United States v. Hernandez

85 F.3d 1023
CourtCourt of Appeals for the Second Circuit
DecidedJune 11, 1996
DocketNos. 521, 522 and 1079, Dockets 94-1685, 94-1686 and 94-1710
StatusPublished
Cited by51 cases

This text of 85 F.3d 1023 (United States v. Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hernandez, 85 F.3d 1023 (2d Cir. 1996).

Opinion

MAHONEY, Circuit Judge:

Defendants-appellants Steven Camacho, Jaime Rodriguez, and Antonio Feliciano (“Defendants”) appeal from judgments entered November 25, 1994 (Camacho and Rodriguez) and December 20, 1994 (Feliciano) in the United States District Court for the Southern District of New York, John F. Keenan, Judge, that (1) convicted all three Defendants of conspiring to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1), distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and possessing a firearm with an obliterated serial number that had been shipped in interstate commerce, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B); (2) convicted Camacho and Rodriguez of conspiring to suborn perjury in violation of 18 U.S.C. §§ 371 and 1622, and conspiring to obstruct justice by preventing testimony through threats and intimidation in violation of 18 U.S.C. §§ 371 and 1512(b); and (3) convicted Camacho of possessing in and affecting commerce a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g).

Defendants raise various challenges to their convictions and sentences. Specifically, they argue that the district court erred by (1) denying Camacho’s pretrial motion to suppress evidence seized by the government during its searches of two apartments used in connection with Defendants’ narcotics-related activities; (2) ruling that Rodriguez and Feliciano lacked standing to challenge one of those searches; (3) denying Feliciano’s pretrial severance motion; (4) denying Rodriguez’s pretrial motion to strike from the superseding indictment as surplusage overt acts of cocaine distribution; and (5) fining Rodriguez in the amount of $10,000. Defendants also contend that (6) the evidence adduced at trial was insufficient to support Rodriguez’s convictions for conspiring to suborn perjury and obstruct justice; (7) Congress exceeded its authority under the Commerce Clause when it enacted 18 U.S.C. §§ 922(g)(1) and 922(k); and (8) the Supreme Court’s recent decision in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), requires the reversal of their convictions for violation of 18 U.S.C. § 924(e)(1).

The government concedes, and we agree, that Bailey requires reversal of Defendants’ convictions under § 924(c)(1), but we reject the remainder of Defendants’ claims. Accordingly, we affirm in part, vacate in part, and remand for resentencing.

Background

Camacho, Rodriguez, and Feliciano, along with several other coconspirators, were members of the Raja Crew, a heroin-selling organization that operated principally in the Bronx, New York from late 1989 until Defendants were arrested in 1993. Defendants conducted their narcotics-related activities in [1027]*1027part out of Apartment 2B at 537 East 139th Street in the Bronx (“Apartment 2B”).

On July 29, 1991, Judge John Cataldo of the Criminal Court of the City of New York, Bronx County, issued a warrant to search Apartment 2B for, inter alia, heroin, heroin paraphernalia, and guns. Judge Cataldo issued the warrant after making a probable cause determination based upon his (1) review of an affidavit sworn to by New York City Police Department (“NYPD”) Detective Donald Sanchez, and (2) examination under oath of a confidential informant (the “Cl”). Sanchez’s affidavit, which set forth information that had been provided to Sanchez by the Cl, stated that the Cl had twice been inside Apartment 2B, described the apartment in detail, and described a person named “Joey” engaging in heroin transactions there. When questioned under oath by Judge Cataldo, the Cl confirmed the information in the affidavit.

Sanchez and other NYPD officers executed the warrant and seized from Apartment 2B drugs, guns, and photographic and documentary evidence linking Defendants to narcotics-related activity. They also arrested co-conspirators Jose Crespo and Marie Rosado. With the cooperation of Rosado, agents of the Bureau of Alcohol, Tobacco, and Firearms (the “BATF”) were able to identify Defendants. On July 9, 1993, agents of the Federal Bureau of Investigation (the “FBI”) arrested Rodriguez and Feliciano.

On July 21, 1993, federal agents went to 3312 Hull Avenue, Apartment 4DN, in the Bronx (“Apartment 4DN”) to execute an arrest warrant for Camacho. Upon their arrival at 3312 Hull Avenue, the agents located Camacho on the roof of the building and arrested him there. Camacho and the agents returned to Apartment 4DN, where the agents found and seized drug paraphernalia and other evidence.

Camacho and the agents gave contradictory accounts of the circumstances of the agents’ search of Apartment 4DN. FBI Special Agent David S. Higgins testified at the district court’s suppression hearing that Camacho had requested to return to the apartment in order to retrieve his hat. Higgins contended that he had granted Camacho’s request because he believed that doing so would increase the likelihood that Camacho would cooperate with the officers. According to Higgins, he and another agent took Camacho into the apartment’s master bedroom, where they found a baseball cap and a box of ammunition. Higgins claimed that he had then asked Camacho for permission to search the apartment, and that Camacho had granted such permission. After the officers discovered drug paraphernalia and photographs and documents implicating Defendants, Camacho was asked to sign a consent-to-seareh form. When he refused, the officers terminated the search.

Camacho denied that he had consented to the search and maintained that he had never asked to return to the apartment either to retrieve his hat or for any other reason. In support of his version of the events, Camacho introduced a property invoice from the Metropolitan Correctional Center (the “MCC”), where he was detained following his arrest, which indicated that Camacho did not have a hat with him when he arrived at the MCC.

BATF Special Agent Leslie Gee attempted to account for the absence of the hat from the MCC property invoice.

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Cite This Page — Counsel Stack

Bluebook (online)
85 F.3d 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hernandez-ca2-1996.