U.S. v. Perez

• Decision Date: 06 September 1996
• Docket Number: No. 96 Cr. 167 (RWS).,96 Cr. 167 (RWS).
• Citation: 940 F.Supp. 540
• Parties: UNITED STATES of America v. Orlando PEREZ and Teddy Ramos, Defendants.
• Court: U.S. District Court — Southern District of New York

940 F.Supp. 540

UNITED STATES of America v. Orlando PEREZ and Teddy Ramos, Defendants.

No. 96 Cr. 167 (RWS).

United States District Court, S.D. New York.

September 6, 1996.

COPYRIGHT MATERIAL OMITTED

Mary Jo White, United States Attorney for the Southern District of New York, New York City, for the U.S. (Alexandra A.E. Shapiro, Steven M. Cohen, and Richard B. Zabel, Assistant U.S. Attorneys, of counsel).

Michael Young, New York City, for Defendant Orlando Perez.

Morvillo, Abramowitz, Grand, Iason & Silberberg, New York City, for Defendant Teddy Ramos (Robert J. Anello and Christopher J. Gunther, of counsel).

OPINION

SWEET, District Judge.

Defendants Teddy Ramos ("Ramos") and Orlando Perez ("Perez") have moved to dismiss the indictment against them, and for discovery. For the reasons set forth below the motion will be granted in part and denied in part.

Prior Proceedings

The eight count indictment, S1 96 Cr. 167, handed down on March 29, 1996, charges Perez with participating in and conspiring to participate in a racketeering enterprise, the Almighty Latin King Queen Nation (the "Latin Kings"), through a pattern of racketeering activity, in violation of Title 18, United States Code, Sections 1961 and 1962(c) and (d) ("RICO"). Ramos is jointly charged in Counts Three, Four, and Seven of the indictment. Count One of the indictment charges Perez with a substantive RICO violation predicated on the murder of Benjamin Quinones ("Quinones") and attempted murder of Michael Irizarry ("Irizarry"); Count Two charges Perez with a RICO conspiracy violation grounded on those same acts; Count Three charges Perez and Ramos with conspiring to murder Quinones in violation of 18 U.S.C. Section 1959 ("Section 1959") (a)(5); Count Four charges both defendants with the murder of Quinones in violation of Section 1959(a)(1); Count Five charges Perez with conspiracy to murder Irizarry; Count Six charges Perez with an attempt to murder Irizarry; Count Seven charges Perez and Ramos with using a firearm during the Quinones murder in violation of 18 U.S.C. Section 924(c); Count Eight charges that Perez used a firearm during the attempt to murder Irizarry.

On June 13, 1996, Ramos moved (1) to dismiss Counts Three, Four and Seven of the indictment on the grounds that the enactment of Section 1959 exceeded Congress' authority to regulate interstate commerce; (2) pursuant to Fed.R.Crim.P. 18 to dismiss those counts for improper venue; (3) pursuant to Fed.R.Crim.P. 14 to sever those counts; (4) pursuant to Fed.R.Crim.P. 12(b)(3) to suppress Ramos' post-arrest statement, or seeking a hearing regarding the circumstances under which the statement was made; (5) pursuant to Fed.R.Crim.P. 7(f) to compel the government to provide a bill of particulars; and (6) to compel the government to provide immediate access to Brady and Giglio material, to provide a list of government witnesses, and to disclose evidence of other crimes pursuant to Fed. R.Evid. 404(b).

On June 13, 1996, Perez moved: (1) to suppress his post-arrest statements on the ground that they were obtained in violation of the Fifth and Sixth Amendment; (2) to suppress the fruits of the government's search of Perez's father's apartment on the grounds that the search was conducted in violation of the Fourth Amendment; (3) to suppress tape recordings of telephone conversations between Perez and various inmates of the Metropolitan Correction Center ("MCC") on the grounds that the interception violated the Fourth, Fifth and Sixth Amendments; (4) to preclude the government from introducing Perez's prior record at trial; and (5) to compel the government to provide Perez with discovery and particulars concerning the charges.

Oral argument on Perez and Ramos' motions was heard on June 25, 1996. Later submissions were made by Defendants on August 19, 1996 and August 23, 1996, at which time the motions were considered fully submitted.

Discussion

I. Ramos' Motion to Dismiss Counts Three, Four and Seven Based on United States v. Lopez Will Be Denied

Ramos argues that the Supreme Court's opinion in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), requires dismissal of the 1959 Counts — i.e., Counts Three and Four of the indictment, charging violations of Section 1959, and Count Seven, charging the use and carrying of a firearm during and in relation to a crime of violence. Ramos argues that, under Lopez, Congress' enactment of Section 1959 exceeded its power to legislate under the Commerce Clause.

A. The Commerce Clause and the Lopez Holding

To protect interstate commerce, the Commerce Clause empowers Congress to regulate three broad categories of conduct. Lopez, ___ U.S. at ___, 115 S.Ct. at 1629. First, Congress is empowered to regulate the use of the channels of interstate commerce. Id., at ___, 115 S.Ct. at 1629 (citing Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971); United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941)). Second, Congress is empowered to "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce." Lopez, ___ U.S. at ___, 115 S.Ct. at 1629 (citing Perez, 402 U.S. at 150, 91 S.Ct. at 1359-60). Under this second category, Congress may prohibit direct interference with persons and things in interstate commerce. Third, Congress is empowered to regulate or prohibit "activities that substantially affect interstate commerce." Lopez, ___ U.S. at ___, 115 S.Ct. at 1630 (citing National Labor Relations Board v. Jones & Laughlin Steel, 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893; Maryland v. Wirtz, 392 U.S. 183, 196 n. 27, 88 S.Ct. 2017, 2024 n. 27, 20 L.Ed.2d 1020 (1968)).

According to the Lopez Court, the "substantial effect" requirement of the third category can be met in two ways. First, acts "regulating intrastate economic activity" have been upheld based on the conclusion that "the activity substantially affected interstate commerce." ___ U.S. at ___, 115 S.Ct. at 1630. Second, Lopez instructed that, apart from economic regulation, the "substantial effects" test is met by criminal statutes that include a "jurisdictional element which would ensure, through case-by-case inquiry, that the [prohibited act] in question affects interstate commerce." Id. at ___, 115 S.Ct. at 1631.

In determining whether a federal statute may be upheld as a proper exercise of Congress' power to regulate interstate commerce, courts "must defer to a congressional finding that a regulated activity affects interstate commerce `if there is any rational basis for such a finding,' Hodel v. Virginia Surface Mining, 452 U.S. 264, 276 [101 S.Ct. 2352, 2360, 69 L.Ed.2d 1] (1981), and ... the means selected by Congress are `reasonably adapted to the end permitted by the Constitution,'" Preseault v. Interstate Commerce Commission, 494 U.S. 1, 17, 110 S.Ct. 914, 924-25, 108 L.Ed.2d 1 (1990) (quoting Heart of Atlanta Motel v. United States, 379 U.S. 241, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964)); accord Hodel v. Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360. Courts should look to statutory findings, as well as congressional committee findings, to assess the rationality of Congress' conclusions. Lopez, ___ U.S. at ___, 115 S.Ct. at 1631-1632; Katzenbach v. McClung, 379 U.S. 294, 299, 304, 85 S.Ct. 377, 381, 383-84, 13 L.Ed.2d 290 (1964); Perez, 402 U.S. at 156-57, 91 S.Ct. at 1362-63. Once the court "find[s] that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, [its] investigation is at an end." Katzenbach, 379 U.S. at 303-04, 85 S.Ct. at 383-84 (cited with approval in Hodel v. Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360).

In Lopez, the Supreme Court held that 18 U.S.C. Section 922(q), which prohibited possession of a firearm in a school zone, violated the Commerce Clause because the prohibited activity did not, even when viewed in the aggregate, substantially affect commerce.

Section 922(q) is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Lopez at ___, 115 S.Ct. at 1630-31.

Section 1959, the statute at issue here, is distinguishable from the statute at issue in Lopez. Section 1959, provides, in pertinent part:

(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished [in accordance with the specific crime].

(b) As used in this section ...

(2) "enterprise includes any partnership, corporation, association, or other legal entity, any union or group of individuals associated in fact although not a legal entity, which is engaged in or the activities of which affect, interstate or foreign commerce.

Unlike the statute struck down in Lopez, Section 1959 is a criminal statute that by its terms addresses interstate commerce and economic enterprises. As evidenced by the...