United States v. Liranzo

944 F.2d 73
Court of Appeals for the Second Circuit·Decided September 5, 1991·No. Nos. 1692, 1693, Dockets 90-1675, 91-1060·Published·Cited by 81 cases

Opinion

ALTIMARI, Circuit Judge:

Defendants-appellants Juan Liranzo and Francisco Garcia appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Robert J. Ward, Judge). The underlying superceding indictment charged the defendants in Count One with conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846, and in Count Two with distribution and possession with the intent to distribute approximately 1,300 grams of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 845a(a), and 18 U.S.C. § 2. Following an eight-day jury trial, Liranzo and Garcia, together with co-defendants Rafael Gutierrez and Felix Guzman, were convicted on both counts.

On appeal, Liranzo claims that the district court erred by failing to conduct an evidentiary hearing regarding the government’s alleged breach of a Proffer Agreement it had entered into with Liranzo. Garcia does not challenge his conviction, but contends that the district court erred in [75]*75finding him to be a “career offender” pursuant to Sections 4B1.1 and 4B1.2 of the United States Sentencing Guidelines (“Sentencing Guidelines” or “Guidelines”).

For the reasons set forth below, we affirm the judgment of conviction as to Lir-anzo, but vacate the sentence of Garcia and remand for further, proceedings.

BACKGROUND

The government’s evidence at trial showed that in late 1989, Edison Ibarra, an informant for the Drug Enforcement Administration (“DEA”), was introduced to defendant Gutierrez, who had been identified as a broker for the sale of kilogram quantities of cocaine. In a series of meetings in New York, and at Ibarra’s home in Massachusetts, Gutierrez and Ibarra discussed the potential sale to Ibarra of two kilograms of cocaine. Ibarra also spoke with Gutierrez several times by phone regarding the proposed sale, and eventually gave Gutierrez his beeper number. During these phone conversations, Ibarra also spoke with an individual identified as “Frank.”

On April 2, 1990, Ibarra traveled to New York. Gutierrez contacted him via the beeper and the two arranged to meet at 105th Street and Broadway to complete the transaction. In an afternoon meeting, which was observed by DEA agents, Gutierrez arrived in a white Lincoln Continental, accompanied by “Frank,” who was later identified as defendant-appellant Liran-zo. Gutierrez told Ibarra that he needed more time to obtain the cocaine. A second meeting conducted a few hours later yielded similar results.

Later that afternoon, Ibarra received another “beeper” call from Gutierrez. Gutierrez told Ibarra that he was ready to proceed with the deal, and the two arranged a third meeting at 105th Street and Broadway. During this call, Ibarra also spoke with another individual, identified at trial as defendant Guzman. Guzman, whom Gutierrez referred to as the “owner” of the cocaine, agreed to complete the .deal at the Broadway location. Thereafter, under the surveillance of DEA agents, Ibarra met with Gutierrez and Liranzo. Gutierrez introduced Liranzo as “Frank.” The trio then entered Ibarra’s car, and Liranzo handed Ibarra a package containing 300 grams of cocaine. Ibarra said that he wanted to buy two kilos, not just 300 grams, and returned the package to Liran-zo. Liranzo put the cocaine in Ibarra’s glove compartment and told Ibarra to lock it. The three men then exited Ibarra’s car, and Gutierrez phoned Guzman, who agreed to bring the rest of the cocaine.

Guzman arrived at 105th Street and Broadway. As Gutierrez and Ibarra approached Guzman, he motioned toward a brown Cutlass parked nearby that was driven by defendant-appellant Garcia. Gutierrez and Ibarra then walked to Garcia’s car. Garcia handed Ibarra a package containing approximately one kilo of cocaine. Gutierrez and Ibarra then went to Ibarra’s car to get the “buy” money. At that point, DEA agents on the scene arrested Liranzo, Garcia, Gutierrez and Guzman.

On April 17, 1990, the government filed a two count indictment against the defendants. Count One charged the defendants with conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846; Count Two charged them with distribution and possession with the intent to distribute approximately 1,300 grams of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 845a(a), and 18 U.S.C. § 2. The overt acts section of the indictment indicated that the name “Frank” referred to appellant Garcia and, as such, identified Garcia as the individual who accompanied Gutierrez in the white Lincoln and handed Ibarra the 300 grams of cocaine.

On April 20, 1990, Liranzo and his attorney met with DEA agents and an Assistant United States Attorney (“AUSA”) to explore Liranzo’s possible cooperation. The meeting was held pursuant to a written Proffer Agreement that detailed the manner in which the government could use information supplied by Liranzo. Under the Proffer Agreement, the government could not offer statements made by Liran-[76]*76zo in evidence in its case in chief. Significantly, however, the Agreement permitted the government to “use information derived directly or indirectly ... for the purpose of obtaining leads to other evidence” which could be used by the government in prosecuting Liranzo. At the meeting, Lir-anzo stated, among other things, that he, and not Garcia, was the individual known as “Frank.” No cooperation agreement was entered into between Liranzo and the government.

On May 29, 1990, a superceding indictment was filed against the defendants. The indictment corrected certain factual errors in the original indictment, most notably the mistaken identification of Garcia as “Frank.” The government informed the court that after the proffer session, the government reviewed certain documents and debriefed certain witnesses to ascertain the identity of “Frank.” In particular, Ibarra was shown a photo array of the defendants and questioned as to the identity and activities of “Frank.” According to the government, Ibarra indicated that Lir-anzo, whose middle name is Francisco, was “Frank.” Ibarra stated that Liranzo had appeared with Gutierrez in the Lincoln and Liranzo had given him the 300 grams of cocaine. As a result of these statements, the government corrected the factual mistakes in the original indictment and filed the superceding indictment.

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United States v. Liranzo, 944 F.2d 73 (2d Cir. 1991).

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