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United States District Court, S.D. New York

May 3, 2004.


The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge



An extended Fatico hearing was held in this case beginning on January 26, 2004. Later sessions were held on February 3, 2004, February 9, 2004 and March 8, 2004. The hearing concluded on March 17, 2004. The purpose of the hearing was to determine how much heroin is attributable to Mr. Hernandez in connection with his involvement in the conspiracy to which he pleaded guilty.


  The defendant was indicted on January 26, 1999. The investigation leading to the Indictment was run jointly by the Drug Enforcement Administration and the New York City Police Department. It uncovered the existence of a narcotics trafficking group ("the Group") that revolved around Eddy Sanchez, a/k/a "Chelo," a wholesale cocaine and heroin supplier. The Group operated primarily in the area of West Fordham Road, Bronx, New York. It also had customers in Rhode Island and other places.

  In 1999, fourteen members of the Group including Sanchez were arrested shortly after the original Indictment was filed. In June 1999, the present superseding Indictment S4 99 Cr. 73 (the "Indictment") was filed, charging fifteen defendants with conspiring to distribute narcotics; certain defendants were also charged with substantive narcotics distribution counts. Sylvio Hernandez, who was charged in Count One of the Indictment with conspiring to distribute narcotics, was a fugitive until January 2001.

  Twelve of the defendants charged in the Indictment eventually pled guilty, including Sanchez, who entered into a cooperation agreement with the Government. Two defendants were convicted after a jury trial, at which Sanchez testified. The other defendant, Christopher Vargas-Vasquez, died before the outstanding charges against him were resolved.

  Defendant's Guilty Plea

  On March 11, 2002, Mr. Hernandez pleaded guilty to Count One of this Indictment before the late Judge Allen G. Schwartz. At the outset of the plea proceeding, Hernandez was sworn and allocated through a Spanish-language interpreter. Hernandez acknowledged to Judge Schwartz that he understood that he had "sworn to tell the truth." (GX 5 p. 3).*fn1 Judge Schwartz told Hernandez that he was "required to respond truthfully" to the Court's questions, and that a failure to do so could subject him to a perjury charge; Hernandez again stated that he understood his obligation to tell the truth. (GX 5 p. 3).

  The Court then conducted an inquiry of Hernandez to determine whether he was competent to plead guilty, reviewed the rights he would be giving up by pleading guilty, and advised Hernandez of the statutory penalties (including the ten-year mandatory minimum term of imprisonment) and possible sentencing range under the United States Sentencing Guidelines. Hernandez indicated that he understood his rights and the potential penalties, but still wished to plead guilty. (GX 5 p. 4-15).

  Judge Schwartz then asked Hernandez to explain what he did that made him guilty of the offense charged in the Indictment. Hernandez stated:

Between May of `98 and January of '99, I came to an agreement with Sandra [sic] Ospina*fn2 and others to distribute over a kilo of heroin but under three kilos. I knew that that was against the law. And that took place in the Bronx.
(GX 5 p. 17).

  Judge Schwartz accepted Hernandez' plea finding that he was "fully competent and capab[le] of entering an informed plea and that his plea [was] voluntary and knowing and [was] supported by an independent basis in fact containing each and every element of the offense charged in Count 1 of the indictment." Id.

  Hernandez later moved to withdraw his guilty plea and to attack the constitutionality of his earlier felony drug conviction on various grounds. He claimed that his attorneys had pressured and coerced him to plead guilty by informing him that if he proceeded to trial and was convicted, he potentially faced a sentence after trial of twenty years' imprisonment because of the Government's intention to file a prior felony information. He also claimed that, despite his guilty plea to Count One of the Indictment, and his statement under oath during his plea allocution that he had conspired to distribute between one and three kilograms of heroin, he in fact was responsible for only 510 grams of heroin. Specifically, Hernandez admitted that he distributed 150 grams of heroin to two co-defendants named in the Indictment, Jose Diaz and Facundo Aquino-Delacruz. (GX 20 p. 2, ¶¶ 8).*fn3 Hernandez further admitted that he had obtained 350 grams of heroin from Ospina which he and Sanchez had distributed (along with another 10 grams of heroin that Sanchez had obtained from another source) to various individuals. (GX 20 p. 1-2, ¶¶ 1, 3, 6-7).

  By Opinion and Order on September 18, 2002, Judge Schwartz denied Hernandez' motions in full. He found that Hernandez had not been improperly coerced or pressured to plead guilty to Count I of the Indictment, and denied Hernandez' motion to withdraw the guilty plea. United States v. Hernandez, No. 99 Cr. 73 (AGS), 2002 WL 31098505 (S.D.N.Y. Sept. 18, 2002).

  Judge Schwartz rejected Hernandez' argument that he should only be held accountable for 510 grams of heroin, rather than the more-than-one kilogram to which he had pleaded guilty. Judge Schwartz pointed out that during his plea colloquy, Hernandez "specifically note [d] that the quantity of heroin was more than one kilogram," and that Hernandez' claim, made after his under-oath statement to the contrary, that he was only responsible for 510 kilograms of heroin was "unsupported by evidence." Id.. at *7.

  The Fatico. Hearing

  After Judge Schwartz' decision that the defendant would be held to his allocution under oath that he had conspired to distribute more than a kilogram of heroin, Hernandez sought a Fatico hearing to determine the amount of narcotics for which he could be held responsible. Judge Schwartz died and the matter was transferred to former Judge John S. Martin, who granted Hernandez' request. The case was reassigned to me because of Judge Schwartz' death and Judge Martin's resignation from the Bench. As noted, the Fatico hearing began on January 26, 2004.

  The witnesses at the hearing were Eddy Sanchez, a cooperating Government witness, and the defendant, Sylvio Hernandez. Sanchez testified about numerous drug transactions he conducted with Hernandez and told how they first met at Nuevo Restaurant, on Fordham Road in the Bronx, during the summer of 1998 (January 26, 2004, Tr. p. 13, 14; February 9, 2004, Tr. p. 17).*fn4 Sanchez testified to drug dealings with and by Hernandez amounting to at least 2200 grams of heroin which was increased, due to "cutting" the purity of the drug, by another 300 grams (January 26, 2004, Tr. p. 17, 19, 21-23, 26-27, 28-31; February 9, 2004, Tr. p. 22, 23, 24, 25, 32, 33, 35). Sanchez testified that he and Hernandez also distributed significant quantities of cocaine and crack cocaine. (January 26, 2004, Tr. p. 19-21). Although Sanchez is admittedly a drug dealer who suffers from all the negatives and all the baggage associated with that nefarious business and, although he is a cooperator with an obvious axe to grind because of his desire for 5K1.1 treatment under the Sentencing Guidelines, I find him to be a credible witness at the Fatico hearing.

  On the other hand the defendant, Sylvio Hernandez, was not believable. He testified on direct that when he told Judge Schwartz that he had conspired to distribute a kilogram, "I knew that I was under oath, but nobody told me . . . that I had to tell the truth." (February 9, 2004, Tr. p. 54). This is preposterous in view of the plea allocution and his testimony on cross examination. (Cf. p. 3 supra).

  On cross, Hernandez admitted that he was told at his plea that he was required to tell the truth, contradicting his earlier testimony that "nobody told [him] . . . that [he] had to tell the truth." (March 8, 2004, Tr. p. 38). Hernandez also contended that while he had not been truthful during his allocution when he stated that he had conspired to distribute more than one kilogram of heroin, this statement had not technically been a lie because he had only been reading a statement that someone else had written down for him to say. (March 8, 2004, Tr. p. 38-39, 40-41). Some philosophers might approve such parsing, but I do not. Hernandez did admit that he distributed drugs with co-defendants Diaz and Aquino-Delacruz, as well as with Sanchez. Specifically, Hernandez testified that in November 1998, he had obtained 150 grams of heroin from Sandro Ospina and gave it to Diaz and Aquino-Delacruz. (February 9, 2004, Tr. p. 59-63). Hernandez also testified that at some later point, he became acquainted with Sanchez at the Nuevo Restaurant; when Hernandez received another 350 grams of heroin from Ospina, he gave it to Sanchez. (March 8, 2004, Tr. p. 13-19). At the hearing, Hernandez denied ever participating in any other narcotics transactions with Sanchez. (March 8, 2004, Tr. p. 30-32). I reject that testimony in view of the plea allocution and the Sanchez testimony.

  Hernandez' general demeanor on the witness stand also undermined his credibility. In answering questions, on cross examination or in response to the Court's questions, he gave lengthy responses that had little to do with the question asked, or he often sought to evade the question.

  For example, when I asked Hernandez when he first recalled seeing Sanchez, the question was repeated three times before Hernandez finally answered. (February 9, 2004, Tr. p. 68-69). Similarly, when the Government asked Hernandez if Sanchez had testified truthfully when he said that Ospina called Sanchez repeatedly, looking for Hernandez, Hernandez went into an irresponsive speech about Sanchez' cellphone. (March 8, 2004, Tr. p. 46-47). I find his testimony as to the drug amount incredible.


  I find that the evidence is more than clear and convincing, indeed, overwhelming, that Hernandez agreed with others to distribute more than a kilogram of heroin, but under three kilograms.

  Sentence is set for May 25, 2004 at 9:45 A.M.


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