U.S. v. Rivera

• Decision Date: 18 February 1988
• Docket Number: Nos. 217,17 and 18,D,s. 217
• Parties: UNITED STATES of America, Appellee, v. Peter RIVERA, Jr., a/k/a "Little Pete", Pedro Rivera, Sr., Sonia Rivera, August Laguer, Defendants. Appeal of Pedro RIVERA, Sr., Sonia Rivera, August Laguer, Defendants- Appellants. ockets 87-1053, 87-1054 and 87-1131.
• Court: U.S. Court of Appeals — Second Circuit

Page 916

844 F.2d 916

UNITED STATES of America, Appellee, v. Peter RIVERA, Jr., a/k/a "Little Pete", Pedro Rivera, Sr. Sonia Rivera, August Laguer, Defendants Appeal of Pedro RIVERA, Sr., Sonia Rivera, August Laguer Defendants- Appellants.

Nos. 217, 17 and 18, Dockets 87-1053, 87-1054 and 87-1131.

United States Court of Appeals Second Circuit.

Argued Sept. 10, 1987.

Decided Feb. 18, 1988.

Arthur Mercado, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Kerri L. Martin, Asst. U.S. Atty., of counsel), for appellee.

Baden Kramer Huffman & Brodsky, New York City (Richard L. Huffman, New York City, for defendant-appellant Sonia Rivera.

Dwight L. Greene, Hofstra Law School, Hempstead, N.Y., for defendant-appellant Laguer.

Frederick H. Block, New York City, for defendant-appellant Pedro Rivera.

Before PRATT, MAHONEY, Circuit Judges, and BRIGHT, Senior Circuit Judge, for the Eighth Circuit (sitting by designation).

GEORGE C. PRATT, Circuit Judge:

After a mistrial, we affirmed Judge Walker's denial of defendants' motions for double jeopardy dismissals of the indictment. United States v. Rivera, 802 F.2d 593 (2d Cir.1986). On the second trial Sonia Rivera, Pedro Rivera, and August Laguer were convicted of conspiracy to possess and distribute heroin. In addition, the Riveras were both convicted of two substantive counts of heroin distribution, and Pedro Rivera was convicted of possession of a weapon by a felon.

Defendants raise a number of issues on this appeal, none of which warrants reversal, but three of which require fairly extended discussion: (1) When does an action occasioning a retrial become final for Speedy Trial Act purposes? (2) Was Laguer's prosecution on the conspiracy charge barred by his prior plea agreement with the government? (3) Was the government's proof of constructive possession of a weapon by Pedro Rivera sufficient? Resolving all issues against the defendants, we affirm.

BACKGROUND

At the trial on the charges in the 14 count indictment that led to the convictions now appealed from ("1985 indictment"), the evidence established that the Riveras and Laguer were high-level members of an operation that sold "White Horse" brand heroin on the lower east side of Manhattan during 1983. The government's evidence included the testimony of George Lopez and Warren Toney, who were also members of the "White Horse" organization, the testimony of Drug Enforcement Special Agent Camille Colon, 596 glassine envelopes filled with heroin and stamped with the "White Horse" logo (the picture of a horse), as well as other physical evidence seized during judicially authorized searches of the Rivera apartment in Manhattan and the Queens apartment of co-conspirator Peter Rivera, Jr., who was tried separately.

When Lopez became a street manager for the organization in March 1983, he received his daily supply of drugs from Laguer and sold them on Ludlow Street. Later, the location was permanently changed to Second Street and Avenue B. Although, during this period, Laguer usually dropped off the heroin and picked up the day's receipts from Lopez, on two occasions Lopez picked up heroin from the Rivera apartment in Manhattan.

After Lopez was arrested in possession of "White Horse" heroin in June 1983, Toney replaced him as manager of the Second Street and Avenue B spot. Laguer continued to drop off the heroin and pick up the proceeds for approximately six weeks after Toney took over the spot. After that, Toney picked up the heroin from Sonia Rivera, Peter Rivera, Jr., or Pedro Rivera at the Riveras' Manhattan apartment or on Ludlow Street from Pedro Rivera.

Acting in an undercover capacity, special agent Colon purchased "White Horse" heroin from Toney and Lopez on two occasions in August and September 1983. As a result, Toney was arrested in October 1983 possessing 20 bundles (200 glassines) of "White Horse" heroin, and a search of his apartment led to the recovery of his beeper, two guns, and address books with Laguer's and the Riveras' Manhattan telephone numbers in them.

A subsequent search of Peter Rivera, Jr.'s apartment uncovered two guns, ammunition The weapons included a pen gun found in Pedro Rivera's dresser, a rifle recovered from the closet of the children's room, a loaded .380 calibre semi-automatic hand gun recovered from behind a false panel in the linen closet, and a gun discovered on top of a wall unit in the living room. The heroin was found in a man's jacket in Pedro Rivera's bedroom.

a porcelain white horse, a photo of Laguer and a large quantity of jewelry. In the Riveras' Manhattan apartment agents recovered four guns, ammunition, a small amount of heroin and heroin traces, a court paper signed by Laguer, a box of glassine envelopes, cash, jewelry, a telephone book with Laguer's and Toney's names and beeper numbers in it, a manual for a scale used to weigh drugs, a bulletproof vest, and three glass-framed drawings of white horses, two of which were labeled "White Horse".

DISCUSSION

I. Speedy Trial Act.

Defendants claim that the indictments underlying their convictions should be dismissed with prejudice because their retrial did not begin within the 70 days specified in the Speedy Trial Act, which provides:

If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final * * * . The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of section 3162 apply to this subsection.

18 U.S.C. Sec. 3161(e) (1982). In this case defendants' concession that the "action occasioning the retrial" was this court's affirmance of the district court's denial of their double jeopardy motions is not accurate, because the "action occasioning the retrial" was the district court's grant of the mistrial motion on March 26, 1986. Seven speedy trial days ran between that date and April 2, 1986, when the appellants filed their double jeopardy motions. On April 22, 1986, when Judge Walker denied their motions, the appellants filed a notice of appeal. Thus, beginning on April 2, 1986, the time was excludable under Sec. 3161(h)(1)(F) (delay resulting from any pretrial motion) and Sec. 3161(h)(1)(E) (delay resulting from any interlocutory appeal).

Because seven speedy trial days had already run prior to the appeal, the Speedy Trial Act would have been violated if there were more than 63 nonexcludable days between the date the clock resumed and the beginning of the trial on December 1, 1986. Thus, the critical issue for us is when the speedy trial clock resumed following the interlocutory appeal, and in order to determine this issue we must decide when the interlocutory appeal became final.

In a case where the appellate court orders a new trial after conviction, it is the appeal that constitutes "the action occassioning the retrial", and the 70-day period begins to run, according to Sec. 3161(e), on the date the appeal becomes final. In the situation at hand, however, an interlocutory appeal after the district court had declared a mistrial, the 70-day period had already started to run anew when the mistrial was declared, and the speedy trial clock resumed on the date the exclusion allowed for an interlocutory appeal, Sec. 3161(h)(1)(E), ended, i.e., when the appeal became final.

Defendants argue that the appeal became final on August 28, 1986, the date we issued our summary order affirming Judge Walker's denial of their motions to dismiss. Alternatively, they argue that the appeal became final on September 19, 1986, because Fed.R.App.P. 41 provides that the mandate of the appellate court "shall issue 21 days after entry of judgment." If either date marked the end of the interlocutory appeal, defendants argue, more than 70 days would have elapsed before the trial Six circuits have addressed the issue and have adopted the rule that for the purpose of Sec. 3161(e) an appeal becomes final on the date the mandate is issued. See, e.g., United States v. Robertson, 810 F.2d 254, 259 n. 6 (D.C.Cir.1987); United States v. Scalf, 760 F.2d 1057, 1059 (10th Cir.1985); United States v. Rush, 738 F.2d 497, 509 (1st Cir.1984), cert. denied, 471 U.S. 1120, 105 S.Ct. 2370, 86 L.Ed.2d 269 (1985); United States v. Ross, 654 F.2d 612, 616 (9th Cir.1981), cert. denied, 455 U.S. 926, 102 S.Ct. 1290, 71 L.Ed.2d 470 (1982); United States v. Cook, 592 F.2d 877, 880 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979); United States v. Russo, 550 F.Supp. 1315, 1319 (D.N.J.1982), aff'd, 722 F.2d 736 (3rd Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 179 (1984). But see United States v. Lasteed, 832 F.2d 1240, 1243 (11th Cir.1987). For the following reasons we reject the defendants' arguments and adopt the rule followed by these circuits.

began, causing a Speedy Trial Act violation. The government argues that the clock resumed on the date the mandate actually issued, September 26, 1986, leaving five days still available when the trial actually began.

A general explanation of what a "mandate" is and how it issues in this circuit is a necessary starting point. To begin, we decide cases either by opinion or by summary order. On the 21st day from the date on which an opinion issues, the clerk of the appellate court files the mandate, which consists of a copy of the opinion, a judgment that has been drafted and signed by a clerk of the court, and any direction as to costs. See Fed.R.App.P. 41; Ostrer v. United States, 584 F.2d 594, 598 (2d Cir.1978). In the case of a summary order, a separate written judgment is...