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United States v. Ortega

decided: December 11, 1972.


Friendly, Chief Judge, and Medina and Anderson, Circuit Judges.

Author: Medina

MEDINA, Circuit Judge:

This is an appeal from judgments, entered upon the verdict of a jury, after a trial before Judge Pierce, by Ortega, Perez and Orsini, each of whom was found guilty on both counts of an indictment charging them with conspiracy to import, distribute and possess with intent to distribute 93 1/2 kilograms of heroin, in violation of 21 U.S.Code, Section 846, and with distribution and possession with intent to distribute a smaller quantity, about a half kilogram, of heroin, in violation of 21 U.S.Code, Section 841(b)(1)(A), and aiding and abetting, in violation of 18 U.S.Code, Section 2. Ortega and Orsini were each given heavy sentences of 10 and 15 years imprisonment on the two counts, to be served consecutively, and fines of $10,000 and $25,000, or an aggregate of $35,000 were imposed on each. Perez was sentenced to 7 years imprisonment on each count, to be served concurrently, and he was fined a total of $7,000. These three appellants are now serving their sentences.

Each appellant claims that the evidence adduced by the prosecution was far short of what was required to establish the commission of the crimes charged. Each of them also asserts that the judgment of his conviction must be reversed for a variety of other reasons which we can more readily describe after stating in chronological order the facts as the jury may have found them to be.


The Background and the Development of the Conspiracy

Somewhere in the world there must be persons of enormous wealth and influence who individually or in groups support and manage the gathering of the raw materials, the processing of vast quantities of heroin and the sending of this heroin to the United States. These unknown persons operate in many countries and one of the characteristics of their operations that helps these master minds to avoid detection is that their numerous agents often have no acquaintance with one another until they converge and carry out their secret orders with respect to the distribution of a particular shipment and the receipt and return of the money to those who had planned and supervised the venture. This record does not disclose the over-all operations of this international narcotics ring, nor the identity of those who plan its operations. Nor does the indictment contain any such charge. But the record does disclose and the indictment charges these particular appellants with the crimes above stated with reference to a particular shipment of a very large quantity of uncut and practically pure heroin, amounting to 93 1/2 kilograms and of a retail value of $1,000,000, according to the evidence. This heroin was hidden in a variety of open spaces in the construction of the chassis of a tan colored Jaguar Sport Car, and these 180 bags of heroin could have been concealed in this automobile only after it had been dismantled by skilled mechanics and then put together again. Of the individuals who converged and met in New York City to carry out their secret orders and to transport and deliver this heroin and receive the money to be paid by the prospective purchasers, one was a Corsican who came from Barcelona, Spain, one came from France and two were Cubans at least temporarily living in New York City or the vicinity. French and Spanish interpreters were in attendance throughout the trial. We do not know who supplied this large quantity of heroin or who paid for it or who secreted the bags in the Jaguar. Nor do we need to know. We do know that upon arrival in New York the Jaguar contained the hidden 180 bags of heroin and we do know that each of these appellants played his several role, working with the others and that they were in possession and control of the Jaguar at the time they were all taken into custody. As we shall see, the evidence of the acts of these three conspirators and their knowledge that heroin was concealed in the Jaguar is overwhelming.

We give this brief description of the background because the man who bought the Jaguar in England and who came with it to New York on the Queen Elizabeth II, and the man who turned it over to those who were waiting here to receive it was a government informer. The principal point raised by appellants is that they claim the trial judge should have forced the government not only to identify this informer but to describe his whereabouts and to produce him for the alleged purpose of giving appellants an opportunity to put him on the witness stand and support what appellants choose to call their "defense" of entrapment. It was stipulated that the informer purchased the Jaguar in England in the presence of one of the U.S. Narcotics Agents, that is to say that the agent saw him, but it, and that the government did not furnish any money to buy the Jaguar or give any instructions to the informer to buy it. The informer had no contact whatever with any of these appellants and the so-called "defense" of entrapment was not supported by any proof whatever, as none of the appellants testified at the trial. Moreover, with such a large shipment and the total absence of any showing that the government paid for any part of the heroin or had anything whatever to do with hiding the 180 bags of heroin in the Jaguar, we think this wholly unsubstantiated "defense" is absurd. We shall return to this subject later.

The events charged in the indictment commence in August of 1971 when a Frenchman named Etienne Gunther, who lived with his wife and young daughter in Paris, went to Niolon, a small village near Marseilles, and spent the weekend at the villa of Etienne Mosca, who had formerly been the husband of Gunther's sister Georgette. Gunther knew that Mosca was a trafficker in heroin and the upshot of the visit was that Gunther agreed on September 7, 1971 to go to the United States and bring back a large quantity of currency which he was to smuggle into France and deliver to Mosca. The arrangements made between Mosca and Gunther, who pleaded guilty to one of the counts of the indictment and later testified for the government at the trial, give a clear blueprint of what was to take place. And the cunning way in which Ortega, Perez and Orsini covered their tracks and resorted to subterfuges, the use of false names and a continual shuttling around to avoid detection, form a web of direct and circumstantial proof from which these appellants could find no avenue of escape.

The basic plan was simple. One person, who, unknown to the participants in the conspiracy, turned out to be the government informer, was to bring the Jaguar and its hidden 93 1/2 kilograms of heroin from England to the United States on the Queen Elizabeth II, leaving Southampton September 10, 1971. The schedule was tight. Gunther and his wife were to arrive by plane in New York on September 14; the Queen Elizabeth II docked in New York on September 15. Although the persons involved in the operation did not previously know one another, clandestine means were planned by which the car and its contents could be delivered to one of the conspirators, and by which the conspirator who thus had control of the Jaguar and its contents could make contact with the others who were to distribute this large quantity of heroin and receive the money to be paid for it. The final stage was to be the return of Gunther to France with the money, not later than Monday, September 20th. The conspirators thought they were operating successfully on schedule until Ortega, Perez and Orsini were arrested in the early morning of Sunday, September 19th, as they were attempting to drive off the Jaguar to make the delivery and receive the money. They had made the necessary contacts with one another, they had provided the place where the heroin was to be weighed, packed and delivered, and Gunther had started to build the false bottoms in the suitcases provided by Mosca to hide the large quantity of currency to be smuggled back into France by Gunther.

We may remark, parenthetically, that a combination of customs agents and agents of the Bureau of Narcotics and Dangerous Drugs made an examination of the Jaguar and its contents in the hold of the Elizabeth II as she came up the harbor and one of the 180 bags of heroin was removed for testing. Late the next night while the Jaguar was in a garage opposite the Playboy Club, where the informer was disporting himself with a young lady, government mechanics dismantled the Jaguar, removed 178 bags of the heroin and substituted a similar number of bags containing a harmless lactose, and left hidden in the car bag number 179, with its original contents of pure, uncut heroin. A final search of the Jaguar was made after the arrest and this disclosed bag number 179 and its contents just where the government agents had left it. In the meantime, however, Ortega, Perez and Orsini thought the Jaguar, now in their possession and under their control, contained its original load of 180 bags or 93 1/2 kilograms of heroin. Appellants claim that all these searches, or most of them, were made without warrants and without probable cause in violation of their Fourth Amendment rights. Even the searches made in execution of warrants are attacked as made without probable cause and on the basis of insufficient affidavits.

We shall now trace the covert operations of the conspirators. On Friday, September 17, the Jaguar was parked in the New Madison Square Garden public garage by the man who had brought it from England. Gunther had never seen this man but Mosca had shown Gunther a photograph of him. They were to meet at #8 Bowling Alley in the New Madison Square Garden at 12:00 to 12:30 P.M. or 6:00 to 6:30 P.M. and they were to recognize one another by the identification of a folded newspaper and a pen-shaped key ring that each was to carry. They met at the appointed time and place, recognized one another and the parking ticket was delivered to Gunther. At this point the informer steps out of the picture and he has nothing to do with Gunther's making contact with the second unknown, who turned out to be Orsini, who had arrived by plane from Barcelona, Spain one day behind schedule.

The meeting between Gunther and Orsini takes place. This time the recognition signal is that each is to carry an unfolded newspaper and a flashlightshaped key ring and Gunther was to use the code name Thomas. The parking ticket for the Jaguar is now turned over to Orsini and elaborate arrangements are made for a later meeting at which Orsini was to hand over the money to Gunther to be taken back to France.

In Orsini's possession at the time he received the parking ticket from Gunther were several documents written in French. These were on Orsini's person at the time Ortega, Perez and Orsini were arrested. One of these documents contains a description of how Orsini is to recognize Gunther and the code name "Thomas," another is a diagram of the Jaguar showing the 10 places where the 180 bags of heroin were concealed and still another document containing instructions how to take the Jaguar apart to get out the heroin.

The government agents knew that the Jaguar and its contents had arrived and they had taken the precaution of seizing all but one bag of this very valuable cargo. But they did not know to whom the Jaguar and its supposed contents were to be delivered nor who the other cooperating members of the conspiracy might turn out to be. How these people were located is the story of a very fine piece of detective work. And, as this story unfolds, it becomes clearer at every step that each of these appellants knew they were possessing and distributing an unusually large shipment of heroin and that their guilt of the charges contained in the indictment was established.

So, on Saturday, September 18, the agents followed Orsini from the Hotel Abbey Victoria, where he met Gunther, to the Hotel Alrae where Orsini had registered as a guest, using the false name of Jean Pierre Andre Huguen.*fn1 Now that he had in his pocket the parking ticket and instructions how to dismantle the Jaguar and get out the heroin, we might expect him to make a beeline for the people who were to help distribute the heroin and collect the money, and that is precisely what Orsini did, with the usual backing and filling and getting in and out of cabs that indicate an effort to throw any government agents off the scent. So, Orsini started off in a cab and went straight to 587 Riverside Drive, where Ortega was to be found. When a search warrant was executed and the contents of Orsini's room at the Hotel Alrae were seized, there was found a memorandum containing the following:

476 Riverside Drive Apt. 1D

New York -- N.Y. 10031

15 -- 3738

The 1 in a circle is a code indication that the real Riverside Drive address is to be obtained by adding 1 to each of the numbers in 476. Thus Orsini knew that the man he was looking for was at 587. Certain numbers also appear on this memorandum which is on Hotel Alrae notepaper. The inference, of course, is that Orsini brought with him from Barcelona the papers in French giving him instructions how and where to identify Gunther, describing the hiding places of the 180 bags of heroin and how to take the car apart to get them, but the memorandum giving Ortega's address in code was made after some telephoning by Orsini in the interval between his arrival at the Alrae after receiving the parking ticket from Gunther and 3 P.M. when he started to go up to 587 Riverside Drive. He stayed there only a few minutes and then went back to the Alrae. There was no time to lose if he was to effect delivery of the heroin and have the money representing the purchase price ready to hand to Gunther on Monday, September 20, at the Sports Bar on 51st Street between 8th and 9th Avenues, as agreed between Gunther and Orsini at the time of delivery of the parking ticket. What Orsini was to hand to Gunther at the Sports Bar was the money.

This was a busy time for the conspirators. They must prepare a place to unload the Jaguar, a place to weigh and repack this huge quantity of heroin and get together the pile of bills that Gunther was to hide in the false bottoms of the suitcases given to him by Mosca. Gunther was busy constructing these false bottoms according to detailed instructions from Mosca, but time ran out and he and these three appellants were arrested when their plans miscarried and the Jaguar broke down just as they were on their way to make delivery of the heroin and get the money ready. More of this later.

Orsini left the Alrae again at 4 P.M. on Saturday, September 18. He handed the cab driver, who happened to be a government agent, a slip of paper on which was written the address 1021 Kennedy Boulevard, West New York, New Jersey. In a conversation in part French and part broken English Orsini displayed some knowledge of the part of New Jersey where they went. There was again the usual going in and out of buildings, walking up and down the street and passing some time in a bar. Finally, Orsini returned to the Alrae. He left the Alrae at 10 P.M. with Ortega and they both walked to the corner of 63rd Street and Madison Avenue, where they got in a maroon 1970 Ford station wagon driven by Perez, and all three drove off together.

Between 10:00 P.M. and 12:20 A.M. on Sunday, September 19, Orsini, Ortega and Perez managed to escape the surveillance of the agents. But bits of evidence when put together make it pretty clear that the three were busy in New Jersey getting ready for delivery of the heroin. The agents had the license number and a description of the Ford station wagon. This was found abandoned in Hackensack, N.J. It was registered in the name of Rafael Rivera who gave his address as 608-82nd Street, North Bergen, N.J., which was not far from West New York and not a great distance from Hackensack. And it turned out that, when searched after his arrest, Perez had in his pocket the keys of the maroon Ford station wagon and a driver's license, a Social Security card, and a Selective Service Draft Certificate, all in the false name of Rafael Rivera. Perez gave the North Bergen residence as his address. It also turned out, as disclosed by the execution of a search warrant on this same September 19, also after the arrest, that 608-82nd Street, North Bergen, N.J. contained a vacant apartment, on the ground floor of a two-family house, with the name Rivera on or near the entrance door, and that hidden under the sink in a closed compartment, covered by newspapers, was a flexible balsam board and a Hanson 25 pound scale appropriate for the weighing and measuring of large quantities of heroin. It also appeared that Ortega at the time of his arrest was carrying a driver's license in the name of Santos Hernandez who was supposed to live at the same address, 608-82nd Street, North Bergen, N.J. So two of these three appellants were tied in together at this vacant dwelling, which seemed to be a perfect choice for the conduct of such an illegal enterprise as the weighing and packaging of 93 1/2 kilograms of heroin for delivery. And the third of these appellants, ...

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