U.S. v. Collado, 1811
| Decision Date | 13 January 1997 |
| Docket Number | No. 1811,D,1811 |
| Citation | 106 F.3d 1097 |
| Parties | UNITED STATES of America, Appellee, v. Richard COLLADO, Defendant, Leopoldo Rivera-Rosa, Defendant-Appellant. ocket 95-1512. |
| Court | U.S. Court of Appeals — Second Circuit |
Kenneth M. Tuccillo, New York City, for Defendant-Appellant.
Andrew Lachow, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., Nancy J. Northup, Asst. U.S. Atty., New York City, on the brief), for Appellee.
Before: WINTER and LEVAL, Circuit Judges, and THOMPSON, District Judge. *
Leopoldo Rivera-Rosa appeals the sentence imposed by Judge Martin after a jury convicted Rivera-Rosa of conspiring to import approximately eight kilograms of heroin into the United States in violation of 21 U.S.C. § 963. On August 18, 1995, Judge Martin sentenced Rivera-Rosa to a 240 month term of imprisonment, to be followed by ten years of supervised release, and imposed a $50 mandatory special assessment. Rivera-Rosa appeals his sentence on two grounds: (i) the district court erred in enhancing his sentence in accordance with 21 U.S.C. § 851 because his prior felony offense was not prosecuted by indictment or waiver thereof, and (ii) the district court erred in determining the drug quantity attributable to him. For the reasons that follow, we find that: (i) based on 21 U.S.C. § 851(a)(2), a defendant's conviction for a prior felony offense cannot be used as the basis for enhancement of a sentence, in accordance with 21 U.S.C. § 851, unless that prior felony offense was prosecuted by indictment or waiver thereof, and (ii) the district court did not err in determining the drug quantity attributable to the appellant.
Accordingly, the judgment is reversed in part and affirmed in part, and the case is remanded for further proceedings consistent with this opinion.
In early 1990, Jose Rodriguez, a heroin distributor in Harlem, and Michael Fafowora, a Nigerian heroin supplier, agreed to smuggle approximately eight kilograms of heroin from Singapore and Thailand through the Dominican Republic and into the United States. In the first phase of their scheme, Fafowora would purchase the heroin in Asia for $10,000 per kilogram and stuff it into film cartridges, which, in turn, would be placed in small refrigerators and shipped to the Dominican Republic. In the second phase, the heroin would be repackaged and secreted on female couriers, who would then travel by commercial airline from the Dominican Republic to the United States.
In the fall of 1990, the first phase took place as planned. Rodriguez then contacted Rivera-Rosa in Puerto Rico. Rivera-Rosa had for a number of years been purchasing half-kilogram quantities of heroin from Rodriguez. Rivera-Rosa had expressed to Rodriguez an interest in purchasing some of the heroin that Rodriguez and Fafowora intended to import from Asia. In exchange for receiving a portion of the approximately eight kilograms of heroin at a reduced price, Rivera-Rosa agreed to escort two of the couriers as they traveled with the heroin from the Dominican Republic to Puerto Rico and then to New York.
On October 23, 1990, Rodriguez, Fafowora, four couriers and other co-conspirators traveled from New York to the Dominican Republic to effectuate the second phase of the importation scheme. Within two days, Rivera-Rosa arrived in the Dominican Republic from Puerto Rico. While staying at the Jaragua Hotel in Santa Domingo, Rodriguez and Rivera-Rosa had a number of discussions about the heroin transaction. Rivera-Rosa persuaded Rodriguez to change the original plan; he suggested removing the drugs from the couriers in Puerto Rico and selling the drugs there, rather than escorting the couriers and the drugs all the way to New York. Rivera-Rosa explained that he already had a client in Puerto Rico interested in purchasing one kilogram of heroin. Rodriguez agreed to sell the kilogram of heroin to Rivera-Rosa for $150,000.
On October 27, 1990, Rodriguez brought the approximately eight kilograms of heroin, which was still stored in film containers, to a room at the Jaragua Hotel. In Rivera-Rosa's presence, Rodriguez removed the heroin from the containers, weighed it, placed one to two kilograms of heroin in individual plastic bags and then secured the bags with masking tape, forming brick-shaped packages.
On October 28, 1990, as Rivera-Rosa waited in the hotel lobby, Rodriguez and Fafowora met in a hotel room with two of the couriers who had traveled with them from New York. Rodriguez and Fafowora taped packages containing a total of 3.4 kilograms of heroin to the women's bodies and told them that there had been a change in plans. They would not be taking the heroin all the way to New York. Someone would meet them at the airport in Puerto Rico and take all of the heroin from them.
After the heroin was secure, Rodriguez brought the couriers to the hotel lobby. Rodriguez met briefly with Rivera-Rosa and pointed out the two women (i.e., the couriers) Rivera-Rosa would be escorting to Puerto Rico and from whom Rivera-Rosa would be taking the heroin. Rivera-Rosa followed the couriers to the airport, boarded their plane and watched over them during the flight.
United States Customs Service agents arrested the two couriers and Rivera-Rosa shortly after they disembarked at the airport in San Juan, Puerto Rico and seized the 3.4 kilograms of heroin and numerous documents reflecting their travel to and their stay in the Dominican Republic. Agents also seized from Rivera-Rosa various address and telephone books and other papers which contained Fafowora's and Rodriguez' names and telephone numbers. That same day at Newark International Airport, United States Customs Service agents arrested the two couriers carrying the remaining 3.85 kilograms of heroin from the Dominican Republic and seized the heroin and their travel records.
Rivera-Rosa was convicted by a jury on February 25, 1994 and sentenced by Judge Martin on August 18, 1995. Prior to sentencing, Rivera-Rosa submitted to the court a letter, dated August 17, 1995, in which he set forth his objections to the Presentence Report. In that letter, he also requested a Fatico hearing on the question of whether he knew or foresaw the amount of heroin to be distributed pursuant to the conspiracy. Rivera-Rosa argued that his role was limited to that of a mere buyer of one kilogram of heroin. In sentencing Rivera-Rosa, the district court found that the 3.4 kilograms of heroin carried by the two couriers Rivera-Rosa escorted to Puerto Rico were attributable to him but made no determination as to whether the 3.85 kilograms of heroin carried by the other two couriers directly to New Jersey were attributable to him.
The district court imposed an enhanced sentence pursuant to 21 U.S.C. § 841(b)(1)(A), based on a prior felony information filed by the Government in accordance with 21 U.S.C. § 851. The prior felony information charged that in 1982 Rivera- Rosa had been convicted under the laws of Puerto Rico for a drug offense, namely, possession of marijuana, and had received a sentence of two years' imprisonment. The laws of Puerto Rico do not provide for indictment by a grand jury. 1 Thus, Rivera-Rosa was not prosecuted in 1982 by indictment or waiver thereof.
The filing of the prior felony information resulted in Rivera-Rosa being subject to a twenty year mandatory minimum term of imprisonment. On August 18, 1995, the district court sentenced Rivera-Rosa to 240 months' imprisonment, to be followed by ten years of supervised release, and imposed a mandatory special assessment of $50.
Rivera-Rosa makes four arguments related to the enhancement of his sentence, pursuant to 21 U.S.C. § 841(b)(1)(A), based on the prior felony information filed by the Government as required by 21 U.S.C. § 851. Section 851 sets forth the procedure that must be followed before a prior felony information can be filed and a defendant's sentence enhanced by reason of a prior conviction. In particular, § 851(a)(2) sets forth conditions that must be satisfied before the Government can file a prior felony information with the court. It provides:
An information may not be filed under this section if the increased punishment which may be imposed is punishment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.
21 U.S.C. § 851(a)(2) (1981) (emphasis added).
The first argument made by Rivera-Rosa relates to the question of whether the phrase "the offense for which such increased punishment may be imposed" in § 851(a)(2) is a reference to the instant offense or a reference to the offense of prior conviction. Rivera-Rosa contends that the requirement of prosecution by indictment or waiver thereof relates to the prior felony offense, not the instant offense, and that § 851(a)(2) therefore barred the filing of a prior felony information in his case because Puerto Rico does not utilize a grand jury in its prosecutions. The Government contends that the statute requires that the instant offense, not the prior felony offense, must have been prosecuted by indictment. Every circuit court that has considered this issue has adopted the position urged by the Government.
While the circuit courts that have examined this issue have acknowledged that § 851(a)(2) is susceptible to more than one interpretation 2, none of them has concluded that it is ambiguous and considered the question of whether it is therefore appropriate that the rule of lenity be followed in applying this statute. After consideration of the principles underlying the rule of lenity, the language of § 851(a)(2) and the various arguments that have been advanced as to the proper interpretation of this statute, we conclude that the statute is ambiguous and that the...
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