United States v. Marquez, 70 Cr. 113.

• Decision Date: 02 August 1973
• Docket Number: No. 70 Cr. 113.,70 Cr. 113.
• Citation: United States v. Marquez, 363 F.Supp. 802 (S.D. N.Y. 1973)
• Parties: UNITED STATES of America v. Raymond MARQUEZ, Defendant.
• Court: U.S. District Court — Southern District of New York

363 F. Supp. 802

UNITED STATES of America v. Raymond MARQUEZ, Defendant.

No. 70 Cr. 113.

United States District Court, S. D. New York.

August 2, 1973.

Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., New York City, for United States of America; John J. Kenney, Asst. U. S. Atty., of counsel.

Paul A. Goldberger, New York City, for defendant.

EDWARD WEINFELD, District Judge.

This motion for a new trial is predicated upon the alleged perjury of two government witnesses. The movant, Raymond Marquez, along with his two codefendants, was convicted on December 18, 1970, after a six-day trial on all three counts of an indictment charging them with causing Juan Nieves Monserrate to travel between New York City and Puerto Rico for the purpose of: (1) distributing the proceeds of an illegal gambling operation; (2) committing extortion; and (3) conspiring to commit both of these offenses.¹ The Court of Appeals affirmed the convictions² and an application for writ of certiorari was denied by the Supreme Court.³ Marquez now contends that the government's two principal witnesses, Monserrate and Tomas Alvarez, perjured themselves as to testimony which "went to the heart and substance" of the government's case.⁴

In order to place the present motion in proper perspective, it will be useful to briefly outline the relevant testimony at trial. The essence of the government's charge was that Marquez, the "boss" or "banker" of the operation, caused Monserrate, by means of threats against him and his father-in-law Tomas Alvarez, to travel to Puerto Rico for the purpose of returning to Marquez funds of which he was alleged to have cheated the operation. The evidence established that on December 7, 1969, codefendant Rivera, who was a "controller" in the policy operation, told Monserrate, who was a "pickup" man or messenger, that something was wrong in his operation and that "Raymond" (Marquez) wanted to see him at the "bank," the headquarters of Marquez's policy operation. The next day Rivera drove Monserrate and Alvarez to the "bank," a florist shop, where Monserrate was taken into a room of an adjoining premise and was met by petitioner, Marquez, and a codefendant, Angelet. Marquez accused Monserrate of cheating the operation by placing bets for himself after two numbers had been published. Monserrate denied the cheating, which Marquez computed at $14,000; when Monserrate said all the money he had was in Puerto Rico, at one point or another both Marquez and Angelet ordered him to go there immediately to return with the money; when Monserrate sought delay because his wife was in the hospital, Marquez and Angelet responded that was not their problem; that Monserrate knew with whom he was playing and better bring back the money for his own good. Other statements of a similar nature, clearly threats, were made by Marquez and Angelet. Later, when Alvarez was brought into the room, he also was accused of cheating by Marquez, and during this session threats of physical violence were made, and at one point Angelet upraised a long iron bar which he threatened to ram into Alvarez's chest. Marquez told Alvarez if he did not pay, his family would have to pay and that he could not escape. Monserrate testified he was scared and frightened that something might happen to his family. The next morning, December 9, Monserrate withdrew $1000 from a bank and gave either $700 or $800 to Rivera, who testified he delivered the money to Marquez. Monserrate used the balance to purchase a round trip air passage ticket to Puerto Rico, to where he flew that day and retrieved $7,435 from his aunt, who had been holding it for him. He flew back to New York the next day and upon deplaning at Kennedy Airport was met by FBI agents who told him they were aware of his problem with Marquez. He agreed to cooperate, told them what had occurred at the "bank," and turned over the $7,435 to the agents. The following morning, December 11, Monserrate, pursuant to the instructions and under surveillance of FBI agents, returned to the "bank," where he delivered the $7,435 to Marquez, whereupon he was arrested.

The instant motion for a new trial upon the claim of newly discovered evidence is made two years after the return of the jury verdict. The petitioner's newly retained attorneys, engaged after the affirmance of the judgment of conviction, made arrangements with Pedro Lopez, an acquaintance of Monserrate, to engage in conversations with respect to his testimony at the trial. Lopez's conversations with Monserrate and one with Alvarez spanned the period from May to September 1972, and took place in the office of the attorneys, who actively participated in that discussion. On all occasions Lopez had on his person a concealed tape recorder. Statements made by Monserrate and Alvarez during these recordings, allegedly at variance with their trial testimony, are the basis of the present motion, as to which an evidentiary hearing was conducted. The petitioner contends that Monserrate, the principal witness, testified falsely at the trial that (1) Marquez ordered him to go to Puerto Rico to return with the money he said he had there; (2) that upon his arrival at Kennedy Airport he turned over to FBI agents the money he had brought here from Puerto Rico; and (3) that he did not cheat the gambling operation. Marquez also alleges that Alvarez testified falsely at the trial with respect to his role in the cheating.

In addition to the opportunity to observe the witnesses who testified at the evidentiary hearing, the Court has read a translation of the transcriptions of the recordings submitted by petitioner's counsel, since the conversations except the one at the attorneys' office were mostly in Spanish. While the tapes, unclear in many spots, contain statements which could be viewed as at variance with Monserrate's trial testimony as to the three specifications of alleged perjury noted above, it is unnecessary to consider the first two because this Court is convinced beyond a reasonable doubt, based upon the evidence presented at the hearing, the demeanor of the witnesses thereat and the trial record, that Monserrate's trial testimony as to these matters was truthful. We shall presently consider Monserrate's acknowledgment at the hearing, that contrary to his trial testimony, he did cheat the gambling operation, which he insisted was the only matter as to which he gave false testimony at the trial. As to the other two items, Monserrate adhered to the substance of his trial testimony that Marquez ordered him to go to Puerto Rico to get the money and made the threats, direct and implied; also, that upon his return he surrendered the $7,435 to the FBI agents at the airport. Monserrate's trial and hearing version of his surrender of the money to the FBI was fully corroborated by the trial and hearing testimony of FBI agents and by the written receipt for the money given an FBI agent.⁵

Alvarez's trial and hearing testimony also lend support to Monserrate's trial and hearing account of Marquez's order that he go to Puerto Rico to obtain the money. And while it may be argued that Alvarez's testimony is suspect, strong corroboration is found in the circumstances that the morning following the "kangaroo court," presided over by Marquez and Angelet, Monserrate withdrew $1000 from his bank account, using part of the proceeds for his airplane tickets; that he left that very day for Puerto Rico and returned the next day; further, that Alvarez, too, the morning following these events, gave Rivera, who came to his home, his entire savings, $1000, because he was afraid. But entirely apart from affirmative evidence supporting Monserrate's trial testimony on the foregoing two items, there are factors which seriously undermine those portions of the taped conversations which petitioner relies upon to support his charges. First, Monserrate's taped recorded statements are by no means a model of clarity; indeed, they are not only unclear, but abound with contradictions of the very statements upon which petitioner relies; there are points at which Monserrate confirms that Marquez did direct him to get the money from Puerto Rico accompanied by threats,⁶ and that he did surrender the money to the FBI at Kennedy Airport.⁷ Secondly, the questioning by Lopez, and on the one occasion by Marquez's attorneys was continually leading, suggestive and left no doubt as to the answers that were desired, which in a number of instances parroted the questions. Monserrate was clearly under considerable pressure and harassed throughout these conversations. At several points Lopez accused Monserrate of squealing on Marquez and testifying against him for money.⁸ It is not surprising that under these circumstances he lied to Marquez's lawyers and Lopez in order, as he put it at the hearing, "to get them off my back" because "all I wanted was to be left alone."⁹ Moreover, both Monserrate and Lopez testified at the hearing that the former consumed substantial quantities of liquor during the course of each of the recorded conversations.¹⁰ Monserrate stated that he was drunk when he left the lawyers' offices and one of the lawyers admitted hard liquor was consumed by Monserrate, but denied he was drunk while there; and an earlier recorded conversation with Lopez contains a declaration by Monserrate that he was drunk.¹¹ Based upon a consideration of all factors, the Court finds that Monserrate's testimony at trial as to (1) Marquez's order, accompanied by threats, to go to Puerto Rico and return with the money, and (2) his meeting at Kennedy Airport with the FBI was truthful and not in any way perjured.

We now turn to the third item, Monserrate's and Alvarez's trial testimony that they did not cheat Marquez's gambling operation. Monserrate admitted at the evidentiary hearing, as the tape recordings reflect, that his trial testimony on this subject was false. His explanation was that he felt he was in jeopardy; that...