U.S. v. Concepcion

• Decision Date: 25 March 1993
• Docket Number: 1663 and 1664,D,Nos. 1660,s. 1660
• Citation: 983 F.2d 369
• Parties: UNITED STATES of America, Appellee, v. Manuel CONCEPCION, Roberto Aponte, and Nelson Frias, Defendants-Appellants. ockets 91-1151(L), 91-1179, 91-1341 and 91-1424.
• Court: U.S. Court of Appeals — Second Circuit

Page 369

983 F.2d 369

5 Fed.Sent.R. 299

UNITED STATES of America, Appellee, v. Manuel CONCEPCION, Roberto Aponte, and Nelson Frias,

Defendants-Appellants.

Nos. 1660, 1663 and 1664, Dockets 91-1151(L), 91-1179,

91-1341 and 91-1424.

United States Court of Appeals, Second Circuit.

Argued June 22, 1992.

Decided Dec. 28, 1992.

Order on Denial of Rehearing and

Rehearing In Banc March 25, 1993.

Dissenting Opinion to Denial of Rehearing

In Banc March 25, 1993.

Peter R. Ginsberg, Asst. U.S. Atty., Brooklyn, NY (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Peter A. Norling, Susan Corkery, Emily Berger, Edward A. Rial, Asst. U.S. Attys., Brooklyn, NY, on the brief), for appellee.

Alan S. Futerfas, New York City (Gerald L. Shargel, New York City, on the brief), for defendant-appellant Manuel Concepcion.

Bettina Schein, New York City, for defendant-appellant Roberto Aponte.

John M. Apicella, Brooklyn, NY, for defendant-appellant Nelson Frias.

Before: VAN GRAAFEILAND, NEWMAN, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Manuel Concepcion, Roberto Aponte, and Nelson Frias appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Arthur D. Spatt, Judge, convicting them of various racketeering, narcotics, money laundering, and weapons offenses. Concepcion and Aponte were convicted of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (1988); possessing and conspiring to possess large quantities of narcotics with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988); and committing violent crimes for the purpose of maintaining or increasing their positions in a racketeering enterprise, in violation of 18 U.S.C. § 1952B (Supp. II 1984), renumbered 18 U.S.C. § 1959 (1988)(collectively " § 1959") by Pub.L. 100-690, § 7053(b), 102 Stat. 4181, 4402 (1988), and 18 U.S.C. § 2 (1988). In addition, Concepcion was convicted of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (1988), and possessing a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (1988). Concepcion was sentenced principally to life imprisonment plus five years' imprisonment, to be served consecutively, and was ordered to pay a $1,000,000 fine. Aponte was sentenced principally to life imprisonment. Frias was convicted of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (1988), and possessing weapons as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1988). He was sentenced principally to two 120-month terms of imprisonment, to be served consecutively.

On appeal, defendants make a number of challenges to their convictions and sentences. Concepcion and Aponte contest, inter alia, the applicability of § 1959 to their conduct, the sufficiency of the evidence to support their convictions under that section, and the trial court's rulings with respect to the admissibility of certain evidence. Frias contends that the district

                court impermissibly enhanced his sentence on the basis of conduct of which he was acquitted, imposed consecutive sentences in violation of his right to be free from double jeopardy, and miscalculated his sentence under the federal Sentencing Guidelines ("Guidelines" or "1988 Guidelines").   For the reasons below, we vacate Frias's sentence and remand for resentencing.   In all other respects, we affirm
                

I. BACKGROUND

In 1989, Concepcion, Aponte, and Frias, along with some three dozen other individuals, were indicted on a variety of charges arising out of their operation, primarily in the Williamsburg and East New York sections of Brooklyn, of a wholesale and retail narcotics organization known as the "Unknown Organization" ("Organization"). Taken in the light most favorable to the government, the evidence at trial, which included the testimony of a dozen accomplices and several government informants, showed the following.

A. The Organization's Operations

The Organization consisted of a highly structured distribution network that purchased relatively pure narcotics, cut and packaged them, and then sold them through 24-hour street sales locations known as "spots." At its peak, the Organization received gross income from heroin sales of more than $10 million a month.

Prior to 1988, the Organization was run by Ricardo Melendez, and Concepcion was a lieutenant responsible for its retail distribution operations in Williamsburg. In September 1988, Melendez was arrested and Concepcion became the Organization's leader. In that role, Concepcion was in charge of all day-to-day activities until his own arrest in March 1989.

The Organization employed hundreds of people, and employee loyalty was maintained chiefly by means of intimidation. To those who interfered with or stole from it, the Organization often meted out violent punishment, and the record includes evidence of a substantial number of murders and mutilations. For example, in August 1988, George Espada, a low-level Organization member, was suspected of stealing approximately $100,000 of the Organization's profits. To recover these moneys and reaffirm the Organization's authority, Concepcion and five subordinates kidnaped Espada. They took him to a garage owned by Concepcion in Williamsburg and proceeded to bind, gag, beat, kick, shoot, and stab him for several hours. Concepcion himself stabbed Espada numerous times and donned boots in order to give more force to his kicks.

The Organization also used violence to rebuff territorial challenges by rival groups. For example, in May 1988, rival drug dealers initiated a dispute over control of a retail drug location on Metropolitan Avenue in Williamsburg. When informed of trouble at that "spot," Concepcion promptly went there, accompanied by three subordinates, to take care of the matter. As they approached with their guns drawn, one James Gines stepped up to Concepcion and attempted to stop him. Concepcion, much the larger man, shook Gines off and shot him; he then repeatedly shot Gines as Gines attempted to run away. There ensued a general shootout, during which Concepcion continued firing until his gun jammed. By the end of the gunfight, Concepcion and two bystanders, Wilfredo Ortiz and Luis Reyes, had also been shot. Gines, Ortiz, and Concepcion were taken to the hospital, where Gines died. As discussed in greater detail in Part II.A. below, Ortiz and Gines's girlfriend Lea Lopez identified Concepcion at the hospital as the person who had struggled with and shot Gines.

Defendant Roberto Aponte ("Aponte"), whose street name was "Savage," was one of the Organization's enforcers and was employed principally in East New York to control business activities there. In late 1988, one Robert Aponte ("Robert"), who was unrelated to defendant Aponte, was pressuring Concepcion for a share of the profits made by the Organization from sales at a building Robert owned. When Concepcion refused, Robert made a number of threats, and in early February 1989 Concepcion

                asked Aponte to take care of the matter.   Aponte tried, but at first failed because, he said, Robert was too "slick."   On February 23, however, Concepcion gave Aponte a gun, and Aponte assured him that he would "take care of" Robert that day.   Aponte then found Robert in a local grocery store and, in the presence of witnesses, shot Robert repeatedly, killing him.   At Concepcion's garage the next day, Aponte fully described to other members of the Organization how he had shot and killed Robert.    Concepcion rewarded Aponte with $10,000 and a diamond Rolex watch
                

B. The Arrests and the Present Prosecution

In March 1989, Concepcion, Aponte, and several other Organization members sought to purchase roughly 7 1/2 kilograms of pure heroin from a government informant. At a meeting on March 14, 1989, Organization members paid the informant approximately $1.1 million in cash for supposed bricks of heroin. Government agents interrupted the transaction and arrested Concepcion, Aponte, and the others, seizing the cash and three weapons. As discussed in Part II.D. below, Frias was arrested several months later during the execution of a search warrant at his apartment.

Indictments were handed down against some 39 individuals, charging various defendants with, inter alia, narcotics distribution and conspiracy, racketeering, murder and kidnaping in furtherance of racketeering activity, and money laundering. Concepcion, Aponte, Frias, and seven others were tried together in a four-month jury trial. Concepcion was convicted on one count of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of RICO, 18 U.S.C. § 1962(c); one count of narcotics conspiracy and one count of attempting to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; four counts of committing violent crimes for the purpose of maintaining or increasing his position in the Organization, in violation of 18 U.S.C. §§ 1959 and 2; three counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and one count of using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The jury acquitted Concepcion on one count of attempted murder in aid of racketeering activity and one count of money laundering. Aponte was convicted on one count of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of RICO, 18 U.S.C. § 1962(c); one count of narcotics conspiracy and one count of attempting to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and one count of murder for the purpose of maintaining or increasing his position in the Organization, in violation of 18 U.S.C. § 1959. Aponte was acquitted on one...