Concepcion v. U.S.

• Decision Date: 24 January 2002
• Docket Number: No. CV 97-2171(ADS).,CV 97-2171(ADS).
• Citation: 181 F.Supp.2d 206
• Parties: Manuel CONCEPCION, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

Page 206

181 F.Supp.2d 206

Manuel CONCEPCION, Petitioner, v. UNITED STATES of America, Respondent.

No. CV 97-2171(ADS).

United States District Court, E.D. New York.

January 24, 2002.

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Manuel Concepcion, Lompoc, CA, Petitioner Pro Se.

Ruth M. Liebesman, Esq., Attorney Assisting Petitioner, New York City, for Petitioner.

Alan Vinegrad, United States Attorney, Eastern District of New York by Jo Ann M. Navickas, Assistant United States Attorney, Brooklyn, NY, for Respondent.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Petitioner Manuel Concepcion ("Petitioner" or "Concepcion") brings this proceeding, pursuant to 28 U.S.C. § 2255, seeking an order to vacate, set aside or correct his sentence.

I. BACKGROUND

Concepcion and many other defendants, nine of whom were on trial with him, were charged with being members of a major drug ring called the "Unknown Organization," that operated a retail and wholesale narcotics business in certain areas in Brooklyn. The Unknown Organization was led by Ricardo Melendez, consisted of approximately 100 members and grossed over ten million dollars a month from heroin sales, together with additional revenue from cocaine transactions. The Organization sold its narcotics in glassine envelopes stamped with particular brand names, such as "Unknown," "Critical," "Rated PG," and "No Mercy."

The Unknown Organization purchased large quantities of pure heroin which was cut by an expert called "Nelson the Cutter." The heroin distributed by the Unknown Organization was highly desirable to drug users because it was among the purest and most potent available in the New York area, being about 50 percent pure.

After the heroin was cut, it was transported to various "mills" where it was diluted and placed in glassine bags by dozens of sometimes nude and masked workers. The glassine bags were placed in commercial egg crates and then sent to assorted "retail establishments," known as "spots" in various Brooklyn locations. Extensive and detailed records were kept by the Unknown Organization with regard to each operation, with specific amounts, names of participants and expenses involved in each operation. The Unknown Organization enforced its operation, warded off competition and prevented stealing by its own members, by intimidation, torture and murder.

As stated above, the Unknown Organization was headed by Melendez, who was assisted by a number of "lieutenants," who were in charge of particular areas of the operation such as cutting, packaging, distribution and protection. One of these lieutenants was the petitioner, Manuel Concepcion. Each lieutenant received a percentage of the sales of the drugs in which he was involved. The petitioner was in charge of drug distribution in Williamsburg, Brooklyn. Following the arrest of Melendez on September 24, 1988, Concepcion became the leader of the entire Unknown Organization and received the money from all drug sales.

Concepcion was the leader of the Unknown Organization until his arrest on March 14, 1989, during an abortive purchase by him and others from a confidential informant of more than seven kilograms of pure heroin, at a price of more than one million dollars. At the time of his arrest, Concepcion was in possession of more than one million dollars in cash, an Uzi submachine gun and two handguns.

II. THE TRIAL

Without stating all the details of this notable four-month trial of ten defendants for a multitude of drug and violent crimes, the Court will note some important aspects.

The narcotics records seized in a raid of an apartment in Brooklyn, in which the police seized $156,000 in cash and 12,000 glassines of heroin, revealed a vast narcotics distribution organization. The Unknown Organization did business at a multitude of locations in Brooklyn, Queens and the Bronx. To protect their extensive drug operation, many weapons were purchased in Texas and transported to New York.

The Organization protected their vast and profitable narcotics business with brutal acts of violence against competitors and wayward organization members. These violent acts included severing the finger of member Todd Middleton, who had been accused of stealing from customers of the Organization. On another occasion, Middleton was kidnapped, stabbed more than 100 times with an icepick and beaten senseless. Concepcion, himself, shot to death James Gines, a friend of a rival. When asked why he did the killing himself, Concepcion responded, "I'm that type of guy, I like to take care of my own actions." (Tr. at 9331).^*

A worker named "Re-Run" who stole money while selling heroin at an Organization spot was shot five times in the leg. George Espada, who stole $100,000 in drug money from the Organization, was beaten, shot in the leg and stabbed in the gunshot wound. Rival Santo Rivera was shot in the head, causing permanent brain damage. Rademus Rivera, a worker who stole money from the Organization was stabbed to death. Competitor Robert Aponte was shot six times at close range and killed in a local bodega. There was also evidence adduced at the trial of beatings of workers and an attempted murder of a police officer.

Ten defendants were tried before this Court commencing on August 23, 1990 and resulted in a jury verdict convicting all but one defendant on December 23, 1990. During the trial, the Government called approximately 84 witnesses, including 12 accomplices. The jury convicted Concepcion of the following crimes:

Count 1/RICO violation (18 U.S.C. § 1962(c)).

Count 2/1st Racketeering Act — Conspiring to distribute and to possess with intent to distribute in excess of one kilogram of heroin and five kilograms of cocaine (21 U.S.C. §§ 845 and 841(b)(1)(A)).

Count 8/7th Racketeering Act — Kidnaping and beating George Estrada.

Count 15/11th Racketeering Act — Money Laundering.

Count 17/13th Racketeering Act — Murder of James Gines.

Count 19: Committing an assault with a dangerous weapon in aid of racketeering activity (18 U.S.C. § 1952B(a)(3?)).

Count 21/15th Racketeering Act — Kidnaping and assault in aid of racketeering activity (18 U.S.C. § 1952B(a)(1)).

Count 25/16th Racketeering Act — Using proceeds of drug trafficking to purchase automobiles on November 12, 1987, February 22, 1988 and October 11, 1988.

Count 28/19th Racketeering Act — Murder of Roberto Aponte.

Count 30/20th Racketeering Act — Attempting to possess with intent to distribute in excess of one kilogram of heroin (21 U.S.C. §§ 846 and 841(b)(1)(A)).

Count 31: Using and carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)).

On March 22, 1991, this Court sentenced Concepcion to a term of life imprisonment plus a mandatory consecutive five-year term, a mandatory five-year supervised release term, a fine of $1,000,000, and a special assessment of $550.

III. THE APPEAL

On appeal, Concepcion contended that (1) the Court improperly restricted cross-examination on Government witness Victor Jiminez, (2) the Court improperly admitted testimony concerning Concepcion's offer to commit murder, (3) the Government changed its theory of the case from opening to summation, (4) the evidence was insufficient to establish Concepcion's commission of the Gines murder, (5) the identification of Concepcion by two witnesses as a participant in the Gines murder was tainted, and (6) the evidence was insufficient to establish that the commission of the two assaults charged in Count Nineteen was to maintain or increase Concepcion's position in the racketeering enterprise. The Second Circuit rejected all of Concepcion's claims and affirmed all his convictions. United States v. Concepcion, 983 F.2d 369 (2d Cir.1992), cert. denied, 510 U.S. 856, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993).

IV. THE PETITION

In a petition filed on April 23, 1997, Concepcion moved, pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The grounds listed by the petitioner are as follows:

Ground one: The conviction under 18 U.S.C. § 924(c) must be vacated due to the Bailey decision. "There is no evidence that Concepcion `used' a firearm in the course of a narcotics transaction. Weapons were in trunk of another car 50 feet from Concepcion's automobile."

Ground two: "The government knowingly suppressed exculpatory evidence and knowingly presented a false scenario with regard to the killing of James Gines. Also the Government misrepresented the record regarding that killing during arguments on Rule 29 motion."

Ground three: "The government's summation was replete with vouching pleas to the almighty, invented testimony, personal opinions and improper remarks."

Ground four: "Concepcion was denied his right of confrontation when a co-defendant's `redacted' summation was used against him. The prosecutor `filled in the blanks' from the redaction while cross-examining a co-defendant (not the maker of the statement) and during closing arguments. It was also used to bolster the testimony of other prosecution witnesses."

Ground five: "Concepcion was denied the right to testify in his own defense ... Despite the fact that Concepcion requested that his attorney put him on the witness stand, the attorney did not, and rested the defense case without calling any witnesses."

Ground six: Ineffective assistance of trial and appellate counsel. In that (a) "Counsel failed to challenge the facial composition of the jury venire, which contained only one Hispanic, who was excused, and no Asians", (b) "Counsel was ineffective in defending Concepcion on the Gines murder," and (c) "Counsel failed to request a special verdict with regard to the duel-objective conspiracy and the quantities of heroin for which Concepcion was liable at sentencing."

Ground seven: "The case must be remanded for resentencing because the Court made no findings of fact with regard to the quantities of drugs for which Concepcion was liable."

In the...