Lopez v. US
| Decision Date | 15 July 1994 |
| Docket Number | Civ. No. 92-2205 (JP). |
| Citation | 857 F. Supp. 1000 |
| Parties | Angel Torres LÓPEZ v. UNITED STATES of America. |
| Court | U.S. District Court — District of Puerto Rico |
Angel Torres López, pro se.
Salixto Medina Malavé, Asst. U.S. Atty., Hato Rey, P.R., for defendant.
The Court has before it petitioner's motion for habeas corpus relief (docket No. 2) filed pursuant to 28 U.S.C. § 2255, respondent's opposition (docket No. 10), and petitioner's reply (docket No. 14). Since the record and motions filed in this case clearly demonstrate that the petitioner is not entitled to habeas corpus relief, his petition is hereby DENIED without a hearing.1
On June 26, 1986, the Grand Jury returned a five-count Indictment charging petitioner and eight other defendants with substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations Act (hereinafter "RICO"), 18 U.S.C. §§ 1962(c), 1962(d). The Indictment also charged petitioner with obstruction of the due administration of justice, 18 U.S.C. § 1503. On November 24, 1986, a Superseding Indictment was returned which contained identical charges against the same defendants corrected for typographical and technical errors.
The five-count Superseding Indictment was based on eighteen (18) predicate crimes covering a period of about twelve years, which charged petitioner and eight other co-defendants with various criminal acts, including, but not limited to: murders, contract murders, kidnappings, contract arsons, armed robbery, and theft from interstate commerce. Specifically, the government charged petitioner in Count One with participating in seven of the eighteen charged predicate acts, namely: armed robbery, two acts of arson, robbery, robbery and murder, contract murder, and obstruction of justice by threatening to kill a government witness. Count Two charged petitioner with conspiracy to violate RICO by participating in an enterprise created for perpetrating criminal acts. Finally, Count Five charged the petitioner with obstruction of justice by threatening to kill a government witness. Throughout the investigation and prosecution of these crimes some defendants became witnesses for the government.
All defendants except for the petitioner pled guilty to some of the counts in the Indictment, and one of them pled guilty after three days of trial. During their change of plea hearings, these defendants recounted in shocking detail their involvement in each of the above mentioned crimes. Also, these defendants revealed the names and actions of their co-conspirators. What made these crimes all the more heinous was the fact that the enterprise was headed by an officer in the Criminal Investigation Corps of the Puerto Rico Police Department, defendant Alejo Maldonado Medina. Other police officers and co-conspirators served as triggermen, robbing, kidnapping, murdering, torching, and even pulling off an armed robbery of the Police Cooperative Savings and Loan.
Petitioner, Angel Torres López, was the only defendant to go through trial. On February 8, 1987, after an eleven-day trial, the jury acquitted the petitioner of Count Five of the Indictment, which charged him with obstruction of the due administration of justice, but convicted him of Counts One and Two, the substantive and conspiracy RICO counts. Along with the general verdict form, the jury also returned a special verdict form, its use and content agreed to by the parties in open Court, which detailed each predicate racketeering act with which the defendant was allegedly directly involved. In its special verdict form the jury found the petitioner implicated in racketeering act one, the armed robbery of Francisco Rivera Petrie on October of 1973, and racketeering act five, the contract arson of "Riviera Casuals" on December 19, 1974. The jury found that the defendant was not directly involved in racketeering acts twelve (a) through twelve (c), which involved the contract murder of Luis Rolón in 1979, and not directly involved in racketeering acts eighteen (a) and eighteen (b), which involved the obstruction of justice by interfering with a government witness in 1985.2 The jury was unable to reach a verdict on defendant's participation in racketeering acts number four (contract arson in 1974), seven (armed robbery in 1976), and eleven (murder in 1979).
After the jury verdict petitioner made a motion for judgment of acquittal arguing that since the jury had not found him guilty of any specific racketeering act committed after 1974, the RICO statute of limitations mandated that the guilty verdict on both counts be declared null and void. On April 15, 1987, the Court denied his Rule 29 motion and sentenced petitioner to twenty (20) years for each count, said terms to run consecutively. Also, the Court imposed a Ten Thousand Dollars ($10,000.00) fine on the RICO conspiracy count, and a Fifteen Thousand Dollars ($15,000.00) fine on the substantive RICO count.
Petitioner filed a timely appeal on April 21, 1987. See United States v. Torres López, 851 F.2d 520 (1st Cir.1988). Based on petitioner's argument that the RICO statute of limitations precluded a guilty verdict, the Court of Appeals reversed petitioner's conviction on Count One. Id. at 525. However, the Court of Appeals upheld the conviction under Count Two because it found that the commission of an overt act is not required for a RICO conspiracy conviction. Id. Therefore, the fact that the defendant could not be convicted under Count One did not preclude in any way a conviction for a RICO conspiracy under Count Two. All other arguments presented by the petitioner were found to be without merit.3
The petitioner continued to attack his conviction and sentence by requesting from the Court of Appeals a Rehearing En Banc, which was denied August 22, 1988. On November 21, 1988, the petitioner filed for a writ of certiorari to the United States Supreme Court, which was denied February 21, 1989. See Torres-López v. United States, 489 U.S. 1021, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989). Afterwards, the petitioner filed in this Court a motion to reduce or vacate his sentence on May 5, 1989, pursuant to Rule 35 of the Federal Rules of Criminal Procedure. The Court denied his motion June 21, 1989. On January 22, 1991, the petitioner requested a correction of his Pre-Sentence Investigation Report, which was denied March 15, 1991. Finally, petitioner filed the instant petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.4
For purposes of simplicity and clarity, the Court will address petitioner's claims in four separate arguments: (1) the cross-examinations of the Consuegra witnesses, (2) the assistance of counsel on appeal, (3) the Pinkerton instruction given to the jury at trial, and (4) the sentence imposed.
During the sixth day of petitioner's eleven-day trial, the government called Francisco Consuegra and Mario Consuegra Vera (father and son) to testify. These witnesses testified in some detail as to the facts surrounding Mario Consuegra's kidnapping. Through the testimony of these two witnesses the government was trying to establish that Mario Consuegra's kidnapping was one of the overt acts performed by and for the RICO conspiracy charged in the Indictment.
Petitioner argues that during the cross-examination of the two Consuegra witnesses the Court committed two fatal mistakes which violated his constitutional rights. First, the petitioner argues that the Court violated his Sixth Amendment right to confront witnesses against him by limiting the time available for cross-examination. Second, the Court allegedly usurped the jury's function as the sole arbiter of facts by sustaining an objection made by the government and stating: Transcript for the Sixth Day of Jury Trial, p. 33. The error was compounded, the petitioner argues, by the Court's failure to instruct the jury, after its remarks, that they were the sole arbiter of the facts.
In order to clearly understand petitioner's argument as well as the comments made by the Court it is important to examine the transcript in its entirety regarding the Consuegra cross-examinations. The transcript provides:
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