U.S. v. Rivera
| Decision Date | 30 July 1992 |
| Docket Number | Nos. 731,836,732,29,D,736,835,728 and 730,s. 731 |
| Parties | 36 Fed. R. Evid. Serv. 554 UNITED STATES of America, Appellee, v. George RIVERA, Ward Johnson, Walter David Cook, Luis Gautier, Ralph Hernandez, Jaime Cuevas, Victor Briggs, Anthony Briggs, Willie Claussen, Kenroy Prentice, Bob Lemon, John Doe, Elizabeth Velasquez, Desiree Sidberry, Ketty Turino, Andrew Simmons, Ruben Rodriguez, John Marrero, Raymond Marrero, Vickie Dowdy, Madeline Rodriguez, Mark Sanchez, Albert Delmoral, Edgardo Delmoral, Anthony Garay, Veronica Aviles, Matthew Williams, Jonathan Lane Morris, Danny Delgado, Anthony Rivera, Michael Cole, Marshall Harrison, Dennis Lynch, Arycelis Turino, and Anthony Cruz, Defendants, George Rivera, Victor Briggs, Ketty Turino, Andrew Simmons, Vickie Dowdy, Madeline Rodriguez, Anthony Garay, Danny Delgado, Arycelis Turino, and Anthony Cruz, Defendants-Appellants. ockets 91-1027, 91-1118, 91-1122, 91-1132, 91-1133, 91-1214, 91-1337 and 91-1450. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael Young, New York City, for defendant-appellant George Rivera.
Lloyd Epstein, (Epstein, Hus & Weil, New York City, of counsel), for defendant-appellant Victor Briggs.
Robert M. Beecher, New York City, for defendant-appellant Andrew Simmons.
Casey Donovan, New York City, for defendant-appellant Madeline Rodriguez.
Irving B. Cohen, New York City, for defendant-appellant Danny Delgado.
Sanford M. Katz, New York City, for defendant-appellant Anthony Cruz.
Patrick J. Fitzgerald, Asst. U.S. Atty. (Otto G. Obermaier, U.S. Atty., Henry DePippo, James B. Comey, Asst. U.S. Attys., S.D.N.Y., New York City, of counsel), for appellee.
Lee Ginsberg (Freeman, Nooter & Ginsberg, New York City, of counsel), for defendant-appellant Ketty Turino.
Before: ALTIMARI, MAHONEY, and WALKER, Circuit Judges.
Defendants-appellants George Rivera (also known as "Boy George"), Ketty Turino ("K. Turino"), Vickie Dowdy, Anthony Garay, Danny Delgado, Arycelis Turino ("A. Turino"), and Anthony Cruz appeal from judgments of conviction for engaging in a conspiracy to distribute heroin and (in the case of Rivera) attempted income tax evasion entered, after a jury trial, in the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge. 1 Defendants-appellants Victor Briggs, Andrew Simmons, and Madeline Rodriguez appeal from sentences imposed in the same court following their guilty pleas as to a conspiracy to distribute heroin and, in the case of Simmons and Rodriguez, a federal firearm violation.
A fourteen-count indictment filed on June 7, 1990, charged that defendants-appellants Rivera, K. Turino, Delgado, A. Turino, and Cruz (as well as ultimately acquitted defendant Dennis Lynch) were members of a conspiracy to distribute heroin at the street level that operated in the south Bronx and Manhattan. Count one charged them with conspiring from 1987 to 1989 to distribute and to possess with intent to distribute in excess of one kilogram of heroin, in violation of 21 U.S.C. § 846 (1988). Count two charged Rivera with operating a continuing criminal enterprise from 1987 to 1989, in violation of 21 U.S.C. § 848(a)-(b) (1988). Counts three through nine charged Rivera, and count four also charged A. Turino, with distributing and possessing with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) (1988) and related provisions. Counts ten through thirteen charged Rivera with using and carrying firearms during drug trafficking crimes in violation of 18 U.S.C. § 924(c) (1988 & Supp. II 1990). Count fourteen charged Rivera with attempted income tax evasion for the calendar year 1988 in violation of 26 U.S.C. § 7201 (1988).
Following a jury trial, Rivera, K. Turino, Delgado, A. Turino, and Cruz were convicted of the heroin conspiracy charged in count one. Rivera was convicted of the attempted tax evasion charged in count fourteen. A. Turino was acquitted of the narcotics distribution charged against her in count four. The jury was unable to reach a verdict on the remaining counts against Rivera, and the court declared a mistrial on these counts.
Briggs, Simmons, and Rodriguez pled guilty to counts in an earlier, similar indictment. Briggs pled guilty to a conspiracy to distribute in excess of one kilogram of heroin, in violation of 21 U.S.C. § 846 (1988). Simmons and Rodriguez each pled guilty to a conspiracy to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846 (1988), and to one count of using or carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1988 & Supp. II 1990).
The district court sentenced defendants-appellants as follows: Rivera to life imprisonment and a $25,000 fine; K. Turino to 121 months imprisonment; Delgado to 240 months imprisonment; A. Turino to 135 months imprisonment; Cruz to 365 months imprisonment; Briggs to 188 months imprisonment and a $17,500 fine; Simmons to 78 months imprisonment for conspiracy and a consecutive 60 months for the firearms violation; and Rodriguez to 63 months imprisonment for conspiracy and a consecutive 60 months for the firearms violation. In addition, the court sentenced all defendants-appellants to five years supervised release and the mandatory assessments imposed by 18 U.S.C. § 3013 (1988 & Supp. II 1990).
The claims on appeal are fully outlined in the discussion that follows. For the reasons there stated, we affirm the judgments of conviction, except that we vacate the sentence of Victor Briggs and remand for reconsideration of his sentence with respect to the $17,500 fine imposed upon him.
Defendants-appellants and numerous others participated in a highly structured, street-level heroin distribution organization in the south Bronx and Manhattan. The operation was developed by Rivera and sold heroin under the brand names "Obsession," "Sledge Hammer," and "Delirious." The organization maintained a "cutting mill" or "table," at which pure heroin was diluted and packaged in ten dollar glassine envelopes stamped with a brand name. The location of the mill varied from time to time. After packaging, the heroin was delivered to distribution locations.
There were five principal distribution outlets, called "spots" or "stores": (1) 166th Street and Washington Avenue in the Bronx; (2) Avenue St. John and Southern Boulevard in the Bronx; (3) 139th Street and Brook Avenue in the Bronx; (4) 122nd Street and Second Avenue in Manhattan; and (5) 156th Street and Courtlandt Avenue in the Bronx. The spots were run by "spot owners" who employed a variety of street managers, sellers, steerers, lookouts, and other assistants. The spot owners kept a percentage of the proceeds of the heroin sales, from which they paid their employees, and remitted the remainder to Rivera.
Defendants-appellants occupied various positions in the organization. The government alleged that: (1) Rivera controlled it; (2) Cruz started as a worker at 156th St./Courtlandt Ave. and became its spot owner in the fall of 1988; (3) Delgado started as a worker at 156th St./Courtlandt Ave. and became its street manager; (4) Briggs was the spot owner of Ave. St. John/Southern Blvd. after September 1988; and (5) A. Turino, K. Turino, Simmons, and Rodriguez were cutting-mill workers.
The principal prosecution witnesses were Ward Johnson, Rivera's second-in-command, and Luis Gautier, who was responsible for delivering the heroin from the mill to the street outlets and collecting the proceeds after the sales. The testimony at trial included the following.
The operation began in the spring of 1987, when Rivera and Johnson obtained one hundred grams of bulk heroin. With the help of about a dozen mill workers, including A. Turino and Gautier, they cut and packaged the heroin in Rivera's apartment on East 213th Street in the Bronx. During the summer of 1987, the organization distributed about $100,00 worth of heroin a week.
By August 1987, the police had learned of the Rivera operation from Joey Navado, a confidential informant. On August 27, Navado introduced Rivera as "Boy George" to undercover detective Joseph Mendez, who bought two ounces of 88%-pure heroin from Rivera for $12,000. At the meeting, Rivera claimed that his organization distributed two kilograms ($250,000 worth) of heroin a week.
After a burglary scare, Rivera abandoned his East 213th Street apartment and moved the cutting mill to the Manhattan Marriott Marquis. In August or September of 1987, police officers who were looking for Rivera in an unrelated investigation located the abandoned 213th Street apartment, where they found glassine envelopes, heroin cutting paraphernalia, a Bowie knife, a bulletproof vest, a shotgun, and a variety of ammunition. When he learned of the seizure, Rivera switched the heroin brand name to "Delirious," but soon returned to "Obsession" because his customers had developed a loyalty to that name.
On October 6, 1987, Navado and Mendez met with Rivera, Johnson, and A. Turino. Mendez bought 600 glassine envelopes of the leftover "Delirious" for $5,000. Rivera conducted no further transactions with Mendez, because Johnson correctly surmised that Mendez was an undercover officer.
Soon thereafter, Rivera relocated the cutting mill from the Marriott Marquis to the apartment of one of his workers, and it was subsequently moved to other homes and apartments. In the late summer of 1988, Rivera started a "Sledge Hammer" brand, usually more diluted than "Obsession," and appointed Walter David Cook to supervise its distribution.
Rivera used some of the proceeds of the operation to purchase a house in Puerto Rico for $145,000 in cash. He extensively remodeled the house, including the installation of an outdoor pool with the words "Obsession" and the initials "B.G." (for "Boy George") tiled in the bottom. He also purchased a number of customized...
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