U.S.A. v. Feliciano

• Decision Date: 09 June 2000
• Docket Number: Nos. 99-1289,99-1290,99-1318,s. 99-1289
• Citation: 223 F.3d 102
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. RUBEN FELICIANO, aka Rude Dog, aka Roob Dog, Ronald Pagan, aka Twin, and NELSON GONZALEZ, aka Snoop,Defendants-Appellants
• Court: U.S. Court of Appeals — Second Circuit

Page 102

223 F.3d 102 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. RUBEN FELICIANO, aka Rude Dog, aka Roob Dog, Ronald Pagan, aka Twin, and NELSON GONZALEZ, aka Snoop,Defendants-Appellants.

Nos. 99-1289, 99-1290, 99-1318

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

June 9, 2000, Argued

August 16, 2000, Decided

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[Copyrighted Material Omitted]

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Karen L. Peck, Assistant United States Attorney (Stephen C. Robinson, United States Attorney for the District of Connecticut, Anthony E. Kaplan, Assistant United States Attorney, of counsel), for Appellee.

Michael O. Sheehan, Sheehan & Reeve, New Haven, CT, for Appellant Ruben Feliciano.

John W. Mitchell, New York, NY, for Appellant Ronald Pagan.

Steven M. Statsinger, Legal Aid Society, Federal Defender Division, New York, NY, for Appellant Nelson Gonzalez.

Before: STRAUB and KATZMANN, Circuit Judges, and HODGES,^* District Judge.

KATZMANN, Circuit Judge:

Defendants-appellants Ruben Feliciano ("Feliciano"), Ronald Pagan ("Pagan"), and Nelson Gonzalez ("Gonzalez") appeal from judgments of conviction entered by the United States District Court for the District of Connecticut (Peter C. Dorsey, Senior Judge). At trial in January and February of 1999, Feliciano, Pagan, and Gonzalez, members of a gang known as Los Solidos, were found guilty by a jury of conspiring to murder and murdering 16-year old fellow member Edwin Ramos, in violation of 18 U.S.C. 1959. Feliciano and Pagan were also found guilty of firearms offenses, in violation of 18 U.S.C. 924(c)(1) and (2). On this appeal, appellants do not challenge the sufficiency of the evidence as to their participation in this execution-style murder. Instead, their challenges relate primarily to the fact that their prosecution was conducted by federal, rather than state, authorities under a federal statute, 18 U.S.C. 1959, which allows federal authorities to prosecute violent crime when those allegedly responsible participated in the violent crime in order to gain, maintain, or increase a position in an enterprise engaged in racketeering activity. See 18 U.S.C. 1959.

Defendants-appellants claim that the district court erred (1) by conducting portions of voir dire outside their hearing; (2) in instructing the jury that under 1959, Los Solidos' activities need only have had a minimal effect on interstate or foreign commerce; and (3) by admitting allegedly improper testimony by law enforcement agents. Defendants-appellants also claim, inter alia, (4) that the evidence at trial was insufficient to show that Los Solidos engaged in racketeering activity, as required by 1959; (5) that the prosecutor made certain improper and highly prejudicial comments in her rebuttal summation; and (6) that the district court misunderstood its sentencing authority under 1959. In addition, (7) defendants-appellants for the first time on appeal raise several constitutional challenges to 1959. We find claims 1 through 6 to be without merit, and that the constitutional claims were waived. Accordingly, we affirm the district court in all respects at issue.

BACKGROUND

On the evening of March 24, 1997, Feliciano, Pagan, and Alex Rivera, members of the Meriden, Connecticut chapter of Los Solidos, a gang with members in Meriden and other Connecticut cities, drove with fellow member Edwin Ramos, aged 16, to a cemetery in Meriden. Upon bringing Ramos to this site, Feliciano, in the morning hours of March 25, shot Ramos in the head. The company then left Ramos' dead or dying body on the cemetery grounds. Because of evidence that the murder was an execution ordered and carried out by members of Los Solidos, a gang that trafficked in drugs in several cities in Connecticut, federal authorities sought to prosecute those allegedly responsible for the murder under 18 U.S.C. 1959, which prohibits violent crime in aid of racketeering ("VCAR").

On September 1, 1998, a federal grand jury sitting in New Haven, Connecticut, returned a superseding indictment against Feliciano, Pagan, and Gonzalez. All three were charged in Count One with conspiring to commit a violent crime (the murder of Ramos) in aid of racketeering, in violation of 18 U.S.C. 1959(a)(5), and, in Count Two, with committing a violent crime in aid of racketeering, and aiding and abetting, in violation of 18 U.S.C. 1959(a)(1) and (2). Feliciano and Pagan were charged in Count Three, respectively, with using and carrying a firearm during and in relation to a crime of violence, and aiding and abetting, in violation of 18 U.S.C. 924(c)(1) and (2).

Trial was held in New Haven before the Honorable Peter C. Dorsey, Senior United States District Judge for the District of Connecticut. On January 4, 1999, venire persons were assembled for possible service with respect to four trials - the trial for the case at hand, two other criminal trials (one with two defendants, the other with one defendant), and a civil rights action brought by a pro se prison inmate. During the selection process, the venire persons available for these trials were present together in the same courtroom with the defendants in the three criminal trials and the inmate plaintiff -- a situation that caused some concern to the marshals responsible for security.¹

During the two days of voir dire, the venire persons were asked many questions in open court, with all three defendants in the instant case present from the beginning and throughout, and able to observe the venire members and hear their responses. For example, at the beginning of voir dire, the venire members available for all trials responded orally in open court to some written questions previously presented to them, such as: whether they or anyone close to them had been victims of, or charged with, a crime; whether they had close ties to law enforcement; and whether they or their families or friends had a problem with drugs or with police. At the urging of Feliciano's counsel, the court permitted some of the venire persons to come to the bench to discuss questions they might feel uncomfortable discussing in open court, relating to such matters as personal or family members' involvement with crime or drugs. However, citing security concerns expressed by the marshals, the court denied Feliciano's counsel's request that the defendants be allowed to come to the bench to hear these responses. The district court did, however, permit defense counsel, who participated in the bench inquiries, to interrupt the bench questioning at any time in order to consult with the defendants, should they desire to do so, and to return to the bench with any additional questions suggested through such consultation.

When the time came to pick the jury for the civil rights case, venire persons were asked, among other things, whether they would give less consideration to a prison inmate, and whether they had ever made a complaint about law enforcement. When attention turned to selection of jurors for the case at hand, the venire persons were asked, among other things, about: whether they knew the witnesses or other individuals involved in the case; whether they had any experiences with law enforcement agents; their understanding of the presumption of innocence; their feelings about the Government's possible presentation of evidence of tape-recorded conversations; their feelings about the Government's use of informants; whether they could fairly judge evidence relating to a homicide; their attitudes toward Hispanics; whether they could fairly judge evidence that might show that the defendants were members of a gang or were involved in narcotics activity; whether they had heard of Los Solidos or of the Latin Kings, a rival gang, and, if so, whether what they heard would influence their judgment in the case at hand.

With respect to the question whether they had heard about Los Solidos, venire members who wished to do so were permitted -- again at the urging of Feliciano's counsel -- to approach the bench and were questioned as before outside the hearing of the defendants but in the presence of defense counsel, about what they knew or had heard about Los Solidos. The district court again told defense counsel that they could interrupt the bench colloquy to consult with the defendants about matters revealed at the bench and to put further questions to the venire persons that might arise from such consultation. Two persons who eventually served on the jury were among those who came to the bench and were questioned by the court and by counsel about what they had read or heard relating to Los Solidos, and whether any such reports would influence their judgment in this case.

Only one other person who served on the jury approached the bench, and that for the purpose of discussing whether a medical appointment he had might interfere with service on the jury. According to the district court, "[the] defendants observed the process [at the bench] from no more than 15 feet away." At no time did any defense counsel take advantage of the court's permission to interrupt the bench colloquy to consult with his client about information provided by potential jurors at the sidebar.

At the conclusion of all questioning, the peremptory strikes were made in open court, with the defendants able to observe the process and to consult with counsel as to any matters revealed in open court or at the bench. Although armed with the information provided through open court voir dire and with the opportunity to consult with the defendants concerning any bench colloquy, apart from the objection to the method of questioning, none of the defense counsel expressed dissatisfaction with the composition of the jury selected for service.

With respect to the murder of Edwin Ramos, the Government's evidence at trial was essentially as follows. Members of Los Solidos were upset that Ramos, a member of Los Solidos and a former member of the Latin Kings, had sold...