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July 18, 2002


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


The evidence of guilt was overwhelming. Gomez was arrested on the scene, after police officers confronted him in the apartment building, saw him drop a weapon, and chased him up the stairs. One of the victims, who was lying wounded on a landing, pointed him out to the police. In a proffer session before trial, Gomez admitted his involvement. A cooperating witness, who was in the van and fled with Marmolejas, implicated both defendants. Marmolejas was arrested just a few days after the shooting — driving the same van used in the shooting, re-stocked with new weapons.

Both defendants challenge their convictions. Gomez moves for a new trial, asserting that his Sixth Amendment rights were violated because the Court ruled that his counsel could not make arguments contradicting his proffer statements without opening the door to the admission of the statements. Gomez and Marmolejas both move to set aside the jury's verdict on Counts Four and Five of the Indictment, narcotics conspiracy counts, on the grounds that they were not participants in the narcotics conspiracy but instead were hired solely for a discrete transaction — to deal with Pena-Perez and Duran. They also argue that the Court erred in refusing to give a "single transaction" charge. For the reasons set forth below, the motions are denied. On the Court's own motion, however, Count Five is dismissed as to Marmolejas because the jury's guilty verdict on Count Five is inconsistent with the jury's finding with respect to Count Four that the Government failed to prove that Marmolejas knew the conspiracy involved a kilogram or more of heroin.


A. The Facts

The facts are construed in the light most favorable to the Government. See United States v. Morales, 974 F. Supp. 315, 318 (S.D.N.Y. 1997).

The Reyes Heroin Organization was run by Juan Matos ("Junior") Reyes from Santo Domingo. (Tr. at 335, 375). In New York, the organization was run by Pena-Perez and an individual known as El Potro. (Id. at 375). The conspiracy involved the distribution of large amounts of heroin. (Id. at 375).

In May 1998, Andres Peralta, a member of the conspiracy, hired Gomez, Marmolejas, and Johnny Martinez to kill Pena-Perez and Duran. (Id. at 383-85). Junior wanted the two killed because they had allegedly turned against the organization by robbing one of its own apartments, taking one or two kilos of heroin, between $30,000 and $100,000, and a beeper that the organization's customers used to contact it. (Id. at 377, 380, 382-83). On May 25, 1998, Peralta met with Robinson Reyes, Gomez, Marmolejas, and Martinez at 230th Street and Bailey Avenue in the Bronx. (Id. at 385, 389). That same day Gomez, Marmolejas, Martinez and Reyes made their first attempt to locate Pena-Perez and Duran. (Id. at 389, 392). They drove to a location in the Bronx and waited four or five hours for Pena-Perez and Duran to emerge, but they did not. (Id. at 399-401).

Several plainclothes officers from the New York City Police Department were on patrol in the area, and they immediately went to Walton Avenue after hearing the gunshots. (Id. at 100-01). There, they saw Gomez run inside 1729 Walton Avenue carrying a gun and heard shots being fired inside the building. (Id. at 102, 155). The officers followed Gomez into the building. (Id. at 102). They momentarily retreated before re-entering the building, where they encountered Gomez coming down the stairs. (Id. at 102-03). When Gomez saw them, he dropped his weapon and fled up the stairs. (Id. at 103). The officers chased him. (Id. 104-05). While Gomez was running up the stairs, the officers found Duran bleeding on the third floor landing. (Id. at 105, 115). As the officers ran up the stairs, Duran yelled "that guy just shot me," and pointed up the stairs. (Id. at 158). The officers caught Gomez on the roof and arrested him. (Id. at 159). Pena-Perez was found dead in the car on Walton Avenue. (Id. at 108, 131, 160).

Marmolejas and Reyes drove off and discarded the weapons. (Id. at 693-94). Later that evening, Marmolejas collected $37,000 from members of the conspiracy for the killing of Pena-Perez. (Id. at 694-95). Marmolejas was arrested on June 4, 1998, inside the same van that he had driven to the murder scene. (Id. at 884, 909). The arresting officers found a secret compartment in the van containing a .38 caliber revolver, a 9-millimeter Smith & Wesson semi-automatic pistol, a .22 caliber semi-automatic pistol, a 9-millimeter semi-automatic pistol, numerous rounds of live ammunition, and a silencer. (Id. at 864-65, 871-73, 876).

B. Gomez's Proffer

After this case was filed, Gomez's counsel repeatedly requested a meeting with the Government to discuss Gomez's possible cooperation. The Government asserts — and Gomez does not refute — that:

During the pre-trial period of this case, counsel for Gomez besieged the Government with requests to arrange a meeting between Gomez and the Government with a view towards his entering into a cooperation agreement with the Government. On each occasion, the Government told Gomez's counsel that it was unlikely that Gomez would ever be signed up as a cooperating witness because of the horrific crimes he had committed. . . . However, when Gomez's counsel proffered to the Government that Gomez possessed valuable information about other unsolved crimes, the Government agreed to arrange a meeting.

(Gov.Mem. at 8-9). At the meeting, which took place on April 17, 2000, Gomez and his counsel executed the Government's standard written proffer agreement. The agreement provides, in pertinent part, that:

(3) Notwithstanding item (2) above . . . the Government may use statements made by Client at the meeting and all evidence obtained directly or indirectly therefrom for the purpose of cross-examination should Client testify, or to rebut any evidence or arguments offered by or on behalf of Client (including arguments made or issues raised sua sponte by the District Court) at any stage of the criminal prosecution (including bail, trial, and sentencing), should any prosecution of Client be undertaken.

(Gov.Mem. at 9) (emphasis added).

During the proffer session, with counsel present, Gomez admitted that:

[H]e and others, including Marmolej[a]s and Johnny Martinez, had been hired to murder Profesor and Barbita and that on the evening of May 26, 1998, acting with intent to kill, Gomez himself fired a 9-millimeter machine gun equipped with a silencer into the passenger side of the Toyota Camry in which Profesor and Barbita were seated.

(Gov't Letter dated Jan. 25, 2002 at 1-2).

C. Prior Proceedings

1. The Indictment

The Indictment in this case contained eight counts. Count One charged the defendants with conspiracy to commit robbery and extortion in violation of 18 U.S.C. § 1951. Count Two charged conspiracy to commit murder-for-hire and Count Three charged substantive murder-for-hire, both in violation of 18 U.S.C. § 1958. Count Four charged conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846. Count Five charged the defendants with murder while engaged in a major drug conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A). Count Six charged both defendants with using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 924(c). Count Seven charged murder in the course of a 924(c) violation, pursuant to 18 U.S.C. § 924(j), and Count Eight, filed against Marmolejas alone, charged possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).

2. The Proffer Statements

Before trial, the Government raised the issue of admitting both defendants' proffer statements if either defendant testified or argued in a manner inconsistent with those statements. (Gov't Letter dated Jan. 3, 2002 at 1). The Court observed initially that the statements would be "allowed in only if the defendants testify and the statements can be used as impeachment." (Tr. at 12).

After further discussion, the Court noted that if defense counsel "stand up and flatly say that the defendants did not have knowledge, that I would want to see a good-faith, factual basis for such a statement because I would be hard pressed to accept one in light of the admissions during the proffer statements. So that I think if that happens, I could reconsider. I ...

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