U.S. v. Vazquez

• Decision Date: 19 May 1997
• Docket Number: No. 401,D,401
• Citation: 113 F.3d 383
• Parties: UNITED STATES of America, Appellee, v. Roberto VAZQUEZ, Defendant, Rafael Peralta, aka Juan Martinez, aka "Pichardo," Defendant-Appellant. ocket 96-1163.
• Court: U.S. Court of Appeals — Second Circuit

Page 383

113 F.3d 383

UNITED STATES of America, Appellee, v. Roberto VAZQUEZ, Defendant, Rafael Peralta, aka Juan Martinez, aka "Pichardo,"

Defendant-Appellant.

No. 401, Docket 96-1163.

United States Court of Appeals, Second Circuit.

Argued Oct. 10, 1996.

Decided May 19, 1997.

James E. Neuman, New York City (Harvey Fishbein, New York City, of counsel), for Defendant-Appellant.

Ira M. Feinberg, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Jeremy H. Temkin, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Appellee.

Before: OAKES, CARDAMONE, and MAHONEY ^*, Circuit Judges.

CARDAMONE, Circuit Judge:

Defendant Rafael Peralta appeals from a judgment of conviction entered on March 8 On appeal, defendant contends first that his request for a multiple conspiracy jury instruction was improperly denied. His second and principal contention is that the district court erred in enhancing his sentence pursuant to Sentencing Guidelines § 2J1.7. That section increases by three levels the offense level of a person convicted of a federal crime while on release for another federal crime. Defendant challenges the enhancement on the ground that he was not given adequate notice at the time of his release that the enhancement was mandatory. Quite the contrary. Common sense, if not conscience, tells a person that if he commits a federal crime while on release from conviction for another federal crime there will be negative consequences. Moreover, at the time of his release defendant also received a sufficient warning regarding the nature of those consequences. We affirm.

1996 after a jury trial in the United States District Court for the Southern District of New York before Judge Robert P. Patterson. Peralta was convicted of conspiring to distribute and possess with intent to distribute heroin and distributing and possessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846.

I BACKGROUND

On August 2, 1994 a confidential informant known as "Tony" brought a small sample of heroin to Special Agent Kleczkowski of the United States Drug Enforcement Agency (DEA). Tony told Kleczkowski that a dealer named "Pichardo" had supplied it. Later that day New York City Police Detective Ramirez arranged for Tony to use a monitored telephone line to call a pool hall owned by defendant Peralta. When Peralta answered and identified himself as Pichardo, Tony complained that the heroin sample he had received that morning was "weak." Peralta assured him that he would soon have another type of heroin available, and Tony said that he had a friend who was interested in purchasing up to 725 grams. Peralta then passed the phone to a man named "Judy" and as Tony repeated his complaints about the quality of the heroin sample to Judy, he could hear Peralta in the background telling him to have Tony come to the pool hall later that day to buy heroin from a shipment expected that afternoon. Although Tony declined to come that day, he said he might be able to make a deal the following day.

The next day, August 3, Tony called Judy, who informed him that Peralta had obtained some Chinese heroin. Tony then called Peralta who confirmed this and assured him that the new sample would be better quality than the earlier one. They agreed to meet later that day. That afternoon, Tony went to the pool hall, where Peralta gave him a sample containing .09 grams of heroin. Tony called Vazquez at the pool hall later that night and told him that the Chinese heroin Peralta had given him was "very, very good," but that a larger transaction would have to be delayed because his buyer had left town to take care of other business. Vazquez complained that his suppliers would take the heroin back if the deal was delayed, and pressed Tony to complete the transaction that day. Tony explained that he did not know when his friend would return, but that he would call Vazquez when he was ready to make a deal. Vazquez then put Peralta on the telephone, and Tony had a similar conversation with him. Tony and Peralta spoke again briefly on August 4.

Almost three weeks later, on August 22, Tony called Peralta at home and informed him that his friend was back in town and was interested in buying 125 grams. The next day, Tony brought Detective Ramirez, wearing a concealed recording device, to the pool hall and introduced him as "Sam," while DEA agents maintained video surveillance outside. Tony, Ramirez and Peralta moved into a back room and began to discuss whether to make the exchange of cash for heroin inside the pool hall or outside. During this conversation, Vazquez entered the room and handed a clear plastic bag to Detective Ramirez. Vazquez said the bag contained 125 grams of "the Chinese," but when Peralta told him that Ramirez did not have the money with him, Vazquez took the bag and left the room.

Detective Ramirez then contacted DEA Agent Joseph, who drove to the pool hall and parked outside. Detective Ramirez told Peralta Two months later, on October 26, 1994, Peralta was arrested near the pool hall. He and Vazquez were later indicted on the substantive count of distributing and possessing heroin and a conspiracy count for the same offense. Vazquez pled guilty to both counts. Peralta stood trial before a jury.

that Joseph had the money, and Peralta paged Vazquez. While they waited for Vazquez to arrive, Peralta told Ramirez he had several types of heroin available at different prices. Vazquez entered the room a few minutes later and again showed Ramirez the plastic bag. Peralta, Ramirez and Vazquez agreed that the exchange would take place in the doorway of the pool hall, and Ramirez summoned Agent Joseph to the doorway. Joseph handed Vazquez a bag containing $15,000 in cash in exchange for the plastic bag that held approximately 125 grams of heroin. At Peralta's request, Vazquez counted the money while Peralta and Ramirez discussed future deals.

At trial, the government's evidence included the testimony of Agent Kleczkowski and Detective Ramirez, video tapes of the events that occurred outside the pool hall on August 22, and audio tapes of Detective Ramirez's conversation with Peralta during the heroin purchase and Tony's telephone conversations with Vazquez, Judy and Peralta on August 3, 4, 22 and 23. The defendant did not testify and called no witnesses. Instead, he offered excerpts of Vazquez's plea allocutions. During his first allocution, Vazquez had stated that Peralta was not involved in the drug sale on August 23, although he conceded that Peralta had discussed the transaction with Ramirez. But Vazquez maintained that Peralta had not supplied the heroin or received any money for it. Vazquez's initial guilty plea was rejected because the court was concerned that the facts he admitted to might establish an entrapment defense. At a second plea allocution Vazquez said that Tony, the government informant, had supplied him with the drugs for the August 23 deal and had directed the transaction and paid Vazquez $600 for his participation. In rebuttal, the government submitted an audio tape of a conversation between Tony and Vazquez on September 28, 1994. In that conversation, Tony complained that the heroin Vazquez had produced for "Sammy" was "garbage"; Vazquez apologized and promised that he would soon have better quality heroin available to sell to Sam.

The jury convicted Peralta on both heroin counts on April 14, 1995. At sentencing, the district court imposed a three-level enhancement to Peralta's base offense level pursuant to Sentencing Guidelines § 2J1.7 and 18 U.S.C. § 3147 because the drug transaction for which Peralta was convicted occurred while he was released on bail pending sentencing for an unrelated offense. The district court sentenced defendant to 97 months imprisonment, followed by five years of supervised release and a special assessment of $100.

II DISCUSSION

1. Multiple Conspiracy Jury Instruction

Appellant urges that the district court erred in denying his request for a multiple conspiracy jury instruction. A criminal defendant is entitled to a jury instruction reflecting his defense theory "for which there is some foundation in the proof, no matter how tenuous that defense may appear to the trial court." United States v. Dove, 916 F.2d 41, 47 (2d Cir.1990). If the evidence at trial supports an inference that there was more than one conspiracy, then, whether multiple conspiracies existed is a question of fact for the jury. United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir.1990).

In order to secure a reversal on the ground that the court failed to give a multiple conspiracy charge, a defendant must prove there were two or more groups operating separately from one another, although membership in the groups might overlap, United States v. Thompson, 76 F.3d 442, 454 (2d Cir.1996), and that failure to give the requested charge prejudiced defendant. A refusal to give a multiple conspiracy charge does not prejudice defendant where there was ample proof before the jury for it to find beyond a reasonable doubt that defendant was a member of the conspiracy charged in the indictment. See id.; United States v. Barlin, 686 F.2d 81, 89 (2d Cir.1982). Appellant Peralta maintains the theory of his defense was that the August 2-3 "sample" transactions were entirely separate and distinct from the August 23 sale of 125 grams of heroin. He concedes he was a participant in the first transactions, but insists Vazquez's plea allocution testimony establishes he was not involved in the larger sale several weeks later. We are unable to accept this argument. Even if Vazquez's testimony that Peralta was merely present at the 125-gram transaction is accepted as true, the evidence nonetheless demonstrates that Peralta's earlier sales of "samples" were related to the later, larger heroin transaction. Where there is...