Appeal by Rafael Pineda from a judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, sentencing Pineda, after a guilty plea and a hearing, to four years imprisonment and five years probation for violations of 18 U.S.C. §§ 371, 1001 (1976). Affirmed.
Lumbard, Cardamone and Winter, Circuit Judges.
In May of 1981, the government filed a nine count indictment against Rafael Isivor Pineda, Sixto Cristian Mayi, and "others to the Grand Jury known and unknown." The indictment charged the defendants with preparing and conspiring to prepare false documents for submission to a government agency, in violation of 18 U.S.C. §§ 371, 1001 (1976). The documents had been prepared for sale to persons applying for visas from the Immigration and Naturalization Service. Defendant Pineda pled guilty on July 28, 1981 to two of the nine counts. Pineda was represented by counsel at this time and at all relevant times thereafter.
While Pineda awaited a sentencing hearing, the government continued to examine papers recently filed by visa applicants. This led INS officers to one of Pineda's former "customers," Wenesfrienda Diaz. Diaz told the INS that she had purchased her fraudulent papers from Pineda. She also claimed that Pineda had told her to tell the INS that she had obtained the papers from someone else. The government suggested that Diaz call Pineda and tell him that the INS did not believe this story. Diaz phoned Pineda while the government listened in.
Over defendant's objection, a transcript of this conversation was introduced in evidence at a six-day sentencing hearing in April and May of 1982. On May 14, 1982 Judge Haight sentenced Pineda to four years imprisonment plus five years probation.*fn1
Defendant seeks a reversal of the judgment and a new sentencing hearing. He argues that admission of the tape recorded conversation violated his sixth amendment right to counsel. We affirm the judgment.
The facts established at the sentencing hearing are not disputed here. As Judge Haight found, between August 1980 and May 1981, Pineda operated a false document mill out of his "travel agency" at 2025 Amsterdam Avenue.*fn2 Pineda's customers were members of the Dominican Republic community in Harlem. They came to Pineda for help with applications to obtain immigrant visas for their relatives. The Immigration and Naturalization Service and the American Consulate in the Dominican Republic ordinarily require petitioners for an alien's visa to provide evidence of their ability to support the immigrant so that he or she will not become a public charge. Applicants typically submit affidavits expressing willingness to support the immigrant, letters of employment, copies of tax returns and IRS W-2 forms, and bank letters reporting the petitioner's account balances. Pineda's customers paid him several hundred dollars for forgeries of such documents.
Two of Pineda's customers are of special interest here, Fior Perez and Wenesfrienda Diaz. Fior Perez first met with Pineda on December 4, 1980. She expressed an interest in purchasing papers to support a visa application for a cousin's wife, Margarita Sierra. Pineda filled the request on December 10th. Perez paid him $500 for his services.*fn3
Wenesfrienda Diaz first visited Pineda's office four months later, in April of 1981. She sought documents to support her husband's visa application. Diaz and Pineda dickered about the price and settled on $465. Diaz paid $300 down and the balance on May 2. She picked up the papers the next day, May 3, 1981.
Pineda was next visited two weeks later by several INS investigators. They searched his office under warrant. They seized blank letterhead stationery and paystubs bearing the names of numerous businesses. Some of the stationery was forged. Other sheets bore names of companies that could not be located or addresses that did not exist. The agents also seized a notepad containing draft forms of employment letters; notes indicating orders for such documents; a copy of an employment letter addressed to the American Consulate in the Dominican Republic from a non-existent business address in New Jersey; a draft of an affidavit of support addressed to the same American Consulate; numerous blank and partially completed IRS W-2 forms; and a blank counterfeit social security card.
Two weeks after the search on May 29, 1981, the Grand Jury brought a nine count indictment against Pineda, Mayi and others. The first count charged the defendants with conspiring between December 1 and December 10, 1980, to defraud the United States by knowingly falsifying and concealing material facts and making and using false documents. The remaining eight counts charged Pineda and Mayi with preparing eight specified documents for Fior Perez.
Two months later, in July 1981, Pineda pled guilty to the count charging conspiracy to defraud and to another count charging the preparation of a false document for sale to Fior Perez. Pineda appeared for sentencing in September. At that time, he objected to statements in the sentencing report that he had sold fraudulent documents to others on several occasions. The parties agreed to conduct a sentencing hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 62 L. Ed. 2d 755, 100 S. Ct. 1018 (1980). Defense counsel ...