U.S. v. Rivera

• Decision Date: 13 March 1975
• Docket Number: D,No. 580,580
• Citation: 513 F.2d 519
• Parties: UNITED STATES of America, Appellee, v. Ismael RIVERA, a/k/a "Pequilino", Appellant. ocket 74-2115.
• Court: U.S. Court of Appeals — Second Circuit

Page 519

513 F.2d 519

UNITED STATES of America, Appellee, v.Ismael RIVERA, a/k/a "Pequilino", Appellant.

No. 580, Docket 74-2115.

United States Court of Appeals Second Circuit.

Argued Jan. 14, 1975.

Decided March 13, 1975.

Stanley M. Meyer, Brooklyn, N. Y.(Preminger, Meyer & Light, Brooklyn, N. Y., of counsel), for appellant.

Eugene F. Bannigan, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., and Rudolph W. Giuliani and John D. Gordan, III, Asst. U. S. Attys., of counsel), for appellee.

Before LUMBARD, FRIENDLY and GURFEIN, Circuit Judges.

FRIENDLY, Circuit Judge:

A three count indictment in the District Court for the Southern District of New York charged Ismael Rivera with the first degree murder of Special Agent Frank Tumillo of the Bureau of Narcotics and Dangerous Drugs (BNDD), ¹ with wounding another BNDD agent, Thomas Devine, while effecting or attempting to effect a robbery of money and property of the United States, citing 18 U.S.C. § 2114, and of assaulting Devine with a deadly weapon, citing 18 U.S.C. §§ 111and1114.Rivera's alleged role in the perpetration of all these offenses was that of an aider and abettor, 18 U.S.C. § 2.

A trial before Judge Knapp and a jury resulted in a mistrial when the jury was unable to agree upon a verdict.At a second trial before Judge Wyatt, the jury returned guilty verdicts on all counts.Judge Wyatt imposed the mandatory sentence of life imprisonment on the murder count, see18 U.S.C. § 1111, to run consecutively with concurrent terms of imprisonment of 25 and 10 years on the two other counts.Rivera appeals.

I.

Taking the evidence in the light most favorable to the Government, as we must, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680(1942);United States v. McCarthy, 473 F.2d 300(2 Cir.1972), and omitting, for the time being, the grand jury testimony of Hector Vigo, which will be discussed in Section II, and certain evidence adduced by the Government in response to Vigo's recantation of that testimony at the trial, ² the facts relevant to this appeal were as follows:

In the latter part of September or early October, 1972, Mabel Salvatierra, a BNDD informer, commenced negotiations with Jose Nieves for the purchase of 10 kilograms of cocaine for $160,000 for her "customers," special agents Frank Tumillo and Jeffrey Hall, who were acting in an undercover capacity.At about the same time, and over the course of a three week period, Nieves, accompanied on a number of occasions by defendant Rivera, ³ met with Vigo and urged him to obtain the cocaine, for which he would receive a $20,000 commission.During the first or second week of October the negotiations terminated without any cocaine being obtained by Nieves or his associates because Nieves had failed to supply the money necessary to complete the transaction.

On October 11, 1972, Nieves, accompanied by Wilson Colon, recruited William Silberberg and his roommate, Pete Diaz, to assist in robbing the purchasers of the $160,000 they were to pay.The robbery was planned for the following day.During the early afternoon of October 11, Artemio Rosa, a long time acquaintance of both Nieves and Rivera, went to Nieves' apartment in Manhattan.⁴Nieves and Rivera were in the apartment when Rosa arrived.While there, Rosa observed several weapons.He testified that two a long barreled .38 caliber revolver and a silver plated pearl handled small caliber automatic were owned by and had been brought to the apartment by Rivera.

During the evening of that same day the negotiations between Nieves, BNDD informants Salvatierra and her paramour, Jose Marful, and special agents Tumillo and Hall continued.After Hall showed Nieves a "flash roll" containing $160,000, Nieves, accompanied by the informants and special agents, drove to another location in Manhattan where he made what he claimed were two unsuccessful attempts to meet with his alleged source; finally, after an alleged phone conversation with the source, he indicated that the transaction had to be delayed until the next evening.⁵

In the early evening of October 12, between about 7:00 and 7:30 p. m., Rosa encountered the defendant in a social club on West 6th Street and engaged him in a brief conversation.A few minutes later, while Rosa was playing the club's jukebox, Nieves and Matta entered the club and spoke with Rivera for about five minutes.At Rosa's request, a few moments later Rivera drove him uptown, and then, after dropping him off, proceeded back downtown.Later that evening, at about 9:00 p. m., Nieves met Silberberg at Colon's bar, La Borocca, and terminated Silberberg's further participation in the planned robbery because Silberberg was "spaced out" on heroin and cocaine.⁶Silberberg testified that; while at the club, Nieves had a conversation with Colon, during which Nieves exchanged a small gun, to wit, the pearl handled automatic Rivera had brought to Nieve's apartment on October 11, for a .38 revolver similar to one later used by Nieves to shoot agent Tumillo, which was recovered directly after the aborted robbery.Shortly before 9:30 p.m. Nieves and Matta were observed leaving a taxi and approaching Salvatierra's apartment.At about 9:30, accompanied by Tumillo and informant Marful, they left her apartment and drove in Tumillo's car to the Sheraton Motor Inn on 42nd Street and 12th Avenue where they met agent Hall, who had already checked into Room 1007.Hall immediately showed them the money, of which there was only $150,000.⁷After they had been allowed to count the money, it was agreed that Nieves and Matta would leave the hotel, obtain the cocaine from their source, and return to meet Tumillo in about two hours in the bar in the hotel lobby.In the meantime, Hall was to rent a second room, where the cocaine was to be deposited after the room key was received from Tumillo; after depositing the narcotics Nieves and Matta were then to return to Room 1007 where they would receive the $150,000 from Hall.As Nieves and Matta were leaving, they rejected Hall's offer of a ride, indicating that "our man" would provide one.

Shortly after 10:00 p. m. Nieves and Matta entered the cocktail lounge located on the fifth floor of the hotel where the bartender served them drinks.Sometime thereafter they were joined by the defendant at the bar, and about five minutes later all three left the lounge.⁸

At around 10:45 p. m. Nieves and Matta were observed entering one of the lobby elevators near the front desk.At approximately the same time BNDD group supervisors Thomas Devine and Ronald Caffrey entered the hotel and proceeding directly to room 1005, the surveillance room, where they joined agents Paul Sennett and Hall, and an informant.Soon after arriving in the surveillance room, Devine went through the connecting door to room 1007 to join agent Tumillo.At that time Caffrey, from his vantage point in room 1005, observed Tumillo standing by the window with his hands raised above his head.Upon entering room 1007, Devine was confronted by Matta, who was holding a long barreled .38 caliber revolver.In the brief struggle which ensued, the connecting door slammed and locked.After some shooting which resulted in Tumillo's death and serious wounds to Devine's leg and back, first Matta, and then Nieves, were shot and killed while attempting to escape down the hallway.

Immediately after ascertaining Tumillo's and Devine's conditions, Caffrey returned to the surveillance room, picked up the flash roll and left the hotel to report the unexpected events to Agent Hunt.While crossing 12th Avenue he heard, but did not see, a car accelerating from a stopped position in the vicinity of 42nd Street to a high rate of speed.During his briefing of Hunt, Caffrey hailed a New York City Police car and requested the officers to radio for assistance, which they did in a dispatch at 10:53 p. m. At approximately 11:00 p. m., a car driven by defendant Rivera emerged from the Brooklyn Battery Tunnel and struck an automobile being driven by Joseph Caporicci, an off-duty New York City Police officer.When Caporicci approached Rivera's car to exchange registrations, the defendant attacked him.Their brief struggle was joined by James Infantolino, a passenger in the Caporicci automobile, and then interrupted by an officer of the Tunnel Authority.After Caporicci identified himself, the officer requested that they move their cars out of traffic.Caporicci drove his car across the toll plaza, parking it near a retaining wall on the other side of the collection booths.While he was moving his car, Rivera was observed walking near the end of the toll booths where he dropped certain objects that were discovered to be four .38 caliber bullets.Caporicci placed the defendant under arrest and informed Mrs. Rivera, who had been a passenger in the defendant's automobile, that her husband would be taken to the 76th Precinct in Brooklyn and that she should remain with their car or by the side retaining wall until a squad car had arrived from the Precinct.Instead of pulling over and parking, Mrs. Rivera drove away.As this occurred, Caporicci looked inside the car and observed the handle and cylinder of a revolver wedged between the cushions of the passenger seat.The defendant was taken to the 76th Precinct at about 11:25 p. m., where he was subsequently booked on charges of assault, possession of a weapon, and driving while intoxicated.Shortly before 1:00 a. m., Mrs. Rivera arrived at the station and was also placed under arrest for possession of a weapon and leaving the scene of an accident.

Early in the morning of October 13, 1972, Rosa was contacted by Rivera's sister who asked him to provide the defendant with bail money.Later that day the money was provided and on the next day Rosa met Rivera and inquired about the latter's black eye and facial cuts.Rivera replied "(t)hat the Federal agents were after him in the highway and he had an...