Lead Opinion
Defendants Manuel Concepcion, Roberto Aponte, and Nelson Frias appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Arthur D. Spatt, Judge, convicting them of various racketeering, narcotics, money laundering, and weapons offenses. Concepcion and Aponte were convicted of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) (1988); possessing and conspiring to possess large quantities of narcotics with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988); and committing violent crimes for the purpose of maintaining or increasing their positions in a racketeering enterprise, in violation of 18 U.S.C. § 1952B (Supp. II 1984), renumbered 18 U.S.C. § 1959 (1988) (collectively “§ 1959”) by Pub.L. 100-690, § 7053(b), 102 Stat. 4181, 4402 (1988), and 18 U.S.C. § 2 (1988). In addition, Concepcion was convicted of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i) (1988), and possessing a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (1988). Concepcion was sentenced principally to life imprisonment plus five years’ imprisonment, to be served consecutively, and was ordered to pay a $1,000,000 fine. Aponte was sentenced principally to life imprisonment. Frias was convicted of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (1988), and possessing weapons as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1988). He was sentenced principally to two 120-month terms of imprisonment, to be served consecutively-
On appeal, defendants make a number of challenges to their convictions and sentences. Concepcion and Aponte contest, inter alia, the applicability of § 1959 to their conduct, the sufficiency of the evidence to support their convictions under that section, arid the trial court’s rulings with respect to the admissibility of certain evidence. Frias contends that the district
I. BACKGROUND
In 1989, Concepcion, Aponte, and Frias, along with some three dozen other individuals, were indicted on a variety of charges arising out of their operation, primarily in the Williamsburg and East New York sections of Brooklyn, of a wholesale and retail narcotics organization known as the “Unknown Organization” (“Organization”). Taken in the light most favorable to the government, the evidence at trial, which included the testimony of a dozen accomplices and several government informants, showed the following.
A. The Organization’s Operations
The Organization consisted of a highly structured distribution network that purchased relatively pure narcotics, cut and packaged them, and then sold them through 24-hour street sales locations known as “spots.” At its peak, the Organization received gross income from heroin sales of more than $10 million a month.
Prior to 1988, the Organization was run by Ricardo Melendez, and Concepcion was a lieutenant responsible for its retail distribution operations in Williamsburg. In September 1988, Melendez was arrested and Concepcion became the Organization’s leader. In that role, Concepcion was in charge of all day-to-day activities until his own arrest in March 1989.
The Organization employed hundreds of people, and employee loyalty was maintained chiefly by means of intimidation. To those who interfered with or stole from it, the Organization often meted out violent punishment, and the record includes evidence of a substantial number of murders and mutilations. For example, in August 1988, George Espada, a low-level Organization member, was suspected of stealing approximately $100,000 of the Organization’s profits. To recover these moneys and reaffirm the Organization’s authority, Concepcion and five subordinates kidnaped Espada. They took him to a garage owned by Concepcion in Williamsburg and proceeded to bind, gag, beat, kick, shoot, and stab him for several hours. Concepcion himself stabbed Espada numerous times and donned boots in order to give more force to his kicks.
The Organization also used violence to rebuff territorial challenges by rival groups. For example, in May 1988, rival drug dealers initiated a dispute over control of a retail drug location on Metropolitan Avenue in Williamsburg. When informed of trouble at that “spot,” Concepcion promptly went there, accompanied by three subordinates, to take care of the matter. As they approached with their guns drawn, one James Gines stepped up to Concepcion and attempted to stop him. Concepcion, much the larger man, shook Gines off and shot him; he then repeatedly shot Gines as Gines attempted to run away. There ensued a general shootout, during which Concepcion continued firing until his gun jammed. By the end of the gunfight, Concepcion and two bystanders, Wilfredo Ortiz and Luis Reyes, had also been shot. Gines, Ortiz, and Concepcion were taken to the hospital, where Gines died. As discussed in greater detail in Part II.A. below, Ortiz and Gines’s girlfriend Lea Lopez identified Concepcion at the hospital as the person who had struggled with and shot Gines.
Defendant Roberto Aponte (“Aponte”), whose street name was “Savage,” was one of the Organization’s enforcers and was employed principally in East New York to control business activities there. In late 1988, one Robert Aponte (“Robert”), who was unrelated to defendant Aponte, was pressuring Concepcion for a share of the profits made by the Organization from sales at a building Robert owned. When Concepcion refused, Robert made a number of threats, and in early February 1989 Con
B. The Arrests and the Present Prosecution
In March 1989, Concepcion, Aponte, and several other Organization members sought to purchase roughly llk kilograms of pure heroin from a government informant. At a meeting on March 14, 1989, Organization members paid the informant approximately $1.1 million in cash for supposed bricks of heroin. Government agents interrupted the transaction and arrested Concepcion, Aponte, and the others, seizing the cash and three weapons. As discussed in Part II.D. below, Frias was arrested several months later during the execution of a search warrant at his apartment.
Indictments were handed down against some 39 individuals, charging various defendants with, inter alia, narcotics distribution and conspiracy, racketeering, murder and kidnaping in furtherance of racketeering activity, and money laundering. Concepcion, Aponte, Frias, and seven others were tried together in a four-month jury trial. Concepcion was convicted on one count of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of RICO, 18 U.S.C. § 1962(c); one count of narcotics conspiracy and one count of attempting to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; four counts of committing violent crimes for the purpose of maintaining or increasing his position in the Organization, in violation of 18 U.S.C. §§ 1959 and 2; three counts of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i); and one count of using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The jury acquitted Concepcion on one count of attempted murder in aid of racketeering activity and one count of money laundering. Aponte was convicted on one count of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of RICO, 18 U.S.C. § 1962(c); one count of narcotics conspiracy and one count of attempting to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and one count of murder for the purpose of maintaining or increasing his position in the Organization, in violation of 18 U.S.C. § 1959. Aponte was acquitted on one additional count of murdering another individual for that purpose. Frias, who was not charged with RICO offenses, was acquitted of narcotics conspiracy and of using a firearm in relation to a narcotics trafficking offense; he was found guilty on one count of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and one count of possessing weapons as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
As indicated above, Concepcion was sentenced principally to life imprisonment, plus a mandatory consecutive five-year term of imprisonment on the § 924(c)(1) count, and was ordered to pay a $1,000,000 fine. Aponte was sentenced principally to life imprisonment. Frias, based in part on evidence that he had possessed his firearms in furtherance of the Organization’s narcotics operations, was sentenced to the statutory maximum of 120 months’ imprisonment on each count of conviction, to be served consecutively, for a total of 240 months.
II. DISCUSSION
On appeal, defendants make a number of arguments, including (1) challenges by Concepcion and Aponte to the district court’s admission of in-court identification testimony against them and to their convictions under § 1959, and (2) Frias’s contentions that the district court improperly enhanced
A. Challenges to the Identification Testimony
At trial, Concepcion was identified by Ortiz and Lopez as the person who shot Gines. Aponte was identified by one Neph-tali Gonzalez as the person who shot and killed Robert. Both defendants contend that the identifications should have been excluded as the product of impermissibly suggestive pretrial identification procedures.
A defendant’s right to due process includes the right not to be the object of suggestive police identification procedures that create “a very substantial likelihood of irreparable misidentification.” Simmons v. United States,
In general, “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno,
The fairness of a photographic array depends on a number of factors, including the size of the array, the manner of presentation by the officers, and the array’s contents. If there is nothing inherently prejudicial about the presentation, such as use of a very small number of photographs, see, e.g., United States v. Bennett,
If pretrial procedures have been unduly suggestive, the court must determine whether an in-court identification will be the product of the suggestive procedures or whether instead it is independently reliable. The factors to be considered include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers,
With these principles in mind, we turn to the contentions of Concepcion and Aponte.
1. Concepcion
Concepcion contends that the testimony of Ortiz and Lopez should have been excluded because they first identified him at the hospital in what we agree were unduly suggestive showups. We conclude that the district court properly admitted the identification testimony of both witnesses, however, after performing the Neil v. Biggers analysis.
Ortiz and Lopez were on the street as Concepcion and his men walked down the block. Both testified that they had watched as Concepcion, with gun drawn, struggled with Gines and shot him. Though they turned and ran as Concepcion directed his attention to them and others, they had had an adequate opportunity to observe him as he dealt with Gines, and the nature of the events was such as to attract and hold their attention. Further, while neither Ortiz nor Lopez had given the authorities a description of Concepcion prior to identifying him at the hospital, their identifications were made within hours or minutes of the shooting, and they were unequivocal. We see no error in the district court’s conclusion that the pretrial identifications by those two witnesses were sufficiently reliable to warrant admission of their in-court identifications.
2. Aponte
Aponte contends that Gonzalez’s identification of him was unreliable for several reasons. Gonzalez was first shown photographs of suspects roughly six months after Robert’s murder. The first array he was shown consisted of mug shots of Aponte and five others, but Gonzalez was unable to select Robert’s killer from the group. The police then assembled a second six-photo array, which also included Aponte’s photograph. Gonzalez eventually selected Aponte’s picture, but only after studying the second array for a half hour. At a Wade hearing during trial, see United States v. Wade,
Individually, these challenges must be rejected. An array is not unduly suggestive merely because legends on the pictures reveal that the defendant was arrested in one borough and the other persons were arrested in another. United States v. Archibald,
Normally if the pretrial procedures were not unduly suggestive any question as to the reliability of the proposed in-court identification will affect only the identification’s weight rather than its admissibility. See, e.g., Foster v. California,
Nonetheless, we conclude that even if the admission of Gonzalez’s testimony was error, it was harmless in light of the record as a whole, for the other evidence that Aponte was Robert’s killer was overwhelming. Thus, one Diane Rodriguez observed the shooting and was confident in her identification of Aponte as the murderer, both initially when shown a photo-array and thereafter at trial. Aponte does not challenge here the admission of her identification. Further, two Organization members testified that Aponte had committed the murder at Concepcion’s behest. One, Adam Pomales, testified that on the day of the murder Aponte said he had just missed killing Robert the day before but would “get him” that day; that Concepcion then gave Aponte a gun, and Aponte promised Concepcion that “it will be done today in 20 minutes,” and departed; that Concepcion then asked Pomales, who functioned as, inter alia, Concepcion’s treasurer, to give him $10,000 for Aponte because Aponte “was going to knock off Robert”; and that
B. The Requirements of § 1959
Counts 17, 19, and 28 of the indictment alleged that various defendants had committed crimes of violence for the purpose of maintaining or increasing their respective positions in the Organization, in violation of 18 U.S.C. §§ 1959 and 2. To the extent relevant here, counts 17 and 19, respectively, alleged that Concepcion had murdered Gines and assaulted Ortiz and Reyes for that purpose; count 28 charged that Concepcion and Aponte had murdered Robert for that purpose. Concepcion and Aponte contend that their convictions on these counts should be reversed because, in accordance with the “rule of lenity,” § 1959 must be interpreted as requiring the government to prove that when they performed the acts of violence they had the “specific intent” to maintain or increase their positions in the RICO enterprise. For several reasons, we reject their contentions.
Preliminarily, we note that the “rule of lenity” assists the court in interpreting a criminal statute only if the statute is ambiguous. “ ‘The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.’ ” United States v. Turkette,
Section 1959, which was enacted to complement RICO, see generally S.Rep. No. 225, 98th Cong., 1st Sess. 304-07 (1983) (“S.Rep. No. 225”), reprinted in 1984 U.S.Code Cong. & Admin.News (“USCCAN”) 3182, 3483-87, provides, in pertinent part, as follows:
(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished....
18 U.S.C. § 1959(a). Section 1959(b)(1) states that § 1959(a) uses the term “racketeering activity” as that term is defined in RICO. In addition, a § 1959 “enterprise” is plainly a RICO enterprise. Section 1959(b)(2) defines “enterprise” to
include[ ] any partnership ... association, Or other legal entity, and any ... group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce.
This definition differs from the RICO definition of enterprise only in that it includes the commerce requirement, whereas in RICO that requirement appears in each of the sections stating substantive prohibitions of activities with respect to enterprises, rather than in the definition of enterprise. Compare 18 U.S.C. § 1959(b)(2) with id. §§ 1961(4), 1962(a)-(c). Further, § 1959’s legislative history states that the
The phrase “for the purpose of ... maintaining or increasing position in” the enterprise, accorded its ordinary meaning, appears to refer to a defendant who holds a position in a RICO enterprise and who committed an underlying crime of violence with a motive of retaining or enhancing that position. With respect to the motive element, the legislative history contains no indication that Congress meant to require proof that self-promotion was the defendant’s only or primary concern. Rather, the history states that this phrase was included as a means of proscribing murder and other violent crimes committed “as an integral aspect of membership” in such enterprises. S.Rep. No. 225, at 304, reprinted in 1984 USCCAN at 3483; see also id. at 306, reprinted in 1984 USCCAN at 3486 (performed “as an aspect of membership”). Given this explanation and given that Congress intended RICO, which § 1959 complements, to “ ‘be liberally construed to effectuate its remedial purposes,’ Pub.L. 91-452, § 904(a), 84 Stat. 947,” Sedima, S.P.R.L. v. Imrex Co.,
In sum, in light of the guidance given by the statute and its legislative history, and giving the phrase “maintaining or increasing” its ordinary meaning, we conclude that in order to establish a direct violation of § 1959 in the present case, the government was required to prove beyond a reasonable doubt (1) that the Organization was a RICO enterprise, (2) that the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise.
In arguing that a prosecution under § 1959 requires proof of “specific intent,” Concepcion also contends that the government was required to prove that the actual victim of the violence was the intended victim, not an incidental victim. He makes this argument only in connection with count 17, which focused on the killing of Gines, by pointing out that Gines was not a member of the rival organization with which Concepcion had a dispute and arguing that there was “no testimony that appellant intended to shoot Gines in order to further or maintain his position in the alleged enterprise.” (Concepcion brief on appeal at 54.) We reject the suggestion that the government must prove that the victim of the violence was the defendant’s intended target.
The concept of transferred intent is well established in the criminal law, see, e.g., United States ex rel. Jackson v. Follette,
C. Sufficiency of the Evidence on the § 1959 Counts
Concepcion and Aponte also contend that in connection with counts 17, 19, and 28, the government failed to prove all of the elements of a § 1959 offense. A defendant who seeks reversal of his conviction on the ground of insufficiency of the evidence bears a heavy burden. See, e.g., United States v. Esdaille,
1. Concepcion’s Killing of Gines
In addition to the incidental-victim argument rejected above, Concepcion argues that there was no evidence that the “problem” he went to Metropolitan Avenue to solve was drug related and hence no evidence that its resolution could have affected his position in the Organization. This argument has no merit.
Taken in the light most favorable to the government, the evidence showed that the Metropolitan Avenue gunfight was a matter of Organization business. Pomales testified that on a May 1988 day that he recalled with clarity because he had just been released from the hospital, he went to Concepcion’s garage and found there Concepcion and coconspirator Kenny Colon. Pomales testified that Colon, whose job was to bring in the proceeds of narcotics sales, said he was there because one of their sellers “had a problem with somebody and didn’t want him in the certain spot.” Though Pomales testified that he did not know what was meant by “spot,” other coconspirator witnesses consistently referred to their “spot[sj” as the locations at which they would sell the Organization’s narcotics. Pomales testified that Concepcion’s response to Colon’s report of a challenge for control of the “spot” was, “[S]o let’s go and take care of it.” Concepcion and several of his men promptly went to Metropolitan Avenue, where Concepcion initiated the shootout. Another witness testified that one of Concepcion’s targets in the shootout was a person she had previously seen selling narcotics at or near that location. When Melendez later told Concepcion “he was stupid because the money he was making, he could pay somebody to take care of his business, not do it himself,” Concepcion, who was then still a lieutenant in the Organization, responded, “I’m that type of guy, I like to take care of my own actions.” This was ample evidence from which a rational juror could infer
2. The Assaults on Ortiz and Reyes
Concepcion’s conviction on count 19, which alleged assaults on Ortiz and Reyes for the purpose of maintaining or increasing Concepcion’s position in the Organization, raises other questions. Ortiz and Reyes were injured during the Metropolitan Avenue gunfight in which Gines was killed. Though there was abundant evidence that Concepcion himself shot Gines, the government concedes that there was no evidence establishing precisely who shot Ortiz or Reyes. The district court instructed the jury that with respect to this charge it could find Concepcion guilty of violating § 1959 by applying 18 U.S.C. § 2. Concepcion argues that because the government was unable to identify the actual shooter or shooters, it did not prove that Concepcion aided and abetted the commission of a § 1959 offense in violation of § 2(a). The government argues that Concepcion’s conviction on this count may be upheld on the theory that the jury found that he “cause[d]” the assaults on Ortiz and Reyes in violation of § 2(b). We agree with the government.
Section 2 of 18 U.S.C., which the trial court read to the jury in its entirety, states as follows:
§ 2. Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
To secure a conviction on a theory of aiding and abetting in violation of subsection (a), the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted, or failed to act in a way that the law required the defendant to act, with the specific purpose of bringing about the underlying crime. United States v. Labat,
We agree with Concepcion that his conviction on count 19 cannot be sustained on the basis of aiding and abetting under § 2(a) because there is no evidence as to who fired the shots that injured Ortiz and Reyes. Since the identity of that person or persons was not shown, there was no basis on which the jury could rationally infer that the shooter(s) had the criminal intent to violate § 1959 envisioned by § 2(a).
The requirements of § 2(b), however, are somewhat different. Whereas § 2(a) speaks in terms of procuring or aiding and abetting the commission of an “offense,” and hence requires proof that the primary actor had criminal intent, § 2(b) speaks in terms of causing the actor to perform only an “act.” This subsection was added to § 2 in 1948 in order to
make[] clear the legislative intent to punish as a principal not only one who directly commits an offense and one who “aids, abets, counsels, commands, induces or procures” another to commit an offense, but also anyone who causes the doing of an act which if done by him directly would render him guilty of an offense against the United States.
It removes all doubt that one who puts in motion ... or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal....
18 U.S.C. § 2 Historical and Revision Notes (emphasis added). Thus, § 2(b) adopts the “general principal of causation in criminal
Applying the willful “cause in fact” standard in the present case, there can be no question that there was sufficient evidence for the jury to find Concepcion guilty as a principal under § 2(b) for assaulting Ortiz and Reyes for the purpose of maintaining or increasing his position within the Organization. Concepcion went to the location in question to protect the Organization’s retail sales spot and provided leadership in that endeavor. Once there, he initiated the gun battle by shooting Gines several times and then turning and firing at others. Rival drug dealers returned his fire, and Concepcion continued shooting until his gun jammed. If the wounds to Ortiz and Reyes were not inflicted by Concepcion himself, they most certainly were inflicted by other participants in the gun battle, which had been set in motion by Concepcion’s own willful actions. Accordingly, the jury was entitled to find Concepcion guilty on count 19 under § 2(b).
3. Aponte’s Killing of Robert
Aponte argues that the government failed to prove that his killing of Robert was for the purpose of maintaining or increasing Aponte’s position in the Organization because, he contends, there was insufficient evidence that Aponte was then a member of the Organization rather than simply an independent contractor. The record, viewed in the light most favorable to the government, does not support his contention.
In passing, we note that § 1959 as a whole is sufficiently inclusive to encompass the actions of a so-called independent contractor, for it reaches not only those who seek to maintain or increase their positions within a RICO enterprise, but also those who perform violent crimes “as consideration for the receipt of ... anything of pecuniary value” from such an enterprise. The evidence at trial included proof that, for killing Robert, Aponte received a diamond Rolex watch and $10,000. Hence, even as an independent contractor he could have been prosecuted for a violation of the clause of § 1959 quoted here. However, the indictment alleged only that Aponte had sought to maintain or increase his position in the Organization, and we are therefore constrained by those allegations. See, e.g., Dunn v. United States,
In any event, we reject the contention that the evidence was not sufficient to show that Aponte, when he killed Robert on February 23, 1989, was a member of the Organization. The record included the trial testimony of accomplice Vincent Hernandez, who had been recruited into the Organization by defendant Fernando Alvarez, one of its “street bosses” and enforcers. Prior to February 2, 1989, Alvarez, an Or
D. The Sentencing of Frias
During the phase of the investigation that followed the March 1989 arrests of Concepcion and Aponte, the authorities learned that the Organization ran a heroin cutting operation in Frias’s apartment at 608 West 189th Street in Manhattan. They obtained a warrant for Frias’s arrest and a search warrant for the apartment. As officers sought to execute the search warrant on August 22, 1989, a semi-automatic sawed-off rifle and a semi-automatic pistol were thrown from one of the apartment’s windows and were recovered by officers posted outside. Inside the apartment, Fri-as and a co-defendant were arrested; trace amounts of heroin were found; and numerous items, including paraphernalia used to manufacture and package narcotics, were seized. Three other men, including two Organization members who were tried below with these appellants and whose appeals have been disposed of by summary order, were apprehended as they tried to escape.
The indictment charged Frias with conspiring with other Organization members to distribute and to possess with intent to distribute narcotics, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; using a firearm in relation to a narcotics trafficking crime, in violation of 18 U.S.C. § 924(c); possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d); and possessing firearms as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The jury acquitted Frias on the two narcotics-related counts and convicted him on the two firearms counts.
The Presentence Report (“PSR”) prepared on Frias, using the 1988 version of the Guidelines because that version was in effect at the time of his offenses and the version in effect at the time of his sentencing could have created an ex post facto problem, see United States v. Adeniyi,
Frias objected to the PSR calculation, arguing principally that his sentence could not properly be calculated on the basis of conduct of which the jury had acquitted him. The district court rejected his contentions and accepted the recommendations of the PSR. The court stated that the government had shown by a preponderance of the evidence that Frias had
used the firearms in connection with— the firearms at issue for which he was convicted in connection with the commission of conspiracy to distribute narcotics in the unknown organization conspiracy and the firearms were possessed during the commission of the conspiracy and used in connection with the conspiracy and directly related to the conspiracy.
(June 28, 1991 Transcript of Hearing on Sentencing of Frias at 14-15.) The court went on to find that Frias’s involvement in the Organization’s “major massive drug
On appeal, Frias contends (a) that the increases in offense level were not authorized by the Guidelines and violated his right to due process; (b) that increasing his offense level on the basis of conduct for which he had been acquitted violated his right to be free from double jeopardy; and (c) that making his sentences consecutive rather than concurrent violated his right to be free from double jeopardy.
1. Base Offense Level of 36 Under the Guidelines
Frias contends that the base offense level for the offenses of which he was convicted should have been at most 16, which carried an imprisonment range of 24-30 months. He argues that the federal Sentencing Commission (“Commission”) could not have intended to require the much higher base offense level of 36, and ensuing adjustment to 38 for which the imprisonment range was 262-327 months, on the basis of conduct of which he had been acquitted. We conclude that the district court properly interpreted the Guidelines as directing the calculation of the base offense level with reference to Frias's acquitted conduct, but we also conclude that the court should consider whether the outcome of that calculation in the present case warrants a downward departure.
Under the 1988 Guidelines, a conviction under § 922(g)(1) for possession of firearms by a person previously convicted of a felony was governed by § 2K2.1; a conviction under § 5861(d) for possession of unregistered firearms was governed by § 2K2.2. Compare 1988 Guidelines §§ 2K2.1, 2K2.2 with 1989 Guidelines §§ 2K2.1, 2K2.2 (eff. Nov. 1, 1989) (placing most weapons possession offenses under § 2K2.1) and 1990 Guidelines §§ 2K2.1, 2K2.2 (eff. Nov. 1, 1990) (same) and 1991 Guidelines § 2K2.1 (eff. Nov. 1, 1991) (adding most weapons trafficking offenses to § 2K2.1). For Frias’s § 922(g)(1) conviction, § 2K2.1(a) of the 1988 Guidelines set a base offense level of 9; for his § 5861 conviction, § 2K2.2(a) set a base offense level of 12. These offense levels were only conditional, however, for each section contained a cross-reference requiring the court to apply a different guideline if the firearm had been used in connection with another offense that carried a higher offense level:
[i]f the defendant used the firearm in committing or attempting another offense, apply the guideline in respect to such other offense, or § 2X1.1 (Attempt or Conspiracy) if the resulting offense level is higher than that determined above.
1988 Guidelines § 2K2.1(c)(l); see id. § 2K2.2(c)(l) (substituting “for” for “in respect to”, and moving second comma to follow parenthetical). Here, the court was persuaded by at least a preponderance of the evidence that Frias had used his firearms in connection with the Organization’s narcotics conspiracy. It was required, therefore, to turn to § 2X1.1.
Section 2X1.1 set as the base offense level for conspiracy “[t]he base offense level from the guideline for the object offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” 1988 Guidelines § 2Xl.l(a) (emphasis added). Since the object of the Organization’s conspiracy was distribution of narcotics, the court was required to look to Guidelines § 2D1.1. That section required that narcotics traffickers be sentenced in relation to the quantity of narcotics involved in the offense, see 1988 Guidelines § 2D 1.1(a)(3), as set forth in the Drug Quantity Table following § 2D 1.1. Since the evidence showed that the Organization had distributed more than 10 kilograms of heroin, that Table required a base offense level of 36.
In United States v. Patterson,
The cross-references in the weapons sections of the 1988 Guidelines, quoted above, referred simply to committing “another offense,” without specifying whether that offense was to be an offense of which the defendant was convicted. We think it plain, however, that there was no intent to require a conviction, for the commentary accompanying § 2K2.1 indicates that the Commission did not mean its reference to be limited to offenses with which the defendant was charged. It stated that
[t]he firearm statutes often are used as a device to enable the federal court to exercise jurisdiction over offenses that otherwise could be prosecuted only under state law. For example, a convicted felon may be prosecuted for possessing a firearm if he used the firearm to rob a gasoline station. Such prosecutions result in high sentences because of the true nature of the underlying conduct. The cross reference at § 2K2.1(c)(l) deals with such cases.
1988 Guidelines § 2K2.1 Background (emphasis added). Since the Commission intended “another offense” to include an offense that could not be prosecuted in federal court, it obviously meant that term to include conduct with which the defendant was not charged. Accord United States v. Humphries,
Given the Commission’s evident intent that the term “another offense” include uncharged offenses, we are left with the question of whether it also meant that term to include an offense with which the defendant was charged but of which he was acquitted. We conclude that it did. It had been established long before the advent of the Guidelines that the sentencing court could properly take into account any information known to it, see, e.g., Williams v. New York,
We have ruled that the adoption of the Guidelines has not changed these basic principles. Thus, disputed facts relevant to sentencing, even under the Guidelines, need be established only by a preponderance of the evidence. See, e.g., United States v. Rodriguez-Gonzalez,
Accordingly, in United States v. Rodriguez-Gonzalez, in which a defendant had been convicted of narcotics trafficking but acquitted of possessing a firearm in connection with that trafficking, we upheld the district court’s upward adjustment of his base offense level by two steps based on the offense characteristic of possessing a firearm during the commission of narcotics offense.
Frias seeks to distinguish Rodriguez-Gonzalez on the basis that there the sentencing court used the acquitted conduct merely to adjust a base offense level upward by a relatively small increment, not to set a high base offense level initially. We think any suggestion that the Commission did not intend to prescribe a high base offense level in circumstances such as those here, or that the Guidelines are ambiguous in this regard, is belied by the commentary to § 2K2.1, quoted above, which explained that the cross-reference to the higher base offense levels for other crimes was a recognition that prosecutions under the federal firearm statutes often “result in high sentences because of the true nature of the underlying conduct.” 1988 Guidelines § 2K2.1 Background. All later versions of the Guidelines have included the same cross-reference, see 1992 Guidelines § 2K2.1(e)(1)(A); id. Application Note 14; 1991 Guidelines § 2K2.1(c)(l)(A); id. Application Note 14; 1990 Guidelines § 2K2.1(c)(2), and the 1990 Guidelines made the same observation, see id. Background. Frias seeks to distinguish Rodriguez-Gonzalez on the basis that there the sentencing court used the acquitted conduct merely to adjust a base offense level upward by a relatively small increment, not to set a high base offense level initially. We think any suggestion that the Commission did not intend to prescribe a high base offense level in circumstances such as those here, or that the Guidelines are ambiguous in this regard, is belied by the commentary to § 2K2.1, quoted above, which explained that the cross-reference to the higher base offense levels for other crimes was a recognition that prosecutions under the federal firearm statutes often “result in high sentences because of the true nature of the underlying conduct.” 1988 Guidelines § 2K2.1 Background. All later versions of the Guidelines have included the same cross-reference, see 1992 Guidelines § 2K2.1(e)(1)(A); id. Application Note 14; 1991 Guidelines § 2K2.1(c)(l)(A); id. Application Note 14; 1990 Guidelines § 2K2.1(c)(2), and the 1990 Guidelines made the same observation, see id. Background.
We conclude that, in light of the court’s findings that Frias possessed his guns in connection with the Organization’s conspiracy to distribute more than 10 kilograms of We conclude that, in light of the court’s findings that Frias possessed his guns in connection with the Organization’s conspiracy to distribute more than 10 kilograms of
Nonetheless, both the Guidelines and the Sentencing Reform Act provide that the “sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” Guidelines § 5K2.0 (quoting 18 U.S.C. § 3553(b) (1988) (emphasis added)). Although the above discussion reveals that the Commission envisioned some increase in offense level based on conduct of which the defendant had been acquitted, it is questionable whether it envisioned an increase to the degree that occurred here. The example given in the Background commentary to 1988 Guidelines § 2K2.1 does not indicate that the Commission intended the cross-reference, to a guideline for conduct of which the defendant was not convicted, to result in so large an increase.
In stating that the cross-reference provided by § 2K2.1(c)(l) could “result in high sentences because of the true nature of the underlying conduct,” the commentary provided as an illustration “a convicted felon ... prosecuted for possessing a firearm if he used the firearm to rob a gasoline station.” 1988 Guidelines § 2K2.1 Background. The base offense level for possession of that firearm under the 1988 Guidelines would have been 9; application of the cross-reference to the 1988 guideline for robbery would have resulted in a base offense level of 18, see 1988 Guidelines § 2B3.1(a), an increase of mine levels. Assuming a defendant, such as Frias, with a Criminal History Category of II, the sentence would have been increased from 6-12 months to 30-37 months; instead of a possible prison term of just six months, the hypothetical defendant could have been sentenced to more than three years. Such an increased sentence would aptly be termed “high.”
On the other hand, an increase from one year to 22 years would more aptly be termed astronomical. In the present case, application of the cross-reference provision raised Frias’s base offense level from 12 to 36, increasing the prescribed imprisonment range from 12-18 months to 210-262 months. Thus, instead of being imprisoned for perhaps as little as one year, he could, in theory, have been sentenced to imprisonment for nearly 22 years. If the Commission had intended that conduct of which the defendant was acquitted could lead to a sentence of nearly 22 years instead of one-to-three years, we doubt that it would have chosen the relatively mild term “high.”
In sum, though we agree with the district court that application of the cross-reference provisions of the Guidelines resulted in a base offense level of 36, we doubt that, with respect to conduct of which the defendant was acquitted, the Commission intended so extreme an increase. We therefore conclude that the district court had the power to depart downward pursuant to Guidelines § 5K2.0. Since the court apparently did not consider whether such a departure was permissible, we vacate Frias’s sentence and remand the matter to permit the court to consider whether or not to depart from the offense level arrived at through strict application of the Guidelines.
2. Adjusted Offense Level of 38
In addition, we have difficulty with the PSR’s final upward adjustment of offense level from 36 to 38 pursuant to Guidelines § 2Dl.l(b)(l) on the ground that, in connection with the narcotics conspiracy, Frias possessed weapons. Though United States v. Patterson,
Accordingly, we conclude that Frias’s total offense level under the Guidelines should not have been more than 36. Thus, even if the district court decides not to depart downward from level 36 as discussed in the previous section, it should reconsider the sentence to be imposed on Frias, using a base offense level of 36 rather than 38.
3. The Constitutional Challenges
Frias argues that even if the Guidelines authorized calculation of his base offense level with respect to acquitted conduct, punishment for conduct not proven beyond a reasonable doubt violated his right to due process, and punishment for conduct of which he was acquitted violated his right to be free from double jeopardy. He also contends that his right to be free from double jeopardy was violated by the imposition of consecutive sentences for offenses involving the same firearms. We disagree.
a. Due Process
As indicated above, we have held that disputed facts relating solely to sentencing need be proven only by a preponderance of the evidence, and that a defendant’s right to due process is not violated by the calculation of his sentence with reference to facts proven only under that standard and not proven under the higher reasonable-doubt standard that is applicable at trial. See, e.g., United States v. Rodriguez-Gonzalez,
Frias argues that use of the preponderance standard here violates due process because application of the cross-reference provision resulted in a 22-step increase in his offense level. See United States v. Kikumura,
b. Double Jeopardy
We have also recognized that though in imposing sentence the district
In considering the acquitted conduct as a basis for enhancing [the defendant’s] sentence, the district court “was not relying on facts disclosed at trial to punish the defendant for the extraneous offense, but to justify the heavier penalties for the offenses for which he was convicted.”
United States v. Rodriguez-Gonzalez,
Finally, a single transaction may give rise to liability for distinct offenses under separate statutes without violating the Double Jeopardy Clause if the legislature so intended. Albernaz v. United States,
E. Other Challenges to the Convictions
Defendants’ other arguments include (1) Concepcion’s contentions that the district court erred in permitting the government to change its theory on count 17, in limiting his cross-examination of a government informant, and in allowing that witness to testify that Concepcion had offered to commit a murder; and (2) Frias’s contention that he was unduly prejudiced by the court’s reading the indictment to the jury despite his agreement to a stipulation he had hoped would obviate such a reading. These contentions need not detain us long.
1. Limitation on Cross-Examination
Concepcion complains that the district court improperly precluded him from cross-examining government informant Victor Jimenez about a murder Concepcion contends Jimenez committed but failed to disclose to the government. We find no basis for reversal.
“The scope and extent of cross-examination lies within the discretion of the trial judge.” United States v. Blanco,
The district court refused to allow Concepcion to inquire into the alleged murder in part on the ground that there was insufficient evidence that such a murder had actually occurred or that it had been committed by Jimenez. The refusal was within the scope of the court’s discretion. Concepcion’s proffer on the matter consisted chiefly of hearsay statements made by unidentified sources. Further, his principal source identified the person who procured the alleged murder only by a nickname, not by the name Victor or Jimenez. Finally, there was no dearth of other material on which Jimenez could be cross-examined. He had confessed to several serious crimes, including the attempted murder of a New York City Police Officer, and the district court allowed a wide-ranging cross-examination into these and other matters.
In sum, the court’s limitation on the cross-examination of Jimenez provides no reason for reversal.
2. Evidence of Concepcion’s Offer To Kill Another
The district court allowed Jimenez to testify, over Concepcion’s objection, that Concepcion had offered to arrange the murder of one of Jimenez’s rivals. Concepcion contends that this evidence was inadmissible under Fed.R.Evid. 404(b) because it was designed to show his propensity for violence and because he was not given advance notice that the government would offer it. Again, we disagree.
Rule 404(b) bars the admission of a defendant's uncharged crimes to prove propensity to commit the crime charged. An act that is alleged to have been done in furtherance of the alleged conspiracy, however, is not an “other” act within the meaning of Rule 404(b); rather, it is part of the very act charged. See, e.g., United States v. Biaggi,
Here, there was an issue at trial as to whether or not Jimenez was a member of the alleged conspiracy with Concepcion. Evidence of conversations between Jimenez and Concepcion, and of the latter’s offer to kill one of Jimenez’s rivals was relevant to that issue. Further, Jimenez’s testimony was admissible to show Concepcion’s concern for the Organization’s retail operations and the lengths to which Concepcion would go to defend them. See United States v. Bagaric,
Finally, even if the challenged testimony were properly deemed other-act evidence, Concepcion’s lack-of-notice argument would lack merit. The recent amendment to Rule 404(b) requiring the government to give notice, if requested by the defendant, of its intent to use such evidence did not become effective until after the trial of the present case. The government thus was not required to give Concepcion advance notice of other-act evidence. See, e.g., United States v. Paccione,
3. The Alleged Change in the Theory of Prosecution
In connection with Count 17, which charged Concepcion with causing the death of Gines in violation of §§ 1959 and 2, the government, in both its opening statement and its summation, argued that Concepcion himself killed Gines. In its summation, the government added that the jury could also find Concepcion guilty on an aiding and abetting theory. Concepcion contends that the government was “bound” by its opening statement and that the summation changed the government’s theory of count 17, and thereby denied him a fair trial and an opportunity to defend against the aiding and abetting theory. These contentions are meritless.
By citing § 2, the indictment gave Concepcion notice that the government could proceed on the premise that he had violated § 1959 by aiding and abetting. See generally United States v. Miller,
In any event, Concepcion undoubtedly was not prejudiced by mention of the aiding and abetting theory in the government’s summation since (a) the trial court refused to instruct the jury that it could find Concepcion guilty on count 17 on an aiding and abetting theory, and (b) the evidence that Concepcion himself had shot and killed Gines was abundant.
4. Frias’s Stipulation as to Prior Convictions
Count 41 of the indictment, which charged Frias with possession of a firearm as a convicted felon, alleged that he had previously been convicted of attempted criminal possession of a weapon and criminal possession of a controlled substance. At trial, Frias sought to forestall the government’s introduction of evidence concerning his prior convictions by stipulating that he had in fact been convicted of a felony prior to his arrest on the current charges. Frias contends that, in light of this stipulation, he was unfairly prejudiced by the trial court’s disclosure to the jury of the indictment’s allegations. For several reasons, his contention is meritless.
First, the stipulation itself did not require that the reference to the prior felonies be redacted from the indictment. Moreover, Frias did not object when the court, during its instructions, read the un-redacted indictment to the jury. Though he objected to the court’s allowing the jury to have the unredacted indictment during its deliberations, the court instructed the jury that the indictment’s allegations were not evidence of the prior convictions. We see no indication that Frias was unduly prejudiced.
CONCLUSION
We have considered all of defendants’ arguments on these appeals and, except as indicated above, have found no basis for reversal. The judgments of conviction of Concepcion and Aponte are affirmed. Fri-as’s conviction is affirmed; his sentence is vacated, and the matter is remanded for resentencing in a manner not inconsistent with the foregoing.
Concurrence Opinion
concurring:
The sentencing of Nelson Frias is a stark example of the bizarre results that occasionally occur from a combination of the Sentencing Guidelines and the sentencing jurisprudence that was developed prior to the Guidelines and is now applied to the Guidelines regime. The key facts are: (1) Frias was charged with three offenses that affected his sentence — conspiracy to distribute heroin, possession of an unregistered firearm, and possession of a firearm by a convicted felon;
Judge Kearse’s comprehensive opinion accepts, with a slight modification,
The guideline calculation in this case results from a combination of decisions, few, if any, of which have been made under any other system of guideline sentencing. See Michael Tonry, Salvaging the Sentencing Guidelines in Seven Easy Steps, 4 Fed.Sent.Rep. 355 (May-June 1992). First, the Commission decided to forgo the “offense of conviction” approach, under which sentences would be determined only with regard to conduct resulting in conviction. Instead the Commission adopted a system of “modified real offense sentencing,” whereby “relevant conduct,”
Second, the Commission followed that debatable but defensible decision with the entirely unjustified decision to price relevant conduct at exactly the same level of severity as convicted conduct. Though the Supreme Court had ruled, prior to the Guidelines, that a sentencing court may consider misconduct of a defendant, whether or not resulting in a conviction, see Williams v. New York,
Third, the courts then had to decide what standard of proof to apply in determining whether the misconduct alleged to be relevant conduct had occurred. We have accepted the “preponderance of the evidence” standard, see United States v. Guerra,
Fourth, the courts then had to decide whether unconvicted conduct could be used to enhance a sentence even though the defendant had been acquitted of the alleged conduct. We have decided that acquitted conduct can be so used, see United States v. Rodriguez-Gonzalez,
The combined result of these developments for Nelson Frias is astonishing. Had he been convicted of the narcotics conspiracy offense, he would have faced a guideline range of 210 to 262 months and could have been sentenced at the top of the range to 262 months (nearly 22 years) since the maximum sentence for the drug conspiracy would have been life imprisonment. Having been acquitted of the drug conspiracy offense, he remains subject to the same guideline range of 210 to 262 months, and faces a maximum sentence of 20 years, which is the result of consecutive sentencing on the two weapons offenses. Thus, after he was tried for the conspiracy offense and acquitted, he faces virtually the same sentence that he would have received had he been convicted! His twenty-year sentence is thirteen times higher than the top of the guideline range that would have been applicable had he been sentenced solely for the conduct of which he was convicted. When the Guidelines and the case law implementing them permit such a result, it is high time for both the Commission and the courts to give serious reconsideration to the decisions that underlie this outcome.
For now, the only opportunity to ameliorate the guideline result is for the sentencing judge to give sympathetic consideration to the downward departure that the Court’s opinion sensibly permits, since this surely is a case where a circumstance— enhancement of a sentence for acquitted conduct — is present “to a degree” not adequately considered by the Commission, 18 U.S.C. § 3553(b) (1988). In light of our precedents, I concur.
Order on Denial of Rehearing and Rehearing In Banc.
March 25, 1993.
A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by counsel for the defendant-appellant Nelson Frias.
Upon consideration by the panel that decided the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc has been transmitted to the judges of the court in regular active service and to any other judge that heard the appeal and a poll of said judges having been taken, a majority of the court has voted not to reconsider the decision in banc. Judge Newman dissents from the denial of the rehearing in banc in a separate opinion.
Notes
. Frias was also charged with, and acquitted of, using a firearm in connection with a narcotics offense. Had he been convicted of this offense, his sentence would have been increased by a mandatory five-year consecutive sentence. See 18 U.S.C. § 924(c) (1988).
. The District Court added a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a weapon in connection with a narcotics conspiracy, yielding an offense level of 38 and a guideline range of 262 to 327 months. The Court properly rules this adjustment to be dou
. The unconvicted conduct resulting in substantial enhancement of the guideline range in this case is not technically an application of section IB 1.3, the “relevant guideline" conduct, but rather of section 2K2.1(c), the cross-reference guideline for weapons offenses. My comments apply equally to enhancements under both sections, and it will simplify the discussion to refer to "relevant conduct.”
Dissenting Opinion
dissenting:
One of the bizarre aspects of the current Sentencing Guidelines regime is that a defendant can receive the same sentence whether he is convicted or acquitted. That phenomenon occurs when a defendant is charged with multiple counts. The pending case of Nelson Frias illustrates the problem.
Frias was convicted of two firearms violations and acquitted of a drug conspiracy violation. His applicable guideline range based solely on the convicted conduct would have been 12 to 18 months. His actual guideline range, based in part on the drug conspiracy of which he was acquitted, was 210 to 262 months. This is the same range that would have been applicable had he been convicted of the drug conspiracy.
I requested a vote on whether to rehear Frias’s case in banc in order to afford this Circuit an opportunity to reexamine its case law on the permissible uses of acquitted conduct. Prior to the Guidelines, we had permitted a sentencing judge merely to “consider” evidence of misconduct notwithstanding an acquittal. See United States v. Sweig,
With the denial of rehearing in banc, only three avenues of redress remain. First, Frias’s case could be selected for further consideration on petition for writ of certiorari to resolve a split among the circuits. See United States v. Brady,
From the denial of rehearing in banc, I respectfully dissent.