Clark, Associate Justice,*fn* Lumbard, Circuit Judge, and Tyler, District Judge.*fn**
Adolfo Sanchez appeals from his jury conviction and 18 months sentence for conspiracy to distribute and possess with intent to distribute narcotic drugs in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A). There was ample evidence to support the conviction, and as there was no error in the conduct of this trial, we affirm the conviction.
The only claim of error which merits comment relates to the denial by the trial judge of Sanchez' motion for a continuance until a co-defendant, Marcia Alonzo, who had pleaded guilty to the indictment's fourth count, had been sentenced, at which time appellant expected she would be willing to testify on his behalf. Sanchez also complains that it was error for the district court to deny his motion for a new trial so that Marcia Alonzo could be called as a witness.
The proof showed that Marcia Alonzo had sold 1/8 kilo of cocaine for $1,700 to federal narcotics agent Salvemini on September 7, 1971, at her apartment at 599 West 190th Street, Manhattan, and another 1/2 kilo of cocaine for $7,000 on October 14. In connection with the second transaction Alonzo called a telephone number in Union City, New Jersey. Her connection, someone called "Fifo," then returned the call. The appellant lives in Union City and was known as "Fifo." Salvemini met with Alonzo again on October 18 to arrange a larger sale, and on October 20 she introduced him to "Polaco" Garcia at her apartment. During this meeting a green and white 1968 Cadillac, driven by Garcia, registered to Sanchez at his address in Union City, New Jersey, was parked outside. That evening Sanchez, referred to by Alonzo as Garcia's partner, appeared with Garcia. Sanchez was again present the next afternoon in Alonzo's apartment with Garcia and Alonzo when Garcia informed Salvemini that everything had been arranged for the sale of two kilos of heroin. Salvemini paid $56,000 to Alonzo, and she was arrested when she subsequently delivered the heroin to Salvemini in a black and white plastic shopping bag.
On November 1, 1971 an indictment was filed against Sanchez and five others. Two defendants became fugitives before the indictment was filed. On December 8, Marcia Alonzo pleaded guilty to the Fourth Count of the indictment which charged distribution of heroin on October 21st. Trial of Sanchez, Garcia and Raquel Maisonet began on December 27th.
On December 16, eleven days before trial began, counsel for Sanchez interviewed Alonzo in the presence of her attorney. Counsel alleges, and we credit his assertion, that he believed that if Alonzo were called as a witness her testimony would exculpate Sanchez. Counsel further alleges in this appeal, as he did to Judge Pollack, that Alonzo said that if she was called as a witness before she was sentenced she would refuse to testify, and if compelled she would testify adversely to the party calling her. Counsel thus applied for an adjournment of Sanchez' trial until Alonzo had been sentenced "so that any barriers that might exist or did exist with respect to her willingness to testify could be removed" and counsel could call her knowing that she would not assert her Fifth Amendment privilege.
Judge Pollack denied the motion and advised counsel to serve process on Alonzo. When the case was called for trial on December 27 counsel for Sanchez again sought a continuance. Judge Pollack again denied the application and told counsel that, if Sanchez wished, the court would issue whatever process was necessary to bring Alonzo to court from jail, where she had been remanded following her guilty plea. Judge Pollack explained his reasoning as follows:
"Your application is based on a lot of speculations and hypotheses and your own conclusions. The way to get a witness' testimony in court is to bring that witness in by voluntary or compulsory process. You have chosen not to do either.
"Your application so far as adjourning this trial or severing Mr. Sanchez is denied. The arrangement for your substitution as an attorney for Mr. Atlas was clear and unambiguous. This case was set for trial for December 27 at some inconvenience to myself; I believe Mr. Rosenthal made himself ready to be prepared to go forward with this trial, and I declined to allow you to be substitute attorney some weeks ago when you were ambiguous in your response as to whether you would be ready or not.
"You then came in a week later and told me you would be ready to go to trial.
"A week thereafter you raised this point about Marcia Alonzo for the first time. It isn't the function of the Court to manipulate witnesses or to participate in any such effort. If you desire a witness present, the Court will make all of the Court's facilities available for compulsory process. Other than that, I have no interest in the manner in which you proceed.
"Your application for severance and for other relief is denied."
Sanchez never sought to secure the attendance of Alonzo, and accordingly no subpoena was ever served on her. At trial Sanchez offered no evidence in his defense. Garcia testified and denied any participation in the narcotics transactions. He said that Sanchez was a friend whom he paid to drive him to work. The jury convicted both Sanchez and Garcia on December 30. When Sanchez was sentenced on February 17, 1972, he moved for a new trial on the ground of newly discovered evidence, alleging that Alonzo -- who had ...