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United States v. Brettholz

decided: October 3, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
JAMES BRETTHOLZ AND MILTON SANTIAGO, APPELLANTS



Moore and Oakes, Circuit Judges and Tyler,*fn* District Judge.

Author: Moore

MOORE, Circuit Judge:

James Brettholz and Milton Santiago appeal from judgments of conviction entered after trial by jury in the United States District Court for the Eastern District of New York. The indictment charged appellants and three other persons, Jerry A. Rosenblum, Jory Ira Prince, and Lon M. Posner, in three counts with violations of the federal narcotics laws: Count I charged defendants with knowingly and unlawfully possessing with intent to distribute one quarter kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1); Count II charged defendants with attempted distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846; Count III charged defendants with conspiring to conceal, possess, and distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). A fourth count, naming appellant Santiago only, charged him with forcibly assaulting, impeding, and intimidating a federal narcotics agent engaged in the performance of his official duties, in violation of 18 U.S.C. §§ 111 and 1114.

Prior to trial, defendants Rosenblum, Prince, and Posner pleaded guilty to Count III, the conspiracy count, and appeared as government witnesses against appellants Brettholz and Santiago.*fn1 Both appellants were found guilty as charged on the first three counts of the indictment; Santiago was also found guilty on Count IV. Brettholz was sentenced to a term of five years on each of the first three counts, the sentences to run concurrently, plus a parole term of three years, plus a fine of $1,000 on each count, for a total of $3,000. Santiago was sentenced to a term of five years on each of the first three counts, the sentences to run concurrently, plus a special parole term of three years; he was sentenced on Count IV to a term of imprisonment of three years, the sentence to run concurrently with those imposed under the first three counts of the indictment.

On appeal appellants raise no material issues of fact but argue (1) that reversible error occurred when the trial court permitted the introduction of testimony by co-defendant Posner that Brettholz had sold cocaine to Posner on ten prior occasions; and (2) that reversible error occurred when the trial court instructed the jury not to consider evidence which, appellants allege, tended to impeach the testimony of government witness Posner and supported the testimony of appellants. In addition, appellant Santiago argues (3) that the trial court committed plain and reversible error by failing to instruct the jury on the issue of self-defense with respect to Count IV, the assault count. We reject all three claims urged by appellants and, consequently, affirm the judgments of conviction.

A brief recital of the facts concerning this attempted sale of cocaine is necessary to a determination of the issues raised by appellants.

At trial the government's evidence established that during the last week of July, 1972, after he had been contacted by government informer Gary Kaplan, co-defendant Jerry Rosenblum telephoned co-defendant Jory Prince for the purpose of securing one-half pound of cocaine. Prince in turn telephoned co-defendant Posner, who indicated that he would see whether he could find a source for the narcotic. Several days thereafter Posner contacted appellant Brettholz, informed the latter that he had a prospective purchaser of cocaine, and asked whether Brettholz could supply the drug. Brettholz told Posner to call back later that week; Posner did so and on that occasion Brettholz indicated that he could supply the half-pound of cocaine, and that he would meet with Posner the following day, August 5, 1972. (Trial Transcript, hereinafter "Tr.", at 326-27).

The next day Brettholz met with Posner at the latter's place of business, a car wash located in Far Rockaway, New York, which was co-managed by co-defendant Prince. Brettholz gave Posner a small sample of cocaine for the latter's customer to "taste", indicating that he would be able to supply only seven, and not eight, ounces of the drug. (Tr. 328-31). Posner then gave Brettholz the telephone number at co-defendant Prince's home in Far Rockaway, instructing Brettholz to telephone him there at 7:30 that evening. (Tr. 331-32). After Prince himself had "tasted" the cocaine sample, he and Posner telephoned Rosenblum, who in turn contacted government informer Kaplan, with the information that the deal would be consummated that evening at the home of Jory Prince. (Tr. 152, 332). Kaplan quickly contacted the federal narcotics agent to whom he informed, Agent Hall, who made plans to be present with other agents and Kaplan in the vicinity of Prince's home that evening.

At approximately 7:30 that night, the various characters in this narrative began to arrive at Prince's house. First to arrive were Posner and Rosenblum, who went up to Prince's upstairs bedroom for conversation. Posner had brought with him a brown shopping bag containing a scale with which to weigh the cocaine to be brought to the house by appellants Brettholz and Santiago; at trial Posner testified that the shopping bag had contained nothing but the scale. (Tr. 400, 433). In addition to the scale, Posner had brought the cocaine sample supplied earlier that day at the car wash by appellant Brettholz. (Tr. 336-37). Next to arrive at the house was government informer Kaplan, who secretly had been waiting in a parked auto with two federal undercover narcotics agents; Rosenblum went to the parked auto and accompanied Kaplan to the Prince house. All persons again convened in Prince's upstairs bedroom. Kaplan "tasted" the cocaine, expressed approval, and was told to go back to his auto until the full supply of the drug had arrived. (Tr. 165, 178-79). At this same time the pre-arranged telephone call from Brettholz was received at the Prince residence. (Tr. 179, 340). Posner told Brettholz that "everything seemed to be all right, everything looked cool and he should come by." (Tr. 340). Brettholz announced that he would do so after finishing his dinner.

At approximately 9:00 p.m. that evening appellants Brettholz and Santiago arrived at the house. The two men immediately went to the upstairs bedroom to confer with co-defendants Rosenblum, Posner, and Prince. (Tr. 341-43). After expressing concern at the number of autos parked outside, announcing that the cocaine was still in their auto, and looking around the house to chart an escape route just in case something went wrong (Tr. 185, 189), Brettholz, accompanied by Santiago, went back to their auto, to return to the house a few minutes later with the cocaine. Upon their return, Santiago positioned himself downstairs at the front door while Brettholz took the cocaine to the upstairs bedroom. (Tr. 190-91). Brettholz asked Rosenblum if he was the buyer; answering in the negative, Rosenblum then went outside to get the "purchaser," government informer Kaplan. Rosenblum and Kaplan re-entered the house and were promptly searched for weapons by appellant Santiago, who was still keeping his vigil at the front door. (Tr. 127-28). Once upstairs Kaplan "snorted" or sampled the cocaine which Brettholz had brought, expressed satisfaction with the deal, and left the house, ostensibly to go to his auto for the purchase money. (Tr. 464).

Back at the auto, Kaplan informed the agents that the cocaine had arrived. At this point Kaplan and agents Hall and Lightcap went to the house. Lightcap waited outside. Santiago, still standing watch at the front door, latched the door after Kaplan and Agent Hall had entered, and admonished Kaplan for bringing others to the house against orders. (Tr. 467). Santiago, using colorful expletives to make his point, further warned Kaplan and Hall that nothing had better go wrong because "We f--- people that f--- us." (Tr. 467). While Santiago was searching Hall for weapons, the latter unlatched the door to allow Agent Lightcap to enter; thereupon, Hall took out his badge, identified himself to Santiago as a federal agent (a fact which appellant Santiago disputes), and announced an arrest. (Tr. 469-70). Santiago responded by throwing a punch at Agent Hall and screaming, "Jimmy, Jimmy," appellant Brettholz's nickname. (Tr. 505). Other agents quickly entered the house and ran to the upstairs bedroom. Having heard all the commotion, defendants Prince, Posner, Rosenblum, and Brettholz went into action upstairs; Brettholz grabbed the cocaine and was seen by Agent Hall to be leaving out of a bathroom window. In the ensuing chaos, Brettholz escaped, only to turn himself in several days later. The other defendants were arrested on the spot.

After the arrests the agents conducted a search of the premises and the surrounding vicinity. A small plastic bag containing seven ounces of cocaine was found on the roof of a garage located directly behind the Prince house. (Tr. 528). The agents also found three small bags of marijuana in a shopping bag stuffed into a drawer of a bureau in Prince's bedroom. (Tr. 537).

At trial both Brettholz and Santiago testified in their own defense, and each supported the other's testimony. In essence, their defense was that they had gone to the Prince house not with the intention of selling cocaine, but for the purpose of buying marijuana from Posner for their personal use. The jury returned a guilty verdict on all counts of the indictment.

Appellants' first argument on appeal is that the trial court committed reversible error by permitting a government witness, co-defendant Posner, to testify that he had bought cocaine from appellant Brettholz on ten occasions within a year prior to the transaction in question. Prior to Posner's testimony the Assistant United States Attorney made an offer of proof to the trial court as to what Posner would testify, i.e., that Brettholz had sold cocaine to him on ten prior occasions. The prosecutor asked that the testimony be admitted on the theory that the ten prior sales "show[ed] that there was intent to distribute on the part of defendant [Brettholz] as opposed to being ...


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