642 F. App'x 40
2d Cir.2016Background
- Defendants Hector Raymond Peña and Jose Peña were tried and convicted in SDNY for murders in 1997 tied to drug-related ‘‘hits’’ ordered by drug dealers; Hector convicted on multiple counts under 18 U.S.C. § 1958 (murder-for-hire), conspiracy, and § 924(j); Jose convicted on related counts.
- Government relied principally on cooperating witnesses who testified that payments (up‑front and post‑job) and promises of money (and a car) were made to the defendants for the killings.
- Government also introduced testimony and crime‑scene photographs showing victims’ bodies were burned and that restraints were present on victims’ wrists.
- Trials were delayed multiple times; when defense counsel sought an additional continuance in Aug. 2013, the district court denied it and appointed new counsel for Hector; trial proceeded Oct. 15, 2013.
- Defendants appealed, raising (inter alia) challenges to continuance/counsel, sufficiency of evidence as to pecuniary and interstate‑commerce elements of § 1958, evidentiary rulings (Rule 403 and Rule 404(b)), and a constitutional challenge to the murder‑for‑hire statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance / right to counsel of choice | Government: district court acted within discretion to deny further delay given docket, speedy trial, and late notice of conflict | Hector: denial was abuse of discretion; deprived him of counsel of choice | Denial was within wide discretion; indigent defendant has no right to appointed counsel of choice; no showing of substantial impairment of defense (affirmed) |
| Sufficiency — pecuniary value under § 1958 | Govt: cooperating witnesses testified to promised/paid sums, car, and $30,000 contract references | Hector/Jose: evidence insufficient to prove receipt/promise of pecuniary value | Evidence (payments, car, witness testimony re amounts) was sufficient to satisfy pecuniary element (affirmed) |
| Sufficiency — jurisdictional nexus (use of facility of interstate commerce) | Govt: pay‑phone calls were used; stipulation that NYC pay phones could place long‑distance calls | Defendants: government failed to show use of interstate facility | Stipulation + testimony satisfied jurisdictional element under § 1958 (affirmed) |
| Admission of gruesome testimony/photographs (Rule 403) | Govt: testimony and photos relevant to corroborate cooperating witnesses and rebut defense | Defendants: prejudicial, should be excluded under Rule 403 | Court did not plainly err; probative value substantial and not outweighed by unfair prejudice; admissible (affirmed) |
| Admission of prior drug/debt conduct (Rule 404(b)) — Jose Peña | Govt: evidence shows mutual trust/relationship with Solid Gold and explains why Jose would confess/boast to cooperating witnesses | Jose: prior acts unrelated and prejudicial propensity evidence | Inclusionary Rule 404(b) analysis satisfied — proper purpose, relevance to credibility/trust, probative value outweighed prejudice not shown; admission within discretion (affirmed) |
| Constitutionality of § 1958 (Commerce Clause) | Govt: Congress may regulate facilities/instrumentalities of interstate commerce | Hector: statute impermissibly usurps state policing over local crimes by regulation of telephone use | Circuit precedent upholds § 1958 when a facility/instrumentality of interstate commerce is involved; challenge rejected (affirmed) |
Key Cases Cited
- Morris v. Slappy, 461 U.S. 1 (broad district court discretion over continuances)
- Gonzalez‑Lopez v. United States, 548 U.S. 140 (no right to retained counsel of choice for indigent defendants)
- Frampton v. United States, 382 F.3d 213 (§ 1958 requires exchange for pecuniary value)
- Perez v. United States, 414 F.3d 302 (use of pay phones can satisfy § 1958 jurisdictional element)
- Marcus v. United States, 560 U.S. 258 (plain‑error review for unpreserved evidentiary objections)
- Puckett v. United States, 556 U.S. 129 (standards for showing prejudice under plain‑error review)
- Salameh v. United States, 152 F.3d 88 (probative but upsetting evidence is not per se inadmissible)
- LaFlam v. United States, 369 F.3d 153 (inclusionary approach to Rule 404(b) and abuse‑of‑discretion review)
- Rosa v. United States, 11 F.3d 315 (prior bad‑act evidence admissible to show mutual trust and explain witness statements)
- Roldan‑Zapata v. United States, 916 F.2d 795 (prejudice/ probative balance for Rule 404(b) evidence)