United States District Court, S.D. New York
OPINION & ORDER
KIMBA M. WOOD, District Judge.
On June 18, 1992, after an eleven-day jury trial, Petitioner Juan Diaz ("Petitioner") was convicted of, among other things, committing murder in aid of racketeering, in violation of 18 U.S.C § 1959, the Violent Crimes in Aid of Racketeering Act ("VCAR"). Petitioner, acting pro se, files the instant petition for habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"), asking the Court to set aside his conviction and vacate his sentence on the ground that he is innocent of violating the interstate commerce element of VCAR. For the reasons set forth below, Petitioner's habeas corpus petition is DENIED.
On April 11, 1991, Petitioner was charged with (1) conspiring to distribute and to possess with the intent to distribute more than one kilogram of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); (2) committing murder in aid of racketeering activity, in violation of 18 U.S.C § 1959, the VCAR (Counts Two and Three); and (3) using and carrying a firearm during a crime of violence, in violation of 18 U.S.C § 924(c) (Counts Four and Five). (Gov't Mem. in Opp. 1 [Dkt. No. 8]). Petitioner's prosecution arose from an investigation into a heroin drug trafficking organization known as the "Rivera Heroin Organization, " or the "RHO, " headed by George Rivera. ( Id. at 3). In the summer of 1988, Petitioner was hired by Rivera as a full-time enforcer. (PSR ¶ 78, Gov't Mem. in Opp. Ex. B). His job was to intimidate employees of the RHO and to commit murders on behalf of the RHO. ( Id. ). As part of his job, he murdered Todd Crawford and Yvette Padilla at Rivera's request. ( Id. ¶¶ 79-80, 81-82).
A. Jury Trial
During the trial, former members of the RHO testified against Petitioner. Ward Johnson and Luis Gautier testified that Rivera had hired Petitioner to be an enforcer to protect the RHO. See, e.g., (Tr. 153:8-154:5, 200:3-201:4, 490:16-491:14, Gov't Mem. in Opp. Ex. A). Gautier further testified that Petitioner was paid $1000 a week for his services, (Tr. 491:8-14), and that he had murdered Tom Crawford for $200 to $300 and some cocaine, (Tr. 532:5-18, 533:11-13, 535:2-6). Matthew Williams testified that Petitioner murdered Yvette Padilla by shooting her two to three times. (Tr. 809:23-817:23).
Former members of the RHO also described how the narcotics conspiracy affected interstate commerce. Johnson, when asked, "Where, from whom were you getting the bulk heroin by that point in time?" (Tr. 97:2-3) replied that, "It was Chinese, " (Tr. 97:4); see also (Tr. 265:7-14, 266:3-20, 269:16-18). Gautier also testified that "[t]he Chinese" were the organization's main suppliers of heroin. (Tr. 466:11-13). During the trial, the heroin purchased by the RHO was referred to as "China white." (Tr. 97:18-20, 111:20-23). In addition, Johnson testified that Rivera planned to "send somebody to... Puerto Rico" to reimburse "the Chinese" for the money that he had lost. (Tr. 111:1-12). The Government also played a taped conversation in which a Chinese supplier asked Rivera, "Is there something out there right now?" (Tr. 269:15-21) to which Rivera replied, "I am going up there." (Tr. 269:23-24). Johnson testified that "up there" meant Puerto Rico. (Tr. 270:1-2).
In its instructions to the jury, the Court explained the interstate element of the VCAR as follows:
The government must... prove beyond a reasonable doubt that either the criminal enterprise itself or the racketeering activities of those associated with it had some effect upon interstate or foreign commerce. This effect on interstate commerce could have occurred in any way, and it need only have been minimal. If you find, for example, that drug trafficking was part of the business of the enterprise, that would be sufficient to establish an effect on interstate or foreign commerce, since drugs, such as heroin, are manufactured outside the United States and are imported and distributed in interstate and foreign commerce.
I instruct you that it is not necessary to find that defendant knew that his acts would affect interstate commerce or that they had the purpose of affecting interstate commerce. Nor is it necessary that the government show any particular degree of effect on interstate commerce. All that is necessary is that the activities of the enterprise affect interstate or foreign commerce in some minimal way.
(Tr. 1229:14-1230:1-8 (emphasis added)). After the instruction was given, defense counsel objected, arguing that the Court had "introduce[d] a fact which is not in evidence at this trial, that such drugs are manufactured outside the United States and imported and distributed in interstate and foreign commerce." (Tr. 1241:10-14). The Court noted that, because the government had proposed this language before the start of the trial and defense counsel did not object to the language at that time or during the charge conference, defense counsel's objection was late. (Tr. 1241:16-17, 19-24). On June 18, 1992, the jury found Petitioner guilty of all counts. (Tr. 1272:25-1273:14).
On January 22, 1993, Petitioner was sentenced to three concurrent terms of life imprisonment on Counts One through Three, to be followed by a consecutive five-year term on Count Four, and a consecutive twenty-year term on Count Five. (Judgment 2, Gov't Mem. in Opp. Ex. D). Petitioner also received five years of supervised release on each count, to run concurrently with each other. ( Id. at 3).
C. Direct Appeal
On February 4, 1993, Petitioner filed a notice of appeal of his conviction. On appeal, Petitioner argued that (1) the Court abused its discretion by failing to determine whether a juror's unsupervised absence from the jury room at the start of deliberations was prejudicial; and (2) the Court committed reversible error by condoning a non-judicial court officer's entry into the jury room to deliver a substantive instruction outside of the presence of Petitioner after the jury had been charged and ordered to the jury room to begin deliberation. (Def. Br. 1, Gov't Mem. in Opp. Ex. C). On May 12, ...