U.S. v. Perrone
| Decision Date | 13 June 1991 |
| Docket Number | Nos. 1421,1386,D,s. 1421 |
| Citation | 936 F.2d 1403 |
| Parties | UNITED STATES of America, Appellee, v. Antonio PERRONE, Ramon Emilio Gomez and Israel Perez, Defendants, Antonio Perrone and Ramon Emilio Gomez, Defendants-Appellants. ockets 90-1630, 90-1669. |
| Court | U.S. Court of Appeals — Second Circuit |
Robin W. Morey, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Daniel C. Richman, Asst. U.S. Atty., New York City, of counsel), for appellee.
Vivian Shevitz, New York City (Georgia J. Hinde, New York City, of counsel), for defendant-appellant Gomez.
Melvin K. Roth, Mineola, N.Y., for defendant-appellant Perrone.
Before LUMBARD and CARDAMONE, Circuit Judges, and LASKER, District Judge. *
Ramon Emilio Gomez and Antonio Perrone appeal from their convictions of one count of participating in a narcotics manufacturing conspiracy in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988) and of a second count of possession of "listed chemicals" (acetone and ether) with an intent, or knowledge, or reasonable cause to believe that the chemicals would be used to manufacture cocaine, in violation of 21 U.S.C. Secs. 802(33), 802(35), 812, 841(a)(1), 841(d)(1), 841(d)(2) (1988) and 18 U.S.C. Sec. 2 (1988). Although no cocaine was seized at the time of their arrest, Gomez and Perrone were sentenced respectively to 126 and 140 months' incarceration and additional supervised release on the assumption, derived from the amount of cocaine that theoretically could have been refined using the chemicals at their disposal, that the object of their conspiracy was to refine over five kilograms of cocaine.
Gomez challenges his conviction as based upon insufficient evidence. Perrone challenges his conviction as supported by improperly admitted expert testimony concerning the "typical" practices of drug traffickers, as well as by the allegedly improper use of and prosecutor comment on statements he made during plea bargaining discussions with the United States Attorney's office. Perrone also challenges his conviction on the theory that his motion to suppress the chemicals and the items seized from Apartment 51 of 517 West 135th Street in Manhattan should have been granted. Both Perrone and Gomez also challenge the calculation of their sentences.
We reverse the conviction of Gomez as not supported by sufficient evidence. We affirm Perrone's conviction as to Count 2, but for reasons discussed below vacate as to Count 1 and remand the case for resentencing consistent with this opinion.
Deciding all factual inferences in the government's favor, the jury could have found the following facts.
On the morning of January 9, 1990, Drug Enforcement Administration (DEA) agents conducted surveillance of a chemical company in Mount Vernon, New York. The agents observed Gomez, Perrone and Israel Perez arrive in two vehicles, enter the chemical company, emerge five minutes later with prominently labelled boxes containing 32 gallons of acetone and four five-gallon drums, also clearly marked, of ethyl ether, and load the chemicals into a brown van. Perrone drove the van away with The agents followed the two vehicles, which periodically accelerated and slowed while on the Cross Bronx Expressway. The vehicles eventually were parked in a garage between 520 and 536 West 135th Street in Manhattan. Perrone and Gomez entered a store run by Perrone's family (and where Gomez was employed) at 501 West 135th Street ("the bodega"). They spent the day partly at the bodega and partly in an apartment building at 517 West 135th, at which Gomez changed clothes on one occasion. Just after 4:00 p.m., Perrone drove the Toyota, with Perrone following in the van, out of the garage and down the block in an uneven, halting and apparently evasive manner. Perrone, with Gomez still following, then made a U-turn and parked in front of the apartment building at 517 West 135th, across the street from the garage from which they had emerged.
Gomez as his passenger, and Perez drove away in the Toyota in which he had arrived.
Once the vehicles were parked, Perrone, Gomez and two others unloaded the acetone. Perrone and the others brought the acetone into the apartment building while Gomez remained outside. Perrone emerged with black plastic trash bags, which Gomez placed over the drums of ether as he unloaded them. The others carried the ether into the building. The van was unloaded within five minutes, after which DEA agents arrested those involved as they began to depart.
Perrone was arrested as he started to leave in the Toyota. He had some keys in his pocket and had a beeper. Gomez was observed outside the bodega by an agent, who followed him into the bodega and placed him under arrest. Upon the agent's approach, Gomez protested that he had been working at the store all day. He also told the agent he lived in a first floor apartment at 517 West 135th.
Following the arrests, the agents sought warrants to search Apartment 51, the store, the Toyota and the van. The agents entered the apartment before receiving any warrant, observed the chemicals within and conducted a "protective search," which was made known to the Magistrate Judge who issued the warrant. Additionally, the Magistrate Judge was informed that the van used to transport the chemicals was registered to Apartment 51 and that Consolidated Edison listed the apartment's telephone contact to be the telephone number at Perrone's bodega. Based on this information, a warrant was issued after the agents' initial search of the apartment. From the apartment, the agents seized items including the chemicals unloaded by the defendants, a coat they believed Gomez had worn earlier that day, papers belonging to Perrone, Perrone's wallet, and a large bag containing several items typically used in cocaine processing, including an Ohaus triple-beam balance scale, some laboratory glassware, aluminum foil, plastic bags, duct tape, knives and two canisters of a type used to form cocaine bricks. Among the papers seized were two photographs of people including Gomez at a New Year's party at the bodega. The apartment also contained a handgun-cleaning kit, ammunition, and walkie-talkies, although no gun was found and the only gun associated with any of the defendants belonged to Perrone's brother, was legally registered, and was kept at his family's bodega. No cocaine, money, or weapons were found in the apartment, and none of the items seized was tied to Gomez, with the possible exception of the coat which an agent stated Gomez had worn earlier that day and the photographs of party scenes including Gomez. A "recipe", or list of items needed for cocaine refining, was found in Perrone's wallet. Judge Stanton instructed the jury not to consider items taken from Perrone as evidence against Gomez.
No items of consequence were discovered in searches of the van, the Toyota, or the bodega.
Perrone testified in his own defense. He stated that his family rented Apartment 51, and that he and his brother used it as a place to "hang out," but not as a primary residence. He testified that on January 2, 1990, one Jose Miguel Santiago offered to On cross-examination, Perrone acknowledged having attended three proffer sessions at the United States Attorney's Office in an attempt to cooperate with the Government. He denied repeatedly that he made certain incriminating admissions during those sessions, although he did acknowledge offering to assist the DEA by setting up a multi-kilogram sale of cocaine.
pay Perrone, Gomez and Perez a few hundred dollars to pick up boxes in Mount Vernon, a task whose purpose Perrone on cross-examination conceded to be "suspicious." Perrone testified further that Santiago at that time gave Perrone the bag containing the items later found in Apartment 51, as well as the address of the Mount Vernon chemical company, the list of items to be acquired, and the plastic trash bags that later were placed over some of the chemical containers while they were being unloaded
Gomez presented three witnesses in his defense. His sister testified that their brother Ramon Miguel lived at 517 West 135th and that Gomez sometimes stayed overnight there. Gomez's sister-in-law, Juana Gomez, testified that on January 9 Gomez came to her first-floor apartment, bathed, changed clothes, ate lunch, played with her children and left. Another witness stated that he had planned to meet Gomez that afternoon to lend him money, but cancelled the meeting because he failed to obtain the funds.
In rebuttal, the government offered the testimony of a DEA agent that Gomez told him his brother Ramon Miguel lived with Gomez on 148th Street. Another agent testified as to the three proffer sessions which he attended with Perrone. The agent testified that initially Perrone claimed to have obtained the chemicals elsewhere, but that in subsequent meetings he acknowledged acquiring them in Mount Vernon with Gomez and Perez. According to the agent, Perrone also stated in the proffer sessions that their acquisition of the chemicals was at the behest of one Santiago, whom Perrone knew to be involved with drugs, and that Santiago was expected to bring the drugs to their apartment that evening for refining. Finally, the agent testified that at the final proffer meeting Perrone offered to arrange a "multi-kilo" sale of cocaine to DEA agents.
Gomez called one rebuttal witness, his brother Ramon Miguel Gomez, who testified to explain inconsistent testimony about his address. Ramon Gomez stated that on January 9, 1990, he and his wife were separated, and he was living on 148th Street while his wife and children remained on 135th. He expressed his belief that his sister during her testimony had forgotten that he and his wife had been separated on January 9, 1990.
Based on this evidence, the jury convicted Perrone and Gomez June 15, 1990 following a five-day trial.
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