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United States v. Jose Pagan Campino and Oscar Estrada Ruiz

decided: November 22, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSE PAGAN CAMPINO AND OSCAR ESTRADA RUIZ, DEFENDANTS-APPELLANTS



Appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, for conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and 846, and for possession of a firearm by an illegal alien, 18 U.S.C. § 922(g)(5).

Oakes, Chief Judge, Lumbard and Pierce, Circuit Judges.

Author: Oakes

OAKES, Chief Judge

Jose Pagan Campino and Oscar Estrada Ruiz appeal from final judgments of the United States District Court for the Eastern District of New York following a jury trial before Charles P. Sifton, Judge, convicting them of conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and 846 (1982), and of possession of a firearm by an illegal alien, 18 U.S.C. § 922(g)(5) (Supp. V 1987). Appellants were each sentenced to a term of 125 months' imprisonment followed by three years of supervised release on the first count and to a concurrent term of twelve months' imprisonment and three years of supervised release on the second count. Campino was also fined $98,000, and both received the mandatory $100 special assessment.

Campino and Ruiz raise several claims on appeal: (1) the district court erroneously refused to grant a pre-trial hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); (2) the district court abandoned its impartial role and acted as the government's advocate during the pre-trial suppression hearing; (3) the district court erroneously admitted testimony by law enforcement officials; and (4) there was insufficient evidence to sustain appellants' convictions because there was no tangible evidence establishing their participation in a cocaine conspiracy. Finding these contentions to be without merit, we affirm.

BACKGROUND

The investigation that culminated in appellants' convictions began with the arrest of Nelson Taylor-Lopez, a person apparently unknown to appellants, on December 2, 1987 on a charge of conspiracy to distribute cocaine. A search of Taylor-Lopez's apartment at 92-29 Queens Boulevard, Queens, New York, on that date turned up, inter alia, a Consolidated Edison bill for an apartment at 121-16 Keel Court in College Point, Queens, and a money order made out to the New York City Parking Violations Bureau that listed the same address. Because Drug Enforcement Administration ("DEA") agents found items at the Queens Boulevard apartment that they believed to be related to the sale of cocaine but did not find any of the drug itself, they focused their investigation on the Keel Court apartment as the possible "stash" for Taylor-Lopez's inventory of cocaine.

An affidavit executed in support of a search warrant application for the Keel Court apartment by DEA agent William Dolinsky stated that a DEA investigation turned up evidence of several more connections between the apartment and Taylor-Lopez. The evidence included information from two neighbors who identified Taylor-Lopez (through a photograph) as living in the apartment and from four neighbors who stated that a "Spanish looking" resident drove a late model red Corvette, the same type of car that Taylor-Lopez drove. Neighbors also reported suspicious activity at the apartment, including many late night visitors and a recently installed surveillance camera in the building's hallway.

Based on this information, DEA agents received and executed a warrant to search the premises on December 7, 1987. The search revealed, however, that appellants -- who had just moved in -- and not Taylor-Lopez lived in the apartment.*fn1 Among the items seized were three notebooks, two receipts, two handguns, three beepers, two mobile telephones, a counterfeit money detector and over $93,000 in cash. DEA agents also seized all kinds of electronic surveillance and counter-surveillance equipment, including vibrating warning devices, "bug" detectors and recording equipment.

A two-count indictment was filed against appellants on December 21, 1987. Prior to their trial, the district court denied appellants' request for a Franks hearing on the truthfulness of the affidavits supporting the warrant application. The court did hold a suppression hearing and found that the search warrant was executed properly.

The government's case at trial was based largely on testimony regarding the notebooks and electronic equipment found at the premises and the practices of drug traffickers. Detective Michael Connors and Agent Dolinsky testified that drug operations typically use sophisticated electronic equipment like that seized from appellants' apartment. Agents Dolinsky and Richard McCarthy testified that large drug operators typically keep their stash of drugs and financial operations in separate locations.

Agent McCarthy also offered expert testimony that the seized notebooks contained the records of a cocaine operation, including ledger sheets showing amounts owed by customers for the purchase of kilogram quantities of the drug, chronological ledgers showing cocaine sales between September and November 1987 and various expenses of the operation. Agent McCarthy connected the financial records to cocaine sales based on the similarity between the street value of a kilogram of cocaine at that time, which he estimated to have been $14,000 to $18,000 per kilogram wholesale, and the figures contained in the notebooks. He also testified that a notebook that listed customers' names also listed amounts owed to "Ruben," which was a name used by Campino, and that another notebook listed payments made to "Ruben," "Oscar" and "Nora." A handwriting expert testified that the notebooks, receipts and address books seized were written by Ruiz.

Discussion

1. Denial of Franks ...


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