U.S.A. v. Carrillo

• Decision Date: 01 August 1999
• Docket Number: Docket No. 98-1499
• Citation: 229 F.3d 177
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. XAVIER CARRILLO, JULIO BENIQUEZ, ANGEL OCASIO, aka Titi, ARNOLD RODRIGUEZ, aka Chino, TEO JOHNSON, JOSE SERRANO, aka Shorty, LAWRENCE MATHIES, aka Poochie, CLARENCE JACKSON, aka Boo Boo, JAMES WIGGINS, aka Jimmy Long, aka Jim Bob, JULIO CARRILLO, MARQUEO STROUD, WILLIAM OCASIO, PAUL VIERA, aka Paulie, KELVIN LYONS, aka Peanut, DANIEL SANTIAGO, KENNETH LYONS, aka Kenny, JEROME JEMISON, aka Sal, aka Slick, ALVIN FUSTER, OSCAR DOMINGUEZ, EDGAR MALDONADO, aka Kojak, ANDREW RODRIGUEZ, aka "Andy," Defendants, RONALD OCASIO, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 177

229 F.3d 177 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. XAVIER CARRILLO, JULIO BENIQUEZ, ANGEL OCASIO, aka Titi, ARNOLD RODRIGUEZ, aka Chino, TEO JOHNSON, JOSE SERRANO, aka Shorty, LAWRENCE MATHIES, aka Poochie, CLARENCE JACKSON, aka Boo Boo, JAMES WIGGINS, aka Jimmy Long, aka Jim Bob, JULIO CARRILLO, MARQUEO STROUD, WILLIAM OCASIO, PAUL VIERA, aka Paulie, KELVIN LYONS, aka Peanut, DANIEL SANTIAGO, KENNETH LYONS, aka Kenny, JEROME JEMISON, aka Sal, aka Slick, ALVIN FUSTER, OSCAR DOMINGUEZ, EDGAR MALDONADO, aka Kojak, ANDREW RODRIGUEZ, aka "Andy," Defendants, RONALD OCASIO, Defendant-Appellant.

Docket No. 98-1499

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: November 22, 1999

Decided: September 29, 2000

Appeal from judgment of conviction imposed upon Ocasio by the United States District Court for the Southern District of New York (Batts, J.) pursuant to 18 U.S.C. §§ 2, 924(c), 1959(a)(1), 1959(a)(5), 1962(c), 1962(d), and 21 U.S.C. § 846, for participation in a racketeering enterprise, conspiracy to participate in a racketeering enterprise, murder for the purpose of maintaining position in a racketeering enterprise, attempted murder and conspiracy to murder for the purpose of maintaining position in a racketeering enterprise, conspiracy to distribute heroin and cocaine base, and using and carrying firearms during and in relation to several of the above listed crimes of violence. The Court of Appeals (Leval, J.) affirms the judgment.

BRUCE R. BRYAN, Syracuse, N.Y., for Appellant.

ROBIN BAKER, Assistant United States Attorney, Southern District of New York, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, New York, NY.), for Appellee.

Before: LEVAL, CALABRESI, and PARKER, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Ronald Ocasio was convicted, following a ten-week jury trial, of violations of the Racketeer Influenced and Corrupt Organizations ("RICO") statute, 18 U.S.C. §§ 1961-1968, and the Violent Crimes in Aid of Racketeering ("VICAR") statute, 18 U.S.C. § 1959. The counts of conviction included: (1) participating in the conduct of a racketeering enterprise in violation of 18 U.S.C. § 1962(c) by committing the predicate racketeering acts of murder, attempted murder, conspiracy to commit murder, and narcotics trafficking; (2) conspiring to conduct and participate in the affairs of a racketeering enterprise in violation of 18 U.S.C. § 1962(d); (3) conspiracy to murder Kelvin Lyons and Joseph Hendrickson for the purpose of maintaining position in a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5); (4) attempted murder of Lyons, in violation of 18 U.S.C. §§ 1959(a)(5) and 2; (5) murder of Rufus Brown, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (6) conspiracy to murder Robert Antonetti, in violation of 18 U.S.C. § 1959(a)(5); (7) murder of Robert Antonetti, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (8) conspiracy to murder Axel Antonetti, in violation of 18 U.S.C. § 1959(a)(5); (9) murder of Axel Antonetti, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (10) conspiracy to distribute and possess with intent to distribute heroin and cocaine base, in violation of 21 U.S.C. § 846; (11) using and carrying a firearm during and in relation to the conspiracy to murder Lyons and Hendrickson, the attempted murder of Lyons, and the murder of Brown, in violation of 18 U.S.C. §§ 924(c) and 2; (12) using and carrying a firearm during and in relation to the conspiracy to murder and the murder of Robert Antonetti, in violation of 18 U.S.C. §§ 924(c) and 2; and (13) using and carrying a firearm during and in relation to the conspiracy to murder and the murder of Axel Antonetti, in violation of 18 U.S.C. §§ 924(c) and 2. The district court (Batts, J.) sentenced Ocasio to life imprisonment and a consecutive term of forty-five years' imprisonment, to be followed by a five-year term of supervised release, and a mandatory 650 dollar special assessment.

On appeal, Ocasio contends that (1) the district court erred in refusing to charge that in order to find that he had committed the racketeering act or VICAR act of conspiracy to murder, the jury must find that a member of the conspiracy had committed an overt act in furtherance of the conspiracy; (2) insufficient evidence supported the finding that he had committed certain racketeering acts; (3) the government failed to disclose information in a timely manner and this failure denied him a fair trial; (4) the manner in which the case was prosecuted denied him due process; (5) the district court erred in refusing to give the defense's requested instructions regarding witness credibility; (6) the jury instructions omitted some of the overt acts listed in the original indictment's drug conspiracy count; (7) he received ineffective assistance of counsel; (8) the government violated 18 U.S.C. §201(c)(2) by making promises of value to witnesses in exchange for testimony; (9) the government proved multiple conspiracies rather than the conspiracy charged, and the court erred by failing to give a multiple conspiracy charge; and (10) the district court unreasonably restricted the defense's cross-examination of witnesses. We reject Ocasio's contentions and affirm the judgment of conviction. His contentions numbered (2) through (10) above are insubstantial and require no discussion. We reject his first contention for the reasons given below.

BACKGROUND

The evidence at the trial demonstrated that Ocasio was the leader of a racketeering enterprise known as the "Bryant Boys," so named because its drug distribution operations were centered at 850 and 860 Bryant Avenue, Bronx, New York. Cooperating co-defendants who had been involved in the Bryant Boys enterprise, as well as other witnesses, including law enforcement officers, testified to the organization and history of the enterprise's heroin and crack distribution operation, and to Ocasio's role in it. The Bryant Boys began operating as early as 1987 by selling heroin in glassine bags in front of 860 Bryant Avenue. As their operation expanded, the Bryant Boys began selling crack cocaine as well, and began selling from inside an abandoned building at 850 Bryant Avenue. The building was known as "the Hole" because its courtyard was surrounded by a high wall, and all of its windows were covered over, leaving open only a small hole in one wall through which drugs and money could be passed. By early 1991, the Bryant Boys sold drugs at these "spots" twenty-four hours a day, seven days a week, in eight-hour shifts. In each eight-hour shift, they sold approximately 350 bundles of heroin, containing ten glassine bags per bundle, and approximately 140 packs of crack cocaine, each containing 50 vials of crack.

Sometime in 1990, Rudolph Wyatt, who had worked as a hitman for the Bryant Boys at Ocasio's direction, got into an argument and physical altercation with Angel Ocasio, the defendant's brother. On October 21, 1990, the defendant Ocasio told Arnold Rodriguez to call Wyatt and ask him to come to Bryant Avenue. Rodriguez did so, and Wyatt, accompanied by Carl Norris and Cartrell Campbell, met Rodriguez across the street from 860 Bryant Avenue. They began to approach the building. Ocasio and his two brothers, William and Angel, then came out of the building, and Ocasio tossed a bag to Wyatt. As Wyatt opened the bag, Ocasio drew a gun and shot him. At the same time, William and Angel Ocasio drew their own guns and began shooting at and pursuing Norris and Campbell. In the ensuing confusion, Wyatt, though wounded, escaped into a nearby restaurant. Later, Ocasio caught up to Norris and shot and killed him; two witnesses observed the shooting from their window. Physical evidence collected at the scene and statements of others in the neighborhood corroborated the eyewitness accounts of the shootings.

The "spots" closed for a brief period in 1992 due to a battle for control of the drug-selling turf between Ocasio and Xavier Carrillo. The battle was precipitated when Manny Burgos, Carrillo's nephew, attempted to open his own heroin-selling operation across the street from 860 Bryant, and Ocasio had Burgos murdered. When the battle ended, Ocasio was left in sole control of the Bryant Boys. Although Ocasio was jailed in 1993 for attempted bribery in connection with his trial in state court for the murder of Carl Norris, his brother Angel took charge of the Bryant Boys, and defendant Ocasio continued to instruct members of the Bryant Boys from jail. The "spots" closed briefly in 1994, when the Bryant Boys found themselves in a number of gun battles with the Nasty Boys, a rival drug gang.

After the murder of Burgos, Ocasio was shot at while entering his home, and Ocasio concluded that the attack was Carrillo's response - he believed Carrillo had hired Kelvin Lyons and Joseph Hendrickson to kill him, and that Lyons or Hendrickson had fired the shot. In fact, Carrillo had enlisted Lyons in an effort to have Ocasio and other members of the Bryant Boys killed after the Burgos murder. Lyons, in turn, suspected Ocasio and Jose Serrano of trying to kill him, and hired Hendrickson in an attempt to kill Serrano. Thereafter, Ocasio enlisted members of the Bryant Boys to kill Lyons and Hendrickson, among others.

By Thanksgiving Day of 1992, Lyons was no longer a member of the Bryant Boys and instead was operating his own crack selling "spot," where he employed Rufus Brown. On that Thanksgiving Day, while Lyons and Brown were walking from Lyons's "spot" on Seneca Avenue to a taxi stand, several of Ocasio's henchmen, including Serrano, watching from the roof of 860 Bryant Avenue, recognized Lyons, and mistook Brown for Hendrickson. They ran downstairs and told Ocasio they had seen Lyons. Ocasio then armed himself with a handgun, gave Serrano another handgun, and went with the entire group to the building's basement, where they could peek out...