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United States v. Sotomayor

decided: February 2, 1979.

UNITED STATES OF AMERICA, APPELLEE,
v.
LUIS SOTOMAYOR, A/K/A "TOTI," CARMEN IRIS RIVERA, A/K/A "CARMENCITA," JOSE MIGUEL CRESPO, A/K/A "MIKE CRESPO," VICTOR HERNANDEZ, A/K/A "VICTOR," A/K/A "VITIN," STEVEN ANGELET, A/K/A "STEVEN MARCANO," A/K/A "STEVIE," AND ISMAEL ROMERO, A/K/A "COOKIE," APPELLANTS.



Appeal from judgments of conviction of the United States District Court for the Southern District of New York, Lawrence W. Pierce, Judge, convicting appellants, after a jury trial, of conspiracy to distribute heroin and cocaine, and to import cocaine in violation of the law. Substantive count for possessing and distributing heroin against defendant Romero. Errors assigned relate to admissibility of tapes in violation of New York law and, as to substantive count, failure to grant a mid-trial motion for severance. Affirmed.

Before Mansfield and Timbers, Circuit Judges, and Hoffman,*fn* Senior District Judge.

Author: Hoffman

Appellants appeal from judgments of conviction entered on January 26 and February 8, 1978 in the United States District Court for the Southern District of New York, after an eight week trial before the Honorable Lawrence W. Pierce, District Judge, and a jury. The appellants were convicted of conspiracy to import cocaine into the United States and to possess and distribute heroin and cocaine in the United States in violation of 21 U.S.C. §§ 846 and 963. In addition, Ismael Romero was convicted of possession with intent to distribute and distribution of 106.3 grams of heroin in violation of 21 U.S.C. §§ 841(a) (1) and 841(b)(1)(a).*fn1 The principal error alleged is the failure of the district court to suppress wiretap tapes allegedly untimely sealed under New York law. We affirm.

The Government's prosecution was mainly based on the introduction into evidence of 138 recorded conversations seized as a result of New York State court-ordered surveillance of four telephone lines in Bronx and Westchester Counties. Testimony was also given by officers who performed surveillance, and who explained to the court and jury the code system employed to discuss drug dealing over the telephone system.

Four plants or taps were involved, each operated by New York law enforcement officers. The following table outlines these taps:

Plant/ Time Period

Tap Telephone Line Residence (Sealing)

22 (212) 829-1770 Gregory Comulada 9/22/76 (extensions

and Eva Ramirez 10/22/76,

11/5/76) to

12/2/76. Sealed

12/2/76.

25 (212) 796-9306 Steven Angelet and 10/18/76 to

Maria Marcano 11/16/76. Sealed

11/17/76.

28 (914) 965-9624 Jose Miguel (or 11/23/76 (extensions

Mike) Crespo and 12/3/76,

Julianna Gross ...


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