United States v. Melendez ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-3501
_____________
UNITED STATES OF AMERICA
v.
ALEX MELENDEZ
a/k/a King A.M.
Alex Melendez,
Appellant
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No. 06-3614
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UNITED STATES OF AMERICA
v.
WILLIAM SOSA
a/k/a King Homicide
William Sosa,
Appellant
_____________
No. 06-3667
_____________
UNITED STATES OF AMERICA
v.
ANGEL AVILES
a/k/a Len Vando
a/k/a King Cano
Angel Aviles,
Appellant
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No. 06-3668
_____________
UNITED STATES OF AMERICA
v.
ELVIS ORTIZ
a/k/a King Elvis
Elvis Ortiz,
Appellant
_____________
No. 06-4317
_____________
UNITED STATES OF AMERICA
v.
ANGEL SERRANO
a/k/a King Pleasure
Angel Serrano,
Appellant
_____________
No. 07-1370
_____________
UNITED STATES OF AMERICA
v.
ROBERTO ROSADO,
Appellant
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No. 07-1889
_____________
UNITED STATES OF AMERICA
v.
EDWIN IRIZARRY
a/k/a King Penguin
Edwin Irizarry,
Appellant
_____________
No. 07-3651
_____________
UNITED STATES OF AMERICA
v.
OSCAR BERMUDEZ
a/k/a King Fat Joe
Oscar Bermudez,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. Nos. 05-cr-00044-1, 05-cr-00044-4, 05-cr-00044-7, 05-cr-00044-8,
05-cr-00044-10, 05-cr-00044-12, 05-cr-00044-13, 05-cr-00044-15)
District Judge: Honorable Gene E.K. Pratter
_________________________________
Submitted under Third Circuit LAR 34.1(a)
May 26, 2010
Before: McKee, Chief Judge, Rendell and Garth, Circuit Judges
(Opinion filed: August 3, 2010)
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OPINION
___________
McKee, Chief Circuit Judge
Defendants were convicted of various charges arising from their participation in a
drug distribution ring. Each makes a number of arguments as set forth below. We will
affirm the judgments of conviction and sentence in each of these consolidated cases.
Inasmuch as we write primarily for the parties, who are familiar with the facts of
this case, we need not set forth the procedural history or background.
I. The Defendants’ Claims
A. William Sosa
William Sosa argues that the prosecution improperly exercised some of its
peremptory strikes by striking potential jurors based on race or ethnicity in violation of
Batson v. Kentucky, 476 U.S. 79 (1986); that the district court erred in eliciting expert
opinion and hearsay testimony regarding the bad character of the Almighty Latin King
and Queen Nation (“ALKQN”); that the district court erred in not dismissing counts three
and four of the indictment, because the government constructively amended the
indictment, creating prejudicial variance between the indictment and evidence presented
at trial; that the evidence was insufficient to convict him for using or carrying a firearm in
connection with the alleged conspiracy to murder an unknown person in Trenton, New
Jersey; that there was insufficient evidence to prove that he conspired to maim Raphael
Guzman in aid of racketeering activity; that the evidence failed to prove beyond a
reasonable doubt that he carried a firearm during the alleged conspiracy to murder
Guzman; that the evidence failed to prove beyond a reasonable doubt that he conspired to
kidnap Elena Mercado in aid of racketeering, and; that the sentences imposed on him
were unreasonable.
B. Edwin Irizarry
Edwin Irizarry argues that his life sentence was substantively and procedurally
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unreasonable, as it was greater than necessary to satisfy the purposes of punishment
pursuant to 18 U.S.C. § 3553(a).
C. Alex Melendez
Alex Melendez argues that the district court erred by denying his motions to
suppress a photographic identification and for a bill of particulars, and by refusing to
grant the joint Batson motion. He also argues that he was entitled to an acquittal because
the evidence was insufficient to sustain a conviction for violations of 21 U.S.C. §§ 846and 860, and 18 U.S.C. § 1962(d).
Melendez also asserts that there was insufficient evidence to establish that he
committed an overt act leading to murder rather than “only an assault;” that there was
insufficient evidence to convict him of engaging “in any conduct tending to prove he
participated in a racketeering enterprise;” that the district court improperly ignored
evidence that a juror had arrived at a guilty verdict based upon compulsion and duress,
and; that the district court made unconstitutional findings during the sentencing process,
resulting in an unreasonable sentence.
D. Angel Aviles
Angel Aviles argues that the prosecutor exercised peremptory strikes of jurors in
violation of Batson.
E. Elvis Ortiz
Elvis Ortiz argues that the evidence was insufficient to sustain his conviction for
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involvement in a drug conspiracy or distribution of a controlled substance in violation of
21 U.S.C. §§ 846 and 860, or for committing violent crimes in aid of a racketeering
enterprise in violation of 18 U.S.C. § 1959(a)(1). In a related argument, he claims that
the evidence was insufficient to establish beyond a reasonable doubt that he participated
in the kidnapping of Rafael Guzman, and that the district court erred in denying his Rule
29 motion for judgment of acquittal as to charges under 18 U.S.C. §§ 1959(a)(5) and (6).
He also argues that the evidence was insufficient to allow a jury to conclude that
he committed an overt act that would lead to murder rather than to assault; that there was
no reasonable evidence to support a finding that he committed an overt act which would
lead to maiming an individual, or that he participated in the racketeering enterprise, and;
that the district court made unconstitutional findings during the sentencing process and/or
imposed an unreasonable sentence.
F. Roberto Rosado
Roberto Rosado argues that the district court erred in denying his presentence
motion to withdraw his guilty plea because it was not voluntarily and knowingly entered
into, and that his counsel was ineffective.
G. Angel Serrano
Angel Serrano argues that the district court erred in denying his motion for
judgment of acquittal as to the charges under 18 U.S.C. §§ 1959(a)(1) and (2), and that
the district court erred in denying the joint Batson challenge. He also claims that his
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sentence was unreasonable.
H. Oscar Bermudez
Oscar Bermudez argues that the district court erred in refusing to allow him to
withdraw his guilty plea prior to sentencing.
II. Discussion
We have reviewed the arguments made by each of the defendants, as well as the
responses of the government, and we conclude that, with one exception, each of the
allegations of error is totally devoid of merit and can be dismissed without discussion.
Indeed, many of the issues raised on appeal border on frivolity. We will therefore affirm
the judgments of conviction and sentence without further discussion.
The sole exception to this is the argument raised pursuant to Batson v. Kentucky,
476 U.S. 79 (1986). Although the Batson claims are also meritless, they warrant very
brief discussion.
We noted in Hardcastle v. Horn, 368 F.3d 246, 255 (3d. Cir. 2004), that district
courts should undertake a three-step inquiry to determine that peremptory strikes are not
being exercised in an unconstitutional manner when confronted with a Batson challenge.
Here, the district court did not undertake the three-step inquiry that we discussed in
Hardcastle. Nevertheless, even though the district court’s response was not as
procedurally precise as it should have been, it is clear that the record supports its denial of
the joint Batson motion, as none of the defendants met their burden of establishing that
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any of the prosecutor’s peremptory challenges was motivated by race, national origin, or
considerations of ethnicity, or that the prosecutor’s proffered reasons for the strikes were
a pretext to survive the Batson.
III. Conclusion
Accordingly, we will affirm the judgments of conviction and sentence of each of
these defendants.
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