U.S. v. Liranzo

• Decision Date: 05 September 1991
• Docket Number: D,1693,Nos. 1692,s. 1692
• Citation: 944 F.2d 73
• Parties: UNITED STATES of America, Appellee, v. Juan LIRANZO, also known as Frank, Rafael Gutierrez, Felix Guzman, and Francisco Garcia, Defendants, Juan Liranzo, also known as Frank, and Francisco Garcia, Defendants-Appellants. ockets 90-1675, 91-1060.
• Court: U.S. Court of Appeals — Second Circuit

Page 73

944 F.2d 73

UNITED STATES of America, Appellee, v. Juan LIRANZO, also known as Frank, Rafael Gutierrez, Felix Guzman, and Francisco Garcia, Defendants Juan Liranzo, also known as Frank, and Francisco Garcia Defendants-Appellants.

Nos. 1692, 1693, Dockets 90-1675, 91-1060.

United States Court of Appeals Second Circuit.

Argued June 7, 1991.

Decided Sept. 5, 1991.

Eugene B. Nathanson, Brooklyn, N.Y. (Howard R. Leader, New York City, of counsel), for defendant-appellant Liranzo.

Jeremy Gutman, New York City (John H. Jacobs, of counsel), for defendant-appellant Garcia.

Robert W. Ray, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Samuel W. Seymour, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellee.

Before OAKES, Chief Judge, and PRATT and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendants-appellants Juan Liranzo and Francisco Garcia appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Robert J. Ward, Judge ). The underlying superceding indictment charged the defendants in Count One with conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846, and in Count Two with distribution and possession with the intent to distribute approximately 1,300 grams of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 845a(a), and 18 U.S.C. § 2. Following an eight-day jury trial, Liranzo and Garcia, together with co-defendants Rafael Gutierrez and Felix Guzman, were convicted on both counts.

On appeal, Liranzo claims that the district court erred by failing to conduct an evidentiary hearing regarding the government's alleged breach of a Proffer Agreement it had entered into with Liranzo. Garcia does not challenge his conviction, but contends that the district court erred in For the reasons set forth below, we affirm the judgment of conviction as to Liranzo, but vacate the sentence of Garcia and remand for further proceedings.

finding him to be a "career offender" pursuant to Sections 4B1.1 and 4B1.2 of the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines").

BACKGROUND

The government's evidence at trial showed that in late 1989, Edison Ibarra, an informant for the Drug Enforcement Administration ("DEA"), was introduced to defendant Gutierrez, who had been identified as a broker for the sale of kilogram quantities of cocaine. In a series of meetings in New York, and at Ibarra's home in Massachusetts, Gutierrez and Ibarra discussed the potential sale to Ibarra of two kilograms of cocaine. Ibarra also spoke with Gutierrez several times by phone regarding the proposed sale, and eventually gave Gutierrez his beeper number. During these phone conversations, Ibarra also spoke with an individual identified as "Frank."

On April 2, 1990, Ibarra traveled to New York. Gutierrez contacted him via the beeper and the two arranged to meet at 105th Street and Broadway to complete the transaction. In an afternoon meeting, which was observed by DEA agents, Gutierrez arrived in a white Lincoln Continental, accompanied by "Frank," who was later identified as defendant-appellant Liranzo. Gutierrez told Ibarra that he needed more time to obtain the cocaine. A second meeting conducted a few hours later yielded similar results.

Later that afternoon, Ibarra received another "beeper" call from Gutierrez. Gutierrez told Ibarra that he was ready to proceed with the deal, and the two arranged a third meeting at 105th Street and Broadway. During this call, Ibarra also spoke with another individual, identified at trial as defendant Guzman. Guzman, whom Gutierrez referred to as the "owner" of the cocaine, agreed to complete the deal at the Broadway location. Thereafter, under the surveillance of DEA agents, Ibarra met with Gutierrez and Liranzo. Gutierrez introduced Liranzo as "Frank." The trio then entered Ibarra's car, and Liranzo handed Ibarra a package containing 300 grams of cocaine. Ibarra said that he wanted to buy two kilos, not just 300 grams, and returned the package to Liranzo. Liranzo put the cocaine in Ibarra's glove compartment and told Ibarra to lock it. The three men then exited Ibarra's car, and Gutierrez phoned Guzman, who agreed to bring the rest of the cocaine.

Guzman arrived at 105th Street and Broadway. As Gutierrez and Ibarra approached Guzman, he motioned toward a brown Cutlass parked nearby that was driven by defendant-appellant Garcia. Gutierrez and Ibarra then walked to Garcia's car. Garcia handed Ibarra a package containing approximately one kilo of cocaine. Gutierrez and Ibarra then went to Ibarra's car to get the "buy" money. At that point, DEA agents on the scene arrested Liranzo, Garcia, Gutierrez and Guzman.

On April 17, 1990, the government filed a two count indictment against the defendants. Count One charged the defendants with conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846; Count Two charged them with distribution and possession with the intent to distribute approximately 1,300 grams of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 845a(a), and 18 U.S.C. § 2. The overt acts section of the indictment indicated that the name "Frank" referred to appellant Garcia and, as such, identified Garcia as the individual who accompanied Gutierrez in the white Lincoln and handed Ibarra the 300 grams of cocaine.

On April 20, 1990, Liranzo and his attorney met with DEA agents and an Assistant United States Attorney ("AUSA") to explore Liranzo's possible cooperation. The meeting was held pursuant to a written Proffer Agreement that detailed the manner in which the government could use information supplied by Liranzo. Under the Proffer Agreement, the government could not offer statements made by Liranzo On May 29, 1990, a superceding indictment was filed against the defendants. The indictment corrected certain factual errors in the original indictment, most notably the mistaken identification of Garcia as "Frank." The government informed the court that after the proffer session, the government reviewed certain documents and debriefed certain witnesses to ascertain the identity of "Frank." In particular, Ibarra was shown a photo array of the defendants and questioned as to the identity and activities of "Frank." According to the government, Ibarra indicated that Liranzo, whose middle name is Francisco, was "Frank." Ibarra stated that Liranzo had appeared with Gutierrez in the Lincoln and Liranzo had given him the 300 grams of cocaine. As a result of these statements, the government corrected the factual mistakes in the original indictment and filed the superceding indictment.

                in evidence in its case in chief.   Significantly, however, the Agreement permitted the government to "use information derived directly or indirectly ... for the purpose of obtaining leads to other evidence" which could be used by the government in prosecuting Liranzo.   At the meeting, Liranzo stated, among other things, that he, and not Garcia, was the individual known as "Frank."   No cooperation agreement was entered into between Liranzo and the government
                

Liranzo moved to dismiss the superceding indictment, contending, among other things, that the indictment tracked the substance of Liranzo's statements during his proffer session, thereby violating the Agreement. At a pre-trial hearing held on June 1, 1990, the government reiterated that the mistake in the original indictment as to the identity of "Frank" was corrected when, following the proffer session, the informant was shown a photo array and debriefed regarding the identity of "Frank." The government also indicated that Ibarra, as well as one of the DEA agents who was present at the proffer session, and who met with Ibarra in connection with the debriefing, would testify at trial concerning the identification of "Frank." The court therefore deferred ruling on Liranzo's motion until after trial.

An eight-day trial was held before Judge Ward and a jury. Prior to informant Ibarra's in-court identification of the defendants, the court held a hearing outside the presence of the jury to determine whether the photo array showed to Ibarra during his pre-trial identification of Liranzo was unduly suggestive. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The court found that the informant "possessed sufficient independent recollection" of the defendants' roles in the transaction, and allowed the in-court identifications. The jury ultimately found all defendants guilty on both counts of the superceding indictment.

Prior to sentencing, Liranzo moved for dismissal of the indictment on the ground that the government had breached the Proffer Agreement. The court denied the motion and refused to conduct an evidentiary hearing on the matter. The court reasoned that by permitting the government to make derivative use of Liranzo's statements to develop other evidence, the Agreement contained the "broadest possible waiver." The court observed that the government could have confronted Ibarra directly with Liranzo's proffered statements in order to gain or clarify information. Thus, interviewing Ibarra to clarify the "Frank's" identity did not violate the Proffer Agreement.

The district court proceeded to sentence the defendants. Liranzo received concurrent terms of 63 months imprisonment, eight years of supervised release, and a $100 assessment. Based in part on a prior state conviction for criminal facilitation, the court found Garcia to be a "career offender" under the Sentencing Guidelines and, as such, sentenced him to concurrent terms of 262 months imprisonment, eight years of supervised release, and a $100 special assessment. Gutierrez, whose conviction has been previously affirmed, was sentenced to 96 months in prison and...