United States v. Vegas

27 F.3d 773
CourtCourt of Appeals for the Second Circuit
DecidedJune 13, 1994
DocketNos. 777, 778, 779, 1413 and 1414, Dockets 93-1375, 93-1443, 93-1462, 93-1525 and 93-1526
StatusPublished
Cited by24 cases

This text of 27 F.3d 773 (United States v. Vegas) 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. Vegas, 27 F.3d 773 (2d Cir. 1994).

Opinion

LEVAL, Circuit Judge:

Defendants Jose Vegas, Michael Virella and William Guzman appeal judgments of conviction entered in the Southern District of New York on both counts of a two-count indictment charging them with possession of heroin with intent to distribute and conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) & 846. Following pretrial proceedings before Judge Shirley Wohl Kram (S.D.N.Y.), the action against Vegas was severed and tried before Judge Robert L. Carter and a jury. On May 13,1993, a judgment of conviction was entered. Virella and Guzman were tried before Judge Robert P. Patterson and a jury, which found them guilty; they were sentenced on June 7, 1993.

Vegas challenges his conviction on grounds of ineffective assistance of counsel; illegal search and seizure; improper admission of evidence and an improper jury charge. Guzman contends that evidence of a prior conviction was improperly admitted against him. Virella’s claims include insufficiency of evidence and improper admission of evidence. We reject all claims of the three defendants, and affirm the convictions.

The Government appeals the sentence imposed by the trial court on William Guzman, contending that because Guzman testified that he was not involved in the drug transactions, yet was found guilty by the jury, the court was obligated to determine whether Guzman committed perjury and if so, to enhance his sentence for obstruction of justice, under United States Sentencing Guideline § 3C1.1. We find that because the trial court did not make an affirmative finding that perjury was committed, the decision not to enhance Guzman’s sentence was appropriate.

Background

The Government’s case

The Government’s evidence — substantially the same in both trials — was as follows.

In late January 1992, defendant Jose Vegas was introduced by John Carrero, an informant working for the Drug Enforcement Administration (DEA) to Nelson Almonte, another DEA informant. Vegas, in a tape-recorded conversation, offered to sell Al-monte a kilogram of heroin, which Vegas said would be supplied by “Pakistanis” who were then in France and would soon be coming to New York. On February 3rd and 4th, Vegas contacted Almonte, told him the Pakistanis had arrived, gave him a sample of the heroin, and told him that the price would be $160,-000. Vegas designated his apartment building as the location for the transaction, and told Almonte that when the deal took place, the Pakistani suppliers would be in another room in the budding, because they did not want to be seen. On February 5th, at a prearranged time, Almonte met Vegas near Vegas’s apartment. Vegas was accompanied by defendant William Guzman. Vegas, Guzman and Amonte went to Vegas’s apartment where Vegas showed Amonte a one-ounce bag of heroin and all three men discussed the deal. When Vegas told Amonte that he wanted to do the deal in four.transactions of one-fourth kilogram each — an arrangement that Guzman urged as a “safer” course— Almonte left the apartment to talk with his supposed confederate, DEA agent Luis Pizarro, who was waiting in a nearby car. Before Almonte left, Vegas said he would call his suppliers and tell them to bring the heroin.

[776]*776Soon after Almonte left the Vegas apartment, Vegas paged Almonte; by telephone Almonte told Vegas that his partner wanted to buy the whole kilogram at once. Vegas then came out to the car to meet the partner (Agent Pizarro). Vegas showed Pizarro the one-ounce bag of heroin, and Pizarro showed Vegas $165,000 in cash. Vegas then returned to his building, telling Almonte and Pizarro that he would call them on Pizarro’s car phone when the Pakistanis arrived with the heroin. Defendant Michael Virella was later observed entering a car parked in front of Vegas’s building, where his brother, Frank Virella, was sitting, and then entering the building. Vegas then telephoned Almonte and said the suppliers had arrived; Almonte then went up to Vegas’s apartment.

In the apartment, Vegas told Almonte that the heroin was “next door”; that one of the “Pakistanis” was “next door” with Guzman and the other was in á car out on the street. Vegas left the apartment, returning shortly thereafter with heroin, which he showed to Almonte. Vegas hid the heroin in the apartment, and then went outside with Almonte to get the payment from Almonte’s partner, Agent Pizarro. Almonte suggested that Guzman leave with them, but Vegas replied that Guzman was protecting the Pakistani in the room next door.

As Almonte and Vegas left the building, Almonte signalled waiting DEA agents, who arrested Vegas and, using his keys, entered the building. The agents searched Vegas’s apartment after getting his wife’s permission. They recovered a quarter kilogram of heroin, lactose, a scale, several bullets, and some papers. They arrested Virella and Guzman in a room down the hall from the apartment, and recovered various papers and $1,640 cash from Virella.

In addition to evidence of the above events, the Government introduced evidence intended to prove that Virella was one of the “Pakistanis” referred to by Vegas as the heroin supplier. This included evidence that Virella roomed with one Kamal Khan, a native of Bangladesh (formerly East Pakistan); that he lived on a street heavily populated by Bangladeshis; that Virella, using the name Mr. Angelo, had flown with Khan on February 3, 1992, from London to Newark, on a flight that connected with a flight from Bangladesh; that Virella had numerous connections with Bangladesh and was carrying Bangladeshi currency and business cards when arrested; and that Virella had contacts with people in France (where Vegas said his heroin suppliers were).

The defendants’ cases

Jose Vegas’s tñal

Jose Vegas testified at his trial, presenting an entrapment defense. Vegas asserted that John Carrero (the Government informant), whom he characterized as his “best friend,” several times asked him to pose as a drug dealer. After twice refusing his friend’s request because he feared getting into trouble with drugs, Vegas agreed to assist him. Carrero told Vegas that he would be introduced to some people as Carrero’s drug connection; Vegas was to promise to supply drugs to them. Vegas testified that Carrero introduced him to the person he later learned was Almonte, that he arranged a drug deal with Almonte, that Carrero supplied him with the heroin sample he provided to Al-monte, and that on February 5, the day of the drug deal, Carrero brought heroin to Vegas’s home, weighed out an ounce and gave it to Vegas, and left a scale and other paraphernalia at Vegas’s home. Later that day, Vegas testified, Almonte came to his home for the drug transaction.

Vegas further testified that Carrero directed him as to what to say in his meetings with Almonte, and that Carrero was the source of the heroin that Vegas planned to sell to Almonte. He also testified that defendant Guzman is his second cousin; that Guzman was in Vegas’s apartment, but not in the same room, when Vegas and Almonte discussed the deal on February 5th; and that Michael Virella came by that day to borrow $1,500. Vegas acknowledged that many years earlier, he had been familiar with the illegal drug trade, and that he had been convicted in 1980 on a cocaine charge.

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Cite This Page — Counsel Stack

Bluebook (online)
27 F.3d 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vegas-ca2-1994.