United States v. Rodriguez

968 F.2d 130
CourtCourt of Appeals for the Second Circuit
DecidedApril 9, 1992
DocketNos. 28, 527-533 and 703, Dockets 91-1152, 91-1160, 91-1167, 91-1169, 91-1170, 91-1228, 91-1286, 91-1287 and 91-1379
StatusPublished
Cited by158 cases

This text of 968 F.2d 130 (United States v. Rodriguez) 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. Rodriguez, 968 F.2d 130 (2d Cir. 1992).

Opinions

KEARSE, Circuit Judge:

Defendant Roberto Rodriguez (“Rodriguez”) appeals from a judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, convicting him, following his plea of guilty, on one count of conducting a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a), 853(a)(1), 853(a)(2), and 853(a)(3) (1988). Defendants Luis Rosado, Nelson Noa, Rafael Flores, Ronnie L’Rue, Mirella Pacheco, Jose Cots, Nelson Garcia, and Noel Agüero appeal from judgments entered in the same court following a jury trial before Judge Stanton, convicting all of them except Noa on one count of conspiracy to possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846 (1988). Noa was convicted of possession of approximately 18 grams of crack, in violation of 21 U.S.C. § 844(a) (1988). Rodriguez was sentenced principally to 360 months’ imprisonment and ordered to forfeit assets in the amount of $550,000. Garcia, having two prior narcotics felony convictions, was sentenced to life imprisonment. The remaining appellants were sentenced principally to the following prison terms: Rosado, 192 months; Noa, 60 months; Flores, 222 months; L’Rue, 240 months; Pacheco, 151 months; Cots, 204 months; and Agüero, 300 months.

On appeal, appellants make numerous arguments, including principally (1) their contention that the district court erred in refusing to suppress evidence obtained through court-authorized wiretaps, (2) Rodriguez’s contentions that he should be allowed to withdraw his plea of guilty, and (3) Rodriguez’s challenges to his sentence. For the reasons below, we reject all of appellants’ contentions and affirm the judgments of conviction.

I. BACKGROUND

The present prosecution arises out of the investigation of a crack organization in the Bronx, New York, headed by Rodriguez (the “Rodriguez Organization” or “Organization”). The government’s proof at trial included (1) the testimony of coconspirator Evaristo Valentin, who had been Rodriguez’s right-hand man overseeing the operation of the Organization, and of Aurea Rodriguez (not related to Roberto Rodriguez), another former member of the Organization; (2) excerpts of telephone conversations recorded by means of court-authorized wiretaps; (3) surveillance videotapes; (4) unpackaged crack and cocaine, packaging materials, and more than 3,000 vials filled with crack, seized from more than 20 locations; and (5) other physical evidence including detailed drug records. The evidence, taken in the light most favorable to the government, painted the following overall picture.

From prior to 1988 until July 1989, Rodriguez presided over a large-scale narcotics operation in the Hunts Point section of the Bronx. The Organization operated a retail crack outlet that was open for business 24 hours a day, seven days a week.- From this outlet an average of 1,200 to 2,600 vials of crack, at $5 per vial, were sold every day. The Organization also maintained many apartments in Hunts Point and elsewhere in the Bronx for processing, packaging, and storing the crack, or for storing drug records and profits.

Proceeds from the crack sales, often stored temporarily in an apartment occupied by Aurea Rodriguez, were eventually taken to the Imperio Cafe, a restaurant [134]*134owned by Roberto Rodriguez in New Jersey. L’Rue, the cafe’s cook and manager, received and counted the money and ultimately delivered it to Rodriguez. The other appellants played various other roles in the Organization. Garcia was one of Rodriguez’s main suppliers of cocaine; Flores was a courier who sometimes cooked cocaine into crack; Rosado and Cots served as, inter alia, packagers; and Agüero was the boss of one of the two daily shifts at the retail outlet, ensuring that there was sufficient packaged crack available for sale. Pacheco was Rodriguez’s wife or girlfriend and served as his general assistant, at various times packaging and transporting crack, or counting and transporting the proceeds from the sales.

The investigation of the Rodriguez Organization’s operations included raids in 1988 pursuant to search warrants, physical surveillance and videotaping, court-authorized pen registers, and court-authorized wiretaps in 1989 on four telephones at the Imperio Cafe and on the Bronx telephone of Aurea Rodriguez. Appellants and other members of the Organization were arrested in July 1989 as part of a coordinated series of raids.

The initial indictment charged 22 persons, including appellants, with participating in a large-scale narcotics conspiracy, in violation of 21 U.S.C. § 846, and charged Roberto Rodriguez as well with, inter alia, conducting a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). Rodriguez entered into a written cooperation agreement with the government, in which he agreed to plead guilty to the continuing criminal enterprise count and agreed to forfeit assets. The government agreed to withdraw the other counts against him and to recommend a downward departure in sentencing if he gave the government substantial assistance in the investigation or prosecution of other persons. As discussed in greater detail in Part II.B. below, after a hearing that included inquiry into a potential conflict of interest on the part of the attorney then representing Rodriguez, the district court accepted the plea.

Following the guilty pleas of Rodriguez and others, a superseding indictment was filed against the remaining defendants. To the extent pertinent here, count 1 of the superseding indictment charged appellants other than Rodriguez with conspiracy; count 2 charged Noa with possession of 18.2 grams of crack with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (1988). As discussed in greater detail in Part II.A. below, prior to trial defendants moved to suppress information obtained through the wiretaps on the Imperio Cafe telephones, contending that the orders purporting to authorize the pen registers and wiretaps were jurisdic-tionally defective because they were issued by a federal court in New York, rather than a court in New Jersey, the jurisdiction in which the telephones were located. In an opinion reported at 734 F.Supp. 116 (1990), the district court concluded that the orders complied with the pertinent statutory requirements.

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Bluebook (online)
968 F.2d 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodriguez-ca2-1992.