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United States v. Armedo-Sarmiento

decided: October 28, 1976.

UNITED STATES OF AMERICA, APPELLEE,
v.
FRANCISCO ADRIANO ARMEDO-SARMIENTO, AKA EDUARDO SANCHEZ, AKA PACHO EL MONO, AKA ELKIN, AKA FRANCISCO VELEZ; EDGAR RESTREPO-BOTERO, AKA OMAR HERNANDEZ, AKA EL SOBRINO, AKA EDGAR, LEON VELEZ, JORGE GONZALEZ, AKA JORGE ARBOLEDE, LIBARDO GILL, AKA RAMIRO ESTRADA, RUBEN DARIO ROLDAN, CARMEN GILL, AKA CARMEN ESTRADA-RESTREPO, AKA CARMEN MAZO, WILLIAM RODRIGUEZ-PARRA, AKA JAIRO, OLEGARIO MONTES-GOMEZ, DEFENDANTS-APPELLANTS



Appeals from judgments convicting defendants of conspiracy to import cocaine following a jury trial before Hon. John M. Cannella in the United States District Court for the Southern District of New York.

Van Graafeiland, Circuit Judge, Kelleher*fn* and Gagliardi,*fn** District Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

Between 1971 and 1975, massive amounts of cocaine and marijuana were smuggled from Colombia, South America into the United States, much of it intended for distribution in New York City. In smaller quantities, these drugs entered the country in such things as false-bottom shoes, suitcases, dog cages, hollowed-out coat hangers and double-lined undergarments. Larger quantities came in by speedboat and in the false ceilings and walls of ocean-going shipping containers.

On April 30, 1975, following an intensive cooperative investigation by Federal and New York authorities, appellants and 29 others were indicted for conspiracy to import, possess and distribute cocaine in violation of 21 U.S.C. ยงยง 846 and 963.*fn1 They now appeal from judgments of conviction which followed a 14-week jury trial before Judge Cannella in the Southern District of New York.

Only 12 of the indicted defendants were tried, the 9 appellants and 3 others who were tried in absentia. The government's proof which consisted of wiretap recordings,*fn2 documentary evidence, surveillance reports and the testimony and admissions of accomplices was sufficient to establish each appellant's participation in the illegal venture. We move, therefore, directly to appellants' numerous other assertions of error.

Multiple Conspiracies

When a pattern of illegal activity persists over an extended period of time, with participants moving on and off the scene of action, it is sometimes difficult to establish that they are all part of a single conspiracy. United States v. Borrelli, 336 F.2d 376, 382-87 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965). It is not surprising, therefore, that appellants here argue the existence of three conspiracies, rather than one.

They contend that the first conspiracy covered the period from late 1971 until July 1973 and that, of the appellants, only Parra, Gomez and Botero were involved therein. The second, they say, ran from May 1973 until early 1974, with Botero the only appellant involved in this segment. The third, according to appellants, was in existence only during the first ten months of 1974, and among the participants were appellants Sarmiento, the two Gills, Roldan and Gonzalez.

The nature of the government's proof did indeed differ with respect to each of these three periods. Testimony concerning the 1971-73 segment was given largely by Carmen Caban and Rita Ramos, barmaids, who became involved on both a "business" and personal basis with the drug dealers against whom they testified. The illegal importation taking place during 1973 was described chiefly by William Andries and Lionel Fernandez, drug couriers, whose deliveries were made primarily in the Miami, Florida area. Most of the surveillance and wiretapping took place during the third period. It is true, also, that the evidence connected a number of the alleged conspirators with but one of the three time segments, and the primary scene of operations for the second segment was different from that of segments one and three.

However, whether the evidence has established multiple conspiracies rather than a single one is ordinarily a question of fact for the jury, United States v. Finkelstein, 526 F.2d 517, 522 (2d Cir. 1975), cert. denied, 425 U.S. 960, 96 S. Ct. 1742, 48 L. Ed. 2d 205, 44 U.S.L.W. 3624 (1976); and, accepting the proof in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972), we think it was sufficient to permit the jury to find the existence of but a single conspiracy. Evidence was introduced to show that the "brains" of the smuggling operation were two brothers, Alberto and Carlos Bravo, owners of an export-import business in Colombia. They were assisted by Griselda Blanco, who manufactured sophisticated smuggling devices and recruited couriers, and Bernardo Roldan, an expert in the manufacture of passports. This operational core continued to be active during the four-year period covered by the indictment.*fn3 See United States v. Mallah, 503 F.2d 971, 983 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975).

Moreover, the jury might properly find that several of the domestic underlings actively participated in the illegal drug operation during more than one of the three time segments. Among those were Cabrera, Botero, Caban, Ramos, Rincon, Hernandez, Diaz, Carmen Gill and Arturo Gonzalez. See United States v. Stromberg, 268 F.2d 256, 263 (2d Cir.), cert. denied, 361 U.S. 863, 4 L. Ed. 2d 102, 80 S. Ct. 123 (1959).

There was proof that many of the participants were aware of each other's role in the organization. There were numerous meetings and telephone conversations among them and sales and transfers of drugs between them. See United States v. Sperling, 506 F.2d 1323, 1340 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (1975). There was also a consistent pattern of operation which included the use of similar smuggling devices, forged passports and a communications code. See United States v. Leong, 536 F.2d 993 (2d Cir. 1976); United States v. Sisca, 503 F.2d 1337, 1343 (2d Cir.), cert. denied, 419 U.S. 1008, 42 L. Ed. 2d 283, 95 S. Ct. 328 (1974). Indeed, a jury might consider the very size of the operation and the quantity of drugs involved to be indicative of a large scale, continuing conspiracy. United States v. Magnano, 543 F.2d 431 (2d Cir. 1976).

Conspiracies are often agreements in flux, United States v. Cirillo, 468 F.2d 1233, 1239 (2d Cir. 1972), cert. denied, 410 U.S. 989, 36 L. Ed. 2d 188, 93 S. Ct. 1501 (1973), and a single conspiracy is not transposed into a multiple one simply by lapse of time, Braverman v. United States, 317 U.S. 49, 52, 87 L. Ed. 23, 63 S. Ct. 99 (1942), change in membership, United States v. Stromberg, supra, 268 F.2d at 263-64, or a shifting emphasis in its locale of operations, United States v. Finkelstein, supra, 526 F.2d at 521.

The District Court's instructions on conspiracy, while succinct, were adequate. The Court charged that the government was required to prove the existence of but a single conspiracy and that each defendant's participation in this conspiracy must be determined individually by his own actions and declarations. It was not, as appellants assert, an "all or nothing" charge. United States v. Bynum, 485 F.2d 490, 497 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974). The District Judge's decision not to marshal the evidence was a discretionary one which avoided the risks of omission, over-enumeration, over-simplification and improper emphasis. United States v. Bernstein, 533 F.2d 775, 798-99 (2d Cir. 1976). While we have encouraged the marshaling of proofs in complicated conspiracy cases in order to highlight the differences between defendants, see, e.g., United States v. Sisca, supra, 503 F.2d at 1345; United States v. Kelly, 349 F.2d 720, 757 (2d Cir. 1965), cert. denied, 384 U.S. 947, 16 L. Ed. 2d 544, 86 S. Ct. 1467 (1966), we are not prepared to hold that the District Judge's decision not to do so in this case was an improper exercise of his discretion.

In short, we find no error in the submission of the multiple conspiracy issue to the jury, nor in the manner in which it was submitted.

Denial of Right to Speedy Trial

The indictment on which appellants were tried was a superseding indictment filed April 30, 1975. Four indictments preceded it, the original one being filed on May 11, 1974. Appellant Gonzalez was arrested by state authorities on September 17, 1974, indicted by a federal grand jury on October 4, 1974 and arraigned on the charges of that indictment on October 31, 1974. Appellant Roldan was arrested on October 4, 1974 on the same charges. Under Rule 4 of the Speedy Trial Rules of the District Court for the Southern District of New York as they then existed, the government was required to be ready for trial within six months from the day of arrest or the filing of charges, whichever was earlier. Absent such readiness, defendant was entitled to move for dismissal of the indictment. In computing the time within which the government was required to be ready, those periods occupied by the making and determination of pretrial motions were to be excluded. The District Court was also permitted by the rules to grant additional time when justified by exceptional circumstances of the case.

Although the government filed a notice of readiness on February 18, 1975, it did not furnish defendants with English translations of the wiretap tapes which were in Spanish until May 1, 1975. Relying principally on United States v. Pollak, 474 F.2d 828 (2d Cir. 1973), appellants Gonzalez and Roldan contend that the government was not in fact ready on February 18, 1975 because of the absence of the translations and that the indictments should have been dismissed as against them.

When a motion to dismiss was argued in the District Court on April 17, 1975, it was disclosed that the attorneys for Gonzalez and Roldan had never moved for either a bill of particulars or an inspection of the tapes, although the case had been set for trial on April 28, 1975. Under those circumstances, the District Court saw no reason to challenge the sincerity of the government's statement of readiness, and we find no error in its determination. In United States v. Pollak, supra, a discovery order was outstanding and had not been complied with at the time the government filed its statement of readiness. It is of interest to note, also, that when the dust cleared ...


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