U.S. v. Vega

• Decision Date: 03 December 1993
• Docket Number: No. 227,D,227
• Citation: 11 F.3d 309
• Parties: UNITED STATES of America, Appellee, v. Geraldo VEGA, Defendant-Appellant. ocket 91-1699.
• Court: U.S. Court of Appeals — Second Circuit

Page 309

11 F.3d 309

UNITED STATES of America, Appellee, v. Geraldo VEGA, Defendant-Appellant.

No. 227, Docket 91-1699.

United States Court of Appeals Second Circuit.

Argued April 19, 1993.

Decided Dec. 3, 1993.

Edward A. Rial, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty., E.D.N.Y., Peter A. Norling, Emily Berger, Susan Corkery, Asst. U.S. Attys., on the brief), for appellee.

David DePetris, New York City (Stanley M. Meyer, DePetris & Meyer, on the brief), for defendant-appellant.

Before: KEARSE and ALTIMARI, Circuit Judges, and SWEET, District Judge ^*.

KEARSE, Circuit Judge:

Defendant Geraldo Vega appeals from a judgment entered in the United States District Court for the Eastern District of New York convicting him, following his plea of guilty before Arthur D. Spatt, Judge, on a one-count superseding information charging him with conspiracy to distribute and to possess with intent to distribute more than 100 grams of heroin and more than 500 grams of cocaine, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(B) (1988). Vega was sentenced principally to 360 months' imprisonment, to be served consecutively to a previously imposed New York State sentence, and to be followed by a five-year term of supervised release. On appeal, he contends principally that he should have been allowed to withdraw his plea of guilty and that the court erred in making his sentence consecutive. Finding no merit in his contentions, we affirm.

I. BACKGROUND

In 1989, Vega and more than three dozen other individuals, including the defendants whose appeals were decided in United States v. Concepcion, 983 F.2d 369 (2d Cir.1992) ("Concepcion "), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993), were indicted on a variety of charges arising out of their operation in Brooklyn, New York, of a wholesale and retail narcotics organization known as the "Unknown Organization" ("Organization"). According to evidence adduced at the Concepcion trial, the Organization at its peak had some 400 members and received gross income from heroin sales of more than $10 million a month. As described in Concepcion, the Organization maintained discipline and loyalty chiefly by means of violence and intimidation, and the record included evidence of "a substantial number of murders and mutilations." 983 F.2d at 375; see also id. at 375-76.

Codefendant Ricardo Melendez was the leader of the Organization at the time he was arrested in September 1988. Vega was Melendez's chief assistant, playing a major role in Organization activities. Vega was chiefly responsible for purchasing wholesale quantities of heroin and keeping records, and he smuggled weapons from Texas to New York in order to ensure that members of the Organization were well armed.

In 1985, Vega was arrested by New York City police at an apartment in which considerable quantities of currency and narcotics were found. Released on bail prior to trial, Vega absconded and was thereafter convicted in absentia in New York State court of multiple state narcotics offenses and sentenced In August 1990, one group of the federally indicted defendants, including Vega, proceeded to trial (the Concepcion trial) before Judge Spatt. At trial, Vega was represented by Anthony Suarez, notwithstanding a pretrial motion by the government for disqualification on the ground that Suarez had represented other members of the Organization and was himself the target of another inquiry. The court denied the government's disqualification motion after Vega consulted with independent counsel and informed the court that he nonetheless desired to have Suarez represent him. The court found that Vega understood the risks and that his choice to keep Suarez as his counsel was knowing and voluntary. On November 21, 1990, more than two-thirds of the way through the trial, Vega moved to change his plea of not guilty to a plea of guilty to the conspiracy count described above. Prior to accepting the plea, the district court advised Vega of the rights he would thereby give up and conducted a thorough interrogation of the provenance of the change of plea.

in absentia to a prison term of 25 years to life ("State sentence"). Vega nonetheless continued to work with the Organization until September 1988, when he was again arrested. In the federal indictment handed down in September 1989, Vega was charged with several counts of, inter alia, racketeering, narcotics, firearms, and money-laundering offenses.

In response to the court's questions, Vega said he was satisfied with his attorney's performance. He stated that the government had made him no promises other than that it would file a superseding information charging him with the conspiracy described above and would agree to the dismissal of all other charges against him. He stated that he sought to enter the plea of guilty voluntarily and of his own free will and accord, that he was under no duress, and that no one had threatened or forced him to plead guilty. The court advised Vega, inter alia, that the statutory minimum prison term to which he could be sentenced was five years, that the maximum was 40 years, and that only the court could decide what his sentence would be. The court asked whether anyone had made any promise as to Vega's sentence and asked whether Vega had any questions for the court about his possible sentence. Vega said he had received no such promises and had no questions for the court.

Asked to describe his acts in connection with the conspiracy charged in the superseding information, Vega said that in 1985, 1986, 1987, and 1988 until his arrest, he had bought and sold drugs in Brooklyn as a participant in a conspiracy that involved the distribution of more than 100 grams of heroin and more than 500 grams of cocaine. The district court accepted Vega's plea of guilty after concluding that there was a factual basis for the plea, that Vega was "acting voluntarily," and "that he fully underst[ood] the charge, his rights and the consequences of his plea." (Hearing Transcript, November 21, 1990 ("1990 Hearing"), at 25.) The Concepcion trial ended a month later, with the jury finding all but one of the remaining defendants guilty of most of the charges against them.

On April 10, 1991, writing to the court pro se, Vega moved to withdraw his plea of guilty. He stated that, prior to his plea, his attorney had informed him that his federal sentence would run concurrently with his State sentence. Vega said he had just learned that the government would seek to have the sentence imposed consecutively and that he would not have pleaded guilty had he known the sentences would be consecutive. Vega also stated that he was not guilty of the conspiracy with which he had been charged. The court appointed new counsel, who made a formal motion to withdraw Vega's plea and added the contentions that Vega had been induced to plead guilty by (a) threats that the government would prosecute his wife, mother, and other relatives if he did not plead guilty, and (b) the recommendation of his trial counsel who was being paid by Melendez and whose advice was allegedly designed to assist Melendez and Suarez himself, rather than Vega.

On October 18, 1991, the court held an evidentiary hearing ("1991 Hearing") at which Vega testified, inter alia, that he had known prior to trial that Suarez was the target of another investigation, that he had In a statement on the record at the conclusion of the 1991 Hearing, and in a written Memorandum Decision and Order dated December 31, 1991, the court denied Vega's motion, concluding that Vega had failed to show any fair and just reason to withdraw the plea. The court noted Vega's pretrial insistence, after consultation with independent counsel, on having Suarez represent him, and it reaffirmed its earlier conclusion that Vega's insistence was a knowing and voluntary choice. It noted that Vega had not given any evidence, either concrete or speculative, that his plea of guilty had benefited Melendez or that Suarez had had Melendez's interests in mind when advising Vega to plead guilty. The court also reasoned that the interests of Melendez and Suarez were more likely to have been jeopardized than benefited by Vega's pleading guilty, since entering the plea created a danger that Vega would begin to cooperate with the government and provide evidence against them.

known since 1989 that Melendez was paying Suarez to represent Vega, and that Melendez owed him money for four months' work. Vega could not remember the amount; but he said that it was less than $1,000,000 and that he did not know whether it was more than $500,000. Vega also testified that he had had many conversations with the Assistant United States Attorney ("AUSA"), who had made him no threats or promises. Vega said that in his presence, the AUSA had advised Suarez that the government believed Vega's federal sentence would have to be consecutive to his State sentence.

The court rejected Vega's claim that he had pleaded guilty because he believed he would receive concurrent sentences. It noted that at the 1990 hearing, it had made clear to Vega that no one but the court could set his sentence; that at that time, Vega had stated that no one had made him any promises as to his sentence; and that at the 1991 Hearing Vega admitted that, prior to his plea of guilty, the government had advised him that it believed consecutive sentences would be required.

The court also found that Vega had not substantiated his allegations that he had pleaded guilty in response to threats that without such a plea the government would prosecute members of his family. It noted, inter alia, that at the 1990 Hearing Vega had denied that he was acting under any threat, coercion, or duress.

Finally, the court found that permitting Vega to withdraw his plea would prejudice the government since it had already gone through two lengthy and complex trials of Organization defendants. If the...