U.S. v. Hernandez

• Decision Date: 11 June 1996
• Docket Number: Nos. 521,522 and 1079,D,s. 521
• Citation: 85 F.3d 1023
• Parties: UNITED STATES of America, Appellee, v. Jose Antonio HERNANDEZ, also known as "Tony"; Mayra Aponte, Defendants, Steven Camacho, also known as "Spank," also known as "Spanko"; Jaime Rodriguez, also known as "Jay"; Antonio Feliciano, also known as "Tony," also known as "Guess," Defendants-Appellants. ockets 94-1685, 94-1686 and 94-1710.
• Court: U.S. Court of Appeals — Second Circuit

Page 1023

85 F.3d 1023

UNITED STATES of America, Appellee, v. Jose Antonio HERNANDEZ, also known as "Tony"; Mayra Aponte Defendants Steven Camacho, also known as "Spank," also known as "Spanko"; Jaime Rodriguez, also known as "Jay" Antonio Feliciano, also known as "Tony," also known as "Guess," Defendants-Appellants.

Nos. 521, 522 and 1079, Dockets 94-1685, 94-1686 and 94-1710.

United States Court of Appeals Second Circuit.

Argued March 18, 1996.

Decided June 11, 1996.

Michael H. Sporn, New York City, for Defendant-Appellant Steven Camacho. ¹

Joyce C. London, New York City, for Defendant-Appellant Jaime Rodriguez.

Carol E. Hofstein, New York City (Lee Ginsberg, New York City, of counsel), for Defendant-Appellant Antonio Feliciano.

Jonathan D. Schwartz, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney, Nancy J. Northrup, Assistant United States Attorney, New York City, of counsel), for Appellee.

Before: FEINBERG, CARDAMONE, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants-appellants Steven Camacho, Jaime Rodriguez, and Antonio Feliciano ("Defendants") appeal from judgments entered November 25, 1994 (Camacho and Rodriguez) and December 20, 1994 (Feliciano) in the United States District Court for the Southern District of New York, John F. Keenan, Judge, that (1) convicted all three Defendants of conspiring to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1), distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and possessing a firearm with an obliterated serial number that had been shipped in interstate commerce, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B); (2) convicted Camacho and Rodriguez of conspiring to suborn perjury in violation of 18 U.S.C. §§ 371 and 1622, and conspiring to obstruct justice by preventing testimony through threats and intimidation in violation of 18 U.S.C. §§ 371 and 1512(b); and (3) convicted Camacho of possessing in and affecting commerce a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g).

Defendants raise various challenges to their convictions and sentences. Specifically, they argue that the district court erred by (1) denying Camacho's pretrial motion to suppress evidence seized by the government during its searches of two apartments used in connection with Defendants' narcotics-related activities; (2) ruling that Rodriguez and Feliciano lacked standing to challenge one of those searches; (3) denying Feliciano's pretrial severance motion; (4) denying Rodriguez's pretrial motion to strike from the superseding indictment as surplusage overt acts of cocaine distribution; and (5) fining Rodriguez in the amount of $10,000. Defendants also contend that (6) the evidence adduced at trial was insufficient to support Rodriguez's convictions for conspiring to suborn perjury and obstruct justice; (7) Congress exceeded its authority under the Commerce Clause when it enacted 18 U.S.C. §§ 922(g)(1) and 922(k); and (8) the Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), requires the reversal of their convictions for violation of 18 U.S.C. § 924(c)(1).

The government concedes, and we agree, that Bailey requires reversal of Defendants' convictions under § 924(c)(1), but we reject the remainder of Defendants' claims. Accordingly, we affirm in part, vacate in part, and remand for resentencing.

Background

Camacho, Rodriguez, and Feliciano, along with several other coconspirators, were members of the Raja Crew, a heroin-selling organization that operated principally in the Bronx, New York from late 1989 until Defendants were arrested in 1993. Defendants conducted their narcotics-related activities in part out of Apartment 2B at 537 East 139th Street in the Bronx ("Apartment 2B").

On July 29, 1991, Judge John Cataldo of the Criminal Court of the City of New York, Bronx County, issued a warrant to search Apartment 2B for, inter alia, heroin, heroin paraphernalia, and guns. Judge Cataldo issued the warrant after making a probable cause determination based upon his (1) review of an affidavit sworn to by New York City Police Department ("NYPD") Detective Donald Sanchez, and (2) examination under oath of a confidential informant (the "CI"). Sanchez's affidavit, which set forth information that had been provided to Sanchez by the CI, stated that the CI had twice been inside Apartment 2B, described the apartment in detail, and described a person named "Joey" engaging in heroin transactions there. When questioned under oath by Judge Cataldo, the CI confirmed the information in the affidavit.

Sanchez and other NYPD officers executed the warrant and seized from Apartment 2B drugs, guns, and photographic and documentary evidence linking Defendants to narcotics-related activity. They also arrested coconspirators Jose Crespo and Marie Rosado. With the cooperation of Rosado, agents of the Bureau of Alcohol, Tobacco, and Firearms (the "BATF") were able to identify Defendants. On July 9, 1993, agents of the Federal Bureau of Investigation (the "FBI") arrested Rodriguez and Feliciano.

On July 21, 1993, federal agents went to 3312 Hull Avenue, Apartment 4DN, in the Bronx ("Apartment 4DN") to execute an arrest warrant for Camacho. Upon their arrival at 3312 Hull Avenue, the agents located Camacho on the roof of the building and arrested him there. Camacho and the agents returned to Apartment 4DN, where the agents found and seized drug paraphernalia and other evidence.

Camacho and the agents gave contradictory accounts of the circumstances of the agents' search of Apartment 4DN. FBI Special Agent David S. Higgins testified at the district court's suppression hearing that Camacho had requested to return to the apartment in order to retrieve his hat. Higgins contended that he had granted Camacho's request because he believed that doing so would increase the likelihood that Camacho would cooperate with the officers. According to Higgins, he and another agent took Camacho into the apartment's master bedroom, where they found a baseball cap and a box of ammunition. Higgins claimed that he had then asked Camacho for permission to search the apartment, and that Camacho had granted such permission. After the officers discovered drug paraphernalia and photographs and documents implicating Defendants, Camacho was asked to sign a consent-to-search form. When he refused, the officers terminated the search.

Camacho denied that he had consented to the search and maintained that he had never asked to return to the apartment either to retrieve his hat or for any other reason. In support of his version of the events, Camacho introduced a property invoice from the Metropolitan Correctional Center (the "MCC"), where he was detained following his arrest, which indicated that Camacho did not have a hat with him when he arrived at the MCC.

BATF Special Agent Leslie Gee attempted to account for the absence of the hat from the MCC property invoice. Gee testified that he had not been present when Camacho was arrested on the roof, but had entered Apartment 4DN while Camacho and Higgins were in the master bedroom. According to Gee, he guarded the entrance to the apartment until Higgins and Camacho emerged from the bedroom, at which time Gee noticed that Camacho was wearing a baseball cap. Further according to Gee, he mistakenly believed that prisoners were not allowed to wear hats at the MCC, and when he informed the other agents about this belief, one of them removed Camacho's baseball cap and left it in the apartment when they departed with Camacho for the MCC.

Following their arrests, and while they were detained and awaiting trial, Camacho and Rodriguez learned that Crespo was cooperating with the government. Crespo testified at trial that Camacho and Rodriguez had sent him a letter requesting that Crespo not testify against Defendants. The letter stated that if Crespo did testify, then he did not care about his family and that he might be found dead some day. Crespo claimed that the letter asked him to sign four accompanying documents, each of which stated falsely that Crespo had been coerced by the government into making false statements against the Defendants. Crespo did not sign the documents.

Following a two-week trial, Defendants were convicted of the aforementioned offenses. On November 10, 1994, the district court sentenced Camacho and Rodriguez to twenty-five years imprisonment, to be followed by five years supervised release, and imposed a $10,000 fine and a $350 special assessment upon each of them. On December 14, 1994, the district court sentenced Feliciano to ten years and three months imprisonment, to be followed by five years supervised release, and imposed a $200 special assessment. Defendants are currently serving their sentences.

This appeal followed.

Discussion

A. The Search of Apartment 2B.

Camacho contends that the district court should have granted his pretrial motion to suppress the evidence seized during the NYPD officers' search of Apartment 2B. Camacho argues that Judge Cataldo's warrant was not supported by probable cause because the information provided by the confidential informant--the sole evidence on which the probable cause determination was based--was not corroborated by an independent police investigation.

On an appeal from the denial of a motion to suppress, we review de novo the legal determination of whether there existed probable cause for a search warrant. See United States v. Smith, 9 F.3d 1007, 1011 (2d Cir.1993). In the case of a warrant supported by information obtained from a confidential informant, we examine the "totality of the circumstances" bearing...