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CONCEPCION v. U.S.
January 24, 2002
MANUEL CONCEPCION, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
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
Count 17/13th Racketeering Act — Murder of
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
Count 28/19th Racketeering Act — Murder of
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
Count 31: Using and carrying a firearm during and in
relation to a drug trafficking crime (18 U.S.C. § 924
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
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
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."
The Court will address each of the grounds in the petition, in order.
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
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
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
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
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
[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)
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
As to these . . . counts, namely, . . . 31 . . .,
the government must prove each of the following
elements beyond a reasonable doubt in order to
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
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
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
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
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,
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 They asked questions and I answered them.
Q Then you went into the Grand Jury the same day,
isn't that right?
Q And you were asked questions about the same subject