Convictions Affirmed in Drug Robbery Conspiracy

by Patterson Belknap Webb & Tyler LLP

In United States v. Martinez, Nos. 14-2759, 15-511, 15-836, 15-1001, 15-3699 (Kearse, Jacobs, Pooler), issued on July 7, the Second Circuit affirmed the convictions of several co-conspirators in a decade-long scheme where at least two dozen individuals allegedly committed over 200 drug robberies by impersonating police officers who “arrested” drug traffickers and “seized” cash and drugs. 


This case provides a window into the world of push-in robbery crews, which have long operated in certain neighborhoods of New York City. Based on a tip provided by one member of the robbery crew, the crew identifies a drug-dealer who is believed to have drugs and/or money. Brandishing firearms, the crew enters the drug-dealer’s apartment in order to steal the drugs (which were then sold by the robbery crew) and money. Sometimes, as in one of the robberies at issue in this appeal, the crew enters the wrong apartment, terrorizing families who were not even part of the drug trade. In other instances, the drug-dealer’s family, including children, is handcuffed and beaten until they tell the crew where the drugs and money are located. Both through historical prosecutions and through the use of “sting” operations involving confidential informants, the DEA and prosecutors in New York City have made the investigation and prosecution of these crews a priority.

This appeal involved four defendant-appellants:  Henry Fiorentino, Marcos Rodriguez, Randall Martinez, and Jose Tejada.  The defendants were convicted, Martinez by guilty plea and the other defendants after trial, of conspiracy to commit Hobbs Act robbery, conspiracy to distribute narcotics, and, for Martinez and Rodriguez, brandishing a firearm in furtherance of a drug trafficking offense.  Tejada, who was an actual NYPD officer during the time he participated in the conspiracy, was also charged with obstruction of an official proceeding and conspiring to obstruct an official proceeding.  Although the defendants raised a host of arguments challenging their convictions and sentences, Judge Kearse’s opinion rejected all of them.

The Court’s Holding

First, Judge Kearse addressed the statute of limitations arguments raised by Fiorentino and Rodriguez.  Fiorentino, who had succeeded in having the gun charge dismissed on limitations grounds at the close of the government’s case, argued on appeal that there was insufficient evidence that he had been involved in the conspiracy at all during the limitations period.  Fiorentino conceded that the conspiracy continued into the limitations period and, therefore, the burden shifted to him to point to affirmative evidence that he withdrew from the conspiracy.  The Court noted that Fiorentino’s arrest alone did not establish that he withdrew from the conspiracy, and pointed to evidence at trial that supported his continued participation, including evidence that he expressed a desire to participate in more robberies and that he purchased and possessed police equipment and drug paraphernalia well within the statute of limitations.

Unlike Fiorentino, Rodriguez had not raised a statute of limitation defense to any of the charges against him either prior to or during trial.  Instead, three years after the verdict against him, but before he was sentenced, Rodriguez filed post-trial motions under Rules 29 and 33 and sought an acquittal based on a statute of limitations arguments; he supplemented those motions shortly after Fiorentino (whose trial took place much later) succeeded in having the firearm charge dismissed.  The Second Circuit affirmed the denial of those motions, noting that the burden is on the defendant to affirmatively raise a statute of limitations defense at or before trial.  The Circuit cannot review a statute of limitations defense that was not presented at trial, even under plain error review, because the district court commits no error by not addressing a statute of limitations argument that was never made.  This is an important point:  if a defense attorney thinks that there is a possible statute of limitations argument to be presented, it must be raised at or before trial, or, the Second Circuit says, that the argument is forever waived. 

Next, Judge Kearse turned to a number of issues raised by Tejada, the former NYPD officer.  Tejada challenged the obstruction of justice convictions for lack of sufficient evidence.  The Second Circuit disagreed.  It cited testimony that, after various members of the conspiracy were arrested, Tejada, on his own and also at the request of others, began regularly checking confidential NYPD databases to look for outstanding arrest warrants against members of the crew.  There was testimony that a co-conspirator, who had travelled overseas, would not have returned to the country if Tejada had told him that there was a warrant for his arrest. 

The Court explained that for purposes of an obstruction charge the government need only prove that an official proceeding—which includes a grand jury—is reasonably foreseeable, and that there was a “nexus” between the defendant’s conduct and that proceeding.  Tejada, who had participated in over a dozen grand jury proceedings himself as a police officer, should have foreseen that after the initial arrests there were likely to be grand jury proceedings leading to indictments.  Moreover, it was inferable that his searches of NYPD databases and reporting back to coconspirators were intended to assist them in avoiding arrest.  The Court’s discussion of the leading cases involving obstruction of justice prosecutions brought under Section 1512 is instructive and thorough, although in the end the Court made little reference to these cases in its analysis, finding this to be an “eas[y]” case.

Tejada also challenged as hearsay the testimony of a police officer who described a 911 call from two individuals who subjected to a robbery, apparently based on a bad tip that they had drugs stored in their basement.  In the 911 call, the victims described the men who arrived at their home posing as police officers, but those victims were unable to identify the defendants prior to trial (and it appears that no in-court identification was attempted).  The district court admitted the testimony under FRE 801(d)(1)(C) allowing the court may admit a statement as nonhearsay if “[t]he declarant testifies and is subject to cross-examination about [the] prior statement, and the statement . . . identifies a person as someone the declarant perceived earlier.”  Tejada argued that the rule did not apply if the speaker of the out-of-court statement (i.e., the robbery victims) did not testify.  After laying out the procedural history and the relevant law, the Court then avoided the evidentiary question by holding that even if there was error, it was harmless given the strength of the evidence against Tejada and the substantial testimony by a cooperating witness about a particular robbery.

Tejada also argued that he was entitled to a new trial because the government attorney had improperly bolstered witness testimony in his summation.  The government responded in rebuttal to defense arguments made by the defense about the cooperating witnesses by saying that if the defense was right, then the jury was presented with “nothing less than a jailbreak, with all the cooperating witnesses coming here to lie to you.”  The government stated that the odds of collusion by the cooperators were “one in a billion or even worse.”  The Court rejected the defense argument, holding that the government attorney only laid out factual bases for the jury to believe witness testimony (including that it was consistent and that the witnesses had no opportunity to discuss their testimony), and did not personally vouch for witness’s honesty.  The Court viewed prosecutor’s summation as “colorful” but “clearly hyperbolic” and said it “would not have been taken by the jury literally.”

Martinez also challenged the denial of his request for new counsel, but the Second Circuit found no error.  Martinez initially complained that he was having trouble communicating with his court-appointed lawyer, but then dropped the issue, confirming at his plea hearing that he was satisfied with his representation.  Under those circumstances, there was no error in the district court’s denial of the request for new counsel prior to sentencing.  The Second Circuit also rejected Martinez’s argument that he was not sufficiently informed of the nature of the firearm charge before his guilty plea.  Because Martinez did not make a timely objection in the district court, the Court applied plain error review.  Citing the lengthy back-and-forth between the district court and Martinez, in which Martinez confirmed that he knew his coconspirators carried guns and that he had seen them being brandished at victims, the Court found the requirements of Rule 11 satisfied.

Finally, the Court briefly disposed of Tejada and Fiorentino’s challenges to their below-the-range Guidelines sentences.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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