Appeal from a judgment of the United States District Court for the Southern District of New York, Murray I. Gurfein, Judge. Rosa Ortiz appeals from a judgment of conviction for conspiracy to distribute Schedule I and Schedule II narcotic drug controlled substances, in violation of 21 U.S.C., Section 846. Affirmed
Medina, Mansfield and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).
Having been convicted by Judge Gurfein, sitting without a jury, of the crime of conspiracy to distribute a narcotic drug in violation of 21 U.S.C., Section 846, Rosa Ortiz appeals. The claim that she was merely a "procuring agent" is precluded by our recent decision in United States v. Masullo, 489 F.2d 217 (2d Cir. 1973).
Ortiz testified in her own defense and there was at the trial a direct conflict of credibility between her testimony and that of the witnesses for the prosecution. As the trier of the issues of fact, Judge Gurfein did not believe Ortiz and he found as a fact beyond a reasonable doubt that Ortiz and her co-defendant had demonstrated "a willingness and predisposition to committing the crime." This disposed of the claim that entrapment was established as a defense as a matter of law.
It is of no more than peripheral significance that it was by mere chance that the narcotics agents spoke with Ortiz when they came to the apartment to talk with the husband, who was suspected of dealing in narcotics. And the same is true of the time interval between the first interview with Ortiz and the ultimate transaction for the purchase of an amount of heroin much larger than the one originally mentioned by the government agent.
We quote Judge Gurfein's detailed findings of fact on the question of entrapment:*fn1
When Thomas Kinsey first brought Agent Franklin to Ortiz's apartment under the pretense of setting up a narcotics sale with one Manny Macia, Ortiz offered no objections. And when Franklin asked Ortiz whether she could sell him an ounce of heroin, Ortiz replied without hesitation that she could. When asked about supplying an eighth of a kilo, she replied "I would have to ask my husband or Manny Macia. If you would like, you could return this evening to buy the ounce." Finding Ortiz so willing to supply the heroin, Franklin chose not to buy the ounce, but to wait until she procured a larger quantity. Thus, over the next five weeks he called her a total of five times inquiring whether Ortiz had contacted her supplier. On December 1, Ortiz informed Franklin, in the course of one of these phone calls, that the heroin would be available.
In the interim, Carmen Torres had come to live with Ortiz. Ortiz testified that a few days after Torres had started living there, she informed Torres about Franklin's request for heroin. Initially Torres "just let it drop" but afterwards "Carmen [Torres] said that she was going to see if she could find somebody." Torres' willingness to become involved occurred prior to any contact Torres had with Agent Franklin. On December 2, when Franklin called Ortiz's apartment Torres answered the phone, identified herself as "Gloria" and told Franklin "we haven't heard from our guy yet but I'm going to see him tonight." Subsequently Ortiz's phone was disconnected.
On December 4 Franklin appeared in person at Ortiz's apartment, but left after only a brief discussion with Ortiz because Ortiz's sister-in-law was present. When Franklin returned two days later, he brought along Agent Rottinger. Franklin and Rottinger proceeded to drive defendants Torres and Ortiz to their supplier, with Torres directing the route. The defendants descended the car and left the Agents' view. It was Ortiz's testimony that she had never met the supplier before and that it was Torres who knew him to be a narcotics dealer. After a few minutes the defendants returned, quoting a price of $1,600 for three ounces. After they returned to the apartment, Franklin advised Torres that he would not have the money until the next day. Torres then asked to be driven back to make new arrangements. After driving her back to the same place, Torres descended and returned with the report that Franklin could have three ounces of heroin for $1,600 and an eighth of a kilo of cocaine for an additional $2,000. Franklin agreed. They drove back to Ortiz's apartment.
The following day, December 9, Franklin returned to the apartment. Torres asked for the money and Franklin asked to see "the stuff." Torres retrieved a sample of heroin. Franklin thereupon left the apartment, went downstairs and returned with $4,000 and Special Agent Reilly. One Nelson Garcia then emerged from the bedroom with a glassine envelope in one hand and a white paper bag in the other. The defendants were then placed under arrest.
We see no basis whatever for rejecting any of these findings.