U.S. v. Perez, s. 710-712

• Decision Date: 23 May 1990
• Docket Number: D,Nos. 710-712,s. 710-712
• Citation: 904 F.2d 142
• Parties: UNITED STATES of America, Appellee, v. William PEREZ, a/k/a "Willo," Lillian Perez, a/k/a "Lee," and Luis Garcia, a/k/a "Weo," Defendants-Appellants. ockets 89-1408, 89-1416 and 89-1417.
• Court: U.S. Court of Appeals — Second Circuit

Page 142

904 F.2d 142

UNITED STATES of America, Appellee, v. William PEREZ, a/k/a "Willo," Lillian Perez, a/k/a "Lee," and Luis Garcia, a/k/a "Weo," Defendants-Appellants.

Nos. 710-712, Dockets 89-1408, 89-1416 and 89-1417.

United States Court of Appeals,

Second Circuit.

Argued Jan. 26, 1990.

Decided May 23, 1990.

Alan G. Polak, New York City, for defendant-appellant William Perez.

Gerald J. McMahon, New York City, for defendant-appellant Lillian Perez.

Richard E. Kwasnik, New York City, for defendant-appellant Luis Garcia.

Kevin P. McGrath, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D. of N.Y., Emily Berger, Gregory J. O'Connell, Asst. U.S. Attys., on the brief), for Appellee.

Before VAN GRAAFEILAND, MINER and WALKER, Circuit Judges.

WALKER, Circuit Judge:

This appeal follows the defendants' third trial in the Eastern District of New York on charges of participating in a widespread heroin conspiracy, after which they received sentences ranging from fifteen to thirty-five years. Their first convictions resulted in jail sentences ranging from five to eight years. Defendants argue that the imposition of more severe sentences after a successful challenge to their first convictions, albeit by a different judge, violates the Fifth Amendment guarantee of due process. Defendants also ask us to vacate their sentences in an exercise of our supervisory power over the administration of justice and claim certain trial errors. Under the circumstances of this case, we decline to disturb appellants' sentences on either constitutional grounds or in the exercise of our supervisory power, and we find no merit to their claims of trial error.

I. BACKGROUND

Lillian Perez, her son William Perez and Luis Garcia appeal from their convictions following their third trial on the same charges in the District Court for the Eastern District of New York (Nicholas Tsoucalas, Judge, Court of International Trade, sitting by designation). All three defendants were convicted of participating in a conspiracy to distribute heroin, in violation of 21 U.S.C. Sec. 846. Garcia was also convicted on two counts of distributing heroin, in violation of 21 U.S.C. Sec. 841(b)(1), and acquitted on one distribution count. Judge Tsoucalas sentenced William Perez to fifteen years imprisonment; Lillian Perez to twenty years imprisonment; and Garcia to a total term of thirty-five years imprisonment. Judge John R. Bartels, who presided at their first jury trial, had sentenced William Perez to five years imprisonment and Lillian Perez and Garcia to eight year terms. Those convictions were reversed by this court because the district court dismissed a juror on the fourth day of deliberations after it appeared that the juror was holding out for an acquittal. United States v. Hernandez, 862 F.2d 17 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1170, 103 L.Ed.2d 228 (1989). The defendants' second convictions before Judge Joseph E. McLaughlin and a jury were set aside by that judge in the wake of Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), because a magistrate had selected the jury.

A. The Evidence at Trial:

The evidence at trial established Garcia and William and Lillian Perez as members of a large-scale heroin trafficking organization based in the Bushwick section of Brooklyn. Run by Miguel Hernandez, the organization moved roughly $40,000 worth of heroin a day in street-level sales between July 1985 and March 1987. The government relied on extensive documentary and testimonial evidence.

Among other witnesses, Roberta Rivera, an undercover Special Agent with the Drug Enforcement Administration ("DEA"), testified that in the spring of 1986, she began to purchase heroin from Hernandez and two members of his organization, Aurea Gonzalez and defendant Garcia. Gonzalez herself testified that she had worked as a runner for the Hernandez organization for roughly eighteen months. During that time, she transferred large amounts of heroin from a supplier to each of the appellants, who--on average--received approximately $40,000 worth of heroin a day between January and June 1986. Gonzalez also delivered heroin directly to Lillian Perez, who operated a "stash pad" at 1408 Putnam Avenue in Brooklyn. Lillian Perez also frequently collected packages of heroin worth between five and fifteen thousand dollars from Gonzalez's apartment.

Louis Figueroa, who had not testified at the first trial, testified that he had been involved in the Hernandez organization from 1984 until 1986 and described two "spots"--or drug distribution centers--run by Lillian Perez and how he would collect money from her and drop off additional packages of heroin at her apartment. He also linked, for the first time, William Perez and Garcia to a significant heroin delivery designed in part to help the Hernandez drug organization join forces with another major heroin distributor.

At trial, the government introduced numerous records and drug paraphernalia seized from the residences of Garcia, Gonzalez and Lillian Perez. Among other items, the government put before the jury thousands of dollars worth of heroin packaged for street sales; detailed narcotics records that specifically referred to each of the defendants by their street names and documented the amount of heroin they sold; scales used to weigh narcotics; devices used to seal the plastic bags that contained heroin; glassine bags; and a handgun.

B. The Suppression Hearing:

On November 4, 1986, the police arrested Lillian Perez in the basement of her apartment building. She was carrying a shoe box containing fifteen thousand dollars worth of heroin, which the officers seized without a warrant. Before the second trial and after a hearing, Judge McLaughlin denied her motion to suppress that evidence. At the third trial, Judge Tsoucalas adopted Judge McLaughlin's opinion, which included extensive factual findings, explicitly crediting the testimony of the arresting and seizing officers.

Four members of the New York City Police Department's Street Narcotics Enforcement Unit ("SNEU") testified to the following at the suppression hearing. On November 4, 1986, the SNEU team--in uniform and driving marked police cars--investigated possible drug transactions near 1408 Putnam Avenue in Brooklyn, the building in which Lillian Perez had an apartment. Equipped with binoculars and a radio, one officer Kucinski took an observation point on a nearby rooftop. Based on Kucinski's observations, the other officers made two arrests. Shortly thereafter, Kucinski radioed a description of another suspected drug dealer who wore a cast on his arm. The officers on the ground and this suspected dealer then engaged in an extended cat-and-mouse chase.

The officers first drove up to 1408 Putnam just as the suspected dealer ran into the building, with the door locking behind him. The officers then drove away, only to be radioed once more that the seller was again in front of the building. The officers returned and chased the suspect, but they were similarly thwarted. A few moments later, the officers repeated their effort to apprehend the dealer. This time, the suspect left the building's door ajar, and the officers continued the chase inside. Not knowing which apartment the suspect was in, two officers went upstairs and two went into the basement. When the suspect could not be found, the upstairs officers left the building; the officers in the basement waited behind for a period that Judge McLaughlin specifically found to be between three and five minutes. Based on the testimony of the four officers, Judge McLaughlin also specifically found that, during those few minutes, the officers in the basement were still "actively pursuing a suspect who had proven remarkably evasive all evening." While this was occurring, Lillian Perez walked down a flight of stairs into the basement and into the presence of the officers, carrying with her the shoe box filled with heroin.

II. DISCUSSION

A. The Sentences:

Appellants attack their enhanced sentences on two fronts: first, that they violate the due process guarantee of the Fifth Amendment, and second, that they contravene a rule adopted by this court pursuant to our supervisory power over the administration of justice. At the outset, we note that defendants' narcotics offenses were committed prior to November 1, 1987, the effective date of the Sentencing Guidelines that have transformed the federal law of sentencing.

Defendants' principal claim is that a presumption of vindictiveness, arising under the Fifth Amendment's due process guarantee, requires that their sentences be vacated because they were increased following defendants' successful appeal of their original convictions. Defendants rely on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. In Pearce, the Supreme Court held that the due process guarantee precludes increased sentences when the increase is motivated by vindictiveness on the part of the sentencing judge, and requires, whenever a sentence is increased, that the judge affirmatively place on the record non-vindictive reasons supporting the increase. Id. at 725-26, 89 S.Ct. at 2080-81. Over the past two decades, however, the Supreme Court has significantly limited the application of the prophylactic rule announced in Pearce. In so doing, the Court has emphasized that "vindictiveness of a sentencing judge is the evil the Court sought to prevent [in Pearce ] rather than simply enlarged sentences after a new trial. The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial." Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 978, 89 L.Ed.2d 104 (1986) (emphasis added) (Pearce presumption inapplicable where first sentence imposed by jury and second imposed by judge).

In a variety of contexts, the Court has declined to apply the...