Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.
This is an appeal from a judgment of conviction entered in the District Court for the Southern District of New York after a trial by jury.
Appellant Perez was convicted on both counts of an indictment which charged, in Count 1, that appellant, on or about February 22, 1956, unlawfully sold heroin, and in Count 2, that appellant, along with one Ramon Ramirez, conspired to sell narcotics contrary to law. Sections 173 and 174, 21 U.S.C.A., are the statutes involved. The jury found him guilty on both counts and he was sentenced as a second offender to seven years on Count 1 and five years on Count 2, the sentences to run concurrently.
The appellant's appeal is taken on two grounds: First, that there was insufficient evidence for the jury to find that he knowingly aided and abetted in the sale of narcotics as charged in Count 2; and secondly, that Government's Exhibits 4 and 5 were improperly received in evidence, because on the record they were shown to have been obtained by illegal search and seizure.
From the evidence adduced at the trial it appears that Agent Cerda of the Federal Bureau of Narcotics, acting as an undercover agent, together with a special woman employee of the Bureau, met Ramirez on the morning of February 21, 1956. Ramirez agreed he would attempt to secure a half ounce of heroin for Cerda. Ramirez drove Cerda and the special employee to a Shell gasoline station at 110th Street and Fifth Avenue in a 1956 Mercury coupe, and then to several other places in the neighborhood, but finally indicated he would not be able to make "delivery" that day. Agent Cerda arranged to meet Ramirez the following morning.
On February 22, 1956, Agent Cerda and the special employee met Ramirez as arranged, and Ramirez again drove them around the neighborhood in the same 1956 Mercury, including several stops at the same Shell station. It was later ascertained that appellant Perez worked at this station. When they were at the Shell station that morning Ramirez, after spending ten or fifteen minutes in the office of the station, informed Cerda he would not be able to make the delivery of the heroin until 4:00 o'clock that afternoon.
A little after 4:00 that afternoon Agent Cerda and the special employee were picked up at 110th Street and Broadway by Ramirez. Appellant Perez was driving the 1956 Mercury on that occasion, and this was the first time that the Agent or the special employee saw Perez. Cerda and the special employee got in the car, and after an hour or an hour and a half of driving up and down the streets in the neighborhood, Perez drove to the Shell station referred to above. Cerda testified that at Ramirez' request he, Cerda, counted out $150 to give to Ramirez. The money was handed to Ramirez in the presence of Perez. According to Cerda, Perez and Ramirez then met outside the car at the front bumper, and Cerda saw "an exchange of hands" between Ramirez and appellant. Ramirez then told Cerda and the special employee to get out of the car, and upon Cerda's inquiring why, Ramirez told him: "He is going to get the stuff." Appellant then drove off alone.
Ramirez then left Cerda and the special employee. About 6:30 that evening Ramirez met Cerda, and it was at this time that Ramirez handed Cerda a package containing heroin in exchange for the balance of the agreed price.
Agents Schrier and Bennett of the Federal Bureau of Narcotics also assigned to the case, kept the 1956 Mercury under surveillance on both February 21st and 22nd. They testified to seeing Perez driving the car on February 22nd at the times testified to by Agent Cerda. Perez was arrested by Agent Schrier in the presence of Agent Bennett on April 4th, 1956, without a warrant. The arrest was made when appellant drove up in the 1956 Mercury coupe used on February 21st and 22nd to the apartment house in which he lived. He informed the narcotics agents that the car belonged to him.
Appellant contends that evidence that he was merely driving his car while Ramirez was engaged in an attempt to secure narcotics is not sufficient of itself to convict him for aiding and abetting, or as a co-conspirator. That may be so. See United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210; and United States v. Falcone, 2 Cir., 109 F.2d 579. However, appellant chooses to ignore or overlook the fact that there were conversations between Agent Cerda and Ramirez about narcotic drugs in appellant's presence as they were driving around in the Mercury. Also to be considered are appellant's general conduct and knowledge that Agent Cerda was attempting to obtain narcotics from Ramirez.
The proof is that when Perez drove the Mercury to the rendezvous with the Government agents on February 22nd, he asked Ramirez if Agent Cerda was "all right." The record also shows that during the times the Government agents were being driven about on that day, Perez stopped at one point. He and Ramirez left the car and walked down the street, one on one side of the street and the other on the opposite side - a peculiar maneuver if appellant was an innocent bystander and wholly ignorant of what was going on. Furthermore, the proof shows that as Agent Cerda was riding with Ramirez and appellant, Ramirez told appellant that he was expecting a load of marihuana from California. Appellant replied: "When you get it we will have to get together."
It is also shown that on this ride Agent Cerda asked Ramirez why he was charging $300 for the heroin when he had sold the "stuff" on a previous occasion for $250. It appears that Ramirez was sitting beside appellant in the front seat while Agent Cerda was in the back of the car. It is a reasonable inference that appellant heard these conversations.
Furthermore the record shows that there was an interval of an hour and a half between the time appellant drove up to where the Government agents were waiting for Ramirez to pick them up, and the time when appellant finally drove into the Shell station where the money was given to Ramirez. The proof is that in this period of time appellant made Uturns in the street; and would pull over to the curb to allow cars to pass him; he kept looking in the rear view mirror, and he would try to come to an intersection just as the light was turning red, speed up and turn the corner. In this ...