Friendly and Smith, Circuit Judges, and Blumenfeld, District Judge.*fn*
J. JOSEPH SMITH, Circuit Judge.
The defendants Salvador Pardo-Bolland, Rene Bruchon and Juan Carlo Arizti were convicted after trial before a jury in the United States District Court for the Southern District of New York, John M. Cannella, J., of violating Title 21, U.S.C. §§ 173-174, which prohibits the receiving, concealing and selling, etc. of narcotics illegally imported into the United States, and of conspiring to violate the federal narcotics laws. Bruchon and Bolland, sentenced respectively to fifteen and eighteen year terms concurrently on each count, and fined $20,000 on each count, appeal their convictions. Arizti received a sentence of ten years imprisonment and was fined $20,000; he has not perfected his appeal. We find no error and affirm the convictions of Bruchon and Bolland.
The facts, of which there was evidence at the trial, may be summarized as follows: On February 10, 1964, the appellant Pardo-Bolland, then Mexican Ambassador to Bolivia, registered at a hotel in Cannes, France under the assumed name of Lorenzo Suarez de Mendoza and, at the same time, cancelled a reservation he had previously made for the Uruguayan Minister Plenipotentiary, the defendant Arizti. The next morning Bolland met Arizti, upon the latter's arrival in Cannes, at the Cannes railroad station. Two days later, Bolland was seen leaving his hotel and driving away in a car accompanied by two alleged co-conspirators, Gilbert Coscia and Jean Baptiste Giacobetti, and a short while after that Bolland and Coscia were seen together with Arizti at Arizti's hotel. Following two separate meetings, one between Bolland, Coscia and Giacobetti, and the other between Coscia and Arizti, Arizti on February 15 departed by plane from the Nice airport for Montreal carrying with him seven pieces of luggage, four of which were handed to him by a porter only minutes before he boarded the aircraft. Upon his arrival in Montreal, Arizti managed to get the baggage through customs without its being inspected on the strength of his diplomatic passport. However, unbeknown to him, a member of the Royal Canadian Mounted Police, acting under authority of a writ of assistance, had at the Montreal airport opened one of the four bags that Arizti had been handed at the Nice airport and had observed a number of plastic bags containing a white powder. After leaving the airport, Arizti went directly to the Montreal train station where he checked the bags in public coin lockers. Two days later the Canadian police, again acting under authority of a writ of assistance, opened the lockers and removed the four suitcases. Of the 62 kilograms of heroin found inside, 61 kilograms were removed (approximately a quarter kilogram was left in each bag) and replaced with flour, and the bags were then returned to the lockers.
In the meantime, on February 15 the appellant Bruchon flew from Geneva to New York carrying a passport which, though it bore his picture, was issued under the name of Jean LeRoux; Bruchon registered at Manhattan's Americana Hotel under that name. The following day Bolland flew from Paris to New York and registered in Room 1105 of the Elysee Hotel in the City; he also made a reservation at the same hotel for Arizti for February 18. That evening Bolland, who, along with Bruchon was under constant surveillance by federal narcotics agents, sent a cablegram from Grand Central Station addressed to one Carmen Lopez in Nice, France, thanking her for her hospitality and signed "Lorenzo Suarez." After he had written out his message and left, the narcotics agent who was following him entered the Western Union office, displayed his badge and demanded to see the writing. The clerk acquiesced, and the agent made a handwritten copy.
On February 18, Arizti arrived by train at New York's Pennsylvania Station carrying with him the four suitcases which now contained a relatively small quantity of heroin and a much larger amount of flour. He immediately checked the bags in a parcel room and received four baggage checks. Within two hours after Arizti's arrival in New York, a narcotics agent who had traveled on the same train from Montreal, succeeded in obtaining a search warrant signed by United States District Judge Noonan and proceeded to search the luggage. A portion of the contraband contents was removed, and the bags were replaced in the station's parcel room.
Arizti, upon leaving Pennsylvania Station, went directly to the Elysee Hotel where he registered for Room 1102A, the room reserved for him by Bolland. Almost immediately after Arizti had checked into his room, Bolland joined him there. Narcotics agents occupied an adjoining room and, with the help of electronic listening devices, were able to overhear Bolland tell Arizti that he would see "the man" that day and that "on business like this you have to be extra careful."
Following his meeting with Arizti, Bolland promptly went to the Americana Hotel where he asked the room clerk for a Mr. Blanc. He was told that no one with that name was registered there. Bolland made the same inquiry at the Savoy Hilton and received the same answer. He then proceeded to an office of the American Cable and Radio Company and wrote out a second cablegram addressed to Carmen Lopez and containing the following message: "Cousin is not found address indicated," signed "Richard Bernard." The narcotics agent who was watching Bolland saw this message in the same manner as the first. It was then transmitted and in due course received in France, as in the case of the first cablegram, by Coscia who was posing as one Roby.
On his return to the Elysee, Bolland spoke to Arizti and was overheard, by means of the electronic eavesdropping apparatus, telling Arizti about his inability to locate Mr. Blanc. Bruchon or LeRoux, of course, and not Blanc, was the man Bolland should have been looking for. According to the Government, that apparent mistake was corrected two days later when Bolland received a telephone call from a "Dr. Guitterez" in Nice, France. After receiving the call, Bolland went back to the Americana Hotel, made an inquiry at the desk and proceeded to Room 4924, the room into which Bruchon had checked. Bolland stayed no longer than about two minutes, and after he left, Bruchon followed a short time later. That afternoon Bruchon was observed as he dropped a set of keys in a trash basket located on the corner of 51st Street and Broadway -- those keys were found to fit the four suitcases that had been deposited in the parcel room of Pennsylvania Station.
The next morning, February 21, both Bruchon and Arizti received telephone calls advising them to leave New York immediately. Arizti relayed the warning to Bolland, and both he and Bolland thereupon went directly to a Pan American office and booked the first available space on two separate flights to Uruguay and Bolivia respectively. Their arrests followed.
At about the same time as Arizti and Bolland were preparing for their departure, Bruchon also was making haste to leave the country. He proceeded directly to a Swiss Air office and reserved a seat on the first available flight to Switzerland. As he left the office and walked down the street, he apparently realized that federal agents were approaching him and quickly dropped an envelope found to contain the baggage checks to the four unclaimed suitcases in Pennsylvania Station.
The trial court, over the objections of defense counsel, permitted the two cablegrams sent by Bolland to Carmen Lopez (Coscia) to be admitted into evidence. Defendant Bolland contends that the cablegrams were inadmissible in that they were illegally obtained under Section 605 of the ...