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UNITED STATES v. HERNANDEZ

September 7, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
FELIPE SERRANO HERNANDEZ, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before the court is Felipe Serrano Hernandez' petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. In his petition, Hernandez contends that: (1) this court exceeded its authority in sentencing him, and imposed an "excessive" fine in violation of the Eighth Amendment; (2) the investigating officers failed to advise him of his Miranda rights in violation of the Fifth Amendment; (3) he was coerced by his attorney to give inculpatory statements, in concert with the prosecution, in violation of his Fifth and Sixth Amendment rights; and (4) he was deprived of effective assistance of counsel. For the reasons set forth below, we deny Hernandez' petition for a writ of habeas corpus.

 I. Background *fn1"

 In August, 1992, Hernandez and a companion, Evelia Maria Fregoso flew into O'Hare International Airport. They were observed in the terminal by four Chicago police officers assigned to the Drug Enforcement Agency (DEA) task force. According to testimony at trial, Hernandez was looking around the gate area, while Fregoso appeared confused. The two proceeded to the baggage claim area, conversing in Spanish. When they reached the carousel, they stood apart from each other, waiting for the baggage to arrive. Hernandez paced for five or ten minutes after the luggage began to arrive, and then walked over to Fregoso. Hernandez spoke to her, and then they left the baggage claim area without retrieving any luggage. Two of the DEA agents followed the couple to the taxi loading area and began to speak with them. Hernandez claimed that he was not travelling with Fregoso, and that they had merely met on the plane. The officers ultimately asked Hernandez and Fregoso to return to the baggage claim with them, and Hernandez and Fregoso agreed. They pulled three suitcases from the carousel; all three had baggage claim tickets issued to Guadalupe Macias, the name on the ticket held by Fregoso, and one had an identification tag with the name and address of Felipe Serrano, the name on Hernandez' ticket. *fn2" However, both Serrano and Hernandez denied that they owned the luggage, and claimed that they had not checked any baggage. The officers then told them that they were free to go. The officers obtained a search warrant for the unclaimed suitcases, finding six kilograms of cocaine in one of them.

 The following day, a separate group of DEA task force agents observed Hernandez and Fregoso at Midway airport. Hernandez, who was purchasing tickets, appeared nervous. One of the agents approached them and asked about their plans. Hernandez showed the officer the tickets he had purchased that morning with cash. When asked why the names on the tickets (Maria Gonzalez and Agrello Diaz) did not match those on the identification offered, Hernandez related the problem at O'Hare the previous evening. The agents at the respective airports conferred, and Hernandez and Fregoso were arrested. Hernandez was carrying over $ 600 in cash. Hernandez maintains that at no point before or after his arrest did the officers advise him of his Miranda rights.

 On February 11, 1993, following a jury trial in this court at which he was represented by attorney Robert L. Rascia, Hernandez was convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). At his sentencing hearing, held April 8, 1993, we sentenced Hernandez to 154 months imprisonment, followed by five years of supervised release, and imposed a fine of $ 4,000,000. In imposing this sentence, we stated, in relevant part:

 
Mr. Hernandez, although he is only being sentenced for this offense, by his modus operandi obviously is not a neophyte in the transportation of drugs. His callous use of an innocent woman to help perpetuate the crime, however, is mitigated to some extent by his honesty with the law enforcement authorities in explaining her innocent conduct.
 
Nevertheless, the seriousness of the offense, the amount of narcotics involved, the obvious unwillingness of the defendant to reveal his sources, the nature of the defense, all indicate that a substantial sentence is appropriate.
 
. . . .
 
I am going to order as a condition of that supervised release that if deported from this country, that he not return during that time period.
 
I am going to order that there be a fine of $ 4,000,000, but that execution of that fine be delayed until the final six months of his supervised release, which means that if he comes back into this country and is apprehended, that fine will be a viable one at that time.

 Transcript of Proceedings at 10-11 (April 8, 1993). We also informed Hernandez that he had a right to appeal both his conviction and the sentence, and that we would appoint an attorney for that purpose in the event he was unable to afford one. Hernandez did in fact appeal his conviction, challenging only the sufficiency of the evidence. *fn3" The Seventh Circuit affirmed, ...


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