sec. 1111 is life without parole.

The Commentary states that

1. The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for the "willful, deliberate, malicious, and premeditated killing" to which 18 U.S.C. Sec. 1111 applies. However, the same statute applies when death results from certain enumerated felonies--arson, escape, murder, kidnapping.... Life imprisonment is not necessarily appropriate in all such situations.

....

Background: The maximum penalty authorized by 18 U.S.C. Sec. 1111 for first-degree murder...

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