U.S. v. Rodriguez, s. 28

Citation968 F.2d 130
Decision Date09 April 1992
Docket NumberNos. 28,527-533 and 703,D,s. 28
PartiesUNITED STATES of America, Appellee, v. Roberto RODRIGUEZ, Luis Rosado, also known as Manuel Carillo, Nelson Noa, Rafael Flores, Ronnie L'Rue, Mirella Pacheco, Jose Cots, Nelson Garcia, also known as Nelson Cabilla, Noel Aguero, Defendants-Appellants. ockets 91-1152, 91-1160, 91-1167, 91-1169, 91-1170, 91-1228, 91-1286, 91-1287 and 91-1379.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Nelson W. Cunningham, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Amy E. Millard, Asst. U.S. Atty., New York City, on the brief), for appellee.

Roger L. Stavis, New York City (Steven R. Kartagener, Kartagener & Stavis, on the brief), for defendant-appellant Roberto Rodriguez.

Michael F. Bachner, New York City, for defendant-appellant Luis Rosado.

Philip Katowitz, New York City, for defendant-appellant Nelson Noa.

David Cooper, New York City, for defendant-appellant Rafael Flores.

Gerald J. McMahon, New York City, for defendant-appellant Ronnie L'Rue, joined the brief submitted for defendant-appellant Flores.

Vincent L. Verdiramo, Jersey City, N.J. (Verdiramo & Verdiramo, on the brief), for defendant-appellant Mirella Pacheco.

Daniel Meyers, New York City, for defendant-appellant Jose Cots.

Martin J. Seigel, New York City, for defendant-appellant Nelson Garcia.

Joyce London, New York City (Susan G. Kellman, on the brief), for defendant-appellant Noel Aguero.

Before: FEINBERG, MESKILL, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Roberto Rodriguez ("Rodriguez") appeals from a judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, convicting him, following his plea of guilty, on one count of conducting a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a), 853(a)(1), 853(a)(2), and 853(a)(3) (1988). Defendants Luis Rosado, Nelson Noa, Rafael Flores, Ronnie L'Rue, Mirella Pacheco, Jose Cots, Nelson Garcia, and Noel Aguero appeal from judgments entered in the same court following a jury trial before Judge Stanton, convicting all of them except Noa on one count of conspiracy to possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846 (1988). Noa was convicted of possession of approximately 18 grams of crack, in violation of 21 U.S.C. § 844(a) (1988). Rodriguez was sentenced principally to 360 months' imprisonment and ordered to forfeit assets in the amount of $550,000. Garcia, having two prior narcotics felony convictions, was sentenced to life imprisonment. The remaining appellants were sentenced principally to the following prison terms: Rosado, 192 months; Noa, 60 months; Flores, 222 months; L'Rue, 240 months; Pacheco, 151 months; Cots, 204 months; and Aguero, 300 months.

On appeal, appellants make numerous arguments, including principally (1) their contention that the district court erred in refusing to suppress evidence obtained through court-authorized wiretaps, (2) Rodriguez's contentions that he should be allowed to withdraw his plea of guilty, and (3) Rodriguez's challenges to his sentence. For the reasons below, we reject all of appellants' contentions and affirm the judgments of conviction.

I. BACKGROUND

The present prosecution arises out of the investigation of a crack organization in the Bronx, New York, headed by Rodriguez (the "Rodriguez Organization" or "Organization"). The government's proof at trial included (1) the testimony of coconspirator Evaristo Valentin, who had been Rodriguez's right-hand man overseeing the operation of the Organization, and of Aurea Rodriguez (not related to Roberto Rodriguez), another former member of the Organization; (2) excerpts of telephone conversations recorded by means of court-authorized wiretaps; (3) surveillance videotapes; (4) unpackaged crack and cocaine, packaging materials, and more than 3,000 vials filled with crack, seized from more than 20 locations; and (5) other physical evidence including detailed drug records. The evidence, taken in the light most favorable to the government, painted the following overall picture.

From prior to 1988 until July 1989, Rodriguez presided over a large-scale narcotics operation in the Hunts Point section of the Bronx. The Organization operated a retail crack outlet that was open for business 24 hours a day, seven days a week. From this outlet an average of 1,200 to 2,600 vials of crack, at $5 per vial, were sold every day. The Organization also maintained many apartments in Hunts Point and elsewhere in the Bronx for processing, packaging, and storing the crack, or for storing drug records and profits.

Proceeds from the crack sales, often stored temporarily in an apartment occupied by Aurea Rodriguez, were eventually taken to the Imperio Cafe, a restaurant The investigation of the Rodriguez Organization's operations included raids in 1988 pursuant to search warrants, physical surveillance and videotaping, court-authorized pen registers, and court-authorized wiretaps in 1989 on four telephones at the Imperio Cafe and on the Bronx telephone of Aurea Rodriguez. Appellants and other members of the Organization were arrested in July 1989 as part of a coordinated series of raids.

                owned by Roberto Rodriguez in New Jersey.   L'Rue, the cafe's cook and manager, received and counted the money and ultimately delivered it to Rodriguez.   The other appellants played various other roles in the Organization.   Garcia was one of Rodriguez's main suppliers of cocaine;  Flores was a courier who sometimes cooked cocaine into crack;  Rosado and Cots served as, inter alia, packagers;  and Aguero was the boss of one of the two daily shifts at the retail outlet, ensuring that there was sufficient packaged crack available for sale.   Pacheco was Rodriguez's wife or girlfriend and served as his general assistant, at various times packaging and transporting crack, or counting and transporting the proceeds from the sales
                

The initial indictment charged 22 persons, including appellants, with participating in a large-scale narcotics conspiracy, in violation of 21 U.S.C. § 846, and charged Roberto Rodriguez as well with, inter alia, conducting a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). Rodriguez entered into a written cooperation agreement with the government, in which he agreed to plead guilty to the continuing criminal enterprise count and agreed to forfeit assets. The government agreed to withdraw the other counts against him and to recommend a downward departure in sentencing if he gave the government substantial assistance in the investigation or prosecution of other persons. As discussed in greater detail in Part II.B. below, after a hearing that included inquiry into a potential conflict of interest on the part of the attorney then representing Rodriguez, the district court accepted the plea.

Following the guilty pleas of Rodriguez and others, a superseding indictment was filed against the remaining defendants. To the extent pertinent here, count 1 of the superseding indictment charged appellants other than Rodriguez with conspiracy; count 2 charged Noa with possession of 18.2 grams of crack with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (1988). As discussed in greater detail in Part II.A. below, prior to trial defendants moved to suppress information obtained through the wiretaps on the Imperio Cafe telephones, contending that the orders purporting to authorize the pen registers and wiretaps were jurisdictionally defective because they were issued by a federal court in New York, rather than a court in New Jersey, the jurisdiction in which the telephones were located. In an opinion reported at 734 F.Supp. 116 (1990), the district court concluded that the orders complied with the pertinent statutory requirements. It ruled that since the telephone communications were actually heard and recorded at United States Drug Enforcement Administration ("DEA") headquarters in Manhattan, which is within the Southern District of New York, and the pen register information was received there as well, the use of the pen registers and the interceptions of the conversations occurred in the Southern District of New York and thus within the territorial jurisdiction of the issuing authorities. Id. at 120-21, 123. Accordingly, it denied the motions to suppress.

After a 13-week trial at which, inter alia, Valentin described in detail the Rodriguez Organization's operations and the government introduced some 90 conversations intercepted by means of the wiretaps, the jury found all of the appellants who were tried, except Noa, guilty of conspiracy to possess with intent to distribute more than 50 grams of crack. Noa was acquitted of conspiracy; he was also acquitted of possession of crack with intent to distribute but was found guilty of the lesser included offense of simple possession of crack, in violation of 21 U.S.C. § 844(a). Appellants were sentenced as indicated above. The 360-month sentence on These appeals followed.

Rodriguez, imposed after the trial of his codefendants, represented a substantial upward departure from the range of imprisonment established by the applicable version of the federal Sentencing Guidelines ("Guidelines").

II. DISCUSSION

On appeal, appellants other than Rodriguez contend principally that they are entitled to a new trial on the ground that the court orders authorizing the wiretaps and pen registers on the New Jersey telephones were jurisdictionally defective and that the information obtained from the wiretaps should therefore have been suppressed. Rodriguez contends principally (a) that his case should be remanded to permit the district court to determine whether he may withdraw his plea because of his first attorney's conflict of interest, or...

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