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United States v. Albino

January 9, 2006

THE UNITED STATES OF AMERICA
v.
FRED ALBINO, A/K/A "FREDDY", AND JOSE HERNANDEZ, A/K/A "POOCHIE" MANUEL HERNANDEZ, A/K/A "MANNY", DEFENDANTS.



The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.

MEMORANDUM and ORDER*fn1

Defendants Fred Albino ("Freddy"), Jose Hernandez ("Poochie") and Manuel Hernandez ("Manny") (collectively "Defendants") were convicted on October 18, 2005 of conspiring to possess with the intent to distribute and conspiring to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B)(ii)(II) and 846. These convictions carry with them a mandatory minimum prison sentence of five years. Manny was also convicted on October 18, 2005 of using a telephone to aid in such possession and in the distribution of cocaine in violation of 21 U.S.C. § 843(b) and 18 U.S.C. §2, neither of which provides for a mandatory minimum sentence. Defendants have yet to be sentenced, but are currently incarcerated pursuant to the October 18 guilty verdict. On November 18, 2005 Defendants submitted motions for judgments of acquittal or, in the alternative, for a new trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure ("FRCrP").*fn2 Defendants claim that (1) there was insufficient evidence to find Defendants guilty, (2) the verdict was inconsistent with the indictment and (3) the prosecution committed a Brady violation by allegedly not disclosing all materials pertaining to the mental health of Alvin Ozoria, a government witness. For the reasons set forth below, Defendants' motions will be denied.

This drug distribution and conspiracy prosecution was originally brought against sixteen co-conspirators - Defendants and Frank Alvarez, Ozoria, Edgar Rodriguez, Jimmy Rivera, Emilio Rodriguez, Anthony Berrios, Oscar Vargas, Joe Coffman, Reginald Marvin, Jim G. Rivera, Jr., Carlos Rodriguez, Martin Santiago and Pablo Vega. All but Freddy, Poochie and Manny have pled. The trial commenced on October 3, 2005 and, after deliberating for nearly three days, the jury issued its verdict on October 18, 2005.

The pending motions turn on whether there was sufficient evidence from which a jury could conclude that Defendants were members of a conspiracy to possess and distribute 500 grams or more of cocaine and on whether the verdict would have been different had there been a less confusing verdict sheet or had Defendants known of Ozoria's mental illnesses prior to trial. The Court will recite the facts, in the light most favorable to the government, as presented during trial.

From October 1999 to May 2001, the sixteen co-conspirators conspired to acquire cocaine from one another and then distribute it to one another and to others. In Spring 2001, the Federal Bureau of Investigation ("FBI") and other agencies conducted Title III electronic surveillance of two cellular telephones belonging to Edgar Rodriguez. The intercepted calls demonstrated that Ozoria and Alvarez were supplying cocaine, either directly or through an intermediary, to the co-conspirators, including Manny and Freddy. This is a dry conspiracy case where no cocaine was seized. The government built its case on thirty telephone conversations that were intercepted by the FBI, testimony of several of the co-conspirators - viz., Ozoria, Edgar Rodriguez, Jimmy Rivera and Emilio Rodriguez - and physical evidence of materials seized by FBI agents that, coupled with the testimonies of the co-conspirators, FBI agents and other witnesses - viz., Nelda Rodriguez and Rene Gil -, define and detail the activities of the conspiracy.

The conspiracy was originated by Ozoria and Alvarez, with Ozoria as the leader and Alvarez as the second-in-command. Ozoria admitted during his testimony that he was a known drug dealer and that he had been engaged in illicit activities for years. Together, Ozoria and Alvarez obtained cocaine from New York City and transported it in "trap" compartments of several automobiles driven by some of the co-conspirators - including Freddy - from New York City to Buffalo. There were several cars involved in transporting the cocaine and the money collected from selling the cocaine. Each car had a hidden compartment in which up to seven kilograms of cocaine could be transported without detection. Ozoria testified that, between 1999 and 2001, he sold approximately 15 kilograms of cocaine per month and physical evidence in the form of a drug ledger was presented that at least 11 kilograms of cocaine had been transported to and sold in Buffalo. In addition, the government presented physical evidence of organizers detailing the activities of the conspiracy that included Manny, Poochie and Freddy and witness testimony of meetings at which one or all of the Defendants were present and when cocaine transactions or the conspiracy were discussed. Finally, it was established at trial that one kilogram of pure cocaine would sell for $22,000 to $30,000 and one kilogram of cut cocaine would sell for $12,000 to $15,000.

Ozoria testified that Freddy became involved in the drug dealing business in 1999. Ozoria, Edgar Rodriguez, Emilio Rodriguez and Jimmy Rivera testified as to Freddy's involvement in the conspiracy and Gil testified that Freddy had sold him a total of almost 1.5 kilograms of cocaine as a result of several 8 and 15 ounce transactions. Freddy was responsible for the maintenance of the cars used in transporting the cocaine and money received for the cocaine and was a trusted courier for the conspiracy. On March 9, 2000 Freddy had been stopped in Horseheads, N.Y. for speeding. In his car, the police officer found $13,000 cash and Ozoria's and Alvarez's drug ledger that recorded the transactions of the conspiracy's customers, the amount of cocaine sold to each customer and the amount paid and owed by each customer. This ledger highlighted the scale of the conspiracy and that at least 11 kilograms of cocaine had been transported to and/or distributed in Buffalo. The other members of the conspiracy - including Manny - were aware of this ledger and that it had been taken by the police.

The government introduced four telephone conversations that involved Manny. The recordings combined with testimony indicate that the conversations were about cocaine and the conspiracy - to wit, the quality of the cocaine Manny bought from Ozoria, the cars used in the transportation of the cocaine and the equipment used in the "cutting" of the cocaine. Ozoria testified that he had sold cocaine to Manny many times, initially selling him 250 grams per transaction and ultimately selling him up to one kilogram per transaction. Edgar Rodriguez, Emilio Rodriguez and Jimmy Rivera also testified to Manny's involvement in the conspiracy, both as a manager and as a drug dealer.

Poochie had originally been involved in a different conspiracy that ran out of cocaine. He then got involved with Ozoria. Nelda Rodriguez and Rene Gil testified that Poochie got cocaine from Ozoria and sold it to them. Gil testified that Poochie sold about 8 ounces of cocaine to him on a weekly basis from May 2000 to February 2001, totaling nearly 7 kilograms of cocaine. Nelda Rodriguez also testified that Poochie would get cocaine from Ozoria, some of which she would sell and then give Poochie the proceeds.

Defendants were indicted on May 4, 2001 for conspiring to possess and distribute five kilograms or more of cocaine. The trial took nearly two weeks and the jury was instructed and charged on October 14, 2005. Count 1 of the verdict sheet stated:

"[Defendant]

Knowingly, willfully and unlawfully conspired to possess with the intent to distribute, and to distribute, five kilograms or more of cocaine.

[Defendant] Not Guilty ___ Guilty ___

If you find the defendant guilty, proceed to the ...


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