The opinion of the court was delivered by: Spatt, District Judge.
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
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.
A No, I just talked.
A They asked questions and I answered them.
A I guess so, yeah.
Tr. at 9464-65, 9468.
In addition, the record shows that Juan Rivera's prior statements were
revealed to the defense. See Tr. 6438-40, 6458-61, 6464-65, 6479-82. For
example, in the cross-examination of Rivera by Concepcion's attorney, the
A I don't remember saying that.
MR. GINSBERG: Page, please?
MR. FUTERFAS: Yes. 32.
MR. FUTERFAS: May I choose to conduct my
cross-examination in the way I see fit, Your Honor?
THE COURT: Yes.
MR. GINSBERG: Judge, Mr. Futerfas took in quotations
a couple of words out of context.
THE COURT: Well, let me see the paper you are
MR. FUTERFAS: Very well. It is
the top paragraph, page 30-page 32.
(Document to court.)
THE COURT: Overruled.
Tr. at 6479-80.
Also, with regard to potential witnesses who did not testify, namely,
Felix Oyola and Kenneth Colon, two of the participants in the Gines
murder, the record reveals that the Government turned over their
statements. See Tr. at 9783-84, 9963-66. Further, the Government turned
over statements of other witnesses to the events in the Gines murder, in
the form of police reports.
The petitioner's claim that the Government failed to turn over
exculpatory interviews of fifteen witnesses to the Gines murder, is also
unsubstantiated. Such a conclusory assertion will not suffice to support
this petition or even to compel a hearing. United States v. Aiello,
814 F.2d 109, 113 (2d Cir. 1987). See also United States v. McGill,
11 F.3d 223, 225 (1st Cir. 1993) (in determining whether hearing on
petition required, "the court need not give weight to conclusory
allegations, self-interested characterizations, discredited inventions,
or opprobrious epithets").
Concepcion now offers various reasons for the Gines murder. One such
theory is in his memorandum of law in support of his petition (pp.
18-19), having to do with an altercation between Babon and four armed
Hispanic men over girls on the block, causing a chase, leading to the
Gines murder. In addition, the September 1997 affidavit of attorney Ruth
Liebesman offers a different scenario. She asserts that she received a
telephone call from Felix Oyola, who was never called as a witness,
informing her that "the death of James Gines had nothing to do with
anything drug related." In this version Babon was chased because he
pulled a weapon when a group of men tried to take his bike. This version
is supported by an October 29, 1998 affidavit by Felix Oyola, who stated
that the fatal fracas started when "some men wanted to take his
motorcycle," at which time Babon pulled a gun. The Court notes that this
version by Oyola is a different description of the events of the Gines
murder than the one recounted by him during his plea allocution.
The Court must treat this erstwhile recantation with caution. A plea
allocution given in open court under oath carries a strong presumption of
credibility. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621,
1629, 52 L.Ed.2d 136 (1977). Here, even if Oyola had testified at the
trial and later recanted his testimony, the petitioner would have a
difficult burden. Courts are particularly reluctant to grant motions for
a new trial where the newly discovered evidence consists of a witness
recantation, as such actions are looked upon with the utmost suspicion.
United States v. Gallego, 191 F.3d 156, 166 (2d Cir. 1999); United States
v. DiPaolo, 835 F.2d 46, 49 (2d Cir. 1987); United States ex rel. Sostre
v. Festa, 513 F.2d 1313, 1318 (2d Cir.) (quoting United States v.
Troche, 213 F.2d 401, 403 (2d Cir. 1954)).
Accordingly, before granting a motion for a new trial on the ground
that a witness recanted his trial testimony, a trial court must be
satisfied (1) that the testimony recanted was false and material,
Sostre, 513 F.2d at 1317; United States ex rel. Rice v. Vincent,
491 F.2d 1326, 1331 (2d Cir.), cert. denied, 419 U.S. 880, 95 S.Ct. 144,
42 L.Ed.2d 120 (1974); and (2) that without the original testimony the
jury probably would have acquitted the defendant, United States v.
Alessi, 638 F.2d 466, 479 (2d Cir. 1980); U.S. v. Stofsky, 527 F.2d 237
(2d Cir. 1975). Here, there is no testimony to be recanted, because Oyola
did not testify. Moreover there was no allegation of perjury committed by
witnesses to the Gines murder during the trial. Further, Oyola's prior
plea allocution would be difficult for him to overcome, even if he were to
be a witness.
A review of the record also reveals that, except for Babon, the other
potential witnesses were eyewitnesses only to the event and had no
information about the reasons for the shootout, which is the issue raised
by the petitioner. Therefore, even assuming that the Government had in
its possession and failed to turn over the statements of other
witnesses, it cannot be said that this evidence "could reasonably . . .
put the whole case in a different light as to undermine confidence in the
verdict." Kyles v. Whitley, 514 U.S. 419. 435, 115 S.Ct. 1555, 1566, 131
L.Ed.2d 490 (1995). Further and significantly, the jury's verdict on this
count was amply support by other evidence. United States v. Gallego,
191 F.3d 156 (2d Cir. 1999).
D. As to the Prosecution Summation
Concepcion asserts that his convictions on counts 17 and 28 (the Gines
and Aponte murders) "must be set aside as a result of the cumulative
effects of the prosecutor's many improper remarks during summation."
Concepcion argues that these alleged improper remarks by the prosecutor
deprived him of his rights to a fair trial; to due process under the
Fifth Amendment; of the right to face his accusers under the Sixth
Amendment; and his right to effective assistance of counsel. Among the
many asserted claims of an improper summation by the prosecutor are the
1. The prosecutor vouched for the credibility of his witnesses and
implied that the Court did the same:
Don't believe for a second that Judge Spatt or any
judge wants to hear anything but the truth. . . . The
Judge may warn you that certain people are guided by
personal concerns when they testify, but the only
incentive that those witnesses have is to tell the
truth so that this Court believes that the (sic)
recognize and that they have admitted their crimes.
Tr. at 10777-78.
2. The prosecutor "sought to invoke the name of the Almighty into the
fray in order to appeal to the jury's emotions."
And you saw the cover, the cover of the baby carriage
with bullet holes in it and thank G-d, ladies and
gentlemen, thank G-d a bullet in Concepcion's arm
finally stopped him. Tr. at 10851.
3. The prosecutor made a "further emotional plea" with regard to Gines'
surviving family members.
Long after this trial is over and your deliberations
are complete, will it ever be possible to forget Lea
Lopez, the woman who says Concepcion shot her
boyfriend once in the front and twice in the back, who
stared and uttered in absolute fright as that man
sitting over there took aim at her baby. Tr. at
4. The prosecutor stated that Concepcion was "armed as he always was"
and he "lied to the police" with regard to the holster he was carrying.
5. The prosecutor accused Quirk, the defense ballistics expert, "of
offering testimony for sale."
[l]et me briefly mention Mr. Quirk, the expert . . .
for a hundred bucks an hour Mr. Quirk would just about
say anything. Tr. at 10818.
6. The prosecutor stated that Concepcion was already behind bars.
A little later Aponte, Concepcion . . . were
arrested, this drug organization . . . was finally
behind bars. Tr. at 10826.
7. The prosecutor referred to the defendants as "a parasite feeding on
the frailties and vulnerability of people." Tr. at 10836.
8. Throughout his summation the prosecutor repeatedly voiced his
opinion that Concepcion was guilty.
9. The prosecutor improperly commented on Concepcion's failure to
testify, with regard to the Espada beating.
Do you recall Mr. Futerfas asking Espada during
cross-examination whether the beating was a laughing
matter? If only someone had asked Mr. Futerfas' client
that question. . . . Tr. at 10855.
10. The prosecutor misused an out-of-court statement of Roberto Aponte
(a.k.a."Savage") which allegedly was made to DEA agents after Aponte's
arrest. The petitioner contends that Aponte's out-of-court statement was
used to link him to the reverse sting of March 14, 1989 in violation of
Bruton v. United States,
, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968), because the prosecutor "filled in the blanks" of the redacted
In sum, Concepcion contends, based on all these improper statements in
the prosecutor's summation, that the jury was "led astray under the
totality of the circumstances" regarding the Gines and Aponte murder
incidents, which also tainted the RICO charges (see Floyd v. Meachum,
907 F.2d 347, 356 (2d Cir. 1990)). Thus, petitioner asserts that, based
on this summation issue, he "is entitled to a new trial in toto."
Initially, the Court notes that the Concepcion summation claims appear
to be procedurally barred. These claims could and should have been raised
on appeal by appellate counsel. See United States v. Munoz, 143 F.3d 632,
637 (2d Cir. 1998) ("a motion under Section 2255 is not a substitute for
an appeal"); United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) ("A
party who fails to raise an issue on direct appeal and subsequently
endeavors to litigate the issue via a Section 2255 petition must "show
that there was cause for failing to raise the issue, and prejudice
resulting therefrom.'") (quoting Douglas v. United States, 13 F.3d 43, 46
(2d Cir. 1993)); Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir.
1993) ("It is well-settled that where a petitioner does not bring a claim
on direct appeal, he is barred from raising the claim in a subsequent
Section 2255 proceeding unless he can establish both cause for the
procedural default and actual prejudice resulting therefrom.")
Concepcion has failed to show cause for this default and he cannot now
seek review of these summation issues. However, to complete the record,
the Court will address the merits of the petitioner's contentions. As
will be seen, Concepcion also did not demonstrate sufficient prejudice
resulting from the prosecutor's remarks at summation so as to excuse his
failure to raise this ground on appeal.
However, with regard to the concept of "harmless error," in Brecht v.
Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) the
Supreme Court clarified that a different "harmless error" standard
applies when a federal court conducts a habeas review of a conviction
— a form of collateral review — than when the conviction is
subject to direct review by the federal court. In pertinent part, the
Supreme Court stated:
Id. 507 U.S. at 622-23, 113 S.Ct. at 1713-14 (quoting Chapman v.
, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967),
Kotteakos v. United States,
, 776, 66 S.Ct. 1239, 1253, 90
L.Ed. 1557 (1946)) (other citations omitted).
In Brecht, the Supreme Court also reaffirmed the distinction between
two broad types of constitutional violations that may occur in a criminal
trial: structural error and trial error. A "structural error" requires
automatic reversal and is not subject to harmless error analysis because
it involves a deprivation of a constitutional protection so basic that in
its absence, " "a criminal trial cannot reliably serve its function as a
vehicle for determination as fundamentally fair.'" Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302
(1991) (citations omitted), reh'g denied, 500 U.S. 938, 111 S.Ct. 2067,
114 L.Ed.2d 472 (1991). On the other hand, a "trial error" is one which
occurred during the presentation of the case to the jury and, as such,
may be quantitatively assessed in the context of other evidence presented
to determine whether it was harmless. Brecht, 507 U.S. at 629, 113 S.Ct.
at 1717. The asserted summation errors in this case were of the trial
type and, therefore, the Court will assess their effect under the Brecht
Further, "the equal protection clause of the fourteenth amendment
condemns underrepresentation of minorities only if it is the product of
intentional discrimination." Alston v. Manson,
, 257 (2d
Cir. 1986). In addition, the constitutional prohibitions in this regard
are of a systematic exclusion of a distinctive group in the community.
Duren v. Missouri,
, 364, 99 S.Ct. 664, 669, 58 L.Ed.2d 579
(1979). In order to establish a prima facie case, it was necessary for
the petitioner to show that the racial underrepresentation, generally and
on his venire, was due to systematic exclusion in the jury selection
process. Although discriminatory intent is not an element of a Sixth
Amendment "fair cross-section" claim, United States v. Biaggi,
, 677-78 (2d Cir. 1990), the petitioner must offer sufficient
evidence of underrepresentation to establish a prima facie violation.
United States v. Rosario,
, 585 (2d Cir. 1987); United States
, 64-66 (2d Cir.), cert. denied
S.Ct. 1119, 43 L.Ed.2d 394 (1975).
In this case, Concepcion has failed to establish any unfair racial
composition or underrepresentation or systemic exclusion claim. Even
assuming that the petitioner is correct in stating that the jury included
only one Hispanic and no Asians, that fact alone is insufficient to
establish a constitutional violation. Initially, the Court is puzzled by
the claim that exclusion of Asian jurors violated his rights. Also, the
petitioner failed to establish that this alleged underrepresentation was
due to systemic exclusion of these groups in the jury selection process.
Concepcion also failed to establish that the purported
underrepresentation of Hispanic and Asian persons on his jury panel was
not merely a regular random selection without racial implications of any
kind. Nor has he alleged any impropriety in any part of the jury
selection process, from the original computerized drawing of the jurors'
names, to the telephone call-in procedure, the assembly of the entire
panel and the particular selection of his jury.
The petitioner's position in this racial composition claim is based on
conclusory assertions and sheer speculation. See United States v.
Aiello, 814 F.2d 109, 113 (2d Cir. 1987) ("Any generalities, conclusory
assertions and hearsay statements will not suffice because none of these
would be admissible at a hearing"). This deficiency is particularly true
when, as here the federal habeas petition is presented to the trial
judge. As stated in United States v. McGill, 11 F.3d 223 (1st Cir.
Accordingly, for the reasons stated above, in addition to the Court's
knowledge of the proceeding, Concepcion's claim of ineffective assistance
of trial or appellate counsel based on the composition of the jury
panel, is without merit.
H. Alleged Ineffective Assistance of Trial Counsel in Defending Against
the Gines Murder Charge
Concepcion again raises the issue of the failure of the Government to
connect the Gines murder with a federal crime under Section 1959(a)(1).
In this regard he contends that his trial counsel could have called
witnesses who would have established lack of federal jurisdiction. These
witnesses were Babon, Kenneth Colon and Oscar Oyole. Concepcion claims
that these three witnesses were available and "would have contradicted
the Government's theory of the Gines killing, eliminated federal
jurisdiction . . . and caused the jury to acquit Concepcion". Yet, he
complains, his counsel rested his case without presenting any witnesses
and the Government's theory was uncontradicted.
As the Government aptly points out, both Oyole and Colon pleaded guilty
to the very same charge at issue here. In fact, Oyole's plea allocution
specifically describes the shootout that let to Gines death as related to
the narcotics trafficking activities of the Unknown Organization. It
defies imagination to believe that either of them would testify favorably
to Concepcion on this issue. Any reasonably competent defense lawyer
would realize that their testimony would be seriously impeached by their
plea allocutions. Also, there is no viable evidence that Babon would have
testified any differently than Pomales, Rivera or Oyole, even if he was
available to testify, which is somewhat doubtful.
Contrary to Concepcion's assertions, his trial counsel properly and
vigorously represented him during the trial and in arguing the
Rule 29 motion. In fact, his counsel initially raised and pursued the defense,
now relied upon by Concepcion, that the Gines murder was not related to
the activities of the unknown organization or done to enhance his
position in it.
Thus, Concepcion's claim of ineffective assistance of counsel as to the
Gines murder is also without merit.
I. Alleged Ineffective Assistance of
Counsel in Failing to Request a Special Verdict
Concepcion contends that his trial counsel was ineffective because he
failed to request a special verdict regarding (1) which object of the
dual-objective conspiracy was Concepcion's guilt based on and (2) the
quantity of drugs chargeable to Concepcion. In his first argument,
Concepcion claims that when an indictment charges a dual-objective
conspiracy, the trial court should utilize a special verdict form for the
jury to determine which drug, heroin or cocaine, if any, it intended to
find guilt established beyond a reasonable doubt.
In United States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir. 1984)
the indictment charged the defendant with a conspiracy punishable under
both Section 841(b)(1)(A) and Section 841(b)(1)(B). The former section,
which involves cocaine, authorizes a sentence of up to fifteen years; the
latter section which involves marijuana, allows a sentence of up to five
years. The defendant's sentence of eight years was higher than the
penalty authorized by Section 841(b)(1)(B). The Court held that in the
absence of a special verdict, there was no way for the trial judge to
know whether the jury intended to convict the defendant for a
cocaine-related conspiracy, for a marijuana-related conspiracy, or for a
conspiracy involving both drugs. The Court stated that a special verdict
should be used where a dual objective conspiracy involves crimes subject
to different statutory maximums.
However, that is not the situation in this case. Here, the defendant
was charged with a dual object conspiracy involving heroin and cocaine.
Both the heroin and cocaine trafficking carry the same mandatory minimum
terms of ten years and the same maximum terms of life imprisonment. See
21 U.S.C. § 841 (b)(1)(A) ("such person shall be sentenced to a term
of imprisonment which may not be less than 10 years or more than life").
As stated in United States v. Hazut, 140 F.3d 187, 190 (2d Cir. 1998),
"The quantity of drugs attributable to a defendant at the time of
sentencing is a question of fact for the district court, subject to a
clearly erroneous standard of review." The government must prove the
amount of narcotics involved by a preponderance of the evidence. See
United States v. Desimone, 119 F.3d 217, 228 (2d Cir. 1997), cert.
denied, 525 U.S. 874, 119 S.Ct. 174, 142 L.Ed.2d 142 (1998). See also
United States v. Moreno, 181 F.3d 206, 213 (2d Cir. 1999).
Therefore, under these circumstances, the failure to request a special
verdict for the jury to determine whether the Government proved a heroin
or cocaine distribution conspiracy, could not have prejudiced the
petitioner. Moreover, as previously stated, there was overwhelming
evidence of the petitioner's guilt of conspiracy to traffic in both
heroin and cocaine in massive amounts resulting in the collection of huge
amounts of money. The Court recalls that, at the time of the arrest of
one of the co-conspirators, the law enforcement officers at first thought
the apartment floor was covered with a green carpet. In fact, the floor
was entirely covered with piles of cash amounting to more than one
million dollars, all from the sale of heroin and cocaine. In addition,
the Unknown Organization kept meticulous records that were introduced in
evidence and showed sales of large amounts of heroin and cocaine, in
itemized detail, including names of participants, drug locations and the
amounts of sales and expenses.
Concepcion's other contention in this regard, that his counsel was
ineffective in not requesting a special verdict enabling the jury to
determine the quantity of drugs chargeable to him, is also without
merit. In a conspiracy case, the specific quantity of narcotics
chargeable to a convicted defendant is not an issue for the jury, when
the sentence does not exceed the maximum statutory sentence. At
sentencing the Government must prove the amount of drugs chargeable to
the defendant by a preponderance of the evidence, based upon the factors
set-forth in the Federal Sentencing Guidelines. See United States v.
Stephenson, 183 F.3d 110, 119 (2d Cir. 1999) ("In the instant case, by
contrast the statutory maximum tern is lifetime imprisonment regardless
of whether McCurvin had been found guilty of a cocaine conspiracy or a
crack conspiracy. The nature of the offense of conviction thus has no
impact on the maximum term of imprisonment permitted by statute.") Thus,
Concepcion's trial counsel's performance was not deficient, and, in any
event, there was no prejudice to the petitioner's defense as a result of
his attorney's performance in this regard.
Accordingly, Concepcion's ineffective assistance of counsel contention
in regard to the "special verdict" claim is denied.
J. Alleged Ineffective Assistance of Counsel With Regard to the
By separate letter, Concepcion raises the ill-fated Singleton
argument. See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998)
in which the Tenth Circuit panel determined that the Government's
cooperation agreements with a testifying
witness violated the provisions of 18 U.S.C. § 201 (c)(2), the
anti-gratuity statute. That decision was quickly reversed by an en banc
decision of that circuit. See United States v. Singleton, 165 F.3d 1297
(10th Cir. 1999). Calling the original Singleton decision "patently
absurd, the majority concluded that application of the statute to the
United States conflicts with longstanding practice and an entire
statutory scheme namely, the Federal Sentencing Guidelines."
Accordingly, Concepcion's claim based upon the application of the
anti-gratuity statute is without merit.
In sum, the petitioner failed to prove that his counsel's performance
fell "outside the wide range of professionally competent assistance" in
any manner. To the contrary, and in the personal observance of this
Court, his trial counsel was extremely diligent, hardworking, efficient
and vigorously defended his client in a very difficult and complex case.
Further, the petitioner failed to prove that there was "a reasonable
probability" that, even if all the petitioner's complaints had been
satisfied, "the result of the proceeding would have been different". In
view of the overwhelming evidence against Concepcion as to all convicted
counts, he suffered no "prejudice" by any of his counsel's actions or
failure to act.
K. Petitioner's Other Contentions
Concepcion raises two additional contentions in his memorandum of law,
which were not contained in his petition. These claims were apparently
not referred to in the Government's memorandum in opposition. The Court
will briefly address these claims. (See petitioner's memorandum pp.
43-45) First, Concepcion argues that the Gines killing "must be
reclassified as a manslaughter" rather than a First Degree Homicide
requiring a finding of malice. He states that "[i]f Concepcion fired the
fatal shots (a contention with which he takes issue), those shots were
fired in the heat of passion."
This argument is without merit. The jury was properly charged with
regard to intent as to this homicide, and the jury decided that the
Government proved the petitioner's guilt beyond a reasonable doubt. The
portion of the charge was as follows:
I instruct on the New York State crime of murder in
the second degree based on intentional murder.
The crime of murder in the second degree is defined
in Section 125.25 of the Penal Law and the language of
that statute, applicable to the Gines, Rivera and
Aponte deaths, reads as follows:
A person is guilty of murder in the second degree
when, with intent to cause the death of another
person, he causes the death of such person.
You will see from this statutory definition that
this type of murder in the second degree is the
intentional killing of another person. The principal
distinguishing element in this type of murder in the
second degree is an intent to kill the other person.
The law provides that a person acts with an intent to
kill when his conscious objective is to kill the other
Now, applying this law to the crimes charged in
count seventeen and the thirteenth act of
racketeering, before you can find that the defendant
named committed the crime of murder in the second
degree, the Government must have established from all
the evidence in the case, beyond a reasonable doubt,
as to the thirteenth racketeering act and count
seventeen, three necessary or material factual
elements, to wit:
1. That on or about May 12, 1988, in the County of
Kings, the defendant
Manuel Concepcion shot James Gines
with a gun.
2. That when the defendant Manuel Concepcion shot
James Gines, he intended to cause his death, that
is, that his conscious objective was to kill him.
3. That such shooting caused the death of James
All three elements must be proven, each beyond a
reasonable doubt, before you can find that the
defendant Manuel Concepcion committed the crime of
murder in the second degree of James Gines. If the
Government has failed to prove any of these three
elements to your satisfaction beyond a reasonable
doubt, you cannot find that the Government has proven
the thirteenth racketeering act.
Similarly, the contention by Concepcion that the failure to charge
"malice aforethought" in the indictment, precludes a finding of first
degree murder and mandates resentencing, is also without merit. First
degree murder under Guideline Section 2A1.1 involves "premeditated
killing" and causing death "intentionally or knowingly." See Application
Note 1. Moreover, the maximum term for both first degree murder (Section
2A1.1) and second degree murder (Section 2A1.2) is life imprisonment.
I. Additional Issues Raised in the Petitioner's Four "Reply Briefs';
Including the Petitioner's Supplemental Brief Filed in this Court
on July 10, 2001
On October 26, 2001, the Court directed that a letter be sent to the
Assistant United States Attorney in charge of this petition with copies
to the pro se Petitioner and attorney Ruth M. Liebesman, addressing the
issues raised in the four "Reply Briefs". The letter stated the following
The petitioner then replied with four "Reply Briefs,"
(1) Petitioner's Preliminary Reply Brief, (2)
Petitioner's Reply Brief Part II, (3) Petitioner's
Reply Brief Part III, and (4) Petitioner's
Supplemental Brief. This latter reply brief was filed
in the Court on July 10, 2001.
A review of these four reply briefs reveals that new
grounds have been raised for the first time.
To the extent that the petitioner's reply memoranda
present new allegations and an Apprendi argument, the
petitioner is generally required to offer these
allegations in the form of a second or successive
motion, which would require certification by the
United States Court of Appeals for the Second
Circuit. See 28 U.S.C. § 2255. Further, it is well
settled in the Second Circuit that a party may not
raise an argument for the first time in a reply
brief. See Frank v. United States, 78 F.3d 815, 833
(2d Cir. 1996); United States v. Gigante, 39 F.3d 42,
50 n. 2 (2d Cir. 1994) ("Arguments may not be made for
the first time in a reply brief.") (citations
omitted); State Trading Corp. of India, Ltd. v.
Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.
1990) ("`A busy district court need not allow itself
to be imposed upon by the presentation of theories
seriatim.'") (citations omitted). U.S. ex rel. Morgan
v. McElroy, 981 F. Supp. 873 (S.D.N.Y. 1997).
For these two reasons, the Court is not required to
reach the merits of the arguments raised by the
petitioner in his various reply briefs. However, given
the serious crimes of which the petitioner was
convicted and the length of the sentence he is
serving, the Court will address his claims on the
However, in doing so, the Court will afford due
process rights to the Government with regard to these
issues. Accordingly, the Government is given until
November 30, 2001 to respond to these issues. The
response should be in a letter form in as brief and
concise manner as possible. (Emphasis supplied).
The newly-raised issues by the petitioner in the four reply briefs
are, apparently, the following:
I. Petitioner's Reply Brief Part II
(1) As to the Gines murder — Colon and Oyola
did not plead guilty to § 1959(a)(1) but pled to
(2) As to the Gines murder — the Government
did not indict the petitioner for committing the Gines
murder "because he (Concepcion) knew it was expected
of him by reason of his membership in the enterprise.
This attempt to introduce an alternate theory of
§ 1959(a)(4) violates Concepcion's due process
(3) The Government knowingly presented a false
scenario to obtain § 1959(a)(1) jurisdiction for
the Gines homicide;
(4) Prejudice spillover from the Gines homicide
polluted the entire trial;
(5) The public was excluded from portions of the
trial in violation of Concepcion's right to a public
trial. Defense counsel was ineffective in failing to
object to the public exclusion;
(6) The prosecutor used a peremptory challenge for
the sole purpose of excusing the only potential
Hispanic from the petit jury in violation of Batson.
II. Petitioner's Reply Brief Part III
(7) An evidentiary hearing should be held to
determine the prejudicial effect of the "retroactive
misjoinder" of the Gines murder, and the Lea Lopez
attempted murder and assault charges (Counts 17, 18
and 19); the prejudicial effect of the prosecutor's
misconduct; and "the prejudicial effect of counsel's
III. Petitioner's Supplemental Brief
(8) The Apprendi argument;
(9) The indictment was defective because it omitted
an essential element of the crimes charged in Counts
1, 2, 17, 19, 21, 28 and 30;
(10) At sentencing, the trial court imposed a
sentence using § 1962(c) when the statute relied
on should have been § 1963. Further, the
petitioner was never charged with violating §
As stated above, please make your response to these
newly-raised issues on or before November 30, 2001.
Judge Spatt has directed me to advise you that there
will be no extension of this deadline.
In response to the Court's October 26, 2001 letter, the Court received
two letters from the Government dated November 30, 2001 and December 5,
2001. The Court also received a letter from the petitioner dated November
Taking these communications in chronological order, in his November 5,
2001 letter the petitioner states that (1) the first three reply briefs
were timely filed and do raise new issues that the Government should have
the opportunity to respond; (2) the petitioner "should be able to respond
to the Government's response"; (3) the fourth alleged reply brief "is not
a reply brief, but a Rule 15 motion to amend the original
28 U.S.C. § 2255 due to the decision handed down by the Supreme Court
in Apprendi v. New Jersey, 530 U.S. 466, 120 5 Ct. 2348, 147 L.Ed 2d 435
(2000)"; (4) "the Government should not be afforded the opportunity to
reply ANEW to issues it has already litigated".
In its November 30, 2001 response letters the Government states that:
Some of these recently raised claims seem to be
reformulations of arguments
raised earlier by Concepcion but many
raise completely new arguments. As the Court's letter
indicated, all of the newly raised arguments are
clearly time-barred under the Anti-terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). Thus,
while we respond to these issues pursuant to the
Court's directive, our response is not intended to
waive any objections that the government might have on
procedural grounds based either upon untimeliness or
Concepcion's failure to raise any of these issues on
appeal. (Emphasis supplied).
The Government then proceeded to respond to the "completely new
arguments" raised by the petitioner in its reply briefs, as to the
following issues: (1) the court closure issue; (2) the Batson challenge;
(3) the Apprendi claim; (4) alleged defects in the indictment; (5) the
Gines murder and (6) the Section 1959 conviction.
1. The Closure Issue
Concepcion contends that it was reversible error for
the Court to have closed the courtroom to spectators
when "several of the cooperating defendant/witnesses
were paraded into the Courtroom under the escort of the
United States Marshals, at the prosecutor's request."
Significantly, the petitioner cannot reveal when these
"closures" allegedly occurred.
When a party seeks only partial closure, the strict
rules set forth in Waller v. Georgia, 467 U.S. 39, 104
S.Ct. 2210, 81 L.Ed.2d 31 (1984) are not applicable. The
moving party need only show "persuasive evidence of
serious risk to an important interest" in ordering
partial closure. Ayala v. Speckard, 131 F.3d 62, 71 (2d
Cir. 1997). In addition, where only a partial closure is
involved, the trial court need not consider other
alternatives. Id. at 71.
In this case, the petitioner's "closure" contention
has a more significant obstacle. The petitioner has not
set forth when this alleged partial closure occurred, or
the extent of the closure other than to suggest that it
may have occurred while the Marshals were escorting
cooperating witnesses to the stand. In addition, the
petitioner states, without references to the record that
"the Government is well aware of the dates and time of
closure." Under these circumstances, the petitioner has
not even raised the possibility that his right to a
public trial was violated. Thus there could be no
ineffective assistance of counsel in failing to object
to the alleged exclusion of the public.
2. The Batson Challenge
In addition to his initial challenge to the
composition of the petit jury pool, in a reply brief,
the petitioner contends that the Government used a
peremptory challenge to exclude the sole potential
Hispanic juror. Even assuming that a prima facie case of
national origin discrimination has been established
there is no clear evidence to substantiate the factual
portion of this claim — namely that there was an
intentional discriminatory peremptory challenge of the
sole potential Hispanic juror. Therefore, the Court
cannot determine whether there could be a claim of
ineffective assistance of counsel in this regard. In
sum, the record fails to establish the factual basis for
the contention, and it is rejected.
3. The Apprendi Issue
The petitioner also requests resentencing under the
major sentencing ruling of the Supreme Court in Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). In Apprendi the Court held that
"[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at
2362-63. The petitioner contends that "the maximum
penalty for a conspiracy to distribute cocaine when no
specific amount is proved to a jury beyond a reasonable
doubt is twenty (20) years. See 21 U.S.C. § 841
(a)(3), (b)(1)(c): See also 21 U.S.C. § 846 (penalty
for drug conspiracy same as penalty for substantive
offense)." Accordingly, Concepcion contends that he must
be resentenced to a term of not more than twenty years
on Counts 2 and 30.
Although there are conflicting decisions on whether
Apprendi should be applied retroactively, the Court is
impressed with the decision of Judge Ward in Rosario v.
United States, 00 CV 9695, 2001 WL 1006641 (S.D.N.Y.
Sept. 27, 2001), in which he stated:
Teague analysis does not apply, however, to
substantive rules, such as those construing the
meaning of federal criminal statutes. Bousley, 523
U.S. at 620, 118 S.Ct. 1604 ("[B]ecause Teague by its
terms applies only to procedural rules, we think it is
inapplicable to the situation in which this Court
decides the meaning of a criminal statute enacted by
Congress.") Accord Ianniello v. United States, 10 F.3d 59,
63 (2d Cir. 1993) ("the Teague line of cases does not
purport to affect the holding [in Davis v. United
States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109
(1974), that a § 2255 petitioner is entitled to
attack his conviction based on an intervening change
in substantive law]"). This Court, while recognizing
that the Apprendi rule contains procedural elements,
concludes that the primary feature of the new rule is
its substantive construction of federal criminal
statutes and that the rule is therefore retroactive.
As in Rosario, this Court is persuaded that Apprendi is a substantive
rule of law and therefore is retroactive.
b) The Apprendi Merits
The Apprendi issue was crystalized in this circuit by the recent case
of United States v. Thomas, 274 F.3d 655 (2d Cir. 2001). In Thomas, the
defendants were convicted in January 1998, prior to the ruling in
Apprendi. On January 15, 1998, Thomas was sentenced to 292 months. In
Thomas the Second Circuit held:
We conclude, following Apprendi's teachings, that if
the type and quantity of drugs involved in a charged
crime may be used to impose a sentence above the
statutory maximum for an indeterminate quantity of
drugs,*fn2 then the type and quantity of drugs is an
element of the offense that must be charged in the
indictment and submitted to the jury.*fn3 We further
conclude, overruling United States v. Tran, 234 F.3d 798,
806 (2d Cir. 2000), that the failure either to charge
drug type and quantity in the indictment or to submit
the question of drug type and quantity to the jury is
subject to plain error review pursuant to
Fed.R.Crim.P. 52(b) when the defendant raised no
objection before the District Court. Applying plain
error review to the particular facts of this case, we
conclude that the District Court erred, that the error
was plain, that the error affected the defendant's
substantial rights, and that the error seriously
affected the fairness and the public reputation of
judicial proceedings. We therefore vacate Thomas's
sentence and remand for further
proceedings consistent with this
opinion. Id. at 660.
Thus, under the rule enunciated in Thomas, "where drug type and
quantity are used to authorize a sentence above the otherwise applicable
statutory maximum, the failure either to charge drug type and quantity in
the indictment or to submit the question of drug type and quantity to the
jury is subject to plain error review pursuant to Fed.R.Crim.P. 52(b)
when the defendant raised no objection before the District Court". In
this case, the imposition of a life sentence pursuant to
21 U.S.C. § 841 (b)(1)(A), is beyond the statutory maximum penalty
for the offenses charged, 21 U.S.C. § 841 (b)(1)(C), and the failure
to submit the question of the drug quantity constituted plain error and
affected the defendant's substantial rights. See Thomas, supra.
c) Harmless Error
Notwithstanding the above analysis applying Apprendi to the drug
convictions, the Court finds that the error was harmless and does not
compel the collateral relief sought in this petition. First, in Count 28
Concepcion was convicted of the murder of Robert Aponte, which, by
itself, mandated a life sentence. Second and equally compelling, there
was overwhelming proof at the trial that the petitioner's drug offenses
involved in excess of one kilogram of heroin — the amount necessary
to permit sentencing to life imprisonment. In addition, all of the
Circuits, including the Second. have held that sentencing within the
guidelines does not trigger Apprendi considerations. Santana-Madera v.
United States, 260 F.3d 133, 141 (2d Cir. 2001); United States v. Breen,
243 F.3d 591, 599 (2d Cir. 2001); United States v. Garcia, 240 F.3d 180,
182-83 (2d Cir. 2001); United States v. White, 240 F.3d 127, 135 (2d
In this case, a reasonable jury had to find that the Government proved
that more than one kilogram of heroin was involved. As stated in United
States v. Terry, 240 F.3d 65, 75 (1st Cir.), cert. denied 532 U.S. 1023,
121 S.Ct. 1965, 149 L.Ed.2d 759 (2001) "there is no question that the
petit jury in this case would have found 50 or more grams of cocaine
base". In this case the proof was overwhelming that the petitioner
trafficked in more than 40 kilograms of heroin per week. Also in United
States v. Strickland, 245 F.3d 368, 382 (4th Cir. 2001) it was held:
In short, the evidence establishing the threshold
amounts of cocaine and crack cocaine for life
imprisonment sentences was not only overwhelming, but
also uncontested. We conclude, therefore, beyond a
reasonable doubt, that had the quantities been
submitted to the jury, the jury's verdict would have
been the same.
Moreover, there cannot be separate Apprendi analyses for each separate
possible maximum sentence. As a result of petitioner's conviction on the
Aponte murder charge with a maximum sentence of life, "there is no
Apprendi issue in this case as to whether the jury must determine whether
the trigger point in the drug quantity range had been met." United States
v. Terry, 240 F.3d 65, 75 (1st Cir. 2001).
Finally, on this subject, USSG § 561.2, provides that:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more
of the other counts shall run consecutively, but only
to the extent necessary to produce a combined sentence
equal to the total punishment. In all other respects,
sentences on all counts shall run
concurrently, except to the extend otherwise required
In the Court's view, in this case, the twenty year maximum on the drug
count, is "less than the total punishment" and, if the Court was
curtailed by that statutory maximum, it could have imposed consecutive
sentences. See United States v. Moreno, 2000 WL 1843232 (S.D.N.Y.
Dec.14, 2000) (Apprendi does not preclude the court from ordering
defendants' sentences on each count of conviction to run consecutively
under U.S.S.C. § SG1.2(d)).
Based on the reasons set forth above, the petitioner's application for
re-sentence and/or of a jury determination on the amount of drugs, based
on Apprendi, is denied.
4) Alleged Defects in the Indictment
The petitioner contends that the superseding indictment was defective
in that it failed to include the element of an "unlawful act". In this
regard, the petitioner also asserts that the Government failed to set
forth the relevant penalty statute relating to the racketeering crime of
which he was convicted, in that reference to 18 U.S.C. § 1963, the
criminal penalty statute of RICO was completely omitted from the
Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that
an "indictment . . . shall be a plain, concise and definite written
statement of the essential facts constituting the offense charged."
Fed.R.Crim.P. 7(c)(1). The Second Circuit has also explained that an
"indictment must sufficiently inform the defendant of the charges he must
meet and must provide enough detail so that the defendant may plead
double jeopardy in a future prosecution based on the same set of events"
United States v. Goodwin, 141 F.3d 394, 401 (2d Cir. 1997). However, in
United States v. Sabbeth, 262 F.3d 207, 217, 218 (2d Cir. 2001), it was
stated that "an indictment need not be perfect, and common sense and
reason prevail over technicalities." See also Smith v. United States,
360 U.S. 1, 9, 79 S.Ct. 991, 996-97, 3 L.Ed.2d 1041 (1959) ("Convictions
are no longer reversed because of minor and technical deficiencies which
did not prejudice the accused.").
Also, as explained in Sabbeth, "the scrutiny given to an indictment
depends, in part, on the timing of a defendant's objection to that
indictment." See Goodwin, 141 F.3d at 401; United States v. Wydermyer,
51 F.3d 319, 324 (2d Cir. 1995). Where a defendant raises an objection
after a verdict has been rendered, an indictment should be interpreted
liberally, in favor of sufficiency. See Wydermeyer, 51 F.3d at 324-25.
Therefore, without a timely objection — and none was made in this
case — if a defendant suffers no prejudice from an omission in the
indictment, reversal on this basis is not warranted.
Reviewing the superseding indictment in this case, count one clearly
charged the petitioner with being a member of an enterprise that engaged
in a pattern of racketeering activities. Also, the other counts raised by
Concepcion recite the language of relevant statutes. Reviewing the
superseding indictment as a whole, the Court finds that while it may have
been advisable to include a reference to the racketeering penalty
statute, 18 U.S.C. § 1963, that omission did not involve an essential
element of the crime. Finally, this so-called "defect" was waived by the
defendant's failure to object or even raise the issue until the service
of his supplemental brief on July 10, 2001. Moreover, and most
importantly, this alleged pleading defect has not affected petitioner's
substantial rights, nor has it
resulted in prejudice to the petitioner in any manner.
5) Revisiting the Gines Murder Issue
In this Court's October 26, 2001 letter reviewing the "new" issues
raised in the petitioner's four reply briefs, five of the ten issues
concerned the Gines murder. The Court again emphasizes that in the direct
appeal, the Second Circuit expressly dealt with the sufficiency of the
petitioner's conviction of this murder.
In addition to the incidental-victim argument rejected
above, Concepcion argues that there was no evidence
that the "problem" he went to Metropolitan Avenue to
solve was drug related and hence no evidence that its
resolution could have affected his position in the
Organization. This argument has no merit. Taken in the
light most favorable to the government, the evidence
showed that the Metropolitan Avenue gunfight was a
matter of Organization business. Pomales testified
that on a may 1988 day that he recalled with clarity
because he had just been released from the hospital,
he went to Concepcion's garage and found there
Concepcion and coconspirator Kenny Colon. Pomales
testified that Colon, whose job was to bring in the
proceeds of narcotics sales, said he was there because
one of their sellers "had a problem with somebody and
didn't want him in the certain spot." Thought Pomales
testified that he did not know what was meant by
"spot," other coconspirator witnesses consistently
referred to their "spot[s]" as the locations at which
they would sell the Organization's narcotics. Pomales
testified that Concepcion's response to Colon's report
of a challenge for control of the "spot" was "[S]o
let's go and take care of it." Concepcion and several
of his men promptly went to Metropolitan Avenue, where
Concepcion initiated the shootout. Another witness
testified that one of Concepcion's targets in the
shootout was a person she had previously seen selling
narcotics at or near that location. When Melendez
later told Concepcion "he was stupid because the money
he was making, he could pay somebody to take care of
his business, not do it himself," Concepcion, who was
then still a lieutenant in the Organization,
responded, "I'm that type of guy, I like to take care
of my own actions." This was ample evidence from which
a rational juror could infer beyond a reasonable doubt
that Concepcion initiated the violence at Metropolitan
Avenue in connection with the Organization's narcotics
business, and that he did so in order to maintain and
improve his leadership position within the
Organization. Concepcion, 983 F.2d at 382-83.
The petitioner complains that Kenneth Colon and Felix Oyola did not
plead guilty to § 1959(a)(1) but pled to § 1959(a)(4). The Court
agrees with the Government's position that "it is clear that both pled
guilty to the `same' Section 1959 charge", namely "to charges arising out
of the same set of events" with a nexus to the same racketeering
enterprise. At the plea allocutions, this Court made a finding that all
the elements of the crime had been met, including the relationship of the
crime to the enterprise. Whether the pleas were to 18 U.S.C. § 1959
(4) or § 1959(1), the two co-conspirators pled guilty to the same
crime of which the petitioner was convicted.
In the case of Oyola, he pled guilty to racketeering
(18 U.S.C. § 1962), but in a specific reference to the Gines murder as
a predicate act. That conviction also required the showing of some nexus
between the predicate act and the enterprise. "Indeed, when specifically
asked by this Court
whether `something happen[ed] to help the group or the enterprise in it's
[sic] activities in narcotics to deal in narcotics' Oyola responded
`There was a shootout.'" (Government letter of November 30, 2001 quoting
Oyola Plea at 21).
6) As to Prejudicial Spillover
The petitioner contends that "the prejudice spilling-over from the
evidence of the Gines homicide polluted the earlier trial, mandating a
new trial on the remaining counts." This Court has already determined
that the Gines murder count should not be vacated. However, even assuming
that there was error leading to the vacating of the Gines murder count,
there was no unfair pollution of the trial.
The rule as to "spillover prejudice" was set forth in United States v.
Gore, 154 F.3d 34, 48-49 (2d Cir. 1998). In evaluating a claim of
prejudicial spillover of evidence from an invalidated count, the Second
Circuit looks to four factors: (1) whether the evidence from the
invalidated count would have incited or aroused the jury to convict the
defendant on the remaining counts; (2) whether the reversed and remaining
counts arose out of similar facts, the evidence of which would have been
admissible as to both; (3) whether the evidence on the reversed and on
the remaining counts was completely dissimilar, permitting the inference
that the jurors were able to keep the evidence separate; and (4) whether
the strength of the government's case on remaining counts could withstand
the potential spillover prejudice. See also, United States v. Rooney,
37 F.3d 847, 855-57 (2d Cir. 1994).
In this case, the Gines and the other counts did not arise out of
similar facts, and the strength of the Government's case on the remaining
counts would absolutely withstand the potential spillover prejudice. This
jury heard seventeen weeks of the operation of one of the most massive
narcotic distribution organizations in the history of the City of New
York, or elsewhere. This jury heard of the vertical composition of this
organization, including the processing, cutting, packaging, selling in 13
spots involving more than 100 memhers. This jury heard numerous witnesses
giving direct, firsthand testimony of Concepcion's role as a first
lieutenant and later as the commander of this huge and farflung drug
organization. This jury heard eyewitness testimony of Concepcion's
involvement in many acts of violence in support of this drug distribution
conspiracy, including the murder of Robert Aponte and the kidnaping and
brutal beating of George Espada.
Representing the five county Eastern District jury pool, this jury
heard overwhelming evidence of Concepcion's guilt and even acquitted him
of two counts, the attempted murder of Lopez and money laundering. In
this Court's view, the Gines incident could not have so prejudiced the
case, as to have affected the verdict on the other counts. With this
clear picture before the trial judge there need be no evidentiary hearing
on this subject. There could have been no legally sufficient "spillover
prejudice" from the evidence in the Gines incident.
For the foregoing reasons, the petition is denied in all respects.
Further, having considered the standards for a certificate of
appealability under Fed.R.App.Pro. 22(b) and 28 U.S.C. § 2253 (c)(2),
as set forth in Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct.
3383, 3394, 77 L.Ed.2d 1090 (1983) and Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 112 (2d Cir. 2000), the Court finds that the
petitioner fails to make a sufficient showing to entitle him to a
certificate of appealability.
Accordingly, the petition is dismissed and the Clerk of the Court is
directed to close this case.
Redacted Statement of Roberto Aponte
dated March 14, 1989
Last week I was contacted by a person who told me that he or she did
not have anything, meaning heroin, but next week he or she should have
something because he or she knew some new people for heroin. Someone
called me by telephone last Friday, March 10, 1989, and told me that he
or she would have some heroin coming in Monday to Wednesday or next
week. Someone again called me Monday night around 9:00 p.m. and told me
to meet him or her in the city early tomorrow morning as he or she has
what we need, meaning the heroin.
I then went to the city Tuesday morning. March 14 and went to a place
located in Brooklyn. While at the place, someone called and told someone
else to meet him or her at the Georgia diner in Queens. Someone asked me
to help him or her load some money into the van which belonged to him or
her. The money was in boxes. Someone told me there was about one million
dollars in the boxes and wanted my help. For my help he or she was going
to give me ten thousand dollars.
After we loaded the van, we all left the place. Someone left first in
his or her red and silver van, along with someone, when I arrived at the
place there was an `89 blue and white Cadillac. This Cadillac followed the
others out of the place. This Cadillac was operated by someone's brother
with his or her cousin as the passenger.
I then followed the van and the Cadillac in someone's silver Honda
which he or she drove. I was in the front seat. Someone was sitting in
the back seat.
We followed them to the Georgia diner in Queens. We arrived around
11:00 a.m. waited here until ten minutes to 1:00 p.m., someone received a
beeper call. After the call he or she told someone and his or her brother
to go to 94th Street and Astoria Boulevard in Queens.
Someone then told me to come with him or her in the van to help with
the boxes. We again left the diner to travel to 94th and Astoria followed
by the Cadillac and someone's Honda.
We arrived at the — at 94th and Astoria around one p.m. Someone
got out of the van and went inside the diner. We had pulled into the
parking lot of this diner, the van and the Cadillac.
Someone had broken down on the highway. That's why he or she was not at
this diner. Someone's brother beeped me and told me what happened. I then
spoke to someone and told him or her where I was at.
After several minutes of waiting in the parking lot, someone came out
from the diner and told someone to get the money and put it into the red
Monte Carlo. Someone then asked me to help him or her with the boxes of
Someone drove out of the parking lot and parked on Astoria Boulevard
behind the red Monte Carlo.
We then loaded the Monte Carlo with the boxes of money assisted by
I then waited for someone to arrive and stood by the phones. I watched
someone cross the street with this guy and they walked down Astoria.
After a few minutes, I saw someone carrying a bag walking towards the
Astoria. When he or she reached the van, we were all arrested.
During all conversations I had with someone, he or she told me that
this was his or her money. This is all that occurred on this day.