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February 21, 1985

UNITED STATES OF AMERICA, v LIBERTAD CRUZ, a/k/a "Libby," a/k/a "Levy," Defendant

The opinion of the court was delivered by: KRAM



 The above-captioned action is before this Court upon defendant's motion for a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the reasons stated below, the motion is denied.


 Defendant Libertad Cruz was named in a six-count superseding indictment charging him with the following: 1) conspiracy to distribute, and to possess with intent to distribute, heroin and cocaine; 2) engaging in a continuing criminal enterprise; 3) three counts of distributing heroin; and 4) carrying a firearm during the commission of a felony.

 The Government's proof at trial consisted primarily of the testimony of one key witness, Wilfredo Rodriguez. Rodriguez, on three occasions during 1982, had sold quantities of heroin to an undercover agent of the Drug Enforcement Agency ("DEA"). Rodriguez was arrested after the third sale, and pled guilty to one count of distributing heroin. After his conviction and sentencing, Rodriguez decided to cooperate with the Government.

 At trial, Rodriguez testified that he had obtained the heroin that he sold to the DEA agent from Cruz, and that he had turned over most of the money received from those sales to Cruz. Rodriguez further testified about a heroin and cocaine business run by Cruz out of an apartment in one of his buildings in the Bronx. Rodriguez described this business in great detail.

 According to Rodriguez, each morning (Monday through Saturday) from about May through August 25, 1982, Cruz brought large quantities of high purity heroin and cocaine to Apartment 2E at 54 Featherbed Lane in the Bronx. There Rodriguez, along with Jose Marquez and Abraham Reyes (the fugitive defendants), cut and packaged the drugs in small glassine envelopes or "dime bags", approximately 800 each of heroin and cocaine. The envelopes were stamped with brand names -- "Goya" for the heroin, and "Two-Way" for the cocaine. The envelopes were then divided between Rodriguez and Reyes, who delivered them to two selling points on the street: Rodriguez delivered his hair to a man named Jose at 143rd Street and Willis Avenue; Reyes delivered his half to a man at 179th Street and Anthony Avenue. Each after noon, Rodriguez and Reyes would collect the money from the selling points and bring it back to Marquez. Marquez would give the money to Cruz.

 Rodriguez further testified that Cruz carried a pistol when he delivered the drugs to apartment 2E. Rodriguez identified a gun seized at Cruz's apartment at the time of his arrest as the pistol he had carried when he delivered drugs to apartment 2E.

 In addition to this five-man operation, Rodriguez testified that Cruz was a supplier or heroin to at least one other person, one Carlos Rivera-Gonzalez. Rodriguez indicated that Gonzalez purchased approximately seven to eight ounces of uncut heroin every seven to ten days.

 The Government introduced further evidence of Cruz's drug dealings. Several pages of handwritten records were seized from one of Cruz's apartments. DEA agents, based on their experience as narcotics agents, testified that these records reflected drug transactions. This opinion was based in part, on the price shown in the records (then, the going rate for heroin in quantity on the street) and the distinction of quantities as "brown" or "white" (two types of heroin). The agents testimony was highly credible. On the other hand, Anna Rodriguez's testimony that these documents were records of purchases of different grades of heating oil was not credible. it appears from these records that Cruz was not credible. It appears from these records that Cruz was distributing heroin to at least three other individuals -- Richie, Pedro, and Skippy.

 As further evidence of Cruz's drug dealing, the Government presented the testimony of Raj Tuli. Tuli, a citizen of India, had been arrested on July 5, 1983, at Kennedy Airport attempting to import approximately 1.75 kilograms of heroin. He pled guilty to possession of heroin, and agreed to cooperate with the Government. Tuli was incarcerated at the Metropolitan Correction Center ("MCC") awaiting sentence. Tuli testified that he met one Jose Mojica in late July, 1983, and discussed with him a plan to import heroin from India. Mojica was arrested on October 21, 1983, on unrelated drug charges. Tuli testified that after Mojica was arrested, he introduced him to Cruz, who was also incarcerated at the MCC, and stated that Cruz was "like a father" to him. Tuli further testified that those three (Cruz, Mojica, and Tuli) had several conversations in the MCC during which plans were made to import heroin from India. Tuli was cross-examined extensively about his conviction for possession of heroin and his cooperation agreement. Tuli was also cross-examined at length about the alleged conversations and plans to which Cruz was a party. Tuli admitted that the plans never got off the ground, but he maintained that they had been made, and that Cruz had been a party to them.

 Cruz testified on his own behalf. he admitted that Mojica is one of his friends, and that Mojica had introduced him to Tuli at the MCC. Cruz further testified that Mojica calls him "viejo," or old man, which he loosely translated as "father," and that Mojica might have referred to him as "like a father" when introducing him to Tuli. Cruz denied, however, having any conversations with Tuli and Mojica regarding the importation of heroin; rather, he testified, they only talked "normally." Cruz testified that Tuli had approached him, out of Mojica's presence, to suggest a scheme to import heroin.

 Neither party called Mojica to testify at the trial. After a lengthy jury trial, Cruz was convicted on all six counts. The Court scheduled Cruz's sentencing for June 20, 1984.

 On June 20th, the Government apprised the Court of new information it had acquired. The Court adjourned the sentencing to allow the Government to investigate this new information and to ...

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