U.S. v. Genao

• Decision Date: 01 April 1996
• Docket Number: Nos. 532,D,707,s. 532
• Citation: 79 F.3d 1333
• Parties: UNITED STATES of America, Appellee, v. Maximo GENAO; Francisco Miguel Genao; Robert Llin, Jr., also known as Robertito; Livi Cabrera; Franklin Vargas; Anibal Abad; Reginaldo Garcia, aka Ray; Myra Acosta; Francis Liberato, aka Kiko; Ramon Burgos; Cesar Carmona, aka Cesar; Maribel Miranda; Janet Rodriguez; Dario Mena; Carlos Blanco, aka Cheo, aka Chelo; LNU1-92CR510-018, aka Guillermo; Alfredo Nova, aka Fredo; Jorge Felix Puello; Papolo Pilon, LNU1-92CR510-022, aka Mario; LNU1-92CR510-023, aka Rafie; Pedro Lara, aka Nino; LNU1-92CR510-025; aka Oscar; LNU1-92CR510-026, aka Marlene; LNU1-92CR510-027, aka Piedad, Defendants, Pedro Genao, aka Pepo, aka Guzman Cabral; Robert Llin, Sr., Defendants-Appellants. ockets 95-1084, 95-1266.
• Court: U.S. Court of Appeals — Second Circuit

Page 1333

79 F.3d 1333

UNITED STATES of America, Appellee, v. Maximo GENAO; Francisco Miguel Genao; Robert Llin, Jr., also known as Robertito; Livi Cabrera; Franklin Vargas;

Anibal Abad; Reginaldo Garcia, aka Ray; Myra Acosta;

Francis Liberato, aka Kiko; Ramon Burgos; Cesar Carmona,

aka Cesar; Maribel Miranda; Janet Rodriguez; Dario Mena;

Carlos Blanco, aka Cheo, aka Chelo; LNU1-92CR510-018, aka

Guillermo; Alfredo Nova, aka Fredo; Jorge Felix Puello;

Papolo Pilon, LNU1-92CR510-022, aka Mario;

LNU1-92CR510-023, aka Rafie; Pedro Lara, aka Nino;

LNU1-92CR510-025; aka Oscar; LNU1-92CR510-026, aka

Marlene; LNU1-92CR510-027, aka Piedad, Defendants,

Pedro Genao, aka Pepo, aka Guzman Cabral; Robert Llin, Sr.,

Defendants-Appellants.

Nos. 532, 707, Dockets 95-1084, 95-1266.

United States Court of Appeals,

Second Circuit.

Argued Nov. 17, 1995.

Decided April 1, 1996.

Appeal by Defendant-Appellant from a judgment of conviction before the United States District Court for the Southern District of New York (Martin, J.), on the grounds that the district judge erred by: denying a continuance, imposing an excessive sentence, refusing to find that defense counsel had provided ineffective assistance, refusing to find that the evidence was insufficient to support a guilty verdict, and upholding 21 U.S.C. § 846 as a valid exercise of Congress's Commerce Clause power.

Kenneth M. Karas, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Nancy J. Northup, Assistant United States Attorney, New York City, of counsel), for Appellee.

James Kousouros, Kew Gardens, NY, for Defendant-Appellant Llin.

Before CARDAMONE, MAHONEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Defendant-Appellant Robert Llin, Sr. appeals from a judgment of conviction for conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 before the United States District Court for the Southern District of New York (John S. Martin, Jr., District Judge ). On appeal, Llin alleges that the district judge abused his discretion by (1) refusing to grant a continuance so that defense counsel could consider Federal Rule of Criminal Procedure 16 and 18 U.S.C. § 3500 materials, thereby violating Llin's right to a fair trial; (2) excessively sentencing Llin on the basis of an exaggerated quantity of cocaine; (3) refusing to find that Llin's trial counsel rendered ineffective assistance; (4) refusing to find that the testimony of the government's informant was insufficient to support a guilty verdict; and (5) finding that 21 U.S.C. § 846 is a valid exercise of Congress's Commerce Clause power.

The judgment of the district court is hereby affirmed. ¹

BACKGROUND

On February 11, 1993, Defendant-Appellant Robert Llin, Sr. was indicted on one count of conspiring to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and two counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841. He initially accepted an offer by the government to plead guilty to possession of 250 grams of cocaine and so pled on May 24, 1993. Subsequently, however, he claimed that he was innocent and that he wished to withdraw his plea. On December 1, 1993, the district court permitted him to do so and set a trial date. On

                January 7, 1994, following a four-day jury trial, Llin was convicted on the conspiracy count and acquitted on the two substantive counts.   On April 28, 1995, he was sentenced to a term of incarceration of ninety-seven months to be followed by five years supervised release.   He is currently serving his sentence
                

DISCUSSION

Llin challenges the statute under which he was convicted as unconstitutional. He alleges that in enacting the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Controlled Substances Act"), of which 21 U.S.C. § 846 is a part, Congress exceeded its authority under the Commerce Clause, Article I, § 8 of the Constitution, thereby violating the Tenth Amendment which reserves to the states the powers not delegated to the United States.

Llin contends that his conviction under 21 U.S.C. § 846 cannot stand because the statute does not require, and the government failed to prove, that Llin's conduct affected interstate commerce. ² Llin argues that because his conduct was solely intrastate, it is not subject to regulation by Congress. The Supreme Court has, however, expressly held that Congress may regulate activity that occurs wholly within a particular state if the activity has a sufficient nexus to interstate commerce. ³ See Fry v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795, 44 L.Ed.2d 363 (1975) ("Congress'[s] power under the Commerce Clause is very broad. Even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations."); Perez v. United States, 402 U.S. 146, 156-57, 91 S.Ct. 1357, 1362-63, 28 L.Ed.2d 686 (1971) (upholding Title II of the Consumer Credit Protection Act, as applied to one engaged in local loansharking, on the basis that "loan sharking in its national setting is one way organized interstate crime holds its guns to the heads of the poor and the rich alike and syphons funds from numerous localities to finance its national operations."); Houston, E. & W. Texas Ry. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914). The Court has stated that "it [is] necessary no longer to search for some sharp point or line where interstate commerce ends and intrastate commerce begins." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 232, 68 S.Ct. 996, 1004, 92 L.Ed. 1328 (1948). Rather, there "is an obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states." Id. at 236-37, 68 S.Ct. at 1006. (quotation omitted).

Congress's findings and declarations with respect to its enactment of the Controlled Substances Act are codified at 21 U.S.C. § 801 which, in relevant part, provides as follows:

(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(A) after manufacture, many controlled substances are transported in interstate commerce, (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and (C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

Because narcotics trafficking represents a type of activity that Congress reasonably found substantially affected interstate commerce, the actual effect that each drug conspiracy has on interstate commerce is constitutionally irrelevant.

In considering the exact issue before us, the Fifth Circuit has stated:

A familiar exercise of [the Commerce Clause] power is the regulation of intrastate activities which are so commingled with or related to interstate activities that all must be regulated if interstate commerce is effectively to be controlled....

Consequently, where it is apparent that an attempt to separate interstate activities from intrastate activities would be a futile exercise substantially interfering with and obstructing the exercise of the granted power of Congress to regulate interstate commerce, that attempt is not required.

While sometimes leaving to the courts the task of determining whether interstate commerce is affected by particular intrastate activities or whether an attempt to separate intrastate activities from those interstate would be a futile exercise, Congress, in passing [the Comprehensive Drug Abuse Prevention and Control Act of 1970], has for itself made this determination.

... Congress has the power to make this determination and take this action.

United States v. Lopez, 459 F.2d 949, 951 (5th Cir.) (citations omitted), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). We agree. Furt...