U.S. v. Romero

• Citation: 897 F.2d 47
• Decision Date: 20 February 1990
• Docket Number: Nos. 444,855 and 445,D,s. 444
• Parties: UNITED STATES of America, Appellee, v. Rafael ROMERO, a/k/a "Ralphy", Albert Rodriguez and Rafael Santos, Defendants-Appellants. ockets 89-1264, 89-1265 and 89-1266.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 47

897 F.2d 47

UNITED STATES of America, Appellee, v. Rafael ROMERO, a/k/a "Ralphy", Albert Rodriguez and Rafael Santos, Defendants-Appellants.

Nos. 444, 855 and 445, Dockets 89-1264, 89-1265 and 89-1266.

United States Court of Appeals Second Circuit.

Argued Jan. 17, 1990.

Decided Feb. 20, 1990.

Mary Lee Warren, Asst. U.S. Atty. (Otto G. Obermaier, U.S. Atty. New York, N.Y., Howard E. Heiss, and Daniel C. Richman, Asst. U.S. Attys., of counsel), for appellee.

Kenneth I. Wirfel, New York City (Rosenblatt, Mass, Wirfel & Stolz, P.C., of counsel), for appellant, Rafael Romero.

David J. Goldstein, Bronx, N.Y. (Goldstein, Weinstein & Fuld, of counsel), for appellant, Albert Rodriguez.

Stuart London, Ryebrook, N.Y. (Martin Fidler, of counsel), for appellant, Rafael Santos.

Before FEINBERG, PRATT and MAHONEY, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Defendants Rafael Romero, Albert Rodriguez, and Rafael Santos appeal from judgments entered against them in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, convicting them of multiple crimes arising from their participation in narcotics trafficking in New York City.

Because we find no merit in any of the assorted contentions the defendants raise on appeal, we affirm the conviction of each defendant on each count upon which he was convicted.

I. BACKGROUND

In September 1988 defendants Romero and Rodriguez sold cocaine to two Drug Enforcement Administration (DEA) confidential informants in an apartment used for a large-scale drug trafficking operation. Santos hid in a strategically located hall closet, armed with a .357 Magnum revolver, as look-out "in case anything went wrong". As DEA agents raided the apartment, arresting Romero and wrestling Rodriguez to the floor, Santos shot one of the agents in the face, seriously wounding him. A volley of bullets followed, injuring Santos and one of the informants.

Prior to trial, the district court denied motions to suppress a post-arrest statement made by Santos, to sever the trials, and for a continuance. After a jury trial, defendants were convicted of conspiring to distribute more than five kilograms of cocaine, 21 U.S.C. Sec. 846; possession of approximately one kilogram of cocaine with intent to distribute, 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(B); conspiring to murder a federal officer, 18 U.S.C. Sec. 1117; attempted murder of a federal officer, 18 U.S.C. Secs. 1111 and 1114; assaulting a federal officer with a deadly weapon, 18 U.S.C. Sec. 111; and use of a firearm during the course of a narcotics trafficking offense, 18 U.S.C. Sec. 924(c). Santos was also convicted of receipt and possession of a firearm with a defaced serial number, 26 U.S.C. Secs. 5861(h) and 5871.

Each defendant received concurrent sentences of life imprisonment on each of the conspiracy charges, twenty years for attempted murder, ten years each for the assault and the possession, as well as a consecutive sentence of five years for use of a firearm. In addition Santos was sentenced to five years for receipt of a defaced firearm, to run concurrently with the other weapons charge.

On appeal, defendants argue that there was insufficient evidence to convict on the conspiracy charges and on some of the substantive charges. They challenge the court's refusal to suppress Santos's post-arrest statement, to sever Santos's trial, to grant a continuance, and to instruct the jury on a lesser charge of manslaughter. Santos also challenges his sentence. We find no merit to any of these arguments.

II. DISCUSSION

A. Sufficiency of the Evidence.

Defendants claim that the evidence was insufficient to support the jury's guilty verdicts on the conspiracy charges and on most of the substantive counts. We are not persuaded.

A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989); United States v. Rastelli, 870 F.2d 822, 827 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). On review, we determine only if there is substantial evidence to support the jury's findings, viewed in the light most favorable to the government. Id.; see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). There is sufficient evidence to uphold a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).

1. Conspiracy.

All three defendants claim that there was insufficient evidence to establish their participation in either the conspiracy to distribute more than five kilograms of cocaine or the conspiracy to murder a federal officer. For the reasons below, we reject their claims.

The essential element of a conspiracy is an agreement to accomplish an unlawful act. United States v. Wardy, 777 F.2d 101, 107 (2d Cir.1985), cert. denied, 475 U.S. 1053, 106 S.Ct. 1280, 89 L.Ed.2d 587 (1986). A conspiracy may be established through circumstantial evidence, United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), which need only tend to show a tacit understanding to carry out the prohibited conduct. Wardy, 777 F.2d at 107. A conspirator need not be proven to have known of all the details of the broader conspiracy; there need only be " 'some evidence from which it can reasonably be inferred that the person charged * * * knew of the existence of the scheme * * * and knowingly joined and participated in it.' " United States v. Nusraty, 867 F.2d 759, 763 (2d Cir.1989), quoting United States v. Gaviria, 740 F.2d 174, 183 (2d Cir.1984).

The evidence, which must be viewed as a whole, United States v. Martino, 759 F.2d 998, 1003 (2d Cir.1985), showed that Rodriguez was running a sophisticated narcotics operation with the help of Romero and Santos. The initial, probationary deal with the informants was for a relatively large amount of cocaine, two kilos for $35,000; there were at least two apartments involved, one for storage and one for distribution; and other drug operations were going on simultaneously in the distribution apartment. Moreover, Romero told the informants that he had known Rodriguez for some time and had sold drugs for him before. He also promised that more cocaine, as much as the informants wanted or needed, would be available in the future. In fact, there was more cocaine available that day, although it was not offered to the informants. Finally, both Rodriguez and Romero were concerned about security. They frisked the informants to check for weapons or evidence of police presence, the apartment had a specially rigged warning system with which both were familiar, and Santos was armed and posted as an enforcer.

Santos argues that since he was hiding in the closet during the entire transaction, he neither possessed the cocaine nor participated in the drug deal, and so could not be part of the narcotics conspiracy. It is clear that Romero and Rodriguez agreed to sell cocaine to the informants. The jury could also reasonably have inferred that Santos was there to protect the drug deal and the dealers. From the closet, he could see drugs and paraphernalia with the door open and even when the door was closed he could overhear the conversation. He lay in wait in case the deal was interrupted, and when DEA agents entered the apartment, he performed his part of the plan by firing upon them. A reasonable jury could conclude that Santos knew of the plan to sell narcotics and knowingly participated in it.

Romero and Rodriguez admit they conspired with respect to two kilos of cocaine, but they argue that there was insufficient evidence to support their convictions of conspiring to distribute more than five kilos. They assert that the agreement with the DEA informants was for only two kilos and that there was no agreement for more than that. But there was much more than a simple agreement to sell two kilos: there was Romero's promise to the informants to provide an unlimited amount in the future; there was a nearby source from which Rodriguez quickly produced the two kilos; there was more cocaine in the apartment being prepared for distribution; and there were indications of past and future cooperation between Romero and Rodriguez. On these facts there was sufficient evidence for the jury to conclude not only that the defendants had agreed to sell two kilos to these informants, and that they sought to supply them with an unlimited amount in the future, but also that they had been and continued to be engaged in a substantial multi-kilo operation to distribute cocaine.

Defendants also argue that there was not sufficient evidence to convict them of conspiring to murder a federal officer because there was no agreement to murder anyone and because neither Romero nor Rodriguez even knew that Santos was in the closet.

The evidence, however, indicates that there was a drug deal, that Romero and Rodriguez took many precautions against detection and arrest, that the apartment was strewn with ammunition in open view, and that Santos had been deliberately stationed in the closet. At the least, the jury could reasonably have found that Romero and Rodriguez knew that Santos was positioned out of sight, armed and ready to shoot. From this conclusion, a reasonable jury could infer that Santos's taking up a strategic position in the closet while Romero and Rodriguez conducted their narcotics business did not occur by chance, but rather was the result of a plan agreed to by all the defendants to kill anyone posing a threat to them or the business.

Santos lay in wait and, as intended, shot an agent who was threatening the conspirators and the deal. It was not necessary that the defendants knew their ultimate victim was a federal officer. "[S]uch knowledge is * * * irrelevant" because a conspiracy to murder a federal officer...