U.S. v. Tejada

• Decision Date: 21 February 1992
• Docket Number: D,Nos. 19,s. 19
• Parties: , 4 Fed.Sent.R. 277 UNITED STATES of America, Appellee, v. Julio Alberto TEJADA, Defendant-Appellant, Mancebo, et al., Defendants. UNITED STATES of America, Appellant, v. Winston CABRERA, Defendant-Appellee. ocket 91-1071, 43, Docket 91-1119.
• Court: U.S. Court of Appeals — Second Circuit

Page 1256

956 F.2d 1256

60 USLW 2575, 4 Fed.Sent.R. 277

UNITED STATES of America, Appellee, v. Julio Alberto TEJADA, Defendant-Appellant, Mancebo, et al., Defendants.

UNITED STATES of America, Appellant, v. Winston CABRERA, Defendant-Appellee.

Nos. 19, Docket 91-1071, 43, Docket 91-1119.

United States Court of Appeals, Second Circuit.

Argued Sept. 19, 1991.

Decided Feb. 21, 1992.

Louis R. Aidala, New York City, for defendant-appellant Tejada.

Nancy Northup, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty. and Mary Lee Warren, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellant and appellee U.S.

Henriette D. Hoffman, Legal Aid Soc., Federal Defender Services Appeals Unit, New York City, for defendant-appellee Cabrera.

Mark F. Pomerantz and Robert Penchina, Rogers & Wells, New York City, for amici curiae New York Council of Defense Lawyers and New York Crim. Bar Ass'n.

Before VAN GRAAFEILAND, MESKILL and MAHONEY, Circuit Judges.

MESKILL, Circuit Judge:

These are consolidated appeals from judgments of conviction entered in the United States District Court for the Southern District of New York. Defendant Julio Alberto Tejada appeals from a judgment of conviction entered following a five day jury trial before Walker, J. The jury found that Tejada conspired to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and that he possessed with the intent to distribute cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). The government is the appellant in the second case. That appeal is from a judgment of conviction entered following Winston Cabrera's plea of guilty to conspiring to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 before Martin, J. See United States v. Cabrera, 756 F.Supp. 134 (S.D.N.Y.1991). Because both cases arise out of the same transaction and raise the same issue regarding the use of illegally seized evidence at sentencing, we granted the government's motion to consolidate the appeals.

We also consider two other issues that Tejada raises and one additional issue that the government raises. Tejada asserts that the evidence against him was insufficient to support a conviction and that the district court erred by permitting certain rebuttal testimony. The government in its appeal challenges Judge Martin's ruling that the amount of narcotics that the conspirators actually delivered determined the scope of the conspiracy for purposes of calculating the United States Sentencing Guidelines (Guidelines) base offense level.

We affirm Tejada's judgment of conviction. We disagree with the district court's ruling that the amount of drugs Cabrera delivered determined the base offense level under the Guidelines. We hold that a sentencing judge should consider illegally obtained evidence where it was not seized expressly to enhance the sentence. Thus, we also remand for a determination of whether suppressed evidence was seized expressly to enhance Cabrera's sentence.

BACKGROUND

On November 13, 1989, Detective Miguel Monge of the New York Drug Enforcement Task Force (NYDETF) met with an alleged drug dealer, Johnny Mancebo, who agreed to sell the detective two kilograms of cocaine. This deal, and a similar one a month later, fell through because Mancebo or people connected with him detected unmarked police cars watching them. Detective As prearranged, Detective Monge and another undercover detective met with Cabrera to purchase two kilograms of cocaine, but when Cabrera informed the detectives that he could produce only 1.91 kilograms of cocaine Monge became angry. Cabrera attempted to mollify Monge by placing a telephone call in order to make up the deficiency. Cabrera then took the detectives to the area of 196th Street and Jerome Avenue in the Bronx.

                Monge again attempted to purchase two kilograms of cocaine from Mancebo on June 5, 1990.   Mancebo arranged a meeting that evening between defendant Cabrera and Detective Monge
                

On arrival, Monge told Cabrera to find Mancebo. Cabrera responded by leaving the car and approaching defendant Tejada and another man, Julio Pumerol, who were standing on the sidewalk looking up and down the block. After speaking with Tejada, Cabrera returned to the car and told Detective Monge that he could deliver the full two kilograms and that Mancebo was in the area.

After telling Detective Monge that he was going to get the cocaine, Cabrera walked up the block into the apartment building at 2800 Jerome Avenue, out of the sight of backup agent Detective William J. O'Flaherty, who was conducting surveillance. Within minutes, Cabrera emerged carrying a floral patterned box and rejoined Tejada and Pumerol on the sidewalk.

After talking among themselves, Cabrera, Tejada and Pumerol approached Detective Monge's vehicle. There, Tejada cautioned Cabrera to complete the transaction in a less public place, preferably around the corner. As Monge followed Tejada's suggestion and moved the vehicle around the corner, Cabrera opened the box and showed the cocaine to the detectives. Acting on a prearranged signal, other NYDETF officers then moved in and arrested Cabrera, Tejada and Pumerol and seized the 1.989 kilograms of cocaine that the flowered box contained. On Tejada's person, the detectives found, among other papers, a money order and a receipt for rent for apartment 3k at 2800 Jerome Avenue (although neither was in Tejada's name) and business cards inscribed with Mancebo's beeper number. What occurred next between Detective O'Flaherty and Tejada gave rise to the Fourth Amendment issue in this case.

Detective O'Flaherty testified at the evidentiary hearing on Tejada's motion to suppress as follows. Cabrera waived his Miranda rights and told O'Flaherty that he had retrieved the cocaine from apartment 3k at 2800 Jerome Avenue. Cabrera also disclosed to Detective O'Flaherty that no one was in apartment 3k, but that cocaine and a gun remained there in a closet. When O'Flaherty asked Cabrera if he had keys to apartment 3k, Cabrera gave them to the detective. O'Flaherty testified further that Cabrera willingly signed a DEA consent-to-search form and hand wrote his consent to a search of the apartment.

Detective O'Flaherty also testified that after leaving Cabrera in custody outside 2800 Jerome Avenue he joined other NYDETF officers in the third floor hallway of 2800 Jerome Avenue. After showing his supervisor the consent-to-search forms and testing Cabrera's keys in apartment 3k's doorlock, Detective O'Flaherty heard voices that he believed emanated from inside the apartment. Another officer then used a battering ram to open the door. Inside, the detectives found additional cocaine and a loaded gun, but no people.

In June 1990, the government filed a three count indictment charging that Mancebo, Cabrera and Tejada had conspired to distribute and possess with intent to distribute approximately two and one-quarter kilograms ¹ of cocaine, that they had distributed and possessed the cocaine and that they had used a firearm during and in relation to drug trafficking in violation of federal law.

Prior to trial, ² Tejada moved to suppress various items, including the narcotics and loaded firearm found during the search of apartment 3k. Judge Martin granted Tejada's motion in a memorandum order. Finding that Cabrera did not consent to the search, he expressed disbelief that an officer with keys to an apartment would have employed a battering ram. Responding to Judge Martin's ruling, the government dropped the firearms charge.

Soon thereafter, Tejada's case was transferred for trial before Judge Walker. The trial lasted five days, concluding with a jury verdict convicting Tejada on both remaining counts of the indictment.

At sentencing, Judge Walker considered the suppressed evidence and increased defendant Tejada's sentence in accordance with the Guidelines, stating that "I must consider the gun." Conversely, at Cabrera's sentencing, Judge Martin refused to consider the gun, holding that, as a matter of law, a court may not consider illegally seized evidence in calculating a Guidelines sentence. In his view, pre-Guidelines precedent no longer applied. 756 F.Supp. at 135. Moreover, Judge Martin held that the amount of drugs delivered rather than the amount that the conspirators had agreed to distribute defined the scope of the conspiracy when calculating the Guidelines base offense level.

On appeal, the various parties and amici disagree as to the propriety of considering at sentencing evidence obtained in violation of the Fourth Amendment. The government also appeals from Judge Martin's ruling that the object of the conspiracy for Guidelines purposes was the quantity that the conspirators actually delivered. Tejada, for his part, additionally objects to the sufficiency of the evidence against him and to Judge Walker's having allowed the government to have presented rebuttal evidence that exceeded the scope of direct examination.

DISCUSSION

A. Considering Suppressed Evidence at Sentencing

1. The Fourth Amendment and Exclusion

Although it remains clear that illegally seized evidence may not be used in the prosecution's case-in-chief, societal interests have led the Supreme Court narrowly to cabin the reach of the exclusionary rule. The issue before us now is whether the exclusionary rule prevents judges from considering illegally obtained evidence at sentencing.

Prior to the Guidelines, we answered this question in the negative. See United States v. Schipani, 435 F.2d 26, 28 (2d Cir.1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971). In Schipani, we stated that "[w]here illegally seized evidence is reliable and it is clear, as here, that it was not gathered for the express purpose of improperly influencing the sentencing judge, there is no error in using it in connection with fixing sentence." 435 F.2d at 28. Because the Guidelines remove...