The opinion of the court was delivered by: Denny Chin, United States District Judge.
In this unusual criminal case, defendant Raymond Valencia is charged in
a one-count indictment with conspiracy to distribute and possess with
intent to distribute cocaine. The indictment does not identify any
alleged co-conspirators and the only overt acts charged in the indictment
relate to Valencia's dealings with a confidential source who was acting
at the direction of law enforcement. Valencia pled guilty to the charge
in April 1999 and was sentenced to a term of imprisonment of 97 months.
Valencia appealed but the Second Circuit affirmed the conviction.
In July 2001, Valencia filed, pro se, a motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He
argued that his guilty plea allocution was insufficient because he had
admitted only that he had agreed with a confidential informant to engage
in a narcotics transaction. He did not admit that he had conspired with
anyone else. As discussed below, a defendant cannot be guilty of
conspiracy to illegally distribute narcotics unless he conspires with
someone other than a government agent or informant.
On December 13, 2001, without opposition from the Government, I granted
the motion and vacated the conviction. Valencia was permitted to withdraw
his guilty plea and the charge was reinstated. By then, Valencia had
served some 53 months of his 97-month prison sentence. I released him on
bail pending trial.
After pre-trial motions, Valencia waived his right to a jury. The case
was tried to the Court, without a jury, on September 23 and 24, 2002. The
issue whether Valencia conspired with anyone other than the confidential
source continued to be the principal question in dispute. Indeed, the
Government presented no evidence at trial as to the identity of any
alleged co-conspirators, and the record showed that despite several hours
of surveillance on each of two days, no law enforcement officer saw
Valencia interacting with any one other than the informant. Nonetheless,
for the reasons set forth below, I find that the Government has proven
beyond a reasonable doubt that Valencia conspired with others — his
suppliers — to distribute and possess with intent to distribute
cocaine. Accordingly, a judgment of conviction will be entered against
him finding him guilty on the sole count of the indictment.
Pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure, my
findings of fact and conclusions of law follow.
1. The Confidential Source
Some 40 minutes later, the CS received a return page, with the inputted
numbers: "23500-666." (Id. at 22). The code "666" identified Valencia as
the source of the page and "23500" referred to the price that Valencia
was going to charge for a kilo of cocaine — $23,500. (Id. at 59;
see also id. at 74)
2. The Telephone Conversations
On July 28, 1997, the agents met with the CS again, at approximately 1
p.m. at FBI offices in Manhattan. During the meeting, the CS received a
page with the numbers inputted "989-428-666." The agents recognized the
"989-428" to be Valencia's pager number, with one digit missing. (See GX
31 (stipulating that Valencia's pager number, in July 1997, was
917-989-4328)). The agents and the CS then left FBI offices and found a
public pay phone in the vicinity. The agents attached recording equipment
to the pay phone and paged Valencia, entering the pay phone number as a
call back number. Within a few minutes, the pay phone rang. It was
Valencia and he and the CS had a conversation, which was recorded. (Trial
Tr. at 22-26; GX 1T).*fn1 The following is an excerpt:
CS: Oh, What's up with the two?
RV [Raymond Valencia] : Whenever you're ready!
CS: But, you can't come to me?
RV: Cause I don't know. I can't. I don't travel. You
RV: Si tu eres medio "federico" [In case you're acting
like a Fed.]
CS: So, damn. Alright, so let me call this guy. Cause
I got to get the paper from this guy. But this guy is
gonna have to. most likely I'm gonna come with the
RV: No, but you come by yourself, bro. You know how we
do it, bro.
After the conversation, Dubbels, Demarest, and other agents went with
the CS to Queens. Approximately 3:12 p.m., the agents paged Valencia,
inputting the CS's cell phone number as a call back number and also
inputting "77-2000," to indicate that the CS was interested in purchasing
two kilograms of cocaine. Approximately two minutes later, the CS
received a telephone call on his cell phone from Valencia. The brief
conversation between Valencia and the CS was recorded. The CS told
Valencia that he was on 108th Street and Valencia expressed surprise that
the CS was in Queens already without having given him more notice.
Valencia told the CS:
"I'll meet you in front. I'm goin' right now. I'm
like ten minutes away." (Trial Tr. at 29-31; GX 2T).
A few minutes later, Valencia paged the CS with a call back number. At
3:32 p.m., the CS called the number and the agents recorded the
conversation between Valencia and the CS. The following is an excerpt:
RV: Alright, check this out. Uh, I didn't think you
were gonna come this early, so I'm not really ready
yet. I just beeped my man. He's coming to my house. As
soon as he gets here, I'm gonna page you. And it's
gonna be lower.
CS: Oh, what's the price on it . . . oh, so how much?
RV: So, let me, let me see how it is, you know I'm