U.S. v. Gordils
| Decision Date | 22 December 1992 |
| Docket Number | Nos. 179,s. 179 |
| Citation | 982 F.2d 64 |
| Parties | UNITED STATES of America, Appellee, v. Jose GORDILS, Francisco Bastar and Nicholas Mpounas, Appellants. to 181 and 505 to 507, Dockets 90-1302L, 90-1303, 90-1304, and 92-2120 to 92-2122. |
| Court | U.S. Court of Appeals — Second Circuit |
Alexandra Rebay, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., John W. Auchincloss, II, Asst. U.S. Atty., of counsel), for appellee.
J. Jeffrey Weisenfeld, New York City (Goldberger & Dubin, P.C., New York City of counsel), for appellant Gordils.
Gail Jacobs, Great Neck, NY, for appellant Bastar.
Charles T. Theofan, Mineola, NY, for appellant Mpounas.
Before: LUMBARD, ALTIMARI and McLAUGHLIN, Circuit Judges.
Jose Gordils, Nicholas Mpounas, and Francisco Bastar appeal from judgments of conviction entered on April 24, 1990, following a jury trial in the District Court for the Southern District of New York, Edelstein, J., and from the January 30, 1991 order of the same court denying the defendants' joint motion for a new trial.
The jury convicted them of conspiracy to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846; possession with intent to distribute in excess of 500 grams of cocaine and approximately 78 grams of heroin, 1 in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B) and 18 U.S.C. § 2; and using and carrying firearms during and in relation to drug trafficking crimes, in violation of 18 U.S.C. §§ 2 and 924(c). On the narcotics charges, the district court sentenced Gordils, Mpounas, and Bastar to terms of imprisonment of 151 months, 188 months, and 97 months, respectively. In addition, each defendant was sentenced to a consecutive five-year term of imprisonment on the firearms charge and to five years of supervised release. Special assessments were also imposed.
Gordils contends that the district court erred in denying his pre-trial motion to suppress certain evidence. Bastar argues that the evidence against him was insufficient to support his conviction on the firearms and heroin charges. Gordils, Mpounas, and Bastar each contend that the district court erred in denying their joint motion for a new trial. We affirm.
In early May 1989, Luis Hernandez, a confidential informant working for the DEA, telephoned Bastar and arranged a meeting at a fast food stand in the Bronx. At the meeting, Hernandez offered to pay Bastar a commission if Bastar arranged for him to purchase two kilograms of cocaine. Bastar agreed to talk to his "connection" and to try to set up a meeting for Hernandez.
Several days later, on May 10, Bastar telephoned Hernandez and said he had arranged for Hernandez to meet with a dealer named "Flaco," later identified to be Gordils. They met and drove to Apartment 1A at 636 East 224th Street in the Bronx, where Bastar introduced Hernandez to Gordils and Mpounas. Soon thereafter, Gregory Melendez 2 arrived and gave some cash to Gordils. In response to Hernandez's concern about the use of firearms, Gordils explained that Hernandez need not be afraid because guns were kept in the apartment "only for protection." While Hernandez was in the apartment, several other individuals came to discuss narcotics-related business with Gordils.
Gordils, Bastar, and Hernandez went into a bedroom to discuss Hernandez's cocaine purchase. Hernandez told Gordils that his brother-in-law wanted to purchase two kilograms of cocaine. After some negotiation, Gordils and Hernandez agreed on a price of $16,200 per kilogram of high quality cocaine.
On May 14, Bastar called Hernandez to report that he and Gordils were ready to deliver the cocaine, and that Gordils was anxious to complete the deal. At the instruction of the DEA agents, Hernandez telephoned Bastar the next day and reported that he was ready to complete the transaction at the previously agreed upon location of 97th Street and Riverside Drive in Manhattan. Bastar and Hernandez arranged to meet that afternoon and go to Apartment 1A in preparation for the deal.
When Bastar and Hernandez arrived at the apartment, Gordils showed Hernandez approximately two and a half kilograms of cocaine. Under the guise of calling his brother-in-law, Hernandez made several telephone calls to DEA Special Agent Leonard Johnson and reported that there were about two and a half kilograms of cocaine in the apartment, that he and at least one of the members of the organization would be coming to 97th Street and Riverside Drive, that there were weapons in the apartment, and that he did not know whether Gordils or anyone else would be coming to the deal armed.
While Hernandez was in the apartment, another customer of the organization arrived and asked to purchase one kilogram of cocaine. Gordils and Mpounas agreed that they would sell the cocaine they had on hand to Hernandez, and they would try to obtain another kilogram for the new customer. Thereafter, Mpounas and Melendez left the apartment in search of more cocaine.
As Gordils and Hernandez left for 97th Street and Riverside Drive, Gordils instructed Bastar to wait in the apartment and not to admit anyone except Mpounas, Melendez, or another individual named "Piki." Gordils told Bastar that if the customer who had requested the kilogram of cocaine returned, Bastar should tell him to wait. Gordils also stated that after completing the sale to Hernandez, he intended to return to the apartment to count the money received from the purchase.
Gordils and Hernandez arrived at 97th Street and Riverside Drive at about 5:00 p.m. Shortly thereafter, DEA agents arrested Gordils and seized two kilograms of cocaine from the floor of his car. They then took Gordils and Hernandez to the DEA's office on West 57th Street in Manhattan, whereupon Hernandez informed the agents that: (1) Bastar had remained in Apartment 1A alone and had been instructed to admit only Gordils, Mpounas, Melendez, and Piki; (2) Bastar and perhaps others were inside the apartment awaiting Gordils's return with the proceeds from the two-kilogram sale; and (3) Gordils had ordered an additional kilogram of cocaine for another customer. Because Hernandez had learned these facts after making his telephone calls to Agent Johnson, the DEA agents were learning of these developments for the first time.
Based on this new information, the agents decided to secure Apartment 1A to prevent the flight of suspects and the removal or destruction of evidence. Accompanied by Hernandez, the agents left for the Bronx without first obtaining a search warrant, arriving at 636 East 224th Street between 6:30 and 7:00 p.m. After Hernandez spotted and identified Mpounas and Melendez, the agents arrested Mpounas on the street and Melendez in the vestibule of the building.
They then went to the door of Apartment 1A, knocked, and announced in both English and Spanish, "Police, open up." No one opened the door, and when one of the agents heard shuffling noises inside, they broke down the door with a battering ram.
The agents arrested Bastar, who was sitting in a chair in the living room. Lying on the floor near the chair was a fully-loaded .9 millimeter semi-automatic pistol, its safety off and a round in the chamber. The agents conducted a security sweep of the apartment and observed in plain view one kilogram of cocaine, a quantity of heroin, approximately $9,000 in cash, drug records, a scale, glassine envelopes, and other narcotics paraphernalia. Several agents remained in the apartment while a search warrant was obtained by telephone. The warrant was executed about 10:00 p.m., whereupon the agents seized additional narcotics, narcotics paraphernalia, and firearms.
After indictment, Gordils moved to suppress the evidence seized during the warrantless search of Apartment 1A. The government responded that the search was justified by exigent circumstances. The district court conducted an evidentiary hearing on the issue and denied the motion.
Trial began on November 28, 1989. The government presented the testimony of Hernandez and of the agents involved in the undercover operation, the arrests, and the search of Apartment 1A. The government also introduced tape recordings of telephone calls, narcotics, narcotics records and paraphernalia, and firearms. Neither Gordils, Bastar, nor Mpounas presented any evidence. 3 The jury convicted Gordils, Bastar, and Mpounas on all counts. Sentences were imposed on April 24, 1990, and these appeals followed.
On June 14, 1990, the government advised the district court and defense counsel of its recent discovery of additional criminal charges pending against Hernandez. On November 30, 1989, the second day of Hernandez's trial testimony, an indictment was filed in New Jersey Superior Court, Atlantic County, charging Hernandez with one count of theft of over $500 by deception and one count of knowingly writing a check for $9,500 drawn on insufficient funds. New Jersey authorities advised the government that the charges arose from conduct on September 17, 1989, that a bench warrant was issued when Hernandez failed to appear, and that the charges remained pending. 4
On July 16, 1990, pursuant to a stipulation approved by us, Gordils, Bastar, and Mpounas withdrew their appeals without prejudice to restore them within 10 days of the district court's disposition of any new trial motions they might make. Thereafter, Gordils, Bastar, and Mpounas moved jointly for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. On January 30, 1992, the district court denied the new trial motion, reasoning that because the newly discovered evidence of Hernandez's criminal history was merely cumulative of extensive impeachment material known by the defense at the time of trial, admission of the evidence would not likely have resulted in the defendants' acquittal. 5
It is well-settled that the warrant...
To continue reading
Request your trial
-
Signorile By and Through Signorile v. City of NY
...one that turns on the totality of circumstances confronting law enforcement agents in the particular case." United States v. Gordils, 982 F.2d 64, 69 (2d Cir.1992) (quoting United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 11......
-
Orena v. U.S.
...A new trial is not merited where the new impeachment evidence is cumulative of evidence already introduced. United States v. Gordils, 982 F.2d 64, 72 (2d Cir.1992), cert. denied, 507 U.S. 1054, 113 S.Ct. 1953, 123 L.Ed.2d 657 (1993); United States v. Orena, 32 F.3d 704, 717 (2d Cir.1994) (e......
-
US v. Restrepo
...on the district court's examination of the totality of the circumstances confronting the law enforcement agents.'" United States v. Gordils, 982 F.2d 64, 69 (2d Cir. 1992) (quoting MacDonald, 916 F.2d at 769), cert. denied, ___ U.S. ___, 113 S.Ct. 1953, 123 L.Ed.2d 657 The United States Sup......
-
U.S. v. Brown
...factors are "merely illustrative, not exhaustive, and the presence or absence of any one factor is not conclusive." United States v. Gordils, 982 F.2d 64, 69 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1953, 123 L.Ed.2d 657 (1993); United States v. MacDonald, 916 F.2d 766, 769-70 ......