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U.S. v. LOPEZ

February 19, 1991

UNITED STATES OF AMERICA,
v.
LUIS ROMERO LOPEZ, A/K/A "LUIS DIAZ", "LUIS DIAZ", "LUIS ORTIZ", DEFENDANT.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

Defendant Luis Romero Lopez (hereinafter "Romero") was charged in a five-count indictment. The first three counts alleged substantive violations of the federal narcotics laws, 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 845a(a). The fourth count charged Romero with the use of firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The fifth count charged Romero with possessing a firearm that was not registered to him in the National Firearms Register and Transfer Record, in violation of 26 U.S.C. § 5861.

Trial commenced before a jury. At the conclusion of the government's case, Romero moved under Rule 29, Fed.R.Crim.P., for a judgment of acquittal on Counts Four and Five. The Court denied the motion as to Count Five but granted it as to Count Four.*fn1 This Opinion sets forth the Court's reasons for granting Romero judgment of acquittal on Count Four.

The Indictment

Count One of the indictment charged that on or about May 1, 1990, in the Southern District of New York, Romero distributed and possessed with intent to distribute approximately 27.6 grams of heroin.

Count Two charged:

  On or about May 16, 1990, in the Southern
  District of New York, LUIS ROMERO LOPEZ, the
  defendant, unlawfully, intentionally and
  knowingly did possess with the intent to
  distribute a Schedule I controlled substance, to
  wit, approximately 24 grams of a mixture and
  substance containing a detectable amount of
  heroin, within 1,000 feet of the real property
  comprising St. Raymond's Elementary School, 2830
  East Tremont Avenue, Bonx, New York.

Count Three charged:

  On or about May 16, 1990, in the Southern
  District of New York, LUIS ROMERO LOPEZ, the
  defendant, unlawfully, intentionally and
  knowingly did possess with intent to distribute a
  Schedule I controlled substance, to wit,
  approximately 46 grams of a mixture and substance
  containing a detectable amount of heroin, within
  1,000 feet of the real property comprising St.
  Raymond's Elementary School, 2380 East Tremont
  Avenue, Bronx, New York.

Count Four of the indictment charged:

  On or about May 16, 1990, in the Southern
  District of New York, LUIS ROMERO LOPEZ, the
  defendant, during and in relation to a drug
  trafficking crime, namely, possession with intent
  to distribute a mixture and substance containing
  a detectable amount of heroin, for which he may
  be prosecuted in a court of United States,
  unlawfully, willfully and knowingly, did use and
  carry firearms, to wit, a 12 gauge E.R.A.
  sawed-off shotgun, a 38 calibre Smith and Wesson
  revolver, and a 9 millimeter Heckler and Koch
  semi-automatic hand gun.

Count Five charged that on or about May 16, 1990, in the Southern District of New York, Romero possessed the shotgun referred to in Count Four, which was not registered with the National Firearms Register and Transfer Record.

Although the indictment does not say so explicitly, the evidence at trial made it apparent, and counsel for the government acknowledged during oral argument on the Rule 29 motion, that Count Two of the indictment was "the charge on which the § 924(c) charge rests." Tr. 393.

The Government's Proof

The government's drug case was made by a confidential informant who put Romero in contact with David Dongilli, an agent of the federal Drug Enforcement Agency acting in an undercover capacity. The May 1, 1990 violation charged in Count One of the indictment came about when Dongilli and the confidential informant met with Romero and another individual at the corner of Third Avenue and 86th Street in Manhattan. Romero instructed Dongilli to follow him in his car to an address at 2331 Powell Avenue in the Bronx, where Romero maintained an apartment. Romero entered the building at 2331 Powell Avenue, came out again ten minutes later and approached Dongilli, who was waiting in his car, and handed Dongilli a quantity of heroin wrapped in a plastic bag, for which Dongilli paid the previously agreed price.

Dongilli had subsequent telephone conversations with Romero looking towards a further purchase. Some of those telephone conversations were recorded. Between May 1 and May 16, 1990 Dongilli placed telephone calls to Romero at three telephone numbers: a mobile telephone Romero maintained, the Powell Avenue apartment, and an apartment at 1725 Purdy Street, the Bronx, where Romero also maintained an apartment.

In the telephone calls subsequent to May 1, 1990 Dongilli was attempting to negotiate a purchase of two ounces of heroin from Romero. On May 16, 1990 at about 4:25 p.m. Dongilli telephoned Romero at the Powell Avenue number. Dongilli testified on direct examination:

  Q. What did the defendant say at that time, or
  what did you both say at that time?
  A. He told me he was in possession of 2 ounces of
  heroin and that I could meet him at East Tremont
  in front of the Sizzler Restaurant.
  Q. Is that on the intersection of East Tremont
  and another road?

A. Yes, East Tremont and Purdy. Tr. 294.

At about 7:00 p.m. on May 16, Dongilli drove to the parking lot of the Sizzler Restaurant at the intersection of East Tremont Avenue and Purdy Street. Dongilli parked his car and stood on the sidewalk on East Tremont Avenue. At about 7:20 p.m. Romero appeared with another male in a blue Oldsmobile. Romero left his car, approached Dongilli, and said "that he had 2 ounces of heroin" but was willing to sell Dongilli only one. Tr. 295. Dongilli agreed to purchase the lesser amount and he and Romero agreed on the price. Dongilli asked who the second male was. Romero identified him as his brother "George." Dongilli then testified:

  He [Romero] then told me the heroin was in a
  nearby location and he would be back shortly. At
  that time him, Luis Lopez [as Dongilli referred
  to him] and his brother walked I believe
  southbound on Purdy Street. At that time I got
  into my car.
  Q. Did there come a time when the defendant
  returned to the parking lot?
  A. Yes. I saw them walking north on Purdy Street
  in the direction of myself. Once they finally
  walked over to my car, the brother entered the
  blue Oldsmobile and Luis Lopez entered my car. At
  that time he pulled out a paper towel. Inside the
  paper towel was a Zip-Loc bag which had the ounce
  of heroin in it. Tr. 296-97.

At that point Dongilli executed an arrest signal and back-up agents placed Romero under arrest.

The government reverted to the telephone call at 4:25 p.m. on May 16 on redirect examination:

  Q. As both defense counsel and you discussed,
  during that call you and Lopez arranged the
  meeting that evening, right?

A. Yes, we did.

Q. And Lopez told you to meet him somewhere?

  A. East Tremont and Purdy Avenue. Q. He also told
  you something else during ...

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