United States v. Batista

• Decision Date: 29 June 2012
• Docket Number: Docket Nos. 10–3284–cr(L), 10–4024–cr(CON).
• Parties: UNITED STATES of America, Appellee, v. Luis M. BATISTA, Alexander Alcantara, a/k/a Moreno, Defendants–Appellants, Virgilio Hiciano, Deyanira Sanchez, a/k/a Yanira, Raphael Rodriguez, a/k/a Chucho, Henry Conde, William Valerio, Miguel Santo, a/k/a Miguel Santos, a/k/a El Mecanico, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

684 F.3d 333

UNITED STATES of America, Appellee,

v. Luis M. BATISTA, Alexander Alcantara, a/k/a Moreno, Defendants–Appellants,Virgilio Hiciano, Deyanira Sanchez, a/k/a Yanira, Raphael Rodriguez, a/k/a Chucho, Henry Conde, William Valerio, Miguel Santo, a/k/a Miguel Santos, a/k/a El Mecanico, Defendants.¹

Docket Nos. 10–3284–cr(L), 10–4024–cr(CON).

United States Court of Appeals, Second Circuit.

Argued: Jan. 26, 2012.

Decided: May 17, 2012.

Amended: June 29, 2012.

Donald duBoulay, Law Offices of Donald duBoulay, New York, NY; Daniel S. Nooter, Washington, DC, on the brief, for defendant-appellant Alexander Alcantara a/k/a Moreno.

Bernard V. Kleinman, Law Office of Bernard V. Kleinman, PLLC, White Plains, NY, for defendant-appellant Luis M. Batista.

Anthony M. Capozzolo, Assistant United States Attorney (Susan Corkery and Emily Berger, Assistant United States Attorneys, of counsel), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for appellee the United States of America.

Before: KEARSE, CABRANES, and SACK, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Defendants-appellants Luis Batista and Alexander Alcantara appeal from separate judgments of conviction entered in the United States District Court for the Eastern District of New York (Dora L. Irizarry, Judge ), on August 11, 2010, and September 27, 2010, respectively.

Batista appeals from the District Court's judgment convicting him after a jury trial of: (1) conspiracy to distribute cocaine, cocaine base, and ecstasy, in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1349 and 1344; (3) bank fraud, in violation of 18 U.S.C. § 1344; and (4) obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2); and sentencing him principally to a 180–month term of imprisonment and a $25,000 fine.

Alcantara appeals from the District Court's judgment convicting him after a guilty plea of (1) conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1); and distribution of and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); and sentencing him principally to a 120–month term of imprisonment.

We have considered each of the appellants' arguments, and having carefully reviewed the record and the judgments of the District Court, we affirm the judgments of the District Court in their entirety.

BACKGROUND

In 2007 and 2008, Luis Batista, a ten-year veteran of the New York City Police Department (“NYPD”), and Alexander Alcantara were indicted in connection with their membership in a large narcotics trafficking ring centered in Bushwick run by one Virgilio Hiciano. In a superseding indictment filed on August 13, 2008, Batista was charged with: (1) conspiracy to distribute cocaine base (“crack”), cocaine, and ecstasy in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344; (3) bank fraud in violation of 18 U.S.C. § 1344; and (4) one count of obstruction of justice and one count of conspiracy to obstruct justice in violation of 18 U.S.C. §§ 1512(k) and 1512(c)(2). Alcantara was charged in a separate superseding indictment on May 14, 2008, with: (1) conspiring to distribute and possess with intent to distribute fifty grams or more of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii)(II); and (2) distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II).

A. The Conspiracy

The factual background set forth below is drawn from the record of these related proceedings, taken “in the light most favorable to the prosecution,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In or about 1992, Batista befriended Hiciano, then a low-level narcotics dealer in a minor Bushwick drug ring. Batista joined the NYPD in 1997 and was promoted to detective in 2004. As the years went by and both Hiciano and Batista rose in the ranks of their respective organizations, Batista and Hiciano continued to socialize several times per week.² Often, Hiciano or someone else from his drug ring would pay for Batista's drinks. On some occasions, after nights of drinking, Batista would instruct Hiciano to let Batista drive because, as a police officer, he did not need to fear arrest for driving while intoxicated.

By 1999 or 2000, Hiciano had taken over the leadership of the Bushwick drug ring, and the ring grew to be one of the largest in that area of Brooklyn. The government alleges that Hiciano's friendship with Batista, by that time an undercover narcotics officer, then began to pay off: From the late 1990s until 2006, Batista provided Hiciano with a steady and reliable stream of information about police activity in Hiciano's part of Bushwick. Among other services provided to the ring, Batista would tell Hiciano to “be careful” when Batista knew the police were scheduled to be at or near Hiciano's location, permitting Hiciano to warn his street-level narcotics dealers that the area was “hot.”

In April 2006, Hiciano was arrested and began cooperating with the government. Two months after his arrest, however, Hiciano fled to the Dominican Republic. While there, he was visited by an “enforcer,” who represented several drug suppliers to whom Hiciano owed money, including Alcantara. Apparently as a result of the enforcer's visit, Hiciano's girlfriend—whom Hiciano had left in charge of the Bushwick drug ring—turned over two vehicles to one of the suppliers in order to pay part of the ring's debt.³ Hiciano was extradited to the United States in October 2007, and shortly thereafter resumed cooperating with investigators.

On August 23, 2006, shortly after Hiciano had fled the country, Alcantara was arrested and immediately agreed to cooperate with investigators. While he originally claimed that he was merely a drug courier, he eventually admitted that he was a major seller of narcotics to Hiciano's organization. He testified at Batista's trial that he had sold Hiciano between 80 and 110 kilos of cocaine through the course of their extended business relationship. The evidence at this trial confirmed that Alcantara was Hiciano's “main supplier.”

Alcantara and Hiciano also testified at trial about numerous telephone calls that passed between Batista and Hiciano while Hiciano was the leader of the Bushwick drug ring. In many of those calls, Batista warned Hiciano of impending police activity at 441 Wilson Avenue, Hiciano's base of operations. Investigators also discovered that Batista, at Hiciano's request, had gained access to internal NYPD databases to determine whether there was any record of outstanding warrants, tickets, or fines attributable to Hiciano. Further, on at least one occasion, Batista gained access to an NYPD database in order to determine whether a break-in at another apartment used by Hiciano, located at 1127 Decatur Street, was a police raid. Telephone records introduced at trial indicated that Batista was on the telephone with Hiciano while searching the database.

In late 2006, largely on the basis of information provided by Alcantara, federal investigators applied for and received authorization under Title III ⁴ to place a wiretap on Batista's telephone. Prior to trial, Batista moved to suppress the evidence of the wiretaps performed by federal investigators, but the District Court denied the motion. United States v. Batista, No. 06–CR–265 (DLI), 2009 WL 910357, at *1 (E.D.N.Y. Mar. 31, 2009) (“ Batista I ”).

B. The Trial

At trial, both Alcantara and Hiciano testified against Batista. Hiciano testified to the extent of Batista's involvement in the drug conspiracy, explaining that Batista would advise him to “be careful” ⁵ when police activity around 441 Wilson Avenue was imminent, and that, at Hiciano's request, Batista would perform inquiries in various NYPD internal databases. Hiciano also testified that he kept a gun at 441 Wilson Avenue for the protection of the drug ring, and that Alcantara had provided him with between 150 and 200 kilos of cocaine during the five years of the conspiracy charged in the indictment. Alcantara confirmed Hiciano's testimony about Batista's extensive involvement with the drug ring and with Hiciano's social life, although he testified differently about the number of kilograms of cocaine that he (Alcantara) had provided to Hiciano's organization.

Batista testified in his own defense, claiming that he had never given information to Hiciano about police activity in Bushwick, and that his relationship with Hiciano was exclusively a social one. He admitted that he continued to accept free drinks from Hiciano after learning that Hiciano was involved in criminal activity, and to other unlawful acts unrelated to Hiciano, but vehemently disputed the government's contention that he had conspired with Hiciano to protect the latter's narcotics trafficking organization.

Batista was convicted by the jury on all charges.⁶ After the jury returned its verdict, Batista moved for a judgment of acquittal under Rule 29 ⁷ of the Federal Rules of Criminal Procedure, or in the alternative, for a new trial pursuant to Rule 33 ⁸ of the Federal Rules of Criminal Procedure. The District Court granted Batista's Rule 29 motion as to the conspiracy to obstruct justice charge, in light of the acquittal at trial of the sole alleged co-conspirator. United States v. Batista, No. 06–CR–265(DLI), 2010 WL 1193314, *10–12 (E.D.N.Y. Mar. 24, 2010) (“ Batista II ”). The remainder of the verdict was left undisturbed.

C. Sentencing

At Batista's sentencing on June 10, 2010, the District Court found that the narcotics conspiracy of which he had been convicted involved possession of a firearm and...