Appeal from judgment of conviction of illegal importation of cocaine and conspiracy, on trial to the jury in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge. Reversed.
Smith, Feinberg and Oakes, Circuit Judges.
Appellant Manuel Gonzalez was convicted after a trial by jury in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, on one count of conspiracy and one count of smuggling cocaine into the United States, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2. We find error in the trial and reverse.
The principals of this case first came to the attention of the authorities when on October 7, 1972, Jose Valenzuela-Correa, a sixty-three-year-old Chilean national, was searched following his arrival in the United States from Chile at John F. Kennedy International Airport in Queens, New York. He was found to have over four pounds of cocaine strapped to his legs. Correa agreed to cooperate with the authorities and stated that he was an intermediary between Mario Cerda, a business acquaintance of Correa's in Santiago, and a Mr. Gonzalez, whose address was 1511 Westchester Avenue, Bronx, New York. Correa stated that Cerda had given him an envelope which Correa was to give to Gonzalez along with the drugs. Upon inspection, the letter was found to be a letter of introduction, referring to Correa as "the bearer of your order." It also spoke of future orders but did not identify any of these "orders" as involving narcotics. The envelope also contained the halves of two different dollar bills cut in a zig-zag manner. Correa told customs officials that Cerda had instructed him not to deliver the drugs until he was shown the corresponding halves of the bills and that Cerda told him that Gonzalez would give him $300 in expense money at their initial meeting.
Correa's subsequent meeting with appellant Gonzalez on the night of October 7, at a bar owned by Gonzalez at the Westchester Avenue address, was under surveillance by special agents. The officers observed Gonzalez greet Correa, look briefly at the letter Correa gave him, and walk to the rear of the bar where Gonzalez disappeared from view. A short time later, an agent who pretended to be using the bathroom saw appellant speaking with a black man and giving him a sum of money. Gonzalez then stood in the rear of the bar, apparently reading from a piece of paper. Appellant next returned to Correa and gave him the matching halves of the bills contained in the envelope. Correa testified that Gonzalez then advised him that an individual would pick up the cocaine the next day at Correa's room in the Yonkers Motor Inn. Correa asked Gonzalez for the expense money, and Gonzalez gave him $300. The surveilling agents testified to all the above, except the conversation between Correa and Gonzalez.
The first arrest in this case was made when Bolivar Irizarry came to Correa's room the next day. Irizarry showed Correa the same halves of the bills that Correa had given Gonzalez the day before and also presented to Correa a Yonkers Motor Inn card that Correa had given Gonzalez. When Irizarry began examining the cocaine, the special agents emerged from the bathroom and placed him under arrest.*fn1 Appellant Gonzalez was arrested outside his bar later that day. Mario Cerda was named in the indictment as "John Doe, also known as Mario C."
The defense claimed that Gonzalez believed the transaction involved shoes, not cocaine. Appellant testified in his own behalf that in February, 1972, he and Mario Mena Flores, a Chilean national who frequented Gonzalez' bar, had agreed to begin marketing in New York shoes which Flores made in Chile. Gonzalez and Flores further agreed that one Ricardo Gonzalez, apparently no relation of appellant's, was to be a partner in the venture and that Flores would send a shipment of shoes to New York as a sample. Appellant testified that Ricardo Gonzalez told appellant one week before Correa's arrival in New York that Flores would soon arrive in New York. Appellant contended that Correa introduced himself as being sent by "Mario," whom appellant took to be Mario Flores, that appellant showed the letter Correa gave him to Ricardo Gonzalez when appellant went to the rear of the bar and that Ricardo Gonzalez gave appellant the two halves of the dollar bills, telling him that they belonged to Correa. Appellant also testified that he gave Correa's motel card to Ricardo Gonzalez who said that he would pick up the shoes. Appellant denied having discussed narcotics with Correa and stated that he had not seen Ricardo Gonzalez since the night of October 7 although he had tried resourcefully to contact him.
There was an abundance of evidence to justify the jury's decision that appellant was engaged in a narcotics transaction, not in a retail shoe venture, and indeed appellant does not challenge the sufficiency of the evidence on appeal. We upset the conviction with regret, but we are compelled to do so by errors affecting the fairness of the trial.
Appellant's first claim on appeal is that the charge to the jury was so inconsistent and confusing as to require reversal. The objection concerns that portion of the charge relating to Correa's testimony.
Correa, an accomplice witness against appellant, was clearly an important figure in the trial below. His motivation for testifying was an important factor in judging his credibility, and defense counsel questioned Correa about his motivation on cross-examination.*fn2 Defense counsel seasonably requested that the trial judge charge substantially in the language of United States v. Padgent, 432 F.2d 701, 704 (2d Cir. 1970):
An accomplice's testimony implicating a defendant as a perpetrator of a crime is inherently suspect for such a witness may well have an important personal stake in the outcome of the trial. An accomplice so testifying may believe that the defendant's acquittal will vitiate expected rewards that may have been either explicitly or implicitly promised him in return for his plea of guilty and his testimony.
Instead, the trial judge charged:
A participant so testifying may believe the defendant's acquittal will vitiate expected rewards that may have been explicitly or implicitly promised in return for his ...