U.S. v. Boonphakdee
| Decision Date | 03 November 1994 |
| Docket Number | D,669,068 and 166,Nos. 067,s. 067 |
| Citation | 40 F.3d 538 |
| Parties | UNITED STATES of America, Appellee, Cross-Appellant, v. Wanphen BOONPHAKDEE and Alba Lopez-Velasquez, Defendants, Juan Eduardo Milian, Carlos M. Francisco, also known as "Frank" and Jorge Rodriguez, Defendants-Appellants, Carlos M. Francisco, Defendant-Appellant, Cross-Appellee. ockets 93-1718, 93-1735, 93-1743 and 93-1820. |
| Court | U.S. Court of Appeals — Second Circuit |
David H. Weiss, New York City, for defendant-appellant Juan Eduardo Milian.
Lynne F. Stewart, New York City, for defendant-appellant and cross-appellee Carlos M. Francisco.
Steven M. Bernstein, New York City, for defendant-appellant Jorge Rodriguez.
John F. Curran, Jr., Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D., NY, Peter A. Norling, Asst. U.S. Atty., of counsel), for appellee and cross-appellant.
Before: OAKES, ALTIMARI and CABRANES, Circuit Judges.
Appellants Juan Eduardo Milian, Carlos M. Francisco and Jorge Rodriguez appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge ). Their appeal presents the question whether the district judge gave adequate The government appeals the sentence imposed on Francisco, arguing that the district court erred in finding that Francisco was not a "career offender" under U.S.S.G. Sec. 4B1.1. This cross-appeal presents the question whether an arrest made after the commission of one prior felony and before the commission of another automatically renders the sentences imposed for those prior offenses "unrelated," thereby requiring Francisco to be sentenced as a career offender under the Sentencing Guidelines. Because we answer the question in the affirmative, we remand to the district court for resentencing under the career offender provision.
emphasis to the defense theory in the jury charge. Because the district court included the defense theory in its jury charge, and because we find that appellants' other objections are without merit, we affirm the convictions.
The Drug Enforcement Administration (DEA) began investigating defendant Boonphakdee 1 in May 1991. That month, Boonphakdee asked Hoang Ky Ly, an undercover DEA special agent in Bangkok, to transport heroin to the United States. In early July 1992, Boonphakdee provided approximately 1.7 kilograms of heroin to an informant working with Ly for transport from Thailand to New York. On July 13, 1992, Ly flew to Chicago and took custody of the heroin that had been transported from Bangkok by the informant working with Ly. Defendant Lopez was the intended recipient of the heroin, but Boonphakdee, after she arrived in Indiana at the home of her sister, advised Ly that Lopez would not travel from Miami to New York to pick up the heroin. Rather, an unidentified male would go in her place. Boonphakdee also informed Ly that she (Boonphakdee) would travel to Miami to meet with Lopez.
On July 15, 1992, Ly called Lopez in Miami and spoke with her and Boonphakdee. Lopez informed Ly that "Jorge" (Rodriguez) would go to New York in her place. The same day, Ly called Rodriguez at his mobile telephone number and Francisco answered. Francisco told Ly that both he and Rodriguez would go to New York the following day. These defendants told Ly that they did not have enough money to purchase all the heroin at once, but that they had already contacted the ultimate purchasers in New York. The following day Boonphakdee told Ly that Rodriguez did not have money to buy the heroin, but that she would still go to New York and attempt to find another purchaser. She asked Ly nevertheless to call Rodriguez to see if he had managed to get any money for the heroin.
Ly then called Rodriguez's mobile telephone, and Francisco answered again. Ly asked whether Francisco and Rodriguez wanted to deal with him directly. Francisco responded that he would be willing to do so.
On the night of July 16, 1992, Ly and another undercover agent met Boonphakdee, Rodriguez and Francisco at John F. Kennedy International Airport as the latter three deboarded a plane from Miami. Milian, who was the New York drug contact for Rodriguez and Francisco, was also present. Milian stated that he needed a one-gram sample to show to a customer, who would initially be willing to purchase 125 grams of the heroin. Milian stated also that if his customer liked the heroin, the customer would purchase the entire 1.7 kilograms. After following Ly to an undercover vehicle and upon seeing the heroin, Milian commented on its high quality. After Rodriguez and Francisco also looked at the heroin, the three appellants were arrested.
At a trial that began on March 8, 1993, the government sought to prove that Rodriguez, Francisco and Milian conspired to distribute and attempted to possess with intent to distribute 1.7 kilograms of heroin. The defendants, on the other hand, contended that they had no intention of distributing heroin, but rather, only sought to "rip off" unnamed prospective purchasers of the heroin by robbing them at gunpoint. Rodriguez testified that a one-gram sample of heroin was to be used as bait to attract drug dealers interested in purchasing the rest of the heroin; he testified that he, Francisco and Milian would At the charging conference, defense counsel jointly requested that Judge Nickerson present the defense theory in its jury charge. The judge agreed to charge the jury on the defense theory, although he rejected the precise language defense counsel requested. The court included the defense theory in its instruction on intent:
carry out their robbery scheme by tying up the ultimate buyer, leaving the heroin at the scene of the robbery, and calling the police.
The defendants maintain that they are not guilty in this case because they never formed the requisite intent. They claim that their intent was to steal the money at the time of the transaction, and that at no time did they intend to possess or to distribute the heroin in this case.
The court included an additional instruction:
The government does not have to prove that the person possessed any specific quantity of the controlled substance charged in the indictment. It is sufficient if the government proves beyond a reasonable doubt that he knowingly and intentionally possessed any amount of the controlled substance charged.
....
.... The government must [prove] beyond a reasonable doubt that a defendant had the specific intent that the substance be distributed.
Defense counsel asked the court to instruct that "[i]f you find that the defendant[s'] intent was to steal the money, not to distribute drugs, then you must acquit." The court declined to give this instruction. Defense counsel also jointly requested an instruction on a lesser-included offense and special interrogatories regarding the amount of heroin appellants intended to distribute, if any; and counsel for Rodriguez requested a multiple conspiracies instruction. The court denied these requests as well.
A criminal defendant has a right to a jury charge that reflects the defense theory. United States v. Durham, 825 F.2d 716, 718 (2d Cir.1987). Appellants argue that the jury charge did not give adequate emphasis to the defense theory that the defendants sought only to rob the prospective drug purchasers, rather than distribute the heroin to them. According to appellants, the court's sole reference to the defense theory did not adequately inform the jury that it must acquit if, notwithstanding Rodriguez's admission about the defendants' intent to distribute the one gram sample, the jury found that the defendants did not intend to distribute the rest of the heroin.
Viewing the jury charge in light of the evidence presented at trial, we cannot find that appellants were unduly prejudiced by the charge given. Appellants contend that the district judge erred by not giving the precise instruction they requested. But defendants are "not necessarily entitled to have the exact language of the charge they submitted to the district court read to the jury." Durham, 825 F.2d at 719 (citing United States v. Dyman, 739 F.2d 762, 771 (2d Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 969, 83 L.Ed.2d 973 (1985)); see also United States v. Imran, 964 F.2d 1313, 1317 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 626, 121 L.Ed.2d 558 (1992). Here the instructions given adequately presented the defense theory. The district judge's instruction informed the jury of the defendants' theory that they did not intend to possess or distribute heroin; and he followed this instruction with another which informed the jury that it must find an intent to distribute the controlled substance in order to convict. It was not error, therefore, to reject the precise language requested. Moreover, as Judge Nickerson reasoned, the defendants' proposed jury instruction--"[i]f you find that the defendant[s'] intent was to steal the money, not to distribute drugs, then you must acquit"--could have misled the jury. Indeed, the instruction might have suggested to the jury that an intent to rob and an intent to distribute heroin were mutually exclusive, while the evidence could have supported a finding that the defendants intended to do both.
It would have been proper for the jury to convict appellants on a finding that appellants intended to distribute only one gram of heroin. See United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.) ("Section 841(a) of Title 21 prohibits the distribution of any amount of cocaine and in no way requires proof of a particular quantity of narcotics as an element of the conspiracy to distribute."), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990). Hence, the jury instructions were entirely appropriate. If appellants intended to distribute the one gram, as Rodriguez...
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