United States v. Gonzalez

• Citation: 764 F.3d 159
• Decision Date: 21 August 2014
• Docket Number: Docket No. 12–2403–cr.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Freddie GONZALEZ, Defendant–Appellant.

764 F.3d 159

UNITED STATES of America, Appellee,

v.Freddie GONZALEZ, Defendant–Appellant.

Docket No. 12–2403–cr.

United States Court of Appeals,Second Circuit.

Argued: Nov. 26, 2013.

Decided: Aug. 21, 2014.

Tina Schneider, Esq., Portland, ME, for Defendant–Appellant.

Michael D. Maimin, Assistant United States Attorney (Laurie A. Korenbaum, Jessica R. Lonergan, Brent S. Wible, Assistant United States Attorneys, on the brief) for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.

Before: KATZMANN, Chief Judge, WINTER, and CALABRESI, Circuit Judges.

WINTER, Circuit Judge:

Freddie Gonzalez appeals from his conviction, after a two-week jury trial before Judge Scheindlin, on four counts of intentional murder while engaged in a trafficking crime involving five or more kilograms of cocaine, in violation of 21 U.S.C. § 848(e) and 18 U.S.C. § 2. He was sentenced to concurrent sentences of life imprisonment on each count.

Appellant challenges his conviction on several grounds. Through counsel, he argues that: (i) his confession was obtained in violation of his Fifth and Sixth Amendment rights; (ii) Judge Scheindlin should not have excluded a potentially exculpatory statement by the child of one of the murder victims; and (iii) his trial counsel's failure to locate a potential defense witness constituted ineffective assistance of counsel. Appellant, in a pro se brief, raises additional claims of allegedly improper witness identification procedures and destruction of physical evidence. We hold that appellant's pre-arraignment inculpatory statements were admissible under the six-hour safe harbor provided by 18 U.S.C. § 3501(c). His additional arguments have no merit. We therefore affirm.

BACKGROUND

a) The Four Murders

Because appellant was convicted by a jury, we view the evidence and reasonable inferences drawn therefrom in the light most favorable to the government. See United States v. Heras, 609 F.3d 101, 103 (2d Cir.2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

The evidence against appellant included signed confessions he made to government agents while serving a term of imprisonment for an unrelated offense. We will discuss the circumstances of these statements in more detail infra. The government's case also included the testimony of Alejandro Rodriguez, a cooperating witness from appellant's former gang, and police reports and physical evidence from the murder investigations.

The murders took place over the course of five months in early 1990 and were part of a drug war between rival gangs in the Bronx, New York. Appellant, a native and citizen of the Dominican Republic, was a member of a gang that sold cocaine out of an apartment complex. The gang obtained its supply in part by robbing other dealers. Two of the murders were of a rival drug dealer and his wife. The other murders took place during robberies.

The rival dealer, named Carmelo “Vichan” Gonzalez, no relation to appellant (hereinafter “Carmelo”), had run a distribution ring out of the same apartment complex, but appellant had taken over that location for his own drug business. Carmelo was trying to reestablish his business, and, believing that it was a kill-or-be-killed situation, appellant sent two of his associates on an unsuccessful mission to kill Carmelo in February 1990. On August 11, 1990, appellant and members of his gang went to Carmelo's home, broke in, went up to Carmelo's room, and shot him and his wife to death while they were asleep in bed. Carmelo's young son was asleep in the next room with Carmelo's brother Vincent. When the police arrived, they interviewed both Vincent and the child. Ballistics analysis and autopsies of Carmelo and his wife revealed that they had been shot by four different weapons; rare blue-tipped, 9mm bullets were recovered from each of them.

On September 25, 1990, appellant went with three associates to rob a suspected Bronx-based drug dealer named Clement Bedword. When Bedword resisted getting into appellant's minivan, appellant shot him and pulled him into the vehicle. The men took Bedword to a wooded area in Yonkers, threw him out of the van, and shot him again. The men then returned to his apartment and took drugs, guns, and money. The police found shell casings near Bedword's body and, upon entering his apartment, found a scale and a bulletproof vest but no drugs or money; the apartment appeared to have been burglarized. Bullet casings recovered from the woods matched those from the earlier Bronx shooting.

The fourth and final murder was of Carlos Polanco, another drug dealer. On November 10, 1990, appellant, Rodriguez, and several others went to Polanco's home to rob it. Polanco refused entry, and the gang fatally shot him. The subsequent investigation uncovered several blue-tipped, 9mm bullets in Polanco as well as .45–caliber shells that matched those found at the Carmelo murder site.

In October 1990, appellant attempted to murder another drug dealer, Henry Perez, during a robbery on Long Island. Appellant, Rodriguez, and several other men drove to Perez's house. The men attempted to grab Perez when he arrived, shooting him when he appeared to pull a gun. The bag Perez was carrying turned out not to have drugs in it, and the men drove away.

b) Confessions

Years later, on July 24, 2008, appellant was indicted, and an arrest warrant for him was issued, for the murder of Polanco. The next day, while incarcerated and being held for deportation at McRae Correctional Facility in Georgia on unrelated federal immigration offense, he was visited by federal and state agents. These were: criminal investigator Billy Ralat of the United States Attorney's Office, former NYPD detective Stefano Braccini, and Yonkers detectives John Geiss and Wilson Gonzalez (no relation to appellant). A writ ad prosequendum was lodged on July 28, 2008, the next business day.

Ralat, who is bilingual, led the interview and initially spoke in Spanish, which only he and detective Gonzalez spoke. The door to the interview room was shut, but unlocked, although appellant claims that he did not know this. After an initial conversation, which began shortly after 11:00am, Ralat gave appellant a Spanish-language Miranda form. Appellant indicated that he understood his rights but wrote “no” next to the inquiry as to whether he was willing to answer questions. The form was signed at 11:24am. According to the agents, Ralat then told appellant that the interview was over, and the agents began to leave. One or more agents told appellant that they would see him in New York and that he would not be returning to the Dominican Republic. Appellant then said he wanted to speak to the agents and told them not to leave.

The agents' accounts of what happened next are slightly varied. Each stated that they decided to read the Miranda warnings to appellant again. Ralat testified that he proceeded to describe the benefits of cooperation and appellant's option of going to trial but did not question him for another 45–50 minutes. Ralat gave appellant a second Miranda form, this one in English (which appellant spoke), and appellant answered “sí” to each question. This form was signed at 12:30pm.

Appellant contends that he was questioned regarding the murders both before and after the first Miranda form was signed. Ralat stated, however, that questioning commenced only after the second Miranda form was signed, after which point the conversation switched to English, with detective Geiss, who spoke no Spanish, participating as well.

Appellant eventually signed three confessions written in Spanish. The first confession, regarding the murder of Polanco, was dated 12:50pm at the beginning and 1:15pm at the signature block. The second, regarding the murders of Carmelo and his wife, notes times of 2:25 and 2:40pm for its beginning and end. The final confession, regarding the murder of Bedword, was noted as beginning at 2:55pm and ending at 3:10pm. Appellant did not ask for an attorney during the interview.

c) Trial Proceedings

Appellant moved to suppress the written confessions before trial, claiming that the interrogation had been coercive and that he had invoked his rights to counsel and to remain silent. After briefing and oral argument, the district court denied his motion. In a written opinion, the court held that appellant's rights had not been violated because he had reinitiated contact after the first Miranda form and the confession had been obtained before expiration of a six-hour safe harbor period for questioning between arrest and presentment.

The district court also granted the government's motion in limine to exclude a police report containing the testimony of Carmelo's young son regarding the murder of Carmelo and his wife. The court found that there was no evidence the child had actually seen the shooting and that the police officer had been improperly suggestive in his questioning. Gonzalez was convicted by the jury on all four counts of murder, and the district court sentenced him to concurrent terms of life imprisonment on each count.

DISCUSSION

We first discuss the arguments by counsel: (i) that appellant's confession was erroneously admitted because it was obtained in violation of his Fifth and Sixth Amendment rights; (ii) that the district court's exclusion of the testimony of Carmelo's son was error; and (iii) that his trial counsel's failure to locate an eyewitness to the Bedword murder constituted ineffective assistance of counsel.

a) Admission of Gonzalez's Confessions

We review a district court's decision on a suppression motion de novo on questions of law and for clear error in factual determinations. United States v. Stewart, 551 F.3d 187, 190–91 (2d Cir.2009). Under clear error review, we uphold findings of fact that are “plausible in light of the record viewed in its entirety.” United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.1996...