United States v. Frank Estrada, Also Known as the Terminator, Also Know as Big Dog, Also Known as "Mustard" Edward Estrada, Also Known as French Fry, Also Know as Susan Kock Fry, Isaias Soler, Also Known as Eso, Also Known as "Dog" Nelson Carrasquillo William Rodriguez, Also Known as Billy Rodriguez, Also Known as William Gomez, Also Known as Billy Gomez, Also Known as Billy the Kid Felix Dejesus, Also Known as Dino Charles Dejesus, Also Known as Chino Eddie Lawhorn, Also Known as Fat Boy Yamarr Shipman, Also Known as Country Also Known as Pak Chong Mar Michael Hilliard, Also Known as Mizzy Pablito Cotto Rosario Cotto, Also Known as Sato Benito Rosario Ricardo Rosario, Also Known as "Q" Jermaine Jenkins, Also Known as "Fats" Makene Jacobs, Also Known as Madee Joseph Butler, Also Known as Pee Wee Viviana Jiminez Kelvin Vereen, Also Known as Nino Daniel Herredia, Also Known as D-Nice Felipe Santana, Also Known as Omar Soto Tamarius Maner, Also Known as Trigger Gloria Vargas Victor Cruz, Also Known as Casper Enr

Citations: 320 F.3d 173; 2003 U.S. App. LEXIS 2509Docket: 02-1173

Court: Court of Appeals for the Second Circuit; February 11, 2003; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Hector Gonzalez appeals the denial of his motion to dismiss two counts of a sixteen-count indictment in the United States District Court for the District of Connecticut on double jeopardy grounds. Count Twelve accuses him, along with other defendants, of conspiring to possess with intent to distribute over 1000 grams of heroin. Count Thirteen charges him with conspiracy to possess with intent to distribute over 50 grams of cocaine base ("crack"). Previously, Gonzalez was indicted in the Eastern District of New York on two counts of conspiracy related to cocaine, to which he pleaded guilty. The District Court ruled that the heroin conspiracy in the Connecticut indictment was distinct from the New York charges. Additionally, for the cocaine conspiracy, the court found that the facts supporting the Connecticut indictment were unknown and could not have been reasonably known to the government at the time of the New York indictment. Thus, the motion to dismiss was denied.

The order regarding the counts from the District Court is affirmed, with different reasoning applied specifically to the cocaine conspiracy charge. In May 1997, DEA agents in the Eastern District of New York learned from confidential informants that Cano-Lopez sought to buy up to ten kilograms of cocaine. Cano-Lopez mentioned an unidentified buyer from Connecticut but did not provide additional details. On June 4, 1997, Gonzalez was arrested in Queens while attempting to purchase the cocaine, with approximately $125,000 found in his vehicle and over $1,600 seized from him. Cano-Lopez was also arrested and implicated Gonzalez in the cocaine conspiracy, identifying another individual, Jose Mota, as a lookout.

DEA Special Agent Mark Tully testified before the grand jury on June 17, 1997, detailing a May 30 meeting between Cano-Lopez and the informants under DEA surveillance, which was recorded. Cano-Lopez agreed to purchase ten kilograms at $25,000 per kilogram. On June 2, he informed the informants that the Connecticut buyer needed more time to gather funds. Prices were renegotiated to $23,000 per kilogram. On June 4, Cano-Lopez confirmed readiness to complete the deal, leading to a meeting at a Burger King where DEA agents observed the transaction setup. After a brief interaction, Gonzalez revealed a bag containing cash from his vehicle's trunk, prompting the arrest of both men.

Following Tully's grand jury testimony, Gonzalez and Cano-Lopez were charged with conspiracy to possess cocaine with intent to distribute (Count One) and attempting to possess cocaine with intent to distribute (Count Two), occurring between May 30 and June 4, 1997.

On July 3, 1997, Special Agent Tully testified before a grand jury, reiterating his prior testimony from June 17 with two key updates: he identified Mota as a lookout during a drug transaction on June 4 and specified that $125,185 was found in Gonzalez's vehicle. Following this testimony, a superseding indictment was issued charging Mota alongside Gonzalez and Cano-Lopez with the same crimes as in the initial indictment. On November 13, 1997, Gonzalez entered a plea agreement with the U.S. Attorney's Office for the Eastern District of New York, pleading guilty to conspiracy in exchange for the dismissal of an attempt charge. The agreement included provisions for sentencing recommendations and a waiver of appeal rights, contingent upon the sentence being within the agreed range. After his plea was accepted, Gonzalez remained free until his sentencing on April 9, 1998, where he received an 87-month prison term and five years of supervised release.

In a separate investigation initiated in August 1999, FBI agents in Connecticut began looking into narcotics trafficking by Frank Estrada, who led a substantial organization in processing and distributing narcotics. This organization supplied street-level dealers in Bridgeport and other Connecticut cities, utilizing violence to maintain control over specific territories. On November 2, 2000, a grand jury issued indictments against Estrada, Soler, and twenty-two other associates for their involvement in these criminal activities. In early 2001, while incarcerated, Jose Lugo contacted an Assistant U.S. Attorney to provide information about the Estrada organization, subsequently cooperating with government agents and testifying at the trial of Gonzalez's co-defendants.

Lugo provided detailed testimony regarding the structure and operations of an organization involved in drug trafficking. He identified key individuals, including Estrada, the head of the organization, and the lieutenants responsible for distributing narcotics and collecting sales proceeds. Lugo described the packaging of drugs, the locations where they were prepared and stored, and Estrada's methods for maintaining control over drug sales territories.

Lugo highlighted Hector "June Bug" Gonzalez's significant role within the organization as he managed the lieutenants and was involved in procuring heroin from New York City in 1997. After Gonzalez's arrest in a DEA sting operation, Estrada removed a safe containing cash from Gonzalez's apartment. Despite being released on bond with an electronic monitoring device, Gonzalez continued his involvement in the organization until his incarceration.

Lugo’s testimony contributed to the grand jury's issuance of a Third Superseding Indictment on June 20, 2001, against Estrada and twenty-one others on multiple counts, including racketeering, violent crimes, witness tampering, and drug conspiracies. While Gonzalez was identified as part of Estrada's enterprise, he was not charged with racketeering or other serious counts, but was specifically charged in two conspiracy counts related to heroin and cocaine base trafficking from 1991 to 2001.

Gonzalez filed a motion to dismiss two counts against him in December 2001, arguing that prosecuting him would violate his double jeopardy rights due to his prior guilty plea in a New York Indictment involving similar conduct. The District Court denied his motion on February 22, 2002, finding that Gonzalez initially demonstrated that double jeopardy was implicated, shifting the burden to the Government to show distinct conspiracies. The court concluded the Government met this burden regarding Count Twelve, which pertained to a heroin conspiracy, distinct from the cocaine conspiracy charged in the New York Indictment. However, for Count Thirteen, the court identified that the attempted cocaine purchase in the New York Indictment was part of the same overarching conspiracy alleged in Count Thirteen of the Connecticut Indictment. Despite this overlap, the court denied dismissal of Count Thirteen, reasoning that the Government was unaware of the facts supporting this count at the time of the New York charges. 

The legal framework for double jeopardy, protected under the Fifth Amendment, prohibits multiple prosecutions or punishments for the same offense. It applies in three scenarios: after acquittal, after conviction, and for multiple punishments. A successful double jeopardy claim requires that the charged offenses be identical in both fact and law. Specifically, in cases of successive conspiracy prosecutions, the focus is whether the second prosecution involves a distinct conspiracy from the first. If it does, there is no double jeopardy issue, regardless of evidentiary overlap.

The Korfant factors are utilized in this Circuit to assess whether conspiracies are distinct, requiring consideration of eight criteria: (1) the charges in successive indictments; (2) participant overlap; (3) temporal overlap; (4) operational similarity; (5) common overt acts; (6) geographic scope; (7) shared objectives; and (8) interdependence of conspiracies. No single factor is determinative. When a defendant presents a non-frivolous double jeopardy claim asserting two conspiracies are not distinct, the Government must then prove their separation by a preponderance of the evidence.

In the case of Gonzalez, while he claims Count Twelve of the Connecticut Indictment and the New York Indictment are not distinct, the analysis shows minimal overlapping factors. Both indictments involve conspiracy to distribute controlled substances; however, the Connecticut case involves heroin and the New York case involves cocaine, with no overlap in participants except for Gonzalez. The timeframes differ significantly—less than a month for the New York conspiracy compared to a decade for the Connecticut conspiracy—indicating dissimilar operations. The New York conspiracy was a brief, single transaction, while the Connecticut operation was extensive and organized.

Despite the potential for double jeopardy claims involving different drugs to be considered the same if stemming from a singular distribution network, no evidence supports the existence of such a network here. The only common figure, Gonzalez, was involved in separate transactions without establishing a unified business model. Consequently, the District Court's finding that the New York conspiracy is distinct from the Connecticut conspiracy is upheld. The double jeopardy analysis for the New York Indictment and the crack cocaine conspiracy in Count Thirteen of the Connecticut Indictment remains more complex.

The District Court's conclusion that Gonzalez' attempted cocaine purchase in New York was not a separate conspiracy from the broader drug operation charged in Connecticut is disputed. The argument presented emphasizes that the two conspiracies, while overlapping in time and criminal objective, are distinct due to substantial differences. The indictments both involve narcotics conspiracies, but the specific charges differ: the New York Indictment pertains to cocaine possession with intent to distribute, while the Connecticut Indictment focuses on cocaine base (crack) distribution. 

Gonzalez is the sole overlapping participant, with varying roles in each conspiracy; in New York, he was involved in a short-term purchase operation, while in Connecticut, he was a long-term lieutenant in a larger drug organization. The assertion that unnamed participants in both indictments could overlap is rejected as speculative, as the individuals involved in the New York purchase appear entirely separate from those in Connecticut.

Furthermore, the timeframes of the conspiracies differ significantly—less than one month for New York versus five years for Connecticut—eliminating the concern of charging smaller conspiracies within a larger one. Gonzalez' participation in the Connecticut conspiracy occurred independently of the shorter New York conspiracy, reinforcing the argument for their distinction.

Prosecutorial abuse is less likely when a smaller conspiracy is charged first, reducing the significance of temporal overlap. While the District Court found no evidence of similarities between the conspiracies in New York and Connecticut, the Government highlighted clear differences. The New York operation involved a single cocaine transaction with minimal personnel, whereas the Connecticut operation was extensive, involving preparation, packaging, and distribution with a large network over several years. 

The District Court noted that although overt acts are not required to prove guilt in either indictment, the Government planned to use facts from the New York case to support the Connecticut charges. The only overlapping overt act was the purchase of cocaine in New York for potential conversion to crack for distribution in Connecticut, but Connecticut involved many more overt acts, including violence and the use of firearms to control the drug market. 

Geographically, Gonzalez's involvement in the New York conspiracy was limited to Queens, while his role in Connecticut was significant, acting as first lieutenant in the Estrada organization. He engaged in various activities in Connecticut post-arrest. The Estrada organization did not distribute drugs at the street level in New York; that was confined to Connecticut locations. Finally, while the District Court asserted that both conspiracies shared common objectives, this conclusion is disputed.

The New York conspiracy aimed solely to acquire a large quantity of unprocessed cocaine, involving co-conspirators Gonzalez, Cano-Lopez, Mota, and two informants, who were not part of any agreements within the Estrada organization concerning the purchase, preparation, packaging, or distribution of narcotics. There was no evidence that the New York conspirators knew about potential plans to convert the cocaine into crack for distribution in Connecticut. The agreements among the New York co-conspirators were distinct from those in Connecticut, supporting the principle that "multiple agreements to commit separate crimes constitute multiple conspiracies," as established in United States v. Broce.

The degree of interdependence between the two conspiracies was negligible; the success of the Connecticut crack cocaine conspiracy was entirely independent of the New York cocaine conspiracy. The agreements made by Gonzalez and his associates were self-contained and did not rely on the Connecticut narcotics conspiracy, which had been ongoing before and after the New York conspiracy concluded. Consequently, one conspiracy could succeed without the other, with the Connecticut objectives continuing even after the New York conspiracy was disrupted by arrests.

The court affirmed the District Court's finding regarding Count Thirteen, noting it was not part of the New York conspiracy but was not addressed further as the government could not have known the relevant facts at the time of the New York charges. The order of the District Court was upheld.