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January 24, 2002


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


Petitioner Manuel Concepcion ("Petitioner" or "Concepcion") brings this proceeding, pursuant to 28 U.S.C. § 2255, seeking an order to vacate, set aside or correct his sentence.


Concepcion and many other defendants, nine of whom were on trial with him, were charged with being members of a major drug ring called the "Unknown Organization," that operated a retail and wholesale narcotics business in certain areas in Brooklyn. The Unknown Organization was led by Ricardo Melendez, consisted of approximately 100 members and grossed over ten million dollars a month from heroin sales, together with additional revenue from cocaine transactions. The Organization sold its narcotics in glassine envelopes stamped with particular brand names, such as "Unknown," "Critical," "Rated PG," and "No Mercy."

The Unknown Organization purchased large quantities of pure heroin which was cut by an expert called "Nelson the Cutter." The heroin distributed by the Unknown Organization was highly desirable to drug users because it was among the purest and most potent available in the New York area, being about 50 percent pure.

After the heroin was cut, it was transported to various "mills" where it was diluted and placed in glassine bags by dozens of sometimes nude and masked workers. The glassine bags were placed in commercial egg crates and then sent to assorted "retail establishments, " known as "spots" in various Brooklyn locations. Extensive and detailed records were kept by the Unknown Organization with regard to each operation, with specific amounts, names of participants and expenses involved in each operation. The Unknown Organization enforced its operation, warded off competition and prevented stealing by its own members, by intimidation, torture and murder.

As stated above, the Unknown Organization was headed by Melendez, who was assisted by a number of "lieutenants," who were in charge of particular areas of the operation such as cutting, packaging, distribution and protection. One of these lieutenants was the petitioner, Manuel Concepcion. Each lieutenant received a percentage of the sales of the drugs in which he was involved. The petitioner was in charge of drug distribution in Williamsburg, Brooklyn. Following the arrest of Melendez on September 24, 1988, Concepcion became the leader of the entire Unknown Organization and received the money from all drug sales.

Concepcion was the leader of the Unknown Organization until his arrest on March 14, 1989, during an abortive purchase by him and others from a confidential informant of more than seven kilograms of pure heroin, at a price of more than one million dollars. At the time of his arrest, Concepcion was in possession of more than one million dollars in cash, an Uzi submachine gun and two handguns.


Without stating all the details of this notable four-month trial of ten defendants for a multitude of drug and violent crimes, the Court will note some important aspects.

The Organization protected their vast and profitable narcotics business with brutal acts of violence against competitors and wayward organization members. These violent acts included severing the finger of member Todd Middleton, who had been accused of stealing from customers of the Organization. On another occasion, Middleton was kidnapped, stabbed more than 100 times with an icepick and beaten senseless. Concepcion, himself, shot to death James Gines, a friend of a rival. When asked why he did the killing himself, Concepcion responded, "I'm that type of guy, I like to take care of my own actions." (Tr. at 9331).*fn*

A worker named "Re-Run" who stole money while selling heroin at an Organization spot was shot five times in the leg. George Espada, who stole $100,000 in drug money from the Organization, was beaten, shot in the leg and stabbed in the gunshot wound. Rival Santo Rivera was shot in the head, causing permanent brain damage. Rademus Rivera, a worker who stole money from the Organization was stabbed to death. Competitor Robert Aponte was shot six times at close range and killed in a local bodega. There was also evidence adduced at the trial of beatings of workers and an attempted murder of a police officer.

Ten defendants were tried before this Court commencing on August 23, 1990 and resulted in a jury verdict convicting all but one defendant on December 23, 1990. During the trial, the Government called approximately 84 witnesses, including 12 accomplices. The jury convicted Concepcion of the following crimes:

Count 1/RICO violation (18 U.S.C. § 1962 (c)).

Count 2/1st Racketeering Act — Conspiring to distribute and to possess with intent to distribute in excess of one kilogram of heroin and five kilograms of cocaine (21 U.S.C. § 845 and 841(b)(1)(A)).
Count 8/7th Racketeering Act — Kidnaping and beating George Estrada.
Count 15/11th Racketeering Act — Money Laundering.
Count 17/13th Racketeering Act — Murder of James Gines.
Count 19: Committing an assault with a dangerous weapon in aid of racketeering activity (18 U.S.C. § 1952B(a)(3?)).
Count 21/15th Racketeering Act — Kidnaping and assault in aid of racketeering activity (18 U.S.C. § 1952B(a)(1)).
Count 25/16th Racketeering Act — Using proceeds of drug trafficking to purchase automobiles on November 12, 1987, February 22, 1988 and October 11, 1988.
Count 28/19th Racketeering Act — Murder of Roberto Aponte.
Count 30/20th Racketeering Act — Attempting to possess with intent to distribute in excess of one kilogram of heroin (21 U.S.C. § 846 and 841(b)(1)(A)).
Count 31: Using and carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924 (c)(1)).

On March 22, 1991, this Court sentenced Concepcion to a term of life imprisonment plus a mandatory consecutive five-year term, a mandatory five-year supervised release term, a fine of $1,000,000, and a special assessment of $550.


On appeal, Concepcion contended that (1) the Court improperly restricted cross-examination on Government witness Victor Jiminez, (2) the Court improperly admitted testimony concerning Concepcion's offer to commit murder, (3) the Government changed its theory of the case from opening to summation, (4) the evidence was insufficient to establish Concepcion's commission of the Gines murder, (5) the identification of Concepcion by two witnesses as a participant in the Gines murder was tainted, and (6) the evidence was insufficient to establish that the commission of the two assaults charged in Count Nineteen was to maintain or increase Concepcion's position in the racketeering enterprise. The Second Circuit rejected all of Concepcion's claims and affirmed all his convictions. United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992), cert. denied, 510 U.S. 856, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993).


In a petition filed on April 23, 1997, Concepcion moved, pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The grounds listed by the petitioner are as follows:

Ground one: The conviction under 18 U.S.C. § 924 (c) must be vacated due to the Bailey decision. "There is no evidence that Concepcion `used' a firearm in the course of a narcotics transaction. Weapons were in trunk of another car 50 feet from Concepcion's automobile."

Ground two: "The government knowingly suppressed exculpatory evidence and knowingly presented a false scenario with regard to the killing of James Gines. Also the Government misrepresented the record regarding that killing during arguments on Rule 29 motion."

Ground three: "The government's summation was replete with vouching pleas to the almighty, invented testimony, personal opinions and improper remarks."

Ground four: "Concepcion was denied his right of confrontation when a co-defendant's `redacted' summation was used against him. The prosecutor "filled in the blanks' from the redaction while crossexamining a co-defendant (not the maker of the statement) and during closing arguments. It was also used to bolster the testimony of other prosecution witnesses."

Ground five: "Concepcion was denied the right to testify in his own defense. . . Despite the fact that Concepcion requested that his attorney put him on the witness stand, the attorney did not, and rested the defense case without calling any witnesses."

Ground six: Ineffective assistance of trial and appellate counsel. In that (a) "Counsel failed to challenge the facial composition of the jury venire, which contained only one Hispanic, who was excused, and no Asians", (b) "Counsel was ineffective in defending Concepcion on the Gines murder," and (c) "Counsel failed to request a special verdict with regard to the duel-objective conspiracy and the quantities of heroin for which Concepcion was liable at sentencing."

Ground seven: "The case must be remanded for resentencing because the Court made no findings of fact with regard to the quantities of drugs for which Concepcion was liable."

In the petition, Concepcion acknowledged that he had not previously presented the ineffective assistance of counsel ground. His reason for not previously presenting this ground was (1) Government misconduct and (2) an intervening change of the law.

The Court will address each of the grounds in the petition, in order.


A. Standard of Review

As stated by the Second Circuit "[b]ecause requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). As a result, prisoners seeking habeas corpus relief pursuant to Section 2255 must show both a violation of their constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Ciak, 59 F.3d at 301.

Further, in Section 2255 proceedings, the Supreme Court has recognized the rule of "procedural default: [that prisoners] cannot assert claims they failed to raise at trial or on direct appeal unless they can show `cause' for the default and `prejudice' resulting from it." Id. at 302 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)); see also Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). The general rule is that a writ of habeas corpus is not a substitute for an appeal. "Where the petitioner — whether a state or federal prisoner — failed properly to raise his claims on direct review, the writ is available only if the petitioner establishes `cause' for the waiver and shows `actual prejudice from the alleged. . . violation.'" Id. at 354, 114 S.Ct. 2291 (citing Wainwright, 433 U.S. at 84, 97 S.Ct. 2497).

However, the traditional procedural default rule generally will not apply to ineffective assistance of counsel claims where a petitioner was represented by the same attorney at trial and on direct appeal and where such claims depend on matters outside the scope of the record of a direct appeal. Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993). Billy Eko added that, "ineffective assistance of counsel claims are appropriately brought in § 2255 petitions even if overlooked on direct appeal because resolution of such claims often requires consideration of matters outside the record on direct appeal . . . ." Id. (citation omitted). Thus, ineffective assistance of counsel claims may be raised for the first time in a habeas petition. See United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). Therefore, while the petitioner did not raise an ineffective assistance counsel claim on direct appeal, the Court is required to examine the merits of such a claim under section 2255.

To establish an ineffective assistance of counsel claim, the petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moreover, the petitioner must show that the "deficient performance prejudiced the defense." Id. at 687, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to show prejudice, the petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Caputo, 808 F.2d 963, 967 (2d Cir. 1987) (quoting United States v. Cruz, 785 F.2d 399, 405 (2d Cir. 1986)). The Court's determination, however, must be highly deferential to counsel as, "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Id. at 689, 104 S.Ct. 2052. While the Court must presume that counsel's conduct was reasonable, the Court nonetheless is mindful that the petitioner is proceeding pro se and thus, his submissions will be liberally construed. See Donglas v. United States, 13 F.3d 43, 47 (2d Cir. 1993).

B. The "Bailey" Firearm Issue

The incident that gave rise to the Section 924(c) charges arose during the arrest and search of the petitioner and others on March 14, 1989. This was during a reverse sting operation in which Concepcion was attempting to purchase more than seven kilograms of heroin. Concepcion contends that he was arrested "while standing astride his Ford van" while two other perpetrators were seated in a 1988 Cadillac parked 50 yards from Concepcion. In the trunk of the Cadillac were two .25 caliber handguns and one 9 millimeter Uzi.

At the close of the Government's case, counsel moved for a judgment of acquittal on the Section 924(c) charge on the ground that the Government failed to prove that Concepcion "used" or "carried" a firearm during and in relation to a drug trafficking crime. The Court denied the motion and later instructed the jury that the necessary elements of conviction in the Section 924(c) charge were:

THE COURT: The term "uses a firearm" means having a firearm or firearms available to assist or aid in the commission of the crime alleged in Count two of the indictment, the alleged narcotics conspiracy as to defendants Melendez, Frias and Maldonado, and the crime alleged in Counts 2 and 30 of the indictment as to defendant Concepcion. In determining whether the defendant used a firearm in this regard, you may consider all the factors received in evidence in this case, including the nature of the underlying crimes of drug trafficking alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.
Again, the government is not required to show that the defendant actually displayed or fired the weapon. The government is required, however, to prove beyond a reasonable doubt that the firearm was in the defendant's possession or under the defendant's control at the time that the drug trafficking crime was committed.

Tr. at 11723-24.

In Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995), the Court held that the "use" requisite of Section 924(c) requires evidence of "active employment of the firearm by the defendant, a use that makes the firearm an operations factor in relation to the predicate offense". The Court further held that unless the defendant brandished, displayed, made reference to, struck with, fired, attempted to fire, or bartered a gun during the conviction he cannot be convicted under Section 924(c). Id. at 508. Further the Court stated that:

[A] defendant cannot be charged under Section 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm without active employment, is not reasonably distinguished from possession. Id. at 508

In sum, Concepcion contends that the evidence proves that he did not brandish, display, make reference to, strike with, fire, attempt to fire, or barter a gun during the transaction. Therefore, he asserts his conviction under Section 924(c) must be reversed.

In response, the Government contends that Concepcion's Section 924(c) conviction is still valid. First, the Government states that, at the March 14, 1989 abortive drug transaction, the weapons were located in the car Concepcion arrived in. Second, the Government contends that this claim is procedurally barred for failure to raise it on direct appeal, unless Concepcion can establish actual innocence. Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986). Further the Government contends that, as Concepcion admits, the superseding indictment charged him with both using and carrying a firearm in connection with drug trafficking, and the jury was charged as to both acts:

As to these . . . counts, namely, . . . 31 . . ., the government must prove each of the following elements beyond a reasonable doubt in order to convict.
First, that on or about the date charged, the defendant was carrying or used a firearm.
Second, that the defendant had knowledge that what he was carrying or using was a firearm; and
Third, that he did so during and in relation to the commission of a drug trafficking crime for which he might be prosecuted in a Court of the United States.

What do we mean by carrying or use of a firearm.

The first element the government must prove beyond a reasonable doubt is that the defendant was carrying or used a firearm.
You will note that there are two types of conduct set forth in the statute.
One, is carries a firearm, and the other is uses a firearm. I will now define these terms.
As to carry, very simply. The word can be used in its literal everyday meaning.
The government further charges in count 31 that the defendant Manuel Concepcion unlawfully used and carried the firearms during and in relation to (1) a conspiracy to possess with intent to distribute heroin and cocaine as alleged in count two and, (2) in relation to an attempted to possess with intent to distribute heroin on March 14, 1989, as is alleged in Count 30.

Tr. at 11722-25.

The Government correctly states that even if the evidence does not sufficiently establish a "use" of the firearm, as that term is described in Bailey, it does sufficiently prove a "carry." In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), decided after Bailey, the Supreme Court held that a situation where the defendants had guns in either a locked glove compartment or the trunk of a car, at the time of a drug transaction, established that the guns were being "carried." The Court further stated that "neither the statute's basic purpose nor its legislative history support circumscribing the scope of the word `carry' by applying an `on the person' limitation." Id. 132-33, 118 S.Ct. 1911, 118 S.Ct. at 1916. As stated by the Supreme Court:

Given the ordinary meaning of the word "carry," it is not surprising to find that the Federal Circuit Courts of appeals have unanimously concluded that "carry" is not limited to the carrying of weapons directly on the person but can include their carriage in a car.

In this case, the evidence clearly established that Concepcion was "carrying" firearms in connection with the seven kilogram heroin transaction that formed the basis of his March 14, 1989 arrest. The guns were in the trunk of the car in which he came to the scene. Under the specific language of Muscarello, by reason of the established fact that the guns were in the trunk of the car near where Concepcion was standing in the midst of a major drug deal, he was properly convicted of "carrying" those weapons. Accordingly, the petitioner's Section 924(c) claim is denied.

C. The Gines Murder Issues

Concepcion next contends that his conviction under Count 17 of the indictment must be vacated. This count involves a charge of violation of 18 U.S.C. § 1959 (a)(1) (a violent crime in aid of racketeering activity) in connection with the murder of James Gines. In particular, the petitioner questions the proof of the fifth element needed for such a conviction, namely, that the motive for the murder was to maintain or increase Concepcion's position in the Unknown Organization criminal enterprise. Concepcion contends that "the government suppressed exculpatory evidence, and knowingly presented the jury with a false scenario in order to convey to the jury the impression that the murder of James Gines was committed in aid of racketeering." Also, the petitioner complains that the prosecutor took the testimony about the Gines murder "out of context in order to present a false scenario to the jury . . . to give the jury the belief that Gines' death was in aid of racketeering." In sum, Concepcion contends that the Gines murder was not related to maintaining or increasing Concepcion's position in the Unknown Organization enterprise, and thus, the evidence was insufficient to sustain a conviction on Count 17.

As stated above, the petitioner contends that the Government suppressed certain exculpatory evidence that would prove that the Gines murder had nothing to do with the Unknown Organization enterprise. This evidence consisted of interviews of ten to fifteen witnesses who allegedly failed to tie the incident to drug activity. In addition, Concepcion accused the trial prosecutor of lying to the Court about this "false scenario." See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). In this vein, Concepcion contends that the prosecutor failed to turn over interview notes of four witnesses, two of whom testified.

Finally, Concepcion asserts that after interviewing fifteen witnesses to the Gines murder, and all the debriefings, "not one witness testified . . . that a drug spot existed on or near the location of the Metropolitan Avenue (Gines) shootout" and that this was Brady material that should have been disclosed.

The Government responds that it did not withhold exculpatory evidence nor did it present a false scenario with regard to the Gines murder. Further, the Government contends it did comply with its Brady obligations. In particular, it did turn over prior statements by Adam Pomales and Juan Rivera, two witnesses who testified. Also, it turned over statements of some potential witnesses who did not testify, namely, Felix Oyola and Kenneth Colon, who were two of the participants in the Gines murder. In addition, the Government turned over statements of other witnesses to the Gines murder, in the form of police reports. Further, the Government disputes the petitioner's conclusory assertion that it had exculpatory interviews of fifteen other witnesses to the Gines murder.

Moreover, the Government points out that two of the witnesses named by the petitioner pled guilty to the same Section 1959 charge. Their allocutions do not support the petitioner's contention that the motive for the Gines murder did not maintain or increase Concepcion's position in the criminal enterprise. Nor is there any evidence that any of the eyewitnesses to the murder except for one Babon, had any information about the reasons for the shootout, which is the issue now being raised by Concepcion.

After reviewing the record, the Court finds that the Government adduced sufficient evidence to prove the Section 1959(a)(1) violation in connection with the Gines murder. In addition, the Court finds no Brady violation in regard to this incident. The record reveals no evidence of any exculpatory evidence that was withheld from Concepcion or any of the other defendants at the trial. For example, as to witness Adam Pomales, the record reveals that the defense was furnished with his grand jury testimony as well as records of his debriefing by Government agents.

(Cross-examination by counsel for defendant Melendez):

Q You recognize that document as a summary of what you told those people at that time, on September 21, 1989.

Is that right?

Q Okay.

Have you ever seen any writing or any report or any memorandum that has what you say you told them, that is specifically, that there was a phone call implicating Rick Melendez at that time and place? Have you ever seen anything like that?

A No, I just talked.

Q Okay.

A They asked questions and I answered them.

Q Then you went into the Grand Jury the same day, isn't that right?

A I guess so, yeah.

Q And you were asked questions about the same subject matter, ...

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