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United States v. Salazar

decided: September 19, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
PETER SALAZAR, APPELLANT



Appeal from judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Edward C. McLean, J., finding appellant guilty of conspiring to violate 21 U.S.C. §§ 173 and 174.

Lumbard and Mansfield, Circuit Judges, and Wyzanski, District Judge.*fn*

Author: Lumbard

LUMBARD, Circuit Judge:

Following a four day trial in December 1971 before Judge McLean and a jury, Peter Salazar was convicted and sentenced to fifteen years' imprisonment for participating in a conspiracy to import and distribute large quantities of heroin in violation of 21 U.S.C. §§ 173 and 174.*fn1 Seeking to have his conviction reversed and a new trial granted, Salazar now appeals, urging substantial prejudicial error in the conduct of his trial. Specifically, he asserts that evidence was introduced at trial relating to a second conspiracy not charged in the indictment, that he was denied a reasonable opportunity to prepare his defense, and that serious errors were committed by the prosecution in its summation and by the district judge in his charge to the jury and in his sentencing of appellant. We find these arguments unpersuasive and therefore affirm the conviction and sentence.

I.

The complex chain of events leading to Salazar's arrest in October 1970 commenced in March 1969. At that time, as developed during trial, Peter Apelien, a New York taxicab driver, who was later to be the government's principal witness, entered into a scheme with his brother-in-law, Alex Pietrini, and several others to smuggle quantities of heroin into the United States from France and Mexico. Later that same month, according to Apelien's testimony, Pietrini and one Jean Caron rendezvoused at the Paris Hotel in Manhattan with Salazar and an associate of his, Angelo Ortiz. At this meeting a sale of twelve kilos of heroin was made to Salazar and Ortiz. After this initial contact, the parties did not all meet again until the second week of April.*fn2 At this April meeting firm agreement was reached and plans made for the sale of heroin on a regular basis. Under the scheme devised, Pietrini and Caron would supply the narcotics, sending them by courier to the United States. Apelien, serving as an intermediary, would then contact Salazar and Ortiz, the purchasers, informing them where and when they could obtain the contraband. At the designated time and location Salazar or Ortiz would make contact with the courier, who was to be readily identifiable by the necktie he would be wearing.

Not long after the conspiracy was put into effect, however, Ortiz expressed his dissatisfaction to Apelien. At a meeting in May 1969 he complained that he had been taking all the risks and that Salazar was unable to sell heroin on his own. After some discussion and a trip to France by Apelien, an understanding was arrived at whereby five kilos per week would be shipped through Apelien to Ortiz apparently without Salazar's knowledge. Consistent with this arrangement, numerous sales were made to Ortiz in subsequent weeks during the months of July and August.*fn3 In the third week of August, however, Apelien found it impossible to locate Ortiz and promptly contacted Salazar in Miami.*fn4 Appellant readily agreed to fly to New York the next day to purchase Apelien's supply of heroin. That same evening Ortiz contacted Apelien,*fn5 whom he found to be quite worried, apparently concerned that Salazar would discover that sales had been made without his knowledge. Ortiz reassured him that Salazar could be kept in the dark and, indeed, the next day a sale was transacted with Salazar still believing Ortiz to be a loyal associate.

According to Apelien's testimony, a number of sales directly to Ortiz followed this August sale. The last of these occurred in April 1970. But after agreeing to take a shipment of narcotics, Ortiz communicated to Apelien the difficulties he was encountering in making a sale. He informed Apelien that if he could not make a sale very soon, he would call Salazar, presumably to see whether he could arrange a deal. The next day, before Ortiz could take any further steps to dispose of the drugs, he was arrested. Apelien immediately telephoned Salazar and told him to return to New York. Meeting in New York, the two discussed Ortiz's arrest and then Salazar asked Apelien whether he could get any more shipments of heroin. The next day a six kilo shipment arrived by two couriers. Before a transaction between Salazar and Apelien could be completed, however, the couriers were arrested. Shortly thereafter Apelien was arrested in France and on October 5 Salazar was arrested in New York. In the interim between Salazar's arrest and trial, Apelien returned to the United States, and, facing criminal charges, agreed to serve as a prosecution witness in the Salazar trial. Ortiz, who was to be tried as a co-conspirator with Salazar, pled guilty the day before trial and was later sentenced to ten years' imprisonment. Tried alone, Salazar maintained that his only dealings with the alleged conspirators concerned the numbers game and not heroin. His defense consisted entirely of his own uncorroborated testimony.

II.

We first consider Salazar's argument that testimony relating to twelve Apelien-Ortiz transactions of which he had no knowledge should not have been permitted in evidence.*fn6 The basis for this argument is Salazar's view that these transactions were acts in furtherance of a second conspiracy, wholly independent from the single conspiracy charged in the indictment. Were this in fact the case, Salazar would be correct in asserting that the trial judge should have excluded this testimony or, at a minimum, have instructed the jury to disregard acts in furtherance of the second conspiracy, for which the appellant had not been indicted. Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946); United States v. Borelli, 336 F.2d 376 (2d Cir. 1964).*fn7

We are, however, unable to endorse this "multiple conspiracies" view of the events of March 1969 to April 1970. While it is true that the appellant was not aware of all the activities of his coconspirators, this, in itself, does not suffice to excuse him from criminal liability for their activities in furtherance of the conspiracy. United States v. Cirillo, 468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S. Ct. 1501, 36 L. Ed. 2d 188 (1973).*fn8 It is true that a conspirator may not be held responsible for acts beyond the scope of the agreement. United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941). However, according to the testimony at trial, the activities engaged in by Ortiz and Apelien were entirely within the scope of the agreement reached by all parties, including Salazar, in April 1969. Their object was precisely the same -- the importation and distribution of large quantities of heroin. Moreover, their scheme employed the same modus operandi, with identical suppliers, couriers, and the same intermediary. The mere fact that they chose to bypass the appellant on certain transactions, and, in effect, deprive him of his share of illegal profits, hardly alters our conclusion that these activities were entirely consonant with and in furtherance of the original conspiracy in which the appellant was a participant. Furthermore, on several occasions, Apelien, unable to contact Ortiz, turned to Salazar. On each of these occasions the appellant, without hesitation, agreed to purchase the heroin. Far from suggesting "multiple conspiracies," these actions, considered along with the sameness of suppliers, couriers, and intermediary, point to a single "chain" conspiracy in which Salazar and Ortiz served as principal retailers. United States v. Cirillo, supra. See also United States v. Bruno, 105 F.2d 921 (2d Cir. 1939).*fn9

III.

Salazar also argues that he was denied a reasonable opportunity to prepare for trial, in violation of his constitutional rights to effective assistance of counsel, confrontation, and due process. Specifically, he points to serious inadequacies in his indictment, the failure of the government to file a complete bill of particulars on time, and the refusal of the district judge to grant an adjournment although the bill of particulars was delivered only four days before trial.

Salazar's assertion that the indictment was inadequate because of its brevity and its "conclusory" tracking of the statute alleged to have been violated is without merit. It has long been settled that an indictment is adequate so long as it contains the elements of the offense, sufficiently apprises the defendant of what he must be prepared to meet, and is detailed enough to assure against double jeopardy. Wong Tai v. United States, 273 U.S. 77, 71 L. Ed. 545, 47 S. Ct. 300 (1927); United States v. Palmiotti, 254 F.2d 491 (2d Cir. 1955). Under this test we have consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms. United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. ...


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