U.S. v. Sanchez

• Decision Date: 20 July 1992
• Docket Number: No. 1140,D,1140
• Citation: 969 F.2d 1409
• Parties: UNITED STATES of America, Appellant, v. Carluin SANCHEZ, Defendant-Appellee. ocket 91-1723.
• Court: U.S. Court of Appeals — Second Circuit

Page 1409

969 F.2d 1409

UNITED STATES of America, Appellant, v. Carluin SANCHEZ, Defendant-Appellee.

No. 1140, Docket 91-1723.

United States Court of Appeals Second Circuit.

Argued April 3, 1992.

Decided July 20, 1992.

Otto G. Obermaier, U.S. Atty., New York City (Sharon L. Davies, Helen Gredd and Daniel C. Richman, Asst. U.S. Attys., New York City, of counsel), for appellant.

David Cooper, New York City, for defendant-appellee.

Before PIERCE, MINER and McLAUGHLIN, Circuit Judges.

MINER, Circuit Judge:

Appellant United States of America appeals from an order granting a new trial, Fed.R.Crim.P. 33, entered in the United States District Court for the Southern District of New York (Martin, J.). The order was entered following the rendition of a jury verdict convicting defendant-appellee Carluin Sanchez ("Carluin") of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and possession of heroin with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). Principally based upon its determination that perjured testimony was given by three police officers at trial, the district court set the verdict aside and ordered a new trial "in the interest of justice." Fed.R.Crim.P. 33.

As it did in the district court, the government argues on appeal that the trial judge was without authority to vacate the guilty verdict on the basis of a disagreement with the jury's assessment of witness credibility. The government contends that credibility issues must be resolved by the jury alone. Carluin argues on appeal, as he did below, that the determination of the trial judge that the three witnesses testified falsely formed a sufficient basis for the trial judge to exercise his discretion to grant a new trial in this case. Carluin contends that district court judges are not bound by credibility decisions made by a jury in circumstances This controversy over the proper interpretation and application of Rule 33 brings to mind the dispute involving the "blind men of Indostan," who were unable to fully agree on the correct description of an elephant:

                such as those revealed here.   Carluin also argues on appeal, although the district court specifically declined to reach the issue, that the government knowingly used perjured testimony and that the verdict should have been set aside for that reason alone
                

And so these men of Indostan

Disputed loud and long,

Each in his own opinion

Exceeding stiff and strong,

Though each was partly in the right,

And all were in the wrong! ¹

We think that both parties here, like the men of Indostan, are wrong in their contentions, although each is partially "in the right." However that may be, our own interpretation of Rule 33, as applied to this case, dictates reversal of the order of the district court.

BACKGROUND

It appears to be uncontroverted that Hector "Tito" Sanchez, brother of Carluin, was a member of the heroin distribution organization that operated under the direction of one Steven Ramos. The heroin was sold under the brand name "Pure Energy" from a house on Frisby Avenue in the Bronx, where Tito lived with his girlfriend. Apparently, Tito used the house as a "mill," where pure heroin was diluted and packaged for street distribution. In the summer of 1990 Carluin moved in with his brother. Later in the summer, the brothers moved to Beach Avenue in the Bronx and, in late September or early October, 1990, to an apartment at 417 Thieriot Avenue in the same Borough.

Carlos Trinidad was a major buyer of "Pure Energy" heroin, which he purchased from Tito for resale. He testified that he purchased thousands of dollars worth of the cutting mill product on an almost daily basis. When he called at the Thieriot Avenue apartment to make his purchases on several occasions, he observed Carluin take boxes of heroin from closets in the apartment to give to him. According to Trinidad, Carluin supplied him directly during the nine-day period in mid-October of 1990 when Tito, Steven Ramos and others were on a trip to Puerto Rico. During that time, Carluin received substantial amounts of money from Carlos Trinidad in return for the delivery of substantial quantities of drugs.

Trinidad testified that the "mill" was operated out of the Sanchez brothers' apartment at Thieriot Avenue during the month of November, 1990. He said that when he came to the apartment on one occasion, he saw an assembly line operation in progress. One millworker spooned heroin into glassine envelopes and two others sealed the envelopes with scotch tape. All wore masks to avoid inhaling the heroin. According to Trinidad, Carluin was lying on the floor at the time of his visit, engaged in bundling the glassine envelopes into groups of ten with rubber bands. At the end of November, the mill was moved to an apartment at 380 Balcom Avenue, apparently because the activities at the Thieriot Avenue building were arousing the suspicions of the landlord, who was a New York City police officer. Trinidad frequently observed the millworkers, including Carluin, arrive for work at the Balcom Avenue location. He was able to make those observations because he lived in the neighborhood.

Despite the change in mill location, the Sanchez brothers maintained the Thieriot Avenue apartment, from which they continued to transact their heroin business. Discussions between Tito and Steven Ramos regarding deliveries to the apartment were revealed in intercepted telephone calls. In one call, Tito told Ramos that Carluin, referred to in the call by his nickname, "Piro," had left the apartment to "go over there" following a call from Davila, the head of mill operations. In another, Tito notified Ramos that he needed "Spanky," a member of the gang, to come over the The investigation of the Steven Ramos drug conspiracy led to the issuance of more than forty arrest warrants and twenty search warrants. These included the warrants that were issued for the arrest of Tito Sanchez, for a search of the second floor apartment he occupied at 417 Thieriot Avenue and for a search of the basement in the same building. It is undisputed that twelve to fourteen law enforcement officers arrived at the Thieriot Avenue location at about 5 a.m. on January 9, 1991 to execute the warrants; that the officers were divided into three teams: one to secure the outside of the building, one to enter the basement, and one, led by Sergeant Richard Bushrod of the New York City Police Department, to enter the second floor apartment where Tito resided; and that the officers rammed the outside door of the building to gain entrance.

following morning, when he was at home, or to come over that night, if "Piro" was there.

Sergeant Bushrod testified that he proceeded up the stairs to the second floor apartment and knocked on the apartment door immediately after entering the building. Tito Sanchez opened the door, saw Bushrod, who identified himself as a police officer, and immediately attempted to close the door. A pushing contest ensued, and Bushrod placed his foot against the door to hold it open and called for the battering ram that had been used on the outside door. While the apartment door was partially open, Bushrod saw a person run across the room inside. He then heard a toilet flushing within the apartment. Bushrod did not recall whether the ram was used to force the door open, but he did recall that he called for it. He said that he pushed Tito against the wall after he gained entrance and that Tito then was handcuffed by another officer. Bushrod proceeded to the one bedroom in the apartment and then returned to the living room, where he had entered initially. In the living room, he first observed Carluin, who was being detained there. Bushrod next proceeded to the bathroom, where another officer was removing bundles of glassine envelopes that were floating in the toilet bowl. Bushrod used a ram to break the toilet and found in the toilet trap more glassine envelopes marked "Pure Energy."

Detective Joel Domenitz testified that he followed Sergeant Bushrod up the stairs to the second floor apartment, that the officers were yelling "Police" at the same time, and that Sergeant Bushrod banged on the door of the apartment, which was opened by Tito Sanchez. Bushrod was on the left side of the door and Domenitz was on the right when the door was opened. According to Domenitz, Tito immediately tried to close the door and got into a "pushing match" with Bushrod, who then called for the ram. Detective Chin came up with the ram and hit the door, Domenitz having stepped down from the landing to afford Chin a shot at the door. Domenitz indicated that the door never was fully closed, even when it was hit by the ram. He testified that when the door initially was opened, to the extent of a foot or more, he "saw a second male running from what turned out to be the bedroom into the bathroom." There were only two men inside the apartment. Domenitz said that he entered the apartment behind Bushrod, who "grabbed" Tito, and that he handcuffed Carluin after seeing him step out of the bathroom. Domenitz also saw bundles of heroin "swirling" in the toilet bowl and additional bundles in the toilet trap.

After the defense rested, the government called Detective Daniel Chin as a rebuttal witness. It was Detective Chin who used the battering ram to break down the outside door at 417 Thieriot Avenue. He put the ram down near the front door after he entered and watched the field team proceed up the stairs to the second floor. He then heard Sergeant Bushrod call for the ram and immediately picked it up and went to the top of the stairs. Chin testified that he rammed the closed door once in the area of the lock, and that Bushrod and Domenitz were up against the wall at the time. Photographs taken by the owner of the building demonstrate that the force of the ram damaged the door frame in the area of the lock as well as the lock and...