Kaufman, Chief Judge, Smith, Circuit Judge, and Bryan,*fn* District Judge.
FREDERICK van PELT BRYAN, District Judge:
Wilson Ramirez, Hector Gomez and Inez Velez Gutierrez appeal from judgments of conviction entered in the Southern District of New York after a jury trial before Judge Pierce. All three were found guilty on Counts One and Two of an indictment charging them and Umberto Ramirez with distributing cocaine and possessing it with intent to distribute, and conspiring to do so in violation of 21 U.S.C. §§ 812, 841 and 846. Wilson Ramirez was also convicted on a third count of carrying a firearm unlawfully during the commission of the felonies charged in Counts One and Two, 18 U.S.C. § 924(c)(2).*fn1 We affirm the convictions of all three appellants on Counts One and Two and reverse the conviction of Wilson Ramirez on Count Three, with a direction for the entry of judgment of acquittal on that count.
The main issues on this appeal are (1) whether the grand jury which returned the indictment was misled into believing it was receiving eyewitness testimony rather than the hearsay testimony it in fact received; and (2) whether the Wilson Ramirez conviction on Count Three must be reversed because of failure of proof and error in the charge. In addition, appellants raise several other minor points.
A brief recital of the facts concerning this sale of half a kilogram of cocaine to two undercover agents, Jose Guzman and Kenneth Bernhardt, will place the contentions in focus.
On August 1, 1972, Guzman met Umberto Ramirez (Umberto) at La Princessa restaurant, at 100th Street and Broadway in Manhattan, and told him that he wanted to buy half a kilogram of cocaine for a friend, and, if the price was right, two ounces for himself. Umberto quoted prices of $10,000 for the half-kilogram and $1,100 for the two ounces. The two agreed to meet the next day at the same place.*fn2
Guzman returned to La Princessa the next day but left when he could not find Umberto. Outside the restaurant Guzman then met Gomez. In reply to Guzman's inquiry, Gomez told him that Umberto had been at the restaurant earlier and would return soon. Shortly thereafter Guzman joined Umberto and Gomez in front of the restaurant. Umberto told Guzman that his "connection" had left. In reply to a question from Umberto, Gomez stated that he had an "eighth" for sale. After consulting with Bernhardt, who was posing as his partner, Guzman said his partner was interested only in the purchase of half a kilogram.
Subsequently, Wilson Ramirez (Wilson) arrived and was introduced to Guzman by Umberto as the "main man" who could supply " three-eighths" which, added to Gomez' one-eighth, would comprise the sought-after half.
Bernhardt, who remained seated in a car, displayed the $10,000 in bills for the purchase to Umberto, and then Guzman, Gomez and Umberto and Wilson went to Room 405 of the Whitehall Hotel. Wilson produced three plastic bags containing cocaine. He weighed them on a scale in the room; each weighed one-eighth of a kilogram. He then told Gomez to pick up his "eighth" and told Umberto to go with Guzman to the car to count the $10,000.
After Umberto counted the money, he left the car. He soon returned, accompanied by Wilson, Gomez, and Gutierrez. Gomez, referring to Gutierrez, told Guzman that "China" had the "stuff". Gomez, Gutierrez and the two Ramirezes entered the back of the car, with Guzman and Bernhardt sitting in front. Wilson told Gutierrez to give Guzman "the coke." Gutierrez took an opaque package containing the half kilogram of cocaine out of her handbag and handed it to Guzman. At this point, upon a signal, surveillance agents arrested Gomez, Gutierrez and the two Ramirezes, and simulated the arrest of the undercover agents. Wilson Ramirez was found with a Luger pistol in the waistband of his trousers.
In Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956), the Supreme Court held that an indictment may permissibly be based solely upon hearsay. See also Lawn v. United States, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958). That rule was qualified by this Court in United States v. Estepa, 471 F.2d 1132, 1136 (2d Cir. 1972), holding that where the grand jury is "'misled into thinking it is getting eye-witness testimony from the agent whereas it is actually being given an account whose hearsay nature is concealed . . ..' United States v. Leibowitz, 420 F.2d 39, 42 (2 Cir. 1969)," the convictions should be reversed and the indictment dismissed.
Dismissal of the indictment in Estepa was ordered in the wake of a substantial number of earlier cases in this circuit warning prosecutors that dismissal would ensue where the grand jury was misled as to the hearsay nature of the evidence before it. See United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969); United States v. Russo, 413 F.2d 432 (2d Cir. 1969); United States v. Carella, 411 F.2d 729 (2d Cir. 1969); United States v. Arcuri, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S. Ct. 1760, 23 L. Ed. 2d 227 (1969); United States v. Catino, 403 F.2d 491 (2d Cir. 1968), cert. denied, 394 U.S. 1003, 89 S. Ct. 1598, 22 L. Ed. 2d 780 (1969); United States v. Beltram, 388 F.2d 449, 451-452 (2d Cir.) (dissenting opinion) cert. denied, 390 U.S. 1010, 88 S. Ct. 1273, 20 L. Ed. 2d 168, and cert. denied, 391 U.S. 955, 88 S. Ct. 1860, 20 L. Ed. 2d 869 (1968); United States v. Andrews, 381 F.2d 377 (2d Cir. 1967), cert. denied, 390 U.S. 960, 88 S. Ct. 1058, 19 L. Ed. 2d 1156 (1968); United States v. Payton, 363 F.2d 996, 999-1000 (2d Cir.) (dissenting opinion), cert. denied, 385 U.S. 993, 87 S. Ct. 606, 17 L. Ed. 2d 453 (1966).*fn3 Appellants seek to bring themselves within the Estepa holding.
Neither Guzman nor Bernhardt, who naturally were the principal prosecution witnesses at the trial, testified before the grand jury. The sole witness before the grand jury was Patrolman Daniel J. Mullen, whose limited role as a surveillance agent prevented him from having personal knowledge of what transpired when the sale was negotiated and consummated. Mullen did not testify at the trial because of illness.
The trial in this case took place prior to the decision in Estepa. A pretrial motion for permission to examine the grand jury minutes on the ground that the indictment was based on insufficient and inadmissible testimony was denied by the trial judge. At the trial, defense counsel learned for the first time that Bernhardt and Guzman were the only officers present during the discussions leading to the purchase of the drug and at the purchase transaction and that Patrolman Mullen, who was merely a surveilling officer, was the only witness before the grand jury.
At the close of the Government's case, the defense moved for dismissal of the indictment on the ground that there was insufficient legal evidence to support it. The trial court declined to examine the grand jury minutes or to permit defendants' counsel to do so. He denied the motion to dismiss, citing Costello v. United States, supra, and Lawn v. United States, supra, holding that an indictment is valid even though based on hearsay.
The grand jury minutes were handed to us by the prosecution at the argument of the appeal and made available to defense counsel. Our examination of the minutes makes it quite plain that the grand jury was not misled into believing it was getting an eyewitness account. Thus, in developing before the grand jury what occurred in the hotel, the Assistant United States Attorney first established that the appellants, Umberto, and the undercover agents were "out of . . . Mullen's sight" at that time. The prosecutor then inquired whether Patrolman Mullen had "ascertained from them [the undercover agents who were present]" what happened and Mullen said he had. As to the crucial events in the ...