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United States v. Bermudez

decided: November 6, 1975.

UNITED STATES OF AMERICA, APPELLEE,
v.
EDUARDO BERMUDEZ, JORGE VIVAS, AND ISRAEL DIAZ-MARTINEZ, APPELLANTS



Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, of convictions after a jury trial for conspiracy to distribute cocaine hydrochloride in violation of 21 U.S.C. § 846. Held (1) indictment under 21 U.S.C. § 846 need not allege overt act; (2) cross-examination of character witness as to prior offenses of defendant permissible; (3) cross-examination of defendant on basis of illegally seized evidence proper; (4) introduction of real evidence found after conspiracy ended proper; (5) DEA agent qualified to testify white powdery substance was cocaine; (6) instructions on conspiracy and accomplice testimony not erroneous; (7) verdict not coerced by Allen-type charge; (8) denial of motion for new trial correct. Judgments affirmed.

Waterman, Oakes and Meskill, Circuit Judges.

Author: Oakes

OAKES, Circuit Judge:

This appeal in a rather commonplace drug case raises several questions worthy of consideration.

Appellants Eduardo Bermudez, Jorge Vivas and Israel Diaz-Martinez were convicted by a jury on February 7, 1975, of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. They were each sentenced by Chief Judge Mishler of the Eastern District of New York to a five-year term of imprisonment and to special parole for ten years.

The Government evidence was that in October, 1973, Diaz-Martinez, owner of a clothing store at 293 Grand Street in Brooklyn, New York, had informed his employees, codefendants Manuel Fiffe and Luis Miranda, that they were going to sell cocaine at the clothing store. The cocaine was prepared and stored at the home of a third employee, Juanita Guzman.

On November 5, 1973, Fiffe obtained one ounce of cocaine from Diaz-Martinez and took it to the apartment of another codefendant, Victor Blanco. At Blanco's apartment, Fiffe sold the cocaine for $675 to an undercover special agent of the Drug Enforcement Administration (DEA). Fiffe then returned to the Grand Street clothing store and gave this money to Diaz-Martinez. Three days later, pursuant to a telephone call from Blanco that "the people at the factory had a new shipment of uniforms," the same DEA agent went to the clothing store where Fiffe and Blanco gave him a sample of cocaine they had obtained from Diaz-Martinez. The agent agreed at that time to purchase a one-eighth kilo of this cocaine for $2,900. This sale was consummated on November 12, 1973, in the basement at 293 Grand Street, and the proceeds were again delivered to Diaz-Martinez.

On November 20, 1973, after being told that "the people in the factory had new uniforms" the DEA agent met with Blanco and informed him that he was interested in purchasing a half kilo of cocaine if the quality was right. Blanco relayed this message to Fiffe who informed Diaz-Martinez, but the proposed order was too large for Diaz-Martinez to fill at that time, and he referred Fiffe to appellant Bermudez, a regular customer of the clothing store, who Fiffe had previously observed snorting cocaine with Diaz-Martinez. Bermudez met with Fiffe and Blanco at Blanco's apartment that evening to discuss the sale. Subsequently Bermudez took Fiffe to appellant Vivas' record store in Brooklyn.

The next day, Blanco called the special agent and told him that the half kilo of cocaine was now available for sale. The agent met Blanco and Fiffe at Blanco's apartment and was taken to Vivas' record store where appellants Bermudez and Vivas were waiting for him in a back room. Vivas subsequently produced the half kilo of cocaine, but the transaction was not completed because the agent had not brought the $12,000 necessary to purchase the entire amount or even the $6,500 necessary to buy "a quarter," and Vivas refused to sell less than an eighth kilo.

On November 29, 1973, the special agent met with Blanco and Juanita Guzman in Blanco's apartment. She informed the agent that if he wanted to continue to deal in "quarters" - quarter kilos - he could obtain them at Diaz-Martinez's clothing store.

A warrant was obtained authorizing a search of the clothing store, which was conducted on March 27, 1974. The search turned up narcotics paraphernalia but no drugs. On June 14, 1974, a search pursuant to a warrant was made of appellant Vivas' house. This search discovered traces of cocaine, bags of lactose and a scale.

The indictment was returned on May 30, 1974, charging appellants Diaz-Martinez, Bermudez and Vivas along with Fiffe, Blanco and Miranda of conspiracy to distribute cocaine. After arraignment, Fiffe, Blanco and Miranda agreed to plead guilty and testify at trial. At the trial, the principal witnesses for the prosecution were Fiffe and the undercover DEA agent.

The appellants urge several grounds for reversal of their convictions on this appeal. They claim that (1) the indictment was insufficient because it failed to charge an overt act as part of the conspiracy; (2) cross-examination of Bermudez's character witnesses at trial as to whether they "had heard" of prior narcotics offenses by Bermudez was improper; (3) introduction of evidence of narcotics paraphernalia and narcotics traces found in the home of Vivas six weeks after the termination of the conspiracy was improper; (4) introduction of narcotics paraphernalia seized at the clothing store for the purpose of impeaching Diaz-Martinez's credibility was improper after that evidence had been suppressed on the direct case due to nonspecificity of the warrant; (5) the district court erred in accepting the qualifications of the special agent as an expert able to identify cocaine; (6) the district court's charge to the jury on the weight to be given to the testimony of an accomplice was in error; (7) the midtrial instructions on what constitutes a conspiracy were unfair; (8) the trial court coerced a verdict and cut short the jury deliberations; (9) the trial court erred in refusing Diaz-Martinez's motion for a new trial on the basis of newly discovered evidence. We hold against appellants on all claims of error and affirm each of the convictions.

I. Sufficiency of the Indictment. Appellants Bermudez and Vivas contend that an indictment for conspiracy under 21 U.S.C. § 846 must allege an overt act. Although in the ordinary case of a conspiracy under 18 U.S.C. § 371 it has been held that at least one overt act must be set forth in the indictment, United States v. Offutt, 75 U.S. App. D.C. 344, 127 F.2d 336, 338 (1942) (then 18 U.S.C. § 88),*fn1 "there is authority to the effect that proof of an overt act is not a necessary element of a conspiracy charged under 21 U.S.C. § 846." United States v. Tramunti, 513 F.2d 1087, 1113 n.28 (2d Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975), citing, e.g., Ewing v. United States, 386 F.2d 10 (9th Cir. 1967), cert. denied, 390 U.S. 991, 19 L. Ed. 2d 1299, 88 S. Ct. 1192 (1968); United States v. DeViteri, 350 F. Supp. 550, 552 (E.D.N.Y. 1972). In a case involving an offense under 21 U.S.C. § 846, the conspiracy to distribute narcotics is in and of itself a specific crime. Since an indictment is sufficient if it charges the offense in the words of the statute, Grene v. United States, 360 F.2d 585, 586 (5th Cir.), cert. denied, 385 U.S. 978, 17 L. Ed. 2d 440, 87 S. Ct. 522 (1966), an indictment under 21 U.S.C. § 846 is sufficient if it alleges a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege any specific overt act in furtherance of the conspiracy. See United States v. Murray, 492 F.2d 178, 192 (9th Cir. 1973), cert. denied, 419 U.S. 854, 95 S. Ct. 98, 42 L. Ed. 2d 87 (1974); cf. Singer v. United States, 323 U.S. 338, 89 L. Ed. 285, 65 S. Ct. 282 (1945) (Douglas, J.) (no overt act requirement for conspiracy offense under draft evasion statute); Nash v. United States, 229 U.S. 373, 378, 57 L. Ed. 1232, 33 S. Ct. 780 (1913) (Holmes, J.) ...


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