968 F.

2d 130
60 USLW 2699

UNITED STATES of America, Appellee,

v.
Roberto RODRIGUEZ, Luis Rosado, also known as Manuel
Carillo, Nelson Noa, Rafael Flores, Ronnie L'Rue, Mirella
Pacheco, Jose Cots, Nelson Garcia, also known as Nelson
Cabilla, Noel Aguero, Defendants-Appellants.
Nos. 28, 527-533 and 703, Dockets 91-1152, 91-1160, 91-1167,
91-1169, 91-1170, 91-1228, 91-1286, 91-1287 and 91-1379.

United States Court of Appeals,

Second Circuit.
Argued Nov. 18, 1991.
Final Briefs Submitted Nov. 22, 1991.
Decided April 9, 1992.

Nelson W. Cunningham, Asst. U.S. Atty., New York City (Otto G.

Obermaier, U.S. Atty., S.D.N.Y., Amy E. Millard, Asst. U.S. Atty., New
York City, on the brief), for appellee.
Roger L. Stavis, New York City (Steven R. Kartagener, Kartagener &
Stavis, on the brief), for defendant-appellant Roberto Rodriguez.
Michael F. Bachner, New York City, for defendant-appellant Luis
Rosado.
Philip Katowitz, New York City, for defendant-appellant Nelson Noa.
David Cooper, New York City, for defendant-appellant Rafael Flores.
Gerald J. McMahon, New York City, for defendant-appellant Ronnie
L'Rue, joined the brief submitted for defendant-appellant Flores.
Vincent L. Verdiramo, Jersey City, N.J. (Verdiramo & Verdiramo, on the
brief), for defendant-appellant Mirella Pacheco.
Daniel Meyers, New York City, for defendant-appellant Jose Cots.

Martin J. Seigel, New York City, for defendant-appellant Nelson Garcia.

Joyce London, New York City (Susan G. Kellman, on the brief), for
defendant-appellant Noel Aguero.
Before: FEINBERG, MESKILL, and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:

Defendant Roberto Rodriguez ("Rodriguez") appeals from a judgment of the

United States District Court for the Southern District of New York, Louis L.
Stanton, Judge, convicting him, following his plea of guilty, on one count of
conducting a continuing criminal enterprise, in violation of 21 U.S.C.
848(a), 853(a)(1), 853(a)(2), and 853(a)(3) (1988). Defendants Luis Rosado,
Nelson Noa, Rafael Flores, Ronnie L'Rue, Mirella Pacheco, Jose Cots, Nelson
Garcia, and Noel Aguero appeal from judgments entered in the same court
following a jury trial before Judge Stanton, convicting all of them except Noa
on one count of conspiracy to possess with intent to distribute more than 50
grams of crack cocaine, in violation of 21 U.S.C. 846 (1988). Noa was
convicted of possession of approximately 18 grams of crack, in violation of 21
U.S.C. 844(a) (1988). Rodriguez was sentenced principally to 360 months'
imprisonment and ordered to forfeit assets in the amount of $550,000. Garcia,
having two prior narcotics felony convictions, was sentenced to life
imprisonment. The remaining appellants were sentenced principally to the
following prison terms: Rosado, 192 months; Noa, 60 months; Flores, 222
months; L'Rue, 240 months; Pacheco, 151 months; Cots, 204 months; and
Aguero, 300 months.

On appeal, appellants make numerous arguments, including principally (1)

their contention that the district court erred in refusing to suppress evidence
obtained through court-authorized wiretaps, (2) Rodriguez's contentions that he
should be allowed to withdraw his plea of guilty, and (3) Rodriguez's
challenges to his sentence. For the reasons below, we reject all of appellants'
contentions and affirm the judgments of conviction.

I. BACKGROUND
3

The present prosecution arises out of the investigation of a crack organization

in the Bronx, New York, headed by Rodriguez (the "Rodriguez Organization"
or "Organization"). The government's proof at trial included (1) the testimony
of coconspirator Evaristo Valentin, who had been Rodriguez's right-hand man
overseeing the operation of the Organization, and of Aurea Rodriguez (not

related to Roberto Rodriguez), another former member of the Organization; (2)

excerpts of telephone conversations recorded by means of court-authorized
wiretaps; (3) surveillance videotapes; (4) unpackaged crack and cocaine,
packaging materials, and more than 3,000 vials filled with crack, seized from
more than 20 locations; and (5) other physical evidence including detailed drug
records. The evidence, taken in the light most favorable to the government,
painted the following overall picture.
4

From prior to 1988 until July 1989, Rodriguez presided over a large-scale
narcotics operation in the Hunts Point section of the Bronx. The Organization
operated a retail crack outlet that was open for business 24 hours a day, seven
days a week. From this outlet an average of 1,200 to 2,600 vials of crack, at $5
per vial, were sold every day. The Organization also maintained many
apartments in Hunts Point and elsewhere in the Bronx for processing,
packaging, and storing the crack, or for storing drug records and profits.

Proceeds from the crack sales, often stored temporarily in an apartment

occupied by Aurea Rodriguez, were eventually taken to the Imperio Cafe, a
restaurant owned by Roberto Rodriguez in New Jersey. L'Rue, the cafe's cook
and manager, received and counted the money and ultimately delivered it to
Rodriguez. The other appellants played various other roles in the Organization.
Garcia was one of Rodriguez's main suppliers of cocaine; Flores was a courier
who sometimes cooked cocaine into crack; Rosado and Cots served as, inter
alia, packagers; and Aguero was the boss of one of the two daily shifts at the
retail outlet, ensuring that there was sufficient packaged crack available for
sale. Pacheco was Rodriguez's wife or girlfriend and served as his general
assistant, at various times packaging and transporting crack, or counting and
transporting the proceeds from the sales.

The investigation of the Rodriguez Organization's operations included raids in

1988 pursuant to search warrants, physical surveillance and videotaping, courtauthorized pen registers, and court-authorized wiretaps in 1989 on four
telephones at the Imperio Cafe and on the Bronx telephone of Aurea
Rodriguez. Appellants and other members of the Organization were arrested in
July 1989 as part of a coordinated series of raids.

The initial indictment charged 22 persons, including appellants, with

participating in a large-scale narcotics conspiracy, in violation of 21 U.S.C.
846, and charged Roberto Rodriguez as well with, inter alia, conducting a
continuing criminal enterprise, in violation of 21 U.S.C. 848(a). Rodriguez
entered into a written cooperation agreement with the government, in which he
agreed to plead guilty to the continuing criminal enterprise count and agreed to

forfeit assets. The government agreed to withdraw the other counts against him
and to recommend a downward departure in sentencing if he gave the
government substantial assistance in the investigation or prosecution of other
persons. As discussed in greater detail in Part II.B. below, after a hearing that
included inquiry into a potential conflict of interest on the part of the attorney
then representing Rodriguez, the district court accepted the plea.
8

Following the guilty pleas of Rodriguez and others, a superseding indictment

was filed against the remaining defendants. To the extent pertinent here, count
1 of the superseding indictment charged appellants other than Rodriguez with
conspiracy; count 2 charged Noa with possession of 18.2 grams of crack with
intent to distribute, in violation of 21 U.S.C. 812, 841(a)(1), and 841(b)(1)
(A) (1988). As discussed in greater detail in Part II.A. below, prior to trial
defendants moved to suppress information obtained through the wiretaps on the
Imperio Cafe telephones, contending that the orders purporting to authorize the
pen registers and wiretaps were jurisdictionally defective because they were
issued by a federal court in New York, rather than a court in New Jersey, the
jurisdiction in which the telephones were located. In an opinion reported at 734
F.Supp. 116 (1990), the district court concluded that the orders complied with
the pertinent statutory requirements. It ruled that since the telephone
communications were actually heard and recorded at United States Drug
Enforcement Administration ("DEA") headquarters in Manhattan, which is
within the Southern District of New York, and the pen register information was
received there as well, the use of the pen registers and the interceptions of the
conversations occurred in the Southern District of New York and thus within
the territorial jurisdiction of the issuing authorities. Id. at 120-21, 123.
Accordingly, it denied the motions to suppress.

After a 13-week trial at which, inter alia, Valentin described in detail the
Rodriguez Organization's operations and the government introduced some 90
conversations intercepted by means of the wiretaps, the jury found all of the
appellants who were tried, except Noa, guilty of conspiracy to possess with
intent to distribute more than 50 grams of crack. Noa was acquitted of
conspiracy; he was also acquitted of possession of crack with intent to distribute
but was found guilty of the lesser included offense of simple possession of
crack, in violation of 21 U.S.C. 844(a). Appellants were sentenced as
indicated above. The 360-month sentence on Rodriguez, imposed after the trial
of his codefendants, represented a substantial upward departure from the range
of imprisonment established by the applicable version of the federal Sentencing
Guidelines ("Guidelines").

10

These appeals followed.

II. DISCUSSION
11

On appeal, appellants other than Rodriguez contend principally that they are
entitled to a new trial on the ground that the court orders authorizing the
wiretaps and pen registers on the New Jersey telephones were jurisdictionally
defective and that the information obtained from the wiretaps should therefore
have been suppressed. Rodriguez contends principally (a) that his case should
be remanded to permit the district court to determine whether he may withdraw
his plea because of his first attorney's conflict of interest, or alternatively (b)
that his sentence should be vacated because the district court failed to follow
proper sentencing procedures. Appellants also make a variety of additional
arguments that we conclude are without merit and warrant little or no
discussion.

A. The Pen Register and Wiretap Authorizations

12
13

In April and May of 1989, in connection with its investigation of the Rodriguez
Organization, the DEA obtained authorizations from magistrate judges in the
Southern District of New York to install and use pen registers on four
telephones at the Imperio Cafe ("Cafe phones"). In June 1989, relying in part on
information obtained through the pen registers, the DEA obtained from District
Judge Peter K. Leisure, of the same court, authorization for electronic
interception of telephone calls to or from the four Cafe phones, and to or from
Aurea Rodriguez's telephone in the Bronx. The order was entered on the
government's representation, inter alia, that all of the interception equipment for
these five telephones would be installed and used at DEA headquarters in the
Southern District of New York. Appellants contend that the orders entered in
the Southern District of New York for pen registers and wiretaps on the Cafe
phones were not authorized by the federal statutes governing such matters,
arguing that since the Cafe is located in New Jersey, lawful orders could only
be obtained from a court in the District of New Jersey. For the reasons below,
we disagree.
1. The Pen Registers

14

A pen register is a mechanical device that simply records the telephone

numbers dialed on a given telephone. It does not indicate whether the calls
dialed were completed, and it does not capture the contents of the
communications. See generally United States v. New York Telephone Co., 434
U.S. 159, 161 n. 1, 98 S.Ct. 364, 366 n. 1, 54 L.Ed.2d 376 (1977). Such devices
are governed by 18 U.S.C. 3121-3127 (1988), which allows a district court
to authorize "the installation and use of a pen register ... within the jurisdiction

of the court," id. 3123.

15

In the present matter, after receiving authorization for the use of pen registers,
the DEA arranged with New Jersey Bell Telephone Company to lease a
telephone line running from near the Imperio Cafe to the DEA's Manhattan
headquarters. The pen registers were installed, monitored, and used at DEA
headquarters. Thus, though the telephones whose dialings were being registered
were located in New Jersey, the pen registers themselves were located in the
Southern District of New York. We conclude that the registers were installed
and used within the jurisdiction of the court that issued the authorizations.
2. The Wiretaps

16

The installation and use of wiretaps are governed by the Omnibus Crime
Control and Safe Streets Act ("Title III"), 18 U.S.C. 2510-2521 (1988). The
section on which appellants focus provides that a "judge may enter an ex parte
order ... authorizing or approving interception of wire, oral, or electronic
communications within the territorial jurisdiction of the court in which the
judge is sitting." 18 U.S.C. 2518(3). The term "intercept[ion]" is defined as
"the aural or other acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or other device."
Id. 2510(4).

17

The statute does not specify precisely where an interception is deemed to occur.
It seems clear that when the contents of a wire communication are captured or
redirected in any way, an interception occurs at that time. Such an interception
plainly occurs at or near the situs of the telephone itself, for the contents of the
conversation, whether bilateral as is usually the case, or multilateral as is the
case with a conference call, are transmitted in one additional direction.
Redirection presupposes interception. Accordingly, a federal court sitting in the
jurisdiction in which the to-be-tapped telephone is located would have the
authority, under 2518(3), to authorize a wiretap.

18

Nonetheless, since the definition of interception includes the "aural" acquisition

of the contents of the communication, the interception must also be considered
to occur at the place where the redirected contents are first heard. See
Webster's New International Dictionary, at 182 (2d ed. unabridged 1957)
(defining "aural" as "of or pertaining to the ear or the sense of hearing").
Indeed, prior to 1986, Title III's definition of interception focused on "aural
acquisition[s]" alone. The phrase "or other" was inserted into the present
definition as part of a modernization of Title III to ensure privacy protection for

new forms of communication such as electronic pagers, electronic mail, and

computer-to-computer communications. See generally S.Rep. No. 99-541, 99th
Cong., 2d Sess., reprinted in 1986 U.S.Code Cong. & Admin.News
("USCCAN") 3555, 3555-57, 3562-65, 3567; see also United States v. Hux,
940 F.2d 314, 316 (8th Cir.1991). The amendment thus expanded a definition
that previously had "only applie[d] where the contents of a communication
c[ould] be overheard and understood by the human ear." USCCAN at 3556.
Though it is plain that Congress intended to expand the scope of Title III to
extend its protections to modern forms of communication, there is no indication
in the legislative history that it intended to extinguish the principle that the
place where the contents of a wire communication are first to be heard and
understood by human ears, other than those of the parties to the conversation,
is the situs of an interception within the meaning of 2510(4).
19

Further, where the authorities seek to tap telephones in more than one
jurisdiction and to monitor them in a single jurisdiction, there are sound policy
reasons for permitting a court in the jurisdiction where all of the captured
conversations are to be heard to grant the authorization. One of the key goals of
Title III is the protection of individual privacy interests from abuse by law
enforcement authorities. See generally, S.Rep. No. 1097, 90th Cong.2d Sess.,
reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2185; United States v.
Giordano, 416 U.S. 505, 514-23, 94 S.Ct. 1820, 1826-30, 40 L.Ed.2d 341
(1974). For example, Title III requires that a wiretap authorization not allow the
period of interception to be "longer than is necessary to achieve the objective of
the authorization." 18 U.S.C. 2518(5). If all of the authorizations are sought
from the same court, there is a better chance that unnecessary or unnecessarily
long interceptions will be avoided. We doubt that Congress intended to
eliminate this possibility.

20

In sum, the language of 2510(4), the legislative history of that section, and
the policy considerations of Title III all persuade us that for purposes of
2518(3)'s jurisdictional requirement, a communication is intercepted not only
where the tapped telephone is located, but also where the contents of the
redirected communication are first to be heard. Appellants' motion to suppress
the evidence obtained through the wiretaps was properly denied.

B. Rodriguez's Challenges to His Plea and Sentence

21
22

Rodriguez's principal contentions on this appeal are (1) that he is entitled to a

remand to permit him to move to withdraw his plea because of the possible
conflict of interest on the part of his prior counsel; and (2) that the court failed
to follow the sentencing procedures required by United States v. Kim, 896 F.2d

678, 687 (2d Cir.1990). We are unpersuaded.

1. The Possible Conflict of Counsel
23

The background of Rodriguez's arguments with regard to his plea of guilty is as

follows. Prior to the hearing with respect to the plea, the government alerted the
district court to circumstances giving rise to what it termed a "hypothetical"
conflict of interest on the part of Rodriguez's then-attorney, Frank Lopez. While
stating that it believed the circumstances did not give rise to an actual conflict,
and that Lopez had reported that he had advised Rodriguez of the
circumstances, the government asked the court to conduct a Curcio inquiry, see
United States v. Curcio, 680 F.2d 881 (2d Cir.1982), to ascertain whether
Lopez had made appropriate disclosures and to ensure protection of
Rodriguez's Sixth Amendment right to counsel.

24

At the first part of the hearing, in proceedings that were placed under seal and,
except to the extent revealed here, remain under seal, Lopez described the
details of his circumstances to the court. He stated that he had disclosed the
pertinent details to Rodriguez, and he stated that Rodriguez was prepared to
respond to questions from the court. Later, Lopez also stated that he had never
discussed with the Assistant United States Attorney or anyone else any impact
that his representation of Rodriguez might have on the other circumstances
described to the court.

25

The court asked Rodriguez whether he understood Lopez's initial statement,

and Rodriguez said he did. The court itself then described the circumstances to
Rodriguez, who intermittently responded that he understood. The court
described for Rodriguez what it termed the "worst possible" scenario and the
consequent risk that Lopez could have a conflict of interest vis-a-vis Rodriguez.
Rodriguez stated that he understood, that he had no questions, and that he did
not want to consult another attorney. The court's questioning ended as follows:

26

THE COURT: Now, if you have any reluctance of any sort or you'd prefer to
take some time to think this over or you'd like to talk to another lawyer about it
out of Mr. Lopez' hearing and get another opinion or, as I say, if you're the least
bit reluctant to proceed with Mr. Lopez, just say so and I'll give you the
opportunity to think it over, to discuss it with any other lawyer that we could
provide, to change counsel, whatever you wish in this connection. Would you
like to do any of those things?

27

THE DEFENDANT: No.

28

THE COURT: Now, you understand that you could have separate counsel
representing you?

29

THE DEFENDANT: That I could have?

30

THE COURT: Separate counsel, somebody else than Mr. Lopez.

31

THE DEFENDANT: No.

32

THE COURT: Do you understand you could have that?

33

THE DEFENDANT: Yes, I could, yes.

34

THE COURT: But you don't wish that. Is that what you're saying?

35

THE DEFENDANT: No.

36

THE COURT: You don't wish it?

37

THE DEFENDANT: No, I don't.

38

THE COURT: Do you wish to consult with any other counsel about this?

39

THE DEFENDANT: No, I don't want to consult about anything with any other
attorney.

40

(First Plea Hearing Transcript dated February 27, 1990 ("Sealed Tr."), 11-12.)
The court found that Rodriguez was

41
competent
and understands the colloquy which we have had about [the possible
conflict], that he appreciates the risk that Mr. Lopez' predicament might in some
way temper or weaken Mr. Lopez' representation of Mr. Rodriguez, and that with
that understanding in mind, he chooses not to consult with any other lawyer or to
take time to think the situation over further or to avail himself of the offer of separate
counsel, but willingly and voluntarily desires to proceed with the plea.
42

(Id. at 13.) Ordering that so much of the transcript as pertained to the conflict
question be sealed, the court stated that copies would be available to the
government and Lopez without the need for a motion but would be available to

others only upon application to the court.

43

After conducting further proceedings in open court with respect to Rodriguez's

plea of guilty to the continuing criminal enterprise count, the court accepted the
plea.

44

Several months after pleading guilty, Rodriguez obtained new counsel, Roger
Stavis, and, as discussed in Part II.B.3. below, moved to withdraw his plea on
the ground that he had entered that plea in the belief that the government would
release Pacheco, his common-law wife, from the prosecution. In connection
with that motion, Stavis sought access to the sealed portion of the plea hearing
transcript. The court denied the request, stating that the subject matter was
entirely collateral to the motion at hand. It reiterated that view when Stavis
renewed his request at sentencing.

45

In his initial briefing of the present appeal, Rodriguez argued that his new
attorney should have been given access to the sealed portion of the transcript
and that the matter should be remanded to permit counsel, once access was
given, to move to withdraw the guilty plea on the ground of his former
attorney's conflict of interest. We agreed with Rodriguez that his new attorney
should have been given access to the sealed transcript. Even if the matters there
discussed had no relevance to the specific question that was raised in the
motion to withdraw the plea, access should have been given to enable new
counsel to determine whether the prior proceedings revealed any other ground
for withdrawal of the plea, such as the adequacy of the allocution or the Sixth
Amendment inquiry. In any event, new counsel should have been given access
in order to enable him to determine whether the plea proceedings provided any
grounds for appeal. Accordingly, at oral argument, we directed that the sealed
portion of the transcript be made available to Rodriguez's counsel. We
permitted both sides to submit supplemental letter briefs on the issue of
whether, in light of the contents of the sealed transcript, a remand is necessary.

46

In his letter brief, Rodriguez contends that the sealed transcript reveals the
existence of a serious conflict of interest on the part of Lopez. He argues that at
this juncture the record is inadequate to permit this Court to decide the conflictof-interest issue, and that a remand is necessary to develop a factual record. In
light of the prevailing legal principles, we are unpersuaded.

47

The Sixth Amendment of course guarantees the defendant in a criminal trial the
right to the effective assistance of counsel at all stages of the criminal
prosecution, including the entry of a plea of guilty. See, e.g., Hill v. Lockhart,

474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). In a few cases we
have found the circumstances to constitute a per se violation of the right to
counsel. See, e.g., United States v. Cancilla, 725 F.2d 867 (2d Cir.1984)
(defendant's attorney assumed, arguendo, to be guilty of criminal conduct
related to that of which the defendant was accused); Solina v. United States,
709 F.2d 160 (2d Cir.1983) (defendant's attorney had never been licensed to
practice law). The circumstances involving Lopez were not of these kinds but
rather involved a possible conflict of interest not arising out of his own conduct.
48

A defendant's Sixth Amendment right to effective assistance of counsel

includes the right to be represented, if he so chooses, by an attorney who has no
conflict of interest. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55
L.Ed.2d 426 (1978); Williams v. Meachum, 948 F.2d 863, 866 (2d Cir.1991);
United States v. Curcio, 680 F.2d at 885. Nonetheless, a defendant may
"choose to give up this right to an 'attorney of undivided loyalty in order to
retain the attorney of his choice,' another right guaranteed by the Sixth
Amendment." Williams v. Meachum, 948 F.2d at 866 (quoting United States v.
Curcio, 680 F.2d at 885). In United States v. Curcio, 680 F.2d 881, we
established procedures to be followed in situations in which a defendant states
that he desires to waive his right to representation by an attorney who has no
potential conflict of interest. We stated that the trial court should (1) advise the
defendant of his right to conflict-free representation, (2) instruct the defendant
as to the dangers arising from the particular conflict, (3) permit the defendant to
confer with his chosen counsel, (4) encourage the defendant to seek advice
from independent counsel, (5) allow a reasonable time for the defendant to
make his decision, and (6) determine, preferably by means of questions that are
likely to be answered in narrative form, whether the defendant understands the
risks and freely chooses to run them. Id. at 888-890. The ultimate goal of these
procedures is to permit the court to determine whether the defendant's waiver
of his right to conflict-free counsel is knowing and intelligent. Id. at 888. Thus,
"[i]n reviewing a defendant's waiver, ... we are ultimately concerned less with
the exact words used by the trial judge than with whether the facts and
circumstances of the case indicate that the defendant fully appreciated his
situation and made a properly informed decision." Williams v. Meachum, 948
F.2d at 867; see United States v. Jenkins, 943 F.2d 167, 176 (2d Cir.), cert.
denied, --- U.S. ----, 112 S.Ct. 659, 116 L.Ed.2d 751 (1991). Further, though it
would seem preferable for the defendant to take time to ponder his options or to
consult with independent counsel, a prompt response does not invalidate his
waiver if "there is no sign that the defendant lack[s] full comprehension of
what he [is] doing." Williams v. Meachum, 948 F.2d at 867.

49

In the present case, the district court substantially followed the prescribed

procedures. It advised Rodriguez of the potential dangers arising from Lopez's

conflict of interest; it clearly spelled out for Rodriguez the worst-case scenario
of how the conflict could conceivably affect Lopez's representation of him; it
repeatedly informed him that, if he wished, he could be provided with separate
counsel, either to replace Lopez, or simply to advise him on whether he should
waive his right to conflict-free counsel. Though most of his responses were
"Yes" or "No," and though Rodriguez made his decision almost immediately
after the court informed him of his options, the proceedings left no doubt that
he understood that he could have independent counsel to advise him ("Yes, I
could, yes." Sealed Tr. 11-12), and that he did not wish to do so ("No, I don't
want to consult about anything with any other attorney." Id. at 12).
50

In light of all the circumstances, the district court did not err in finding that
Rodriguez's decision to waive conflict-free counsel was knowing and
intelligent. Our review of the sealed transcript persuades us that no remand is
warranted.

51

2. The Extent of the Upward Departure in Sentencing

52

In sentencing Rodriguez to a 360-month term of imprisonment, the court

departed upward by six levels from the offense level prescribed by the
applicable version of the Guidelines. Rodriguez contends that the sentence
should be vacated and the matter remanded for resentencing because the
district court failed to consider explicitly, and state its reasons for rejecting,
each interim level in accordance with United States v. Kim, 896 F.2d 678. We
disagree.

53

In United States v. Kim, we stated that when the sentencing court is

considering an upward departure under Chapter 5, Part K, of the Guidelines,

54 judge should consider the next higher [offense] levels in sequence to determine
the
if they adequately reflect the seriousness of the defendant's conduct. Doing so will
afford the judge an opportunity to compare the defendant's conduct, with its
aggravating circumstances, to the type of conduct for which the Commission has
prescribed more severe punishment.
55

United States v. Kim, 896 F.2d at 685. See also United States v. Pergola, 930
F.2d 216, 220 (2d Cir.1991) ("the sentencing court should make clear on the
record that it has considered lesser departures than the one eventually arrived
at"); United States v. Coe, 891 F.2d 405, 412-13 (2d Cir.1989) (explanation
required with respect to Guidelines Ch. 4, Part A increase in criminal history

category). Kim and its progeny were not, however, intended to be a

straightjacket; the objective is to have the "judge ... compare the defendant's
conduct, with its aggravating circumstances, to the type of conduct for which
the Commission has prescribed more severe punishment." United States v.
Kim, 896 F.2d at 685. The fundamental premise is that when conduct not taken
into account by the Guidelines provisions applicable to the defendant provides
the basis for an upward departure, the court should not arrive at a sentence that
exceeds the penalty that would have been imposed had the defendant been
sentenced under other Guidelines provisions that do take the same or similar
conduct into account. This goal is accomplished when the court looks to
analogous Guidelines provisions to determine the extent of the departure. Thus,
"the point of Kim is to use ... the sentencing table as useful guidance in
determining the extent of a departure, not to precipitate a time-consuming
analysis of every possible calculation of arguably relevant circumstances."
United States v. Baez, 944 F.2d 88, 89 (2d Cir.1991). The sentencing here met
that objective.
56

Rodriguez's continuing criminal enterprise offense, as charged in the

indictment, was committed from 1988 to July 1989. Though Rodriguez was not
sentenced until March 1991, the district court properly concluded that the
November 1, 1987 version of the Guidelines ("1987 Guidelines"), i.e., the
version in effect at the time the offense was committed, applied. In the 1987
Guidelines, 2D1.5 established a flat offense level of 36 for a defendant
convicted of heading a continuing criminal enterprise, regardless of the size of
the organization or the quantity of narcotics sold. The commentary to that
section provided, however, that if "the quantity of drugs substantially exceeds
that required for level 36 in the drug quantity table, or if the number of persons
managed by the defendant is extremely large," an upward departure might be
warranted. Guidelines 2D1.5 Application Note 2. In contemplating the
sentence to be imposed on Rodriguez, the district court noted that a level of 36
corresponded to the sale of only a half-kilogram of crack, and that "[t]he
offense in this case involved over 100 times that." (Sentencing Transcript dated
March 7, 1991 ("Sent. Tr."), 25-26). The court concluded that that offense level
was inadequate to reflect the nature of Rodriguez's crime and that it was "clear
that the circumstances therefore warrant[ed] an upward departure as
contemplated by" the commentary to 2D1.5. (Sent. Tr. 26.)

57

By the time Rodriguez was sentenced in March 1991, the Guidelines had been
amended. In the November 1, 1989 version, 2D1.1, the drug quantity table,
set an offense level of 42 for quantities of crack in excess of 15 kilograms. The
court chose to look to this then-current version as "[t]he best guide for the
degree of departure." (Sent. Tr. 26.) Given Rodriguez's criminal history

category, a 42 offense level yielded a sentencing range of 360 months to life

imprisonment.
58

We conclude that the district court appropriately compared Rodriguez's conduct

"to the type of conduct for which the Commission has prescribed more severe
punishment," United States v. Kim, 896 F.2d at 685, by seeking guidance from
the new drug quantity table provided by the Commission. A mechanical levelby-level review of the extent of the upward departure was unnecessary.
3. Rodriguez's Other Arguments

59

Rodriguez also contends (a) that he should have been allowed to withdraw his
plea of guilty because it was entered in the erroneous belief that the government
would dismiss the indictment against Pacheco, and (b) that the court erred in
accepting his plea of guilty without forewarning him that it intended to depart
upward from the Guidelines range of imprisonment. Neither argument has
merit.

60

A defendant has no absolute right to withdraw his plea of guilty. United States
v. Burnett, 671 F.2d 709, 712 (2d Cir.1982); United States v. Giuliano, 348
F.2d 217, 221 (2d Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 406, 15 L.Ed.2d
354 (1965). He bears the burden of persuading the trial court that valid grounds
for withdrawal exist, and the district court's decision to deny a motion to
withdraw a guilty plea will be reversed only if its factual findings are clearly
erroneous, see United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990), cert.
denied, --- U.S. ----, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991), or the denial is an
abuse of discretion, see United States v. Figueroa, 757 F.2d 466, 475-76 (2d
Cir.), cert. denied, 474 U.S. 840, 106 S.Ct. 122, 88 L.Ed.2d 100 (1985).

61

In his plea allocution, Rodriguez gave no indication that he was pleading guilty
in order to secure favorable treatment for Pacheco. Rather, he stated that he
"want[ed] to plead guilty to get this over with." (Second (Unsealed) Plea
Hearing Transcript dated February 27, 1990, at 9). In response to questioning
by the court, he stated that he had read and understood the terms of the written
plea bargain agreement. He was asked whether anyone had made any other
promises to him in connection with sentencing, and he answered in the
negative. Remarking on that colloquy and noting that Rodriguez did not, in
connection with his motion to withdraw his plea, claim his innocence of the
charge to which he had pleaded guilty, the court denied the motion to withdraw
the plea. The court's findings were not clearly erroneous and we see no abuse of
discretion in its denial of the motion.

62

Rodriguez's lack-of-notice argument has no greater merit. Fed.R.Crim.P. 11

required the court to advise Rodriguez of the maximum sentence he faced and
to advise him generally about the Guidelines. See, e.g., United States v.
Perdomo, 927 F.2d 111, 116 (2d Cir.1991); United States v. Fernandez, 877
F.2d 1138, 1142-44 (2d Cir.1989). In addition, we have held that before
departing upward from the Guidelines sentencing range, the court must give the
defendant notice and an opportunity to contest the intended departure. United
States v. Colon, 905 F.2d 580, 584 (2d Cir.1990); United States v. Palta, 880
F.2d 636, 640 (2d Cir.1989).

63

The district court met these obligations. At the plea hearing, it informed
Rodriguez of the minimum and maximum sentences provided in the statute.
After advising Rodriguez that the imprisonment range recommended by the
Guidelines was unclear, the court informed him that even after that range is
determined, the court has the authority in some circumstances to impose a
sentence that is more severe; and it informed him that if a more severe sentence
than he expected were imposed, he would still be bound by his plea. Rodriguez
responded that he understood. Subsequently, one month prior to sentencing, the
court advised both sides in writing that it was considering whether an upward
departure, in light of the vast quantity of cocaine sold, might be appropriate. No
more was required.

C. Other Arguments
64

The other appellants make a variety of additional arguments, challenging, inter

alia, the lawfulness of a search and seizure, a number of the trial court's
evidentiary rulings, certain parts of the government's summation, and various
aspects of sentencing. We have considered all of the arguments and have found
them to be without merit. Only the following warrant discussion.

65

1. The Summation Speculation as to the Role of Garcia

66

The indictment alleged that Garcia was a supplier of cocaine to the

Organization; the government's opening statement reiterated that theory. One of
the intercepted conversations introduced at trial, however, reflected a delivery
by Garcia to Rodriguez of a substantial sum of money. In summation, the
Assistant United States Attorney ("AUSA") speculated that Garcia might also
on occasion have been a purchaser of narcotics from Rodriguez. Garcia
contends that he was denied a fair trial by this statement because it changed the
government's theory of his role in the conspiracy and permitted the jury to find
him guilty of conduct with which he was not charged. We are unpersuaded.

67

Improper remarks during summation "must be examined within the context of

the trial to determine whether the prosecutor's behavior amounted to prejudicial
error." United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84
L.Ed.2d 1 (1985); see United States v. Nersesian, 824 F.2d 1294, 1327 (2d
Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987).
"Whether a prosecutor's improper statement during summation results in a
denial of due process depends upon whether the improper statement causes
substantial prejudice to the defendant." Id. It is a "rare case" in which improper
comments in a prosecutor's summation are so prejudicial that a new trial is
required. Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir.1990).

68

In the present case, the trial court properly labeled the AUSA's characterization
of Garcia as a buyer as speculation. The court directed the jury to disregard it,
reminded the jury that there was no charge in the indictment as to any sales by
Rodriguez to Garcia, and instructed the jury to focus on the evidence that was
relevant to the charges that were made in the indictment. There was substantial
evidence to support the conviction of Garcia for his role in the conspiracy as
alleged in the indictment, and any possible prejudice from the AUSA's
speculation in summation was adequately dispelled by the court's curative
instruction.
2. The Purse of Pacheco

69

At trial, New York City Police Detective Scott Fowler described his execution
of a November 10, 1988 search, pursuant to a warrant, of Cots's apartment in
the building from which the Organization made most of its retail sales. Fowler
stated that he had found, inter alia, a woman's pocketbook on the table in the
kitchen of the apartment and had asked Organization member Aurea Rodriguez,
who was in the apartment at the time of the raid, about the purse. Fowler
testified that in the purse was an identification ("ID" or "I.D.") card:

Q. Do you recall what the ID card said on it?

70
A. Just one name that was on the ID.
71
Q. And what name do you recall?
72
A. Maria (Pronounced MAR-EYE-A by witness).
73
74

(Trial Transcript ("Trial Tr.") 537.) Neither the purse nor the ID card was
seized.

75

Aurea Rodriguez testified that just prior to the raid, she had seen Pacheco in the
kitchen of Cots's apartment. She also testified that Fowler asked her about the
purse, which she denied was hers, and then showed her an ID bearing a picture.
She testified, over Pacheco's objection, that the woman in the picture was
Pacheco:

76

Q. Did the officers show you anything?

77

A. Yes.

78

Q. What did they show you?

79

A. They show [sic ] me an I.D.

80

Q. And can you tell us what the I.D. looked like?

81

A. It had a picture on it.

82

Q. Do you know whose picture it was?

83

MR. VERDIRAMO [Pacheco's attorney]: Objection, unless the Government

intends to produce the identification here.

84

THE COURT: Overruled.

85

Q. Do you know whose picture it was?

86

A. Yes.

87

Q. Whose picture was it?

88

A. It was Mirella's picture.

89

Q. Mirella who?

90

A. Pacheco.

91

(Trial Tr. 2869-70.) In summation, the government cited the testimony of

Fowler and Aurea Rodriguez and referred to the purse as belonging to Pacheco.
92

Pacheco argues that she was unfairly prejudiced by the summation's attribution
of the purse to her because, inter alia, neither the purse nor the ID had been
admitted in evidence, because Fowler had stated that the ID was for a person
whose name he pronounced "Mar-eye-a," not "Mirella," and because on crossexamination Aurea Rodriguez "admitted that the identification card she claimed
to have seen never existed" (Pacheco brief on appeal at 21). We are
unpersuaded.

93

It is the responsibility of the trial court to make a preliminary assessment of the

reliability of proffered evidence, see Fed.R.Evid. 104(a), and its evidentiary
rulings are reviewed generally for abuse of discretion, see, e.g., Healey v.
Chelsea Resources Ltd., 947 F.2d 611, 620 (2d Cir.1991). The fact that a
physical object is not available does not require the exclusion of relevant oral
testimony describing the object if the court is persuaded that the witness has
the requisite personal knowledge, see Fed.R.Evid. 602. The result of a witness's
observations need not be positive or absolutely certain to make his testimony
admissible, United States v. Evans, 484 F.2d 1178, 1181 (2d Cir.1973); 2 J.
Wigmore, Evidence 658, at 894-896 (Chadbourn rev. ed. 1979), and lack of
certainty is a matter to be argued to the jury rather than a reason for excluding
the evidence. The government is entitled, in summation, to argue all inferences
that may permissibly be drawn from the evidence admitted. See, e.g., United
States v. Nersesian, 824 F.2d at 1327.

94

The purse and the ID were not available for introduction at trial because they
had not been seized in the November 10, 1988 raid. There was no error in the
court's permitting Fowler, who had personally seen those objects, to describe
them. Further, though the record is less clear than perhaps it should be, the fact
that Fowler pronounced the name on the ID card "Mar-eye-a" did not mean
that he had not seen the name "Mirella." There is no confirmation in the
transcript that the name Fowler had seen was spelled "Maria" as the court
reporter spelled it. Had Fowler himself spelled the name "Maria," we would
have expected the trial judge, if presented with no evidence to equate "Maria"
with "Mirella," to uphold an objection by Pacheco to Fowler's ID testimony on
the ground of relevance. However, Fowler did not recall precisely how the
name was spelled. In the present case, any doubt that the name that actually
appeared on the ID was "Mirella" was reduced, if not eliminated, by the
testimony of Aurea Rodriguez, who knew and worked with Pacheco, and who
testified that the ID was that of Mirella Pacheco.

95

Finally, we reject Pacheco's contention that Aurea Rodriguez's testimony did

not provide a basis for the government to argue in summation that the ID and
purse belonged to Pacheco. Aurea Rodriguez's testimony on direct examination,
quoted above, was unequivocal. On cross-examination, Pacheco's attorney
asked Aurea Rodriguez whether the government had shown her the purse or the
ID when it showed her documents and "the evidence in this case" in
"debrief[ing]" her; upon receiving "No" answers, he asked if it was not true that
"there is no purse, there is no identification and there is no picture," to which
Aurea Rodriguez responded "Yes." (Trial Tr. 3255.) This response, to
questioning that seemed to focus on her trial preparation for the present
prosecution, rather than on what she was shown at the time of the November
10, 1988 raid, hardly warrants Pacheco's assertion that Aurea Rodriguez
"admitted that the identification card she claimed to have seen never existed."
In any event, any conflict in her testimony went to the weight to be accorded
her unequivocal statement that the ID had Pacheco's name and picture on it, not
to the admissibility of that statement.
96

In sum, we find no error in the court's admission of the testimony of Fowler and
Aurea Rodriguez nor any impropriety in the government's argument on
summation that the purse and ID belonged to Pacheco.

CONCLUSION
97

The judgments of conviction are affirmed.

MESKILL, Circuit Judge, concurring:

98

I write separately because I do not agree with the majority's treatment of the
wiretap issue, which effectively repeals 18 U.S.C. 2518(3)'s requirement that
a judge may only enter an order authorizing the interception of communications
"within the territorial jurisdiction of the court in which the judge is sitting." I
concur in the result reached by the majority, however, because, under the
circumstances of this case, suppression of the evidence is not mandated by 18
U.S.C. 2515.

99

Under the majority's interpretation of the statute any federal district court,
circuit court of appeals or appropriate state court may authorize a wiretap any
place in the country. A judge in the Southern District of New York may now
authorize a tap on a phone in Chippewa Falls, Wisconsin, Nome, Alaska or
Prescott, Arizona, even if no calls are ever placed to the east coast, as long as
the listening post is set up in Manhattan. See, e.g., United States v. Burford,
755 F.Supp. 607, 609-11 (S.D.N.Y.1991) (holding that judge in Southern

District of New York could authorize wiretap in Maryland). Law enforcement

officials are now able to shop, free from territorial constraints, for a judge who
would be likely to authorize a wiretap. Cf. Castillo v. State, 810 S.W.2d 180,
184 (Tex.Crim.App.1990) (in banc) (interpreting parallel state statute to
prohibit judge shopping). If a judge in one district denies authorization, law
enforcement officials may simply move their listening posts to another
jurisdiction until they find a judge willing to authorize the wiretap.
100 The majority accomplishes this result by holding that a single captured
communication is "intercepted" in more than a single jurisdiction, and that
authorization in any one such jurisdiction is sufficient to satisfy Title III. While
I agree that a federal court sitting in the jurisdiction in which the telephone to
be tapped is located has authority to authorize a wiretap, I cannot join the
majority in holding that the unilateral decision of law enforcement agents as to
where to set up their listening post can grant authority to a judge in any
jurisdiction to authorize a phone tap in any other jurisdiction. I do not believe
that the conversations from the Imperio Cafe in New Jersey were "intercepted"
in Manhattan.
101 The heart of the definition of "intercept" in 18 U.S.C. 2510(4) is the
"acquisition of the contents" of a communication. The contents of the Imperio
Cafe communications were acquired by law enforcement officials when they
were diverted in New Jersey. In Manhattan the previously acquired contents
were transformed into sound, but, because they were already within the control
of the law enforcement agents, they were not newly "acquired." I do not believe
that the contents of a communication become acquired anew each time they are
transformed into a different medium.
102 The phrase "aural or other" in the definition of "intercept" does not justify the
result reached by the majority. "Aural" was originally included in section
2510(4) principally to place devices such as pen registers and trap and tracing
mechanisms (which do not capture the sounds of a conversation) outside the
scope of Title III. See S.Rep. No. 1097, 90th Cong., 2nd Sess., reprinted in
1968 U.S.Code Cong. & Admin.News 2112, 2178 ("The proposed legislation is
not designed to prevent the tracing of phone calls. The use of a 'pen register,' for
example, would be permissible."); see also Castillo, 810 S.W.2d at 184 (This "
'language, identical to that in the federal statute, is apparently intended [only] to
impose no limitation upon the use of devices such as pen registers that enable
law enforcement officers to determine the numbers called from a telephone but
not to orally [sic] acquire the "contents" of conversations.' ") (interpreting state
statute) (citation omitted). That some courts interpreted "aural" to mean that the
territorial jurisdiction requirement of section 2518(3) applied to the place where

the communications were first heard, see, e.g., Evans v. State, 252 Ga. 312, 314
S.E.2d 421, 423-26 (Ga.) (per curiam), cert. denied, 469 U.S. 826, 105 S.Ct.
106, 83 L.Ed.2d 50 (1984), was at most an unintended artifact of the structure
of the statute.
103 In 1986, Congress amended that structure. Pen registers and tracing devices
were separately regulated, see 18 U.S.C. 3121 et seq., and the definition of
"contents" in Title III was narrowed so that those devices would no longer even
arguably be included in the statute. See S.Rep. No. 99-541, 99th Cong., 2nd
Sess., reprinted in 1986 U.S.Code Cong. & Admin.News 3555, 3567-68
(discussing amendment to the definition of "contents"). This allowed Congress
to expand the definition of "intercept" to protect the increasingly common nonverbal communications by altering "aural acquisition" to "aural or other
acquisition" without bringing pen registers and tracing devices within the ambit
of Title III.
104 Nothing in the legislative history suggests any intent to affect the territorial
jurisdiction requirement of section 2518(3), either by originally including the
term "aural" or by subsequently adding "or other." I do not believe that
Congress ever enacted a "principle that the place where the contents of a wire
communication are first to be heard and understood by human ears ... is the
situs of an interception." Maj. Op. at Part II.A.2. Although prior to the 1986
amendment a literal reading of the statute might have resulted in the necessity
to seek authorization in the place where the captured communication was first
heard, there is no reason to believe that Congress intended such a result. Since
the 1986 amendment, that unintended result is no longer required by the words
of the statute.
105 The majority justifies its reading of the statute on policy grounds. The majority
reasons that "[i]f all of the authorizations are sought from the same court, there
is a better chance that unnecessary or unnecessarily long interceptions will be
avoided." I am not sure that this is necessarily true, but even if unified
authorization (which is not mandated under the majority opinion) does tend
toward tighter control of law enforcement activities, it is also true that judges
may be more hesitant to authorize excessive interceptions within their territorial
jurisdiction, in their own back yard so to speak, than in some distant, perhaps
unfamiliar, part of the country. Congress determined that the best method of
administering wiretap authorizations included a territorial limitation on the
power of judges to make such authorizations and this Court should be bound by
that determination.
106 Even though I believe that Judge Leisure, sitting on the United States District

Court for the Southern District of New York, did not have the power to
authorize the wiretap of the New Jersey telephone, I concur in the result
reached by the majority because I do not believe that Title III requires
suppression of the evidence in this case. Suppression of certain intercepted
communications is mandated by 18 U.S.C. 2515. Significantly, however, that
statute does not exclude all evidence obtained in violation of Title III:
107 Whenever any wire or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be
received in evidence in any trial ... before any court ... if the disclosure of that
information would be in violation of this chapter.
108 18 U.S.C. 2515 (emphasis added). Disclosure of the contents of intercepted
communications is prohibited by 18 U.S.C. 2511(1)(c), which provides
criminal and civil penalties for any person who discloses "the contents of any
wire, oral, or electronic communication, knowing or having reason to know that
the information was obtained through the interception of a wire, oral, or
electronic communication in violation of this subsection." At the time of trial,
the government, having obtained the communications pursuant to court
authorization, neither knew nor had reason to know that the information had
been obtained in violation of Title III. Disclosure thus was not prohibited by
section 2511(1)(c). Therefore, suppression was not required under section 2515.
109 I agree with the majority's treatment of all of the other issues in this appeal and
in the result reached by the majority.