U.S. v. Sotomayor, Nos. 1031

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore MANSFIELD and TIMBERS; WALTER E. HOFFMAN
Citation592 F.2d 1219
PartiesUNITED STATES of America, Appellee, v. Luis SOTOMAYOR, a/k/a "Toti," Carmen Iris Rivera, a/k/a "Carmencita," JoseMiguel Crespo, a/k/a "Mike Crespo," Victor Hernandez, a/k/a "Victor,"a/k/a "Vitin," Steven Angelet, a/k/a "Steven Marcano," a/k/a "Stevie,"and IsmaelRomero, a/k/a "Cookie," Appellants. to 1036, Dockets 78-1064, 78-1073, 78-1076 to 78-1078 and 78-1086.
Docket NumberNos. 1031
Decision Date02 February 1979

Page 1219

592 F.2d 1219
UNITED STATES of America, Appellee,
v.
Luis SOTOMAYOR, a/k/a "Toti," Carmen Iris Rivera, a/k/a
"Carmencita," JoseMiguel Crespo, a/k/a "Mike Crespo," Victor
Hernandez, a/k/a "Victor,"a/k/a "Vitin," Steven Angelet,
a/k/a "Steven Marcano," a/k/a "Stevie,"and IsmaelRomero,
a/k/a "Cookie," Appellants.
Nos. 1031 to 1036, Dockets 78-1064, 78-1073, 78-1076 to
78-1078 and 78-1086.
United States Court of Appeals,
Second Circuit.
Argued June 1, 1978.
Decided Feb. 2, 1979.

Page 1220

William C. Pelster, New York City, for appellant Luis Sotomayor.

J. Jeffrey Weisenfeld, New York City (Steven M. Jaeger, New York City, on brief), for appellant Jose Miguel Crispo.

Robert B. Blossner, New York City, for appellant Steven Angelet.

Samuel W. Murphy, Jr., David S. Versfelt, New York City (Donovan, Leisure, Newton & Irvine, New York City, on brief), for appellant Ismael Romero.

Stephen M. Goldenberg, New York City, for appellant Victor Hernandez.

Michael Young, New York City (Goldberger, Feldman & Dubin, New York City, on brief), for appellant Carmen Rivera.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City (Robert J. Costello, Richard Lawler, Robert J. Jossen, Asst. U. S. Attys., S. D. N. Y., New York City, of counsel), for the U. S.

Before MANSFIELD and TIMBERS, Circuit Judges, and HOFFMAN, * Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

Appellants appeal from judgments of conviction entered on January 26 and February 8, 1978 in the United States District Court for the Southern District of New York, after an eight week trial before the Honorable Lawrence W. Pierce, District Judge, and a jury. The appellants were convicted of conspiracy to import cocaine into the United States and to possess and distribute heroin and cocaine in the United States in violation of 21 U.S.C. §§ 846 and 963. In addition, Ismael Romero was convicted of possession with intent to distribute and distribution of 106.3 grams of heroin in violation of 21 U.S.C. §§ 841(a) (1) and 841(b)(1)(a). 1 The principal error alleged is the failure of the district court to suppress wiretap tapes allegedly untimely sealed under New York law. We affirm.

The Government's prosecution was mainly based on the introduction into evidence of 138 recorded conversations seized as a result of New York State court-ordered surveillance of four telephone lines in Bronx and Westchester Counties. Testimony was also given by officers who performed surveillance, and who explained to the court and jury the code system employed to discuss drug dealing over the telephone system.

Page 1221

Four plants or taps were involved, each operated by New York law enforcement officers. The following table outlines these taps:

Plant/Tap Telephone Line Residence Time Period (Sealing)
                --------- -------------- --------- ---------------------
                 22 (212)829-1770 Gregory Comulada and 9/22/76 (extensions 10/22/76,
                 Eva Ramirez 11/5/76) to 12/2/76. Sealed
                 12/2/76.
                 25 (212)796-9306 Steven Angelet and 10/18/76 to 11/16/76. Sealed
                 Maria Marcano 11/17/76.
                 28 (914)965-9624 Jose Miguel (or Mike) 11/23/76 (extensions 12/3/76,
                 Crespo and Julianna 12/23/76) to 1/10/77. Sealed
                 Gross 1/11/77.
                 29 (212)681-1615 Herman Rivera 12/11/76 to 12/28/76. Sealed
                 12/29/76.
                

The investigation which led to the indictment was commenced during the summer of 1976 by members of the New York City Police Department assigned to Manhattan North narcotics in conjunction with the Bronx County District Attorney. During the course of the investigation, the indicated wiretap orders were sought by New York law enforcement officers. These orders were granted by a justice of the Supreme Court of the State of New York, Bronx County, and by a judge of the Westchester County Court.

A central plant was established by the investigators to record and log the intercepted communications. The procedure for collection and preservation of the original tapes was to remove the tape from the recorder at midnight and place it, and the line sheets, in an envelope, which was put into a wire basket on a desk at the central plant. Police Officer Connelly was responsible for transporting the tapes from the plant to the Bronx district attorney's office the following day. On several occasions other officers performed this duty when Connelly could not.

The envelope was taken to the wire room at the district attorney's office. The tape would then be reproduced and stored in this room, which was under the supervision of detectives Ryan and Campion. Connelly, or one of the other officers, would return to the plant with the duplicate recording. Only Ryan, Campion, and their commanding officer had access to the tapes in the district attorney's office once the tapes were received as the tapes were filed in the office and only these three individuals had keys to the room.

Officer Connelly, in his capacity as coordinator of the four taps, was also present at the sealing of each of the tapes. He took possession of the appropriate tapes from the district attorney's wire room and appeared before a judge with an assistant district attorney for the sealing procedure. The sealing dates were December 2, 1976 (Tap 22); November 16, 1976 (Tap 25); January 11, 1977 (Tap 28); December 29, 1976 (Tap 29). Stated otherwise, the sealing took place within one day following the last extension. Appellants do not contest the admissibility of evidence received during the last extension order, but challenge the admissibility of evidence received during the original orders and any extension orders save and except the final ones.

Once sealed, the boxes containing the tapes were kept in a vault room in the Bronx district attorney's office. On September 16, 1977, Detective Ryan, on state court orders, turned the sealed tapes over to Police Officer Palermo and Agent Mella of the Drug Enforcement Administration. The tapes were transferred to the United States Attorney for the Southern District of New York. On September 26, 1977, the tapes were unsealed in the presence of District Judge Pierce and defense counsel.

The Government sought to prove the existence of an elaborate narcotics conspiracy which was responsible for distributing large quantities of heroin and cocaine in New York. At the head of the organization

Page 1222

were Sotomayor and Carmen Iris Rivera, whose operation provided narcotics to the organization of Crespo and Victor Hernandez. Crespo and Hernandez, in turn, acted as wholesalers and distributed the narcotics to a partnership consisting of Steven Angelet and Gregory Comulada, 2 and also to Herman Rivera, 3 Ismael Romero, and Santiago Lopez. 4 This latter group of purchasers redistributed the narcotics to their customers. Among Herman Rivera's customers were Angel Rivera 5 and Robert Beck. 6 Angel Rivera also received narcotics from the Sotomayor-Carmen Rivera partnership. In addition, the Angelet-Comulada partnership had other sources of supply for cocaine in Florida.

The investigation proceeded basically in inverse order of levels of importance to the conspiracy. The first wiretap was on the telephone of Gregory Comulada. Through conversations intercepted during that wiretap it was determined that Comulada had a partner in the narcotics business, Steven Angelet. Other conversations intercepted on the Comulada wiretap showed that Comulada and Angelet were receiving heroin from Mike Crespo. A wiretap then was installed on Crespo's telephone and revealed that Crespo had a partner, Victor Hernandez. Additional conversations intercepted during that wiretap showed that Crespo and Hernandez were receiving narcotics from Luis Sotomayor and Carmen Rivera.

At trial, the Government proved the substantial narcotics conspiracy charged in the indictment through much the same way that the investigation had uncovered the loosely knit, but clearly connected, chain of supplier-wholesaler-distributors and purchasers. The chronological wiretaps demonstrated the inverse hierarchy and brought the conspiracy from distributor to wholesaler to supplier over a short period of time in the fall of 1976 and January 1977. The evidence showed that these defendants discussed various narcotic transactions in code language over the telephone and that Crespo and Hernandez also employed a radio communication device or "beeper" to maintain constant communication with each other as well as with all of their customers. The scope and volume of defendants' activities was suggested by a ledger book which was seized pursuant to a search warrant from Angel Rivera's apartment. This ledger book demonstrated the positions of Sotomayor and Carmen Rivera as sources of supply.

In addition, Detective Mahone testified that Ismael Romero sold him 106.3 grams of heroin on December 3, 1976, and offered to sell quarter kilograms of heroin to him on a regular basis.

The Government concedes that if the tapes are inadmissible, a new trial must be granted.

I. SEALING OF TAPES

The crux of this case lies in the tape sealing requirements of the New York statute and their possible application to a subsequently conducted federal prosecution. It was not until the state and local law enforcement officers had completed their investigation that a decision was made to permit federal prosecution. 7 As noted, on September 16, 1977, the tapes were transferred, pursuant to state court orders, to the federal authorities.

Page 1223

In dealing with wiretap orders the federal statute, 18 U.S.C. § 2518(8)(a), provides: "Immediately upon the expiration of the period of the order, Or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions." (Emphasis added) The tapes were timely sealed following the expiration of the extension orders in accordance with the federal statute. No federal agents were involved in the wiretap investigation or in the sealing.

The New York counterpart to 18 U.S.C. § 2518(8)(a)...

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  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 June 2017
    ...States v. Gallo, 668 F. Supp. at 749 (citing United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir. 1985); United States v. Sotomayer, 592 F.2d 1219, 1227 (2d Cir. 1979)).Among the factors the court must consider in determining whether the prejudice of a joint trial rises to the level of ......
  • State v. Williams, No. 46795
    • United States
    • United States State Supreme Court of Washington
    • 9 October 1980
    ...F.2d 1229, 1234-35 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); but see United States v. Sotomayor, 592 F.2d 1219, 1224-26 (2d Cir. 1979), cert. denied sub nom. Crespo v. United States, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979)) and that the fe......
  • U.S. v. Bruun, Nos. 85-1311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 9 March 1987
    ...715 F.2d 260, 267 (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984); United States v. Sotomayor, 592 F.2d 1219, 1227-28 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Such prejudice cannot be shown Berkovitz argues that his defe......
  • U.S. v. Vazquez, Nos. 678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 August 1979
    ...requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law. 13 United States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d Cir.), Cert. denied, --- U.S. ----, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir......
  • Request a trial to view additional results
90 cases
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 June 2017
    ...States v. Gallo, 668 F. Supp. at 749 (citing United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir. 1985); United States v. Sotomayer, 592 F.2d 1219, 1227 (2d Cir. 1979)).Among the factors the court must consider in determining whether the prejudice of a joint trial rises to the level of ......
  • State v. Williams, No. 46795
    • United States
    • United States State Supreme Court of Washington
    • 9 October 1980
    ...F.2d 1229, 1234-35 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); but see United States v. Sotomayor, 592 F.2d 1219, 1224-26 (2d Cir. 1979), cert. denied sub nom. Crespo v. United States, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979)) and that the fe......
  • U.S. v. Bruun, Nos. 85-1311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 9 March 1987
    ...715 F.2d 260, 267 (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984); United States v. Sotomayor, 592 F.2d 1219, 1227-28 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Such prejudice cannot be shown Berkovitz argues that his defe......
  • U.S. v. Vazquez, Nos. 678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 August 1979
    ...requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law. 13 United States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d Cir.), Cert. denied, --- U.S. ----, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir......
  • Request a trial to view additional results

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