U.S. v. Perez

Decision Date04 February 2002
Docket NumberNo. 00-5261.,No. 00-5237.,No. 00-5238.,00-5237.,00-5238.,00-5261.
Citation280 F.3d 318
PartiesUNITED STATES of America, v. Linette PEREZ, Appellant, United States of America, v. Juancho Alcantera, Appellant, United States of America, v. Edmundo Batoon, Appellant.
CourtU.S. Court of Appeals — Third Circuit

James A. Galdieri (Argued), Miller & Galdieri, Jersey City, NJ, Attorney for Appellant Linette Perez.

Paul X. Escandon, Allenhurst, NJ, Stephen M. Latimer (Argued), Hackensack, NJ, Attorneys for Appellant Juancho Alcantera.

Robert Kasenow, II (Argued), New York, NY, Attorney for Appellant Edmundo Batoon.

Robert J. Cleary, United States Attorney, George S. Leone, Chief, Appeals Division, Newark, NJ, Norman J. Gross (Argued), Assistant United States Attorney, United States Attorney's Office, Camden, NJ, Attorneys for Appellee United States of America.

Before SCIRICA, AMBRO, Circuit Judges, and POLLAK, District Judge.*

OPINION OF THE COURT

AMBRO, Circuit Judge.

Defendants/Appellants Linette Perez ("Perez"), Juancho Alcantera ("Alcantera"), and Edmundo Batoon ("Batoon") appeal their convictions on the charge of conspiracy to distribute and possess with the intent to distribute methamphetamine, a Schedule II controlled substance, in the District of New Jersey and elsewhere in violation of 21 U.S.C. § 846 and § 841(a)(1). All three were convicted by a jury in the United States District Court for the District of New Jersey. In this appeal, Appellants challenge their convictions on numerous grounds, one of which is a question of first impression for this Court — whether and under what circumstances the trial court must give a jury instruction on venue. Appellants Alcantera and Batoon also challenge the District Court's ruling on a minor role reduction, and the attributable drug quantity, at sentencing. We affirm the convictions and sentences of each Appellant.

I. Factual and Procedural Background
A. Factual Background

In the following recitation of the facts on which Appellants' convictions were based, we construe those facts in the light most favorable to the Government, as we must following the jury's guilty verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Beginning in 1998, agents of the Federal Bureau of Investigation and the Drug Enforcement Agency based in New Jersey opened an investigation into drug operations allegedly headed up by Lirio Del Rosario ("Del Rosario") based on information supplied by a confidential source. With Del Rosario at the helm, the organization imported and distributed crystal methamphetamine in New York and New Jersey.

The factual scenario leading up to and encompassing the arrest of Appellants unfolds as follows. In January of 1999, Del Rosario's supply of methamphetamine ran low. He dispatched Alcantera and another man to the home of Augustin Daluro ("Daluro") in Jersey City, New Jersey to procure more of the drug. Daluro gave twenty grams of methamphetamine to Alcantera, without charge, for delivery to Del Rosario. At that time, Del Rosario told Daluro that he was getting travel documents for a woman named "Linette" so that she could smuggle methamphetamine into the United States as part of his operation.

In early February of 1999, members of the Queens Narcotics Division of the New York City Police Department ("N.Y.P.D.") received information of Del Rosario's drug operation from another confidential informant (CI-1), and began an independent investigation. When the federal and local investigators learned that they were conducting parallel investigations, they agreed to pool their information. The confidential informants tipped off the federal and N.Y.P.D. investigators that a woman named "Linette" would be bringing in a large shipment of methamphetamine through John F. Kennedy Airport on February 24, 1999. The informant offered a description of "Linette," which was later confirmed by several customs agents.

On February 18, 1999, Perez, who at the time was a United States citizen living in Virginia, obtained a passport. The following day, she purchased a round-trip ticket from J.F.K. Airport to Manila, the Philippines, through a New York City travel agency. Perez departed from the United States on February 22, 1999, and checked into the Manila Holiday Inn where she stayed for two days. While in Manila, Perez obtained ten kilograms of crystal methamphetamine from relatives of Del Rosario. The methamphetamine was put into plastic baggies, hidden inside fabric shoulder pads of women's dresses, and placed into two large cardboard boxes.

On February 23, 1999, while Perez was still in Manila, Del Rosario called Prajedo Almiranez ("Almiranez") and asked him to pick up Perez when she arrived at J.F.K. Airport, but he was unable to go. On February 24, 1999, Del Rosario called Nestor Uy ("Uy"), a Filipino living in New York City who occasionally repaired automobiles for Del Rosario, and asked him to pick up Perez. Uy had met Perez before at Del Rosario's home. Del Rosario told Uy that Perez would be arriving at J.F.K. Airport on Asianna Airlines, and gave Uy money to pay the excess baggage fee for the packages Perez was bringing in from the Philippines, for a hotel room for Perez at the Queens Motor Inn, and for gas and food.

Perez returned to the United States that evening with the two large boxes, arriving at J.F.K. Airport at approximately 8:35 p.m. Uy arrived late to J.F.K. Airport, and was unable to find Perez. He called the number for Alcantera's cell phone several times and spoke to Del Rosario, who told him to keep looking for Perez. At the same time, several N.Y.P.D. investigators also went to J.F.K. Airport with CI-1 to intercept Perez, but they were unable to locate her.

Finally, Uy discovered that Perez had taken a cab to Del Rosario's home. Uy went to the Queens Motor Inn and reserved a room for Perez under his name, then went to Del Rosario's apartment to pick up Perez. In Del Rosario's living room were the two large boxes. Uy then drove Perez back to the hotel. During the trip, Perez told Uy that she had just smuggled ten kilos of methamphetamine into the United States from Del Rosario's family in the Philippines, boasting that she "had the guts to do that." Uy stayed with Perez at the hotel briefly, then drove her to Batoon's home in Elmhurst, Queens.

At around 10:00 a.m. the next morning, February 25th, Almiranez picked up Perez from Batoon's home and drove her to Del Rosario's apartment. Uy arrived at the apartment at approximately 11:00 a.m. He saw that the boxes had been opened, the plastic bags removed from the shoulder pads of the dresses and cut open, and the methamphetamine taken out. Del Rosario explained to Uy how the methamphetamine had been packaged and how Asianna Airlines and the customs officials protected Del Rosario's drug shipments.

Del Rosario then called Arturo Zoletta, who had previously delivered methamphetamine for him. Del Rosario told Zoletta that he had a shipment of methamphetamine for him to deliver to another person. Zoletta paged Roland Abaia, a cab driver, to pick him up at his home. The two drove to Del Rosario's apartment in Abaia's Lincoln Towncar.

At approximately 2:00 that afternoon, acting on a tip from CI-1 that Del Rosario was dealing methamphetamine out of three possible locations, plain-clothed investigators and uniformed officers from the N.Y.P.D. staked out Del Rosario's apartment building, an automobile body shop, and Uy's residence, all in Queens.

Del Rosario's apartment building was four stories high, with four apartment units on each floor. The N.Y.P.D. officers knew from the informant that Del Rosario's apartment was 2C. It was located at the back of the second floor, and one could not see the street from the inside. Nor could the surveilling officers tell which apartment was Del Rosario's from the outside of the building. They observed several cars stop outside of Del Rosario's apartment building, stay for a few minutes, then leave. Just before 6:00 p.m., the investigators observed Abaia drive up to Del Rosario's apartment building in the Lincoln Towncar with Zoletta in the back seat. Zoletta got out of the car and entered the building empty-handed while Abaia waited outside.

Zoletta emerged from the apartment building approximately ten minutes later, carrying a clear plastic bag with a white plastic bag inside of it. He got back into the Lincoln Towncar, and showed the bag to Abaia. The two drove off, followed by two of the plain-clothed police investigators driving an unmarked police car. Zoletta turned around and made eye contact with one of the investigators. The investigators observed Zoletta lean over, apparently to stuff the bag under the front seat. After Zoletta and Abaia had driven two blocks and turned the corner, the investigators pulled them over.

The investigators saw the clear bag with a white shopping bag inside. In the white bag, the investigators found what appeared to be approximately 200 grams of methamphetamine, and they placed Abaia and Zoletta under arrest. A search of the car uncovered more drugs and drug paraphernalia, including a small gram-weight scale, pipes used for smoking methamphetamine, ziplock bags, a cell phone, and a pager. At this point, Zoletta cooperated with the investigators, telling them that he had worked for Del Rosario delivering methamphetamine for two years in New York City and New Jersey. Zoletta told the investigators that he had just been in Del Rosario's apartment, Unit 2C, and that Del Rosario had just given him a package of drugs to deliver. Zoletta told the investigators that there were several people still in the apartment.

The interchange lasted only a few minutes, after which the officers decided to get a search warrant. However, apparently fearing that their arrest of Zoletta would tip off the occupants in the...

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