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
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.
The facts are construed in the light most favorable to the
Government. See United States v. Morales, 974 F. Supp. 315, 318
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
On May 26, 1998, the next day, the participants met at 230th
Street and Bailey Avenue once again. (Id. at 402). Marmolejas
drove the group to the same
location where they had waited the previous evening, and they
waited for Pena-Perez and Duran again, for six hours or more.
(Id. at 334, 404, 424, 428). Finally, Pena-Perez and Duran
exited the building, got inside a Toyota Camry, and drove away.
(Id. at 434, 435, 437). The men in the van followed, and when
the Camry stopped on Walton Avenue at a red light, Gomez got
out, carrying a machine gun. (Id. at 441-42). He fired 15 to
20 shots at the Camry. (Id. at 455). The Camry took off, the
van followed, and the Camry then crashed into another car.
(Id. at 456-57). Duran exited and ran. (Id. at 457-58).
Gomez had returned to the van, but when he saw Duran run from
the Camry, he took a pistol and ran after Duran. (Id. at 459).
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).
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
(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
(Gov.Mem. at 9) (emphasis added).
During the proffer session, with counsel present, Gomez
[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).
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.