U.S. v. Torres
| Decision Date | 17 November 1997 |
| Docket Number | D,1945,1944,Nos. 925,1231,s. 925 |
| Citation | 129 F.3d 710 |
| Parties | UNITED STATES of America, Appellee, v. Ramon TORRES, a.k.a. "Weechie"; Jason Roman; John Arias, a.k.a. "Gotta"; Rafael Lopez, a.k.a. "Fish"; Miguel Ramos, a.k.a. "Andy"; Ernesto Rosa, a.k.a. "Nest"; Carmella Martinez, a.k.a. "Garganey"; Missel Ortega, a.k.a. "Guinea"; Edgar Torres, a.k.a. "Pachouli"; Edward Blancaneaux, a.k.a. "Sexy"; Jose Oppenheimer, a.k.a. "Mongo"; Carlos Reynosa; LNU1-94CR0466-015, a.k.a. "Ed", Defendants, Luciano Lopez, a.k.a. "Tito"; Jesus A. Ramos, a.k.a. "Tone"; Eric Mendez, a.k.a. "Papa Head Eric"; and Franklin Grullon, a.k.a. "Frankie", Defendants-Appellants. ockets96-1490, 96-1595,96-1746, 96-1833. |
| Court | U.S. Court of Appeals — Second Circuit |
Alexandra A. Shapiro, Assistant United States Attorney, Southern District of New York, New York City for plaintiff-appellee.
Mark J. Stein, Fried, Frank, Harris, Shriver & Jacobson, New York City for defendant-appellant Luciano Lopez.
Austin V. Campriello, Robinson, Silverman, Pearce, Aronsohn & Berman, New York City for defendant-appellant Jesus A. Ramos.
Marvin E. Schechter, New York City for defendant-appellant Franklin Grullon.
Roger J. Schwarz, Law Office of Roger J. Schwarz, New York City for defendant-appellant Eric Mendez.
Before: VAN GRAAFEILAND, McLAUGHLIN, Circuit Judges, and POLLACK, District Judge. *
Luciano Lopez, Jesus A. Ramos, Eric Mendez and Franklin Grullon appeal from convictions in the United States District Court for the Southern District of New York (Keenan, J.). After pleading guilty to various counts of engaging in a pattern of racketeering activity involving murders, extortions, and other acts of violence they now appeal on sundry grounds. We reject all their arguments and, therefore, affirm.
The "Head Crackers" was an appropriately named street gang, operating principally in the Bronx, New York. It engaged in armed robberies, carjackings, extortions, and other acts of violence. In May 1994, the "Head Crackers" merged with the "Willis Avenue The two gangs merged to take over "rent" collections from a third gang known as C & C. For years, C & C had extracted weekly "rent" payments from drug dealers who sold narcotics on C & C turf. If a dealer refused to pay, C & C would ban the dealer. C & C, and its successor, HC/WALM, enforced control over "rent" collections through acts of violence, including murder. Eric Mendez, Jesus A. Ramos, Franklin Grullon and Luciano Lopez were all members of HC/WALM.
Lynch Mob," another violent street gang whose members were known for narcotics trafficking and extortions. Together the two groups were called HC/WALM.
Examples of HC/WALM's brutality included the murder of Raul Caraballo, a member of C & C who had been entrusted with collecting the "rent" payments from drug dealers. In order to complete their takeover of "rent" payments, HC/WALM members shot Caraballo several times in the head. HC/WALM members also conspired to murder Angel Montalvo, a local heroin dealer whom they viewed as a threat to HC/WALM's operation. Montalvo was shot and killed as he walked into his girlfriend's apartment building in the Bronx.
In July 1994, Ramos, Mendez, Lopez and Grullon, as well as other members of HC/WALM, were indicted in the United States District Court for the Southern District of New York (Keenan, J.). They were charged with numerous counts of engaging in a pattern of racketeering activity involving murders, extortions, armed robbery, and firearms violations. All defendants were charged with participating in the conduct of the affairs of a racketeering enterprise, in violation of RICO, 18 U.S.C. § 1962(c) and with conspiring to conduct and participate in the affairs of such enterprise, in violation of 18 U.S.C. § 1962(d).
Individually, Ramos was also charged with: (1) participating in 18 of 35 predicate acts of racketeering enumerated in the indictment; (2) conspiracy to murder and murder in aid of racketeering, in violation of 18 U.S.C. § 1959; (3) conspiracy to commit extortion and extortion, in violation of 18 U.S.C. § 1951; and (4) using and carrying a firearm during and in relation to crimes of violence, in violation of 18 U.S.C. § 924(c).
Mendez was charged with: (1) participating in two predicate acts of racketeering; (2) conspiracy to murder, attempted murder and murder in aid of racketeering, in violation of 18 U.S.C. § 1959; and (3) using and carrying a firearm during and in relation to crimes of violence, in violation of 18 U.S.C. § 924(c).
Grullon was charged with: (1) participating in two predicate acts of racketeering; (2) conspiracy to commit robbery and robbery, in violation 18 U.S.C. § 1951; and (3) various related firearms offenses. Grullon was also charged in a separate indictment with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846.
Lopez was charged with: (1) participating in 31 predicate acts of racketeering; (2) murder and violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959; (3) robbery and extortion, in violation of 18 U.S.C. § 1951; (4) carjacking, in violation of 18 U.S.C. § 2119 and (5) use of firearms during and in relation to crimes of violence, in violation of 18 U.S.C § 924(c).
Prior to trial, Lopez and Grullon moved to dismiss the indictment on the ground that the charges under 18 U.S.C. § 1959 exceeded Congress's power to regulate commerce under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Judge Keenan denied the motion holding that, because 18 U.S.C. § 1959 expressly requires proof that the offense substantially affects interstate commerce, there was no constitutional infirmity.
On August 16, 1995, the government agreed to accept a guilty plea from Ramos to a two-count superseding indictment charging him with conspiracy to murder and conspiracy to assault with a dangerous weapon. On April 29, 1996, almost nine months after pleading guilty, Ramos moved to withdraw his guilty plea. The district court denied the motion and sentenced Ramos to 13 years' imprisonment.
On August 30, 1995, Grullon pled guilty, pursuant to a written agreement with the During Grullon's plea allocution, the district court established that Grullon understood the charges against him, and was aware of his right to plead not guilty, to proceed to trial, and to be represented by counsel throughout his trial. The court also confirmed that Grullon had discussed the plea agreement with his attorney and that his plea was voluntary.
government, to conspiracy to commit robbery involving assault with a dangerous weapon and using the telephone to converse with a coconspirator about the distribution of cocaine.
On December 8, 1995, more than three months after his guilty plea, Grullon filed a letter motion to withdraw his guilty plea and to have his attorney replaced. In his application, Grullon alleged that his lawyer forced him to plead guilty and that she provided him with constitutionally ineffective assistance. The court reluctantly discharged Grullon's lawyer and appointed new counsel, Grullon's third attorney.
On April 11, 1996, over seven months after he pleaded guilty, Grullon filed a formal motion to withdraw his guilty plea, asserting that he was not guilty and that his guilty plea was the result of "extreme psychological and mental pressure."
The district court denied Grullon's motion, finding that Grullon's claims were "belied by the record." The court found that Grullon's plea was entirely voluntary and his claims regarding his former attorney were baseless. The court also found that an evidentiary hearing was unnecessary because Grullon's allegations "merely contradict[ed] the record, [were] inherently incredible, or [were] simply conclusory."
On September 6, 1996, at Grullon's insistence, the district court relieved Grullon's third lawyer and appointed yet another attorney. On October 8, 1996, Grullon filed a second motion to withdraw his guilty plea. In his second motion, Grullon alleged that his prior motion to withdraw his guilty plea was also the product of ineffective assistance of counsel on the part of his third attorney. Judge Keenan denied the motion. On December 18, 1996, Judge Keenan sentenced Grullon to seven years' imprisonment
In August 1995, Mendez pled guilty, pursuant to a written plea agreement, to conspiracy to murder and using and carrying a firearm during and in relation to a conspiracy to murder.
At the plea allocution, the district court ascertained that Mendez understood the plea agreement, had reviewed it with his attorney before signing it, and had no questions of the court regarding the agreement.
By pro se letter dated November 28, 1996, Mendez indicated that he too wished to withdraw his guilty plea. The district court discharged Mendez's attorney and appointed new counsel. Thereafter, on August 16, 1996, one year after entering his guilty plea, Mendez filed a formal motion to withdraw his guilty plea. Mendez contended that he was innocent and that his plea was not voluntary. In addition, on October 10, 1996, Mendez's new attorney moved for production of 16 tape recordings of Mendez's telephone conversations from the Metropolitan Correction Center, which the government had obtained and had already made available to Mendez's previous attorney before Mendez's guilty plea. Judge Keenan denied the motion and sentenced Mendez to 15 years' imprisonment
In August 1995, Lopez pled guilty to conspiracy to murder in aid of racketeering activity, conspiracy to assault with a dangerous weapon in aid of racketeering activity and possession with intent to distribute a controlled substance. At the plea allocution, the district court ensured that Lopez understood the charges against him and had reviewed the plea agreement with his attorney.
In March 1996, Lopez moved to withdraw his guilty plea claiming that he had been pressured...
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