United States v. Martinez

• Decision Date: 07 July 2017
• Docket Number: 15-836,Docket Nos. 14-2759,15-3699,15-1001,August Term, 2016,15-511
• Citation: 862 F.3d 223
• Parties: UNITED STATES of America, Appellee, v. Randall MARTINEZ, a/k/a Randall, a/k/a Jose Rodriguez, a/k/a Jose Rodriguez–Saez, a/k/a Rando Martinez, a/k/a Randall Martinez–Espinal, Henry Fiorentino, Jose Tejada, and Marcos Rodriguez, a/k/a Markito, Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

862 F.3d 223

UNITED STATES of America, Appellee,

v.Randall MARTINEZ, a/k/a Randall, a/k/a Jose Rodriguez, a/k/a Jose Rodriguez–Saez, a/k/a Rando Martinez, a/k/a Randall Martinez–Espinal, Henry Fiorentino, Jose Tejada, and Marcos Rodriguez, a/k/a Markito, Defendants–Appellants.^*

Docket Nos. 14-2759

15-511

15-836

15-1001

15-3699

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: October 19, 2016

Decided: July 7, 2017

ALEXANDER SOLOMON, SYLVIA SHWEDER, Assistant United States Attorneys, Brooklyn, New York (Robert L. Capers, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

MARYBETH COVERT, Assistant Federal Public Defender, Buffalo, New York (Marianne Mariano, Federal Public Defender, Jayme L. Feldman, Assistant Federal Public Defender, Buffalo, New York, on the brief), for Defendant–Appellant Martinez.

JAMES M. BRANDEN, New York, New York, for Defendant–Appellant Fiorentino; Defendant–Appellant Fiorentino also filed briefs pro se.

ROBERT CALIENDO, New York, New York (Maurice H. Sercarz, Sercarz & Riopelle, New York, New York, on the brief), for Defendant–Appellant Tejada.

EPHRAIM SAVITT, New York, New York, for Defendant–Appellant Rodriguez.

Before: KEARSE, JACOBS, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Randall Martinez ("Martinez") and Marcos Rodriguez ("Rodriguez") appeal from judgments entered in the United States District Court for the Eastern District of New York by Sandra L. Townes, Judge , and defendants Henry Fiorentino and Jose Tejada appeal from judgments entered in that court by John Gleeson, Judge , convicting all four defendants of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 ; convicting Martinez and Rodriguez of brandishing a firearm in furtherance of a crime of violence and/or narcotics trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ; and convicting Tejada of obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2), and conspiring to obstruct an official proceeding, in violation of id . § 1512(k). Defendants were sentenced principally to prison terms of 264 months for Martinez, 264 months for Fiorentino, 216 months for Tejada, and 272 months for Rodriguez. On appeal, Martinez, who entered pleas of guilty in two related cases in two district courts, challenges the adequacy of his plea hearing and the denial of his requests for new counsel in the Eastern District case. The other defendants, convicted following their respective jury trials, principally raise statute-of-limitations arguments and/or evidentiary challenges to their trial proceedings and challenge their sentences. For the reasons that follow, we find no basis for overturning any of the challenged convictions or sentences.

I. OVERVIEW

The present prosecutions arise out of a sprawling conspiracy in and around New York City, spanning at least a decade, in which more than two dozen persons are alleged to have committed more than 200 robberies of drug traffickers. One of the coconspirators' main stratagems was to impersonate officers of the New York City Police Department ("NYPD") in order to stop or purport to arrest drug traffickers and search their vehicles or to enter and search premises where the coconspirators had been informed that drugs might be located.

The record includes evidence that Fiorentino was a leader of crews in the conspiracy, that Rodriguez was one of his principal lieutenants, and that they participated in numerous robberies and thereafter sold their shares of the stolen narcotics. Martinez participated in many robberies, generally as a getaway driver or a lookout. Tejada, for much of the period covered by the conspiracy, was in fact an NYPD police officer. He participated in robberies, and he provided coconspirators with genuine police equipment and with information about ongoing criminal investigations in which they might be targeted.

Many indictments and superseding indictments were handed down, and one or more of the present defendants appeared before various judges in two federal judicial districts. While the conduct of these defendants was part of the same overall conspiracy, some were active in different branches of it and at different times than others, and none of these defendants were tried together. We consider each defendant's challenge to his convictions in turn.

II. FIORENTINO

Fiorentino was charged in a November 18, 2009 three-count indictment with conspiracy to commit robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) ("Hobbs Act robbery") (Count One), conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 (Count Two), and using a firearm in furtherance of a crime of violence and narcotics trafficking, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Three). In 2014, having earlier pleaded guilty before Judge Townes but been allowed to withdraw that plea, he was tried before Judge Gleeson and a jury. After the government rested its case, the court dismissed Count Three on the ground that there was insufficient evidence of Fiorentino's use of a gun during the statute-of-limitations period; Fiorentino was found guilty on the other two counts and was sentenced principally to 264 months' imprisonment, to be followed by a five-year term of supervised release.

On appeal, Fiorentino contends principally that the evidence at his trial was insufficient to prove that he was a member of the conspiracy within the statute-of-limitations period and that his sentence was substantively unreasonable. In pro se supplemental briefing, he argues principally that use of evidence with regard to the seizure of some of his property violated his rights under the Fourth and Sixth Amendments.

We find no merit in any of his contentions.

A. The Evidence

The evidence at Fiorentino's trial included testimony from six of his coconspirators, each of whom had committed robberies with Fiorentino—and with Rodriguez as Fiorentino's "right-hand man"—from approximately 1997 through 2003. They testified in detail about numerous such events in which Fiorentino, leading a shifting cast of supporting characters, dressed as a plainclothes police officer and drove vehicles that were outfitted to look and operate like unmarked police cruisers in order to facilitate robberies of drug dealers. For example, on a tip to coconspirator Sandy Beato in or about 2003 about an impending sale of cocaine, Fiorentino, with Rodriguez, Beato, and one of the other testifying coconspirators, watched the robbery target leave a house in the Bronx and drive off in a truck. The crew followed and soon forced the truck to stop. Beato testified that Fiorentino, dressed in civilian clothes but with a bulletproof vest, a holstered gun, handcuffs, and a badge, spoke with the driver for several minutes. The crew found five kilograms of cocaine in the truck; Rodriguez and Beato drove away with it. Fiorentino pretended to recruit the driver of the truck to be an informant, promising to return the cocaine if he would tell Fiorentino about future drug sales. The five kilograms of cocaine were divided equally among the four robbers and the tipster.

On another 2003 tip—this time that 160 kilograms of cocaine were present in a certain apartment in a Bronx housing complex—Fiorentino and coconspirator Gabriel Cano–Martinez, outfitted with police clothing, equipment, and badges, went to that apartment, identified themselves as policemen, and handcuffed the occupants. Cano–Martinez testified that they found $120,000 in cash and 126 kilograms of cocaine, of which he and Fiorentino kept a total of $40,000 and 38 kilograms of cocaine, giving the rest of the cash and drugs to the tipsters. Rodriguez helped Fiorentino sell his share of the cocaine.

Fiorentino at trial conceded that he had participated in the conspiracy for a time, but he argued that he had withdrawn from the conspiracy prior to the start of the five-year statute-of-limitations period, see 18 U.S.C. § 3282(a), i.e. , prior to November 18, 2004; and each of the cooperating witnesses against him testified that they committed no robberies with him after 2003. However, those witnesses also testified that they themselves continued to commit such robberies and that neither they nor Fiorentino expressed any intention to stop committing robberies together. In addition, some testified that they discussed with Fiorentino committing future robberies after November 2004. Cano–Martinez, who encountered Fiorentino in the Dominican Republic on several occasions in 2006, testified that they "talked about the possibility of getting back together here in the United States.... [t]o rob again together." And Beato, who encountered Fiorentino in jail in or after 2009, testified that Fiorentino asked why Beato had not contacted him "to work" after their 2003 robberies. When Beato said he had not known how to reach Fiorentino, Fiorentino said Beato could have contacted him through Rodriguez.

In addition, encounters between Fiorentino and bona fide NYPD officers revealed that he was well equipped to continue robbery operations after 2004. In a January 2005 stop, officers found in Fiorentino's vehicle handcuffs, a handcuff key, and a replica police badge. In June 2006, officers stopped Rodriguez in a vehicle registered to Fiorentino; upon searching the car, they found a police placard and a police scanner. A later inventory search also uncovered three police badges and naturalization papers, apparently forged, in Fiorentino's name. In September 2006, the police searched Fiorentino's residence, with his consent, and found, inter alia , a police-style flashlight, guns and fake guns, bullets and blanks, wrist restraints, and police radios. There was also sales-records evidence of purchases of this type of equipment by Fiorentino in 2005 and 2006.

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