Appeals from judgments of conviction for conspiracy to violate narcotics laws entered in the United States District Court for the Southern District of New York after a jury trial before Charles H. Tenney, Judge. Affirmed.
Before: Clark, Associate Justice,*fn*
Mansfield and Van Graafeiland, Circuit Judges.
Mansfield, Circuit Judge:
These are appeals from judgments of conviction entered in the Southern District of New York following a four-week jury trial before Charles H. Tenney, Judge. Appellants Jimmy Lam, David Chan,*fn1 and Francisco LiGanoza were each convicted of conspiring to import and distribute heroin in violation of 21 U.S.C. § 846.*fn2 The principal claims or error raised upon the appeals are the not unfamiliar ones that the evidence presented at trial varied from the indictment by showing multiple conspiracies rather than the single conspiracy charged, and that the prosecutor's comments denied the defendants a fair trial. With respect to the first claim we find that the proof established the conspiracy charged in the indictment against each of the appellants and they were not prejudiced by evidence of a second conspiracy or the court's failure to deliver a multiple-conspiracy charge. We find no merit in the claim of denial of a fair trial and no reversible error in the other points raised by appellants. Accordingly, we affirm the judgments of conviction.
The government presented its case at trial primarily through the testimony of Herbert Wright and Frank Mingo, two New York City policemen who, posing as pimps, engaged in extensive drug negotiations with the appellants.*fn3 The tale begins on January 24, 1974, when Officer Mingo was introduced to Lam, the operator of a travel agency in Chinatown. Mingo expressed an interest in buying large quantities of heroin, and Lam quoted a price of $25,000 to $28,000 a pound. Lam also suggested that Mingo might be able to obtain the heroin cheaper through direct importation from Hong Kong, using either the mails or a courier. During the next several days, Officer Mingo negotiated for heroin with two persons introduced to him by Lam, who were described as Michael and Fatman. The pair, who were among those named as unindicated co-conspirators in this case, gave him a sample of heroin, and agreed to sell him a full pound for $28,000.
The sale was consummated in the early morning hours of Januayr 30 in Manhattan. The sellers - Fatman, Michael, and Sonny (another unindicted co-conspirator) insisted on selling the officers 1 1/2 pounds of heroin instead of the pound previously agreed upon. Showing a trust perhaps unusual in the circumstances, the sellers delivered the additional half-pound on credit. That evening, Officer Mingo visited Lam and paid him the first $1,000 of the $14,000 due on the extra half-pound. During the rest of February, the officers continued to pay off the debt, giving $10,000 of it to Sonny, and the remainder to Lam. They also resumed conversations with Lam about a direct importation from Hong Kong. After their discussions had focused on importing a full 100 pounds, Lam told them on February 22 that he had sent a man to Hong Kong to begin making the necessary arrangements there with the source of the heroin. The passport of LiGanoza, introduced at trial, showed he arrived in Hong Kong on February 24 and remained there through March 7.
As the negotiations for the Hong Kong importation progressed further Chan entered the scene and was introduced to the officers by Lam as a friend who owned an importing company which could be used as a cover for importation of the heroin. Chan, Lam, and the officers met on March 12 to discuss the modus operandi, which would be to put the heroin into cans of soybean sauce, reseal the cans, and ship them from Hong Kong to Chan's importing company in Virginia. To avoid a possible hijacking by their Hong Kong suppliers, Chan suggested that the heroin be delivered in a hotel room there without informing the sources that it would later be shipped to the United States. The mechanics of the transaction were further refined at a March 19 meeting of the four, where Chan again suggested a precautionary measure: shipping dummy cans containing only soybean sauce to the United States at the same time as the heroin-filled cans. Finally satisfied with the plan Chan said, in Chinese, "Tell him definitely I'll do it; definitely do it one time."
Chan left for Hong Kong in late March. Lam and LiGanoza went there in early April; they did not travel together. The officers also flew to Hong Kong, arriving on April 17. There ensued a series of haggling negotiations among Lam, Chan and the two officers. Lam demanded $10,000 to $15,000 in advance from the officers to complete preparations for the shipment of the heroin; the officers, posing as cautious buyers, insisted on seeing the heroin before they paid any money. On April 22, Lam finally produced a cigarette package containing a sample of a brown rock substance which a "marquis reagent" test conducted by Detective Wright showed to be heroin.*fn4 Despite the production of this sample, however, progress in completing the transaction continued to be bogged down. Finally, on April 22, Lam called the officers with specific plans for a delivery: Detective Wright was to go to room 319 of the Sun Ya Hotel, meet a "Francisco Li" there and receive the heroin. Simultaneously, in a separate room, Officer Mingo would pay the money. Later that day, however, Lam called with a demand from the heroin source for a $7,000 advance payment.
After Wright balked at the demand for the advance, Lam came to the officers' room, accompanied by LiGanoza whom the officers had not previously met. Lam introduced LiGanoza as the nephew of the heroin supplier and said that they had convinced the supplier to scale down his demanded advance payment to $5,000. Officer Wright said he would try to convince Johnny (the fictitious boss of the officers) to pay the $5,000. LiGanoza did not speak during the meeting. The advance payment was never made. The transaction fell through and all concerned, except Chan,*fn5 returned to the United States.
Undaunted by the collapse of the Hong Kong venture Lam, upon returning to the U.S., began negotiating with the officers to sell them more heroin. When discussions about another purchase through Sonny, Fatman, and Michael fell through Lam turned to arranging another sale of heroin to be provided by LiGanoza. According to Lam, although Liganoza's uncle, the ultimate supplier of the heroin which was to have been furnished in Hong Kong, was angry at the failure of the transaction there, a sale might still be arranged. Lam advised that the uncle sometimes sent smaller packages through the mails to different addresses in the U.S. and from these addresses the heroin came to LiGanoza. During May, Lam continued discussing the possible purchase of one of these shipments with the officers.
While the officers did not meet LiGanoza in the course of these negotiations, on two occasions during their telephone conversations with Lam, the latter handed the phone to a man he identified as Francisco or Charlie Chan. This man then exchanged pleasantries with the officers and on one of the occasions confirmed Lam's previous statement that one of the links in the chain between the uncle and LiGanoza had gone to Boston to make arrangements for obtaining the heroin. These negotiations finally bore fruit on May 30, when Lam took Officer Mingo to LiGanoza's apartment. Opening the door with keys he possessed, Lam gave Mingo 1 1/2 pounds of heroin stored in a garbage can in the kitchen of the apartment. Lam was arrested as he left the apartment, and LiGanoza was arrested as he stood alone on the street corner outside, facing the apartment building. Chan was later arrested.
Chan was the only defendant to testify at trial. The thrust of his testimony was that he had never agreed to help import heroin and had at most agreed to look into the idea. He further testified that he understood little of what transpired at meetings where he was present with Lam and the officers since the others talked mostly in English, which Chan claimed he did not understand very well. He also testified that Lam had sometimes misinterpreted what he said. LiGanoza introduced evidence to the effect that the purpose of his trip to Hong Kong in late February had been to get married. Lam called a New York City police detective to the stand, who ...