Appeals from judgments of conviction for violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2 entered in the Southern District of New York after a jury trial before Judge Kevin T. Duffy. Judgments affirmed.
Mulligan and Oakes, Circuit Judges, and Frederick v P. Bryan, Senior District Judge.*fn*
BRYAN, Senior District Judge:
Cesar Turbide and Nelson Perez appeal from judgments of conviction entered on November 1, 1976 in the United States District Court for the Southern District of New York, after a six-day trial before Judge Kevin T. Duffy and a jury.
Count one of the indictment charged Turbide alone with distributing and possessing with intent to distribute 23.63 grams of cocaine on July 17, 1974 in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Count two charged both Turbide and Perez with distributing and possessing with intent to distribute 50.55 grams of cocaine on February 18, 1975 in violation of the same sections and 18 U.S.C. § 2.
Trial commenced on May 26, 1976. On June 2, 1976, the jury found Turbide guilty on count one. The next day the jury found both Turbide and Perez guilty on count two.*fn1
Turbide and Perez each raise one main issue on appeal. Turbide claims that his convictions must be reversed because the district court refused to order the Government to produce at the trial an informer who introduced Turbide to an undercover narcotics officer and participated to a slight extent in the ensuing transactions. Perez seeks reversal of his conviction on the ground that he was prejudiced by the district court's refusal to sever count two of the indictment, the only count in which he was charged, from count one, which charged an unrelated July, 1974 sale by his codefendant Turbide. We affirm both convictions.
The Government's proof at trial was developed through the testimony of three witnesses - Officer Frank Marrero, and Detectives Robert Bisbee and Michael J. Alberti - New York City police officers assigned to the Department of Justice's Drug Enforcement Task Force. Viewed in its most favorable light, it established that two distinct narcotics transactions occurred, one a rather typical undercover sale and another which departed somewhat from that familiar script.
The events leading up to the first sale began on the evening of July 16, 1974. After meeting briefly with an informer who had been arrested for a narcotics offense and who was cooperating with the Drug Enforcement Task Force while his case was pending, undercover police officer Marrero drove to the Mona Lisa Social Club on 168th Street in Manhattan to meet Cesar Turbide for the purpose of buying cocaine. When he arrived at the club, Turbide was not present, so Marrero asked the informer, who had driven to the club in a separate car, to try to find Turbide. The informer drove up Amsterdam Avenue, and then shortly returned to the club. A couple of minutes after the informer's return, Turbide arrived at the club on a ten-speed bicycle.
Once inside the club, Turbide asked Marrero how much cocaine he wished to purchase. Marrero stated that he wanted to buy one ounce. Turbide said that he could supply an ounce but that the deal would have to take place the following day. Prices of $1,100 or $1,200 were discussed, but the final price was left open.
The next day, July 17, 1974, Marrero again met Turbide at the Mona Lisa. After confirming that Marrero was still ready to buy, Turbide left to get the ounce of cocaine. He rode up to the vicinity of 172nd Street and Amsterdam Avenue on his bicycle, where he spoke to several men in different locations in a park.
After an hour had passed and Turbide had not returned, Marrero asked the informer to "see where Mr. Turbide was" and "find out what the delay was." The informer left the club and drove to the park, where he spoke to Turbide for a few minutes.*fn2 The informer then returned to the club and told Marrero that Turbide would be arriving shortly.
Turbide remained in the park, where he spoke to the passenger of a Pontiac station wagon which was stopped outside the park. The driver of the Pontiac had the hood of the car up and was working under it. After some five minutes, the driver put the hood down and, with his passenger, sped north on Amsterdam Avenue. Surveillance officers lost them in traffic.
Some time later, the Pontiac, with its hood up again, was parked across the street from the Mona Lisa. Turbide appeared and, after again speaking to the passenger of the Pontiac, entered the club, told Marrero that he had the ounce of cocaine, and asked him to step to the rear of the club. While the informer remained at the front of the club by a pool table, Marrero and Turbide went to the rear.*fn3
There Turbide gave Marrero the ounce of cocaine and said that the price would be $1,200. Marrero told him that all he had was $1,000, but that he would go get the other $200. Turbide agreed to wait, and Marrero gave him the $1,000 and left. He returned shortly, had the informer send Turbide out to his car, and there paid him the balance of $200. Turbide told Marrero that if he wanted to buy any more cocaine he would be in the area and the informer would know how to get in touch with him. After leaving Marrero's car, Turbide again spoke to the occupants of the Pontiac.
The series of events which culminated in the second cocaine sale began on the evening of February 11, 1975. Marrero went to Hector's Bar at 174th Street and Amsterdam Avenue to meet Turbide, who had been previously contacted by the informer. Both Turbide and the informer, who was tending bar, were in Hector's when Marrero arrived. After an exchange of greetings, Turbide asked Marrero how much cocaine he wished to purchase. Marrero told him that he was looking for two ounces. Turbide said that he was able to supply it, but that they had to speak with his partner Nelson at Nelson's grocery store in the Bronx. Marrero and Turbide then drove to Roque's grocery store at 169th Street and College Avenue in the Bronx. The informer did not accompany them.
While Marrero waited in the car outside the grocery store, Turbide went down the block to 1264 College Avenue and came out shortly with Nelson Perez. Turbide introduced Perez to Marrero as Nelson, his partner. Perez told Marrero that he would be able to supply the two ounces of cocaine if Marrero were willing to go to the East Harlem area where his main connection could probably be found. Perez suggested that his cousin Carlos accompany them since Carlos knew the different social clubs in East Harlem that the connection frequented.
Eventually, a red Thunderbird with two male occupants arrived at the grocery store, and Perez introduced one of them to Marrero as his cousin Carlos Ferrer. Then Perez, Ferrer, and the other male drove in the Thunderbird to 102nd Street and Lexington Avenue in Manhattan, followed by Turbide and Marrero in the latter's car, a 1971 Cadillac government undercover vehicle.
After a lengthy search for the connection in various social clubs in the vicinity of 102nd Street proved unsuccessful, the group arrived at a club on 105th Street which Perez, Ferrer, and the third man entered.
While the others were in this club, Turbide apologized to Marrero for the delay. He told Marrero that he was not used to doing business in this fashion, and that Perez was a good source who could possibly secure pure cocaine. After waiting still longer, Marrero asked Turbide to go inside the club and find out what was the reason for the delay. Turbide entered the club and within a few minutes reported to Marrero that Ferrer had been in touch with the connection and that the deal would take place at yet another social club on 102nd Street. Both cars then proceeded to a club on 102nd Street off of Lexington Avenue.
When they arrived at 102nd Street again, Perez and Turbide repeated the apologies to Marrero. Perez assured him that he was not doing anything phony, that the delay was something beyond his control, and that "he is a man of his word and he has a business and a reputation at stake." Perez, joined shortly by Turbide, went into the club. Perez then came out of the club, entered Marrero's car, and instructed him to drive around the block and park directly in front of the social club. He did so, and Perez walked into the club again.
Turbide came out of the club and entered Marrero's car. He told Marrero that the connection would show up shortly. Then, after first telling Marrero that he saw the connection enter the club, Turbide asked for the money in advance. Marrero refused at first, but agreed when Turbide told him that this was the only way the connection would deal and that Marrero could keep $600 of the $2,900 purchase price until he received the cocaine. Turbide took the money and went into the club while Marrero waited in the car.
Next Turbide came out and told Marrero that there would be yet another delay. He then asked Marrero to go into the club with him. They entered the club and joined Perez. Ferrer came over and stated that while there was a delay, the connection would show up and Marrero would get the ...