Appeal from a judgment of conviction on two counts of violating the narcotics laws, 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), and 812, after a jury trial before Orrin G. Judd, J., in the United States District Court for the Eastern District of New York. Affirmed.
Smith and Timbers, Circuit Judges, and Bryan, District Judge.*fn*
Orlando Miranda was convicted of (1) possessing with intent to distribute, and (2) distributing some 10 ounces of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b) (1)(A) and 812 after a jury trial before Judge Orrin G. Judd in the United States District Court for the Eastern District of New York. He appeals from the judgment of conviction.*fn1
Miranda does not contend that the evidence adduced at the trial was insufficient to sustain his conviction and, indeed, he could not well do so. He raises three issues which he contends require reversal. The first concerns the failure of the trial court to suppress testimony as to a conversation between Miranda and Gloria Rodas, an informant, on the ground that a tape recording of the conversation had been lost by the Drug Enforcement Administration and was not available at the trial. The second relates to the availability to the defense of two women who were not called as witnesses by the prosecution but who had been in the Jaguar Lounge bar on a number of occasions when Rodas and Miranda met. The third concerns the admission of evidence as to certain events which took place subsequent to the transaction alleged in the indictment.
Gloria Rodas was a major witness for the prosecution, who testified that she negotiated and carried out the purchase of 10 ounces of cocaine from Miranda for $10,000. Rodas had been cooperating with the Government following her arrest and plea of guilty to a narcotics conspiracy charge in an unrelated case.*fn2
Rodas testified to the following effect:
On March 1, 1974, at the request of special agents of the Drug Enforcement Administration (DEA), she went to the Jaguar Lounge, a bar in Queens operated and partially owned by Miranda, and struck up an acquaintance with him there. During other visits to the Jaguar in March, she talked with him further. On March 15, 1974 Rodas brought up the subject of drugs with Miranda. Miranda told her that people he knew were in jail but that they were expected to be released shortly and he would have more to tell her then. She told Miranda that she was interested in buying a kilogram of cocaine and Miranda said they would talk more about it later.
On March 21, 1974, Rodas again went to the Jaguar and talked with Miranda about the proposed purchase of cocaine. Miranda told her the purchase could be arranged and they agreed to meet the following night to discuss the matter further. On March 22, 1974 they met at the Jaguar, as arranged. Miranda told Rodas he could let her have 10 1/2 ounces, which was all he could get his hands on, for $10,000 ($1,000 an ounce) with the extra half ounce thrown in as a token of friendship. They agreed to consummate the transaction on March 25, 1974.
Rodas had kept the special agents informed of her negotiations with Miranda. On the afternoon of March 25 she met with Agents McMullan and Schnackenberg. She was searched, supplied with a Kel transmitter, and given $6,000 in cash. The agents searched her car. She then drove to the Jaguar Lounge in her car with the agents' car following her. She met Miranda in the Jaguar as arranged. Miranda asked her to drive him a short distance to an auto body shop where his car was being repaired. During the drive Miranda told her in Spanish that he had the merchandise with him. She said she could not take it all since she only had $6,000 of the $10,000 purchase money with her. Miranda said he would let her have the full amount of the purchase and would trust her for the balance of $4,000. He offered to let her taste a sample of the cocaine to test its purity. She replied that if he trusted her, she would trust him. Miranda produced a packet of cocaine, placed it in an attache case on the back seat of the car, and took the $6,000. Rodas dropped him at the auto body shop.
Rodas drove to a rendezvous with the agents who removed the packet of cocaine from the attache case and fieldtested it. The package contained some 10 ounces of cocaine.
On April 2, 1974, Rodas met with the agents. She was searched, again wired with a transmitter, and given the balance of $4,000 to pay off Miranda. She talked with Miranda in the kitchen of the Jaguar Lounge and gave him the money. They then discussed the possibility of future narcotics purchases and Miranda told her they would have to be discreet since many policemen would be coming to his bar during the forthcoming baseball season.
Rodas returned to the Jaguar on April 19, 1974 and asked Miranda to meet with her "brother" who, she said, was also in the narcotics business. On May 8, 1974 Rodas and an undercover agent, Pinol, posing as her brother, met Miranda in the Jaguar. Pinol thanked Miranda for the favor he had done his "sister" and suggested that Miranda supply him with a kilo of cocaine. Miranda replied that he was getting out of the business.
Group Supervisor McMullan and Special Agents Schnackenberg, Castillo and Pinol also testified for the prosecution. In substance, the testimony of McMullan and Schnackenberg corroborated the testimony of Rodas with respect to the arrangements for her to cooperate with the Government in this case, her meetings with the agents during the course of her negotiations with Miranda, and her visits to the Jaguar Lounge, a number of which were covered by surveillance. McMullan and Schnackenberg also testified that Rodas had been equipped with a radio transmitter before her visits to the Jaguar on March 25 and April 2, 1974; that she had been given $6,000 in government funds on March 25 and $4,000 on April 2; that on March 25 both her person and her car, including the attache case on the back seat, had been searched before she left for the Jaguar; and that a similar search had been made on April 2.
On March 25, McMullan, Schnackenberg and Castillo followed Rodas in their car and kept her under surveillance. They saw her enter the Jaguar, emerge with Miranda and drive to the auto body shop with him. During the drive the Kel radio transmitter which Rodas had with her was turned on and the conversation in Spanish between Rodas and Miranda was heard clearly by the agents in the surveilling car and recorded on tape. Castillo was the only agent in the car who understood Spanish and he gave a running account of the conversation to the other agents in English as it came over the transmitter. Agent Castillo's testimony as to the transmitted conversation of March 25 corroborated Rodas' version of it.
After Miranda left Rodas' car at the body shop, the agents met Rodas and took the packet of cocaine from the attache case where Rodas said Miranda had placed it. They proceeded to the office of the DEA with the cocaine and the tape of the Rodas-Miranda conversation, where Agent Castillo listened to a portion of the tape. Shortly after that, however, the agents were unable to find the tape, which had inexplicably disappeared from the DEA office. It was never found again, though the agents made an exhaustive search for it. Thus, the tape was unavailable at the trial, both to the prosecution and the defense.
On April 2, 1974, when Rodas went to the Jaguar to deliver the $4,000 final payment to Miranda, the radio transmitter on her person was again turned on. The tape of her conversation with Miranda at the Jaguar turned out to be inaudible and thus there was no recording of what was said in that conversation either.
Agent Pinol's testimony in substance corroborated Rodas' account of her final conversation with Miranda at the Jaguar on May 8, 1974.
Miranda took the stand and was the only witness for the defense. He strenuously denied selling cocaine to Rodas, receiving any money from her, or having anything to do with narcotics. He stated that he had talked with Rodas from time to time at the Jaguar and that she had driven him from the Jaguar to the auto body shop on March 25. On one occasion, when Rodas told him her brother had a lot of money to buy cocaine, he refused to discuss the subject and walked away from her. His version of the conversation with Rodas during the March 25 drive to the auto body shop was that, at Rodas' request, he had picked up and opened a valise in the back of the car and looked into it. He saw some white powder enclosed in plastic. Rodas said it was cocaine and that she was showing it to him to make him nervous or afraid. He got out of the car and told her he would not drive in her car again. Nevertheless, he admitted talking with Rodas several times thereafter and meeting her supposed "brother", Agent Pinol.
The testimony of Rodas and Agent Castillo as to the conversation of March 25, 1974 between Rodas and Miranda, concerning delivery of cocaine by Miranda and payment of $6,000 to him, was a crucial part of the prosecution's case. During the trial the defense moved to suppress testimony of Rodas and Castillo concerning the March 25 conversation on the grounds that the tape recording which had been made of the conversation had been lost by the Government and was unavailable, and that the Government had failed to disclose prior to the second day of the trial that there was such a recording which had been lost. The motion to suppress was denied by the trial court, as was a defense motion for a judgment of acquittal on similar grounds at the conclusion of the case. Thereafter, a motion to set aside the verdict and for a judgment of acquittal on these grounds was also denied.
Miranda's first contention is that the unavailability of the tape and the trial court's failure to suppress the Rodas-Castillo testimony as to the March 25 conversation requires reversal of the conviction and the entry of a judgment of acquittal.
During the pre-trial proceedings, the prosecution furnished defense counsel with tapes and transcripts of several conversations pursuant to Fed. R. Crim. P. 16. The Assistant United States Attorney informed the court and defense counsel that he had turned over all the tape recordings in the Government's possession. At the time he made that statement, the Assistant was well aware that a tape recording had been made of the March 25 Rodas-Miranda conversation and that it had been lost.*fn3
In the material furnished to the defense under the Jencks Act, 18 U.S.C. § 3500, there was no mention in any of the agents' reports or in any of the other material of the March 25 tape recording or its loss. Defense counsel did not learn that a tape recording had been made of the conversation and had been lost until the morning of the second day of the three-day trial, Wednesday, September 25, 1974. Due to Judge Judd's Friday motion calendar and the ensuing weekend, the trial was adjourned until Monday, September 30.
On Monday, September 30, at the request of the defense, the court permitted the defense to recall Agent Schnackenberg to the stand before the jury and cross-examine him at length as to the tape and its loss. The defense also cross-examined Supervisor McMullan and Agent Castillo extensively on these matters. In addition, there was redirect on the subject.
The substance of the testimony of the agents was as follows: The transmission of the March 25 conversation to the surveilling agents in their car was quite clear. The cassette on which the transmitted conversation was recorded was removed from the recording device and taken to the DEA office on the evening of March 25 by the agents who had listened to the transmission. Agent Castillo listened to some three minutes of the recording; apparently no one listened to the full recording. A day or two later, when Schnackenberg looked for the cassette recording in order to have it transcribed in accordance with the usual practice, it had inexplicably disappeared. Schnackenberg reported the loss to McMullan, his group supervisor. Despite repeated and diligent attempts to locate the cassette by the agents concerned, it could not be found. These efforts were renewed shortly before the trial at the request of the prosecutor, with the same negative result. No notes or other records concerning the cassette recording or its disappearance had been made.
The defense did not request that any further inquiry be conducted concerning the tape and the circumstances of its loss. Nor did it seek to examine Agents McMullan and Schnackenberg, either before the jury or in camera, with respect to Castillo's translation to them of the Miranda-Rodas conversation in Spanish as it was being transmitted to the agents' car on March 25. The defense moved for suppression of the Castillo-Rodas testimony solely on the basis ...