Appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, Hon. Charles E. Stewart, Jr., Judge, on jury verdicts of guilty for violations of the federal narcotics laws.
Van Graafeiland, Webster,*fn* Circuit Judges, and Dooling,*fn** U.s. District Judge.
Appellant Jacques Berenguer, also known as Guy Sebbane, was convicted in a jury trial of conspiring to possess Schedules I and II narcotic drug controlled substances with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 846, and of aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). In this appeal he does not challenge the sufficiency of the evidence, but contends that he was prejudiced by (1) the admission of evidence of an independent conspiracy in which he was neither implicated nor charged and (2) the admission of testimony concerning currency which he contends was illegally seized following an illegal entry to effect his arrest. Upon a full review of the record, we affirm the judgment of conviction.
The evidence, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), established an on-going conspiracy between appellant, one Josalito Garcia and others to violate the narcotics laws. It also established that appellant aided and abetted the distribution of approximately one ounce of cocaine by Garcia to a government agent on May 20, 1976.
Briefly summarized, the government's evidence of conspiracy and distribution consisted of the testimony of government agents who participated in discussions with appellant and others, including Hugo Saito, a government informant who acted as interpreter*fn1 for appellant during these discussions and the corroborative testimony of other surveilling agents. The cocaine that was actually distributed to government Agent Schnakenberg by Garcia was introduced in evidence. Largely at appellant's instigation and on his repeated assurances, Agent Schnakenberg had no less than nine meetings with appellant leading up to the ultimate sale by Garcia to Schnakenberg. The evidence of appellant's participation both as conspirator and aider and abettor was very strong.*fn2
Indeed, as previously noted, appellant makes no challenge to the sufficiency of the lawful evidence. Instead, he contends that he was prejudiced by the admission of irrelevant evidence of his association with one Carmello Sansone together with evidence of a sizable delivery by Sansone of 1/2 kilo of cocaine to Agent Schnakenberg on June 4, 1976. He also claims to have been prejudiced by testimony of a government agent about discovering some $3,200 in large denominations which appellant contends were illegally seized in his apartment at the time of his arrest.
While the "sample" sold by Garcia to Agent Schnakenberg on May 20, 1976 was only about an ounce, it is clear from the evidence that appellant and other participants had under discussion plans to sell five full kilos to Agent Schnakenberg for $200,000. Numerous meetings were set up and various modes of establishing mutual trust and a working relationship with Agent Schnakenberg (posing as a large narcotics buyer) were discussed and arranged; however, nothing materialized until the one ounce distribution on May 20, 1976. Thereafter, further efforts to acquire larger quantities were unproductive, although appellant directly or through Hugo sent messages of reassurance. Finally, on June 4, 1976, Agent Schnakenberg was able to acquire 1/2 kilo from Carmello Sansone, a man known to associate with appellant and who was in appellant's apartment on August 18, 1976 when appellant was arrested. The intermediary was the same government informant, Hugo Saito.
Evidence of the Sansone transaction was received over appellant's timely objection at trial. On appeal, appellant contends that the Sansone evidence was merely proof of a separate independent conspiracy in which no proof of appellant's involvement was established. He contends further that the size of the transaction, compared with the one charged in the indictment, made the evidence extremely prejudicial.
It is, of course, well established that guilt may not be inferred from mere association with a person whose guilt has been established. United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975); United States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962). If the government had proved only mere association with persons engaged in a separate conspiracy, appellant's argument would have some force, especially considering the relative size of the transactions. But the record reveals a different story.
The initial cautious behavior of appellant and Garcia did not cease after the May 20 sample delivery. Meetings were set up which failed to produce the larger shipment, and finally on May 25th Agent Schnakenberg, acting the role of an angry narcotics buyer, called off negotiations. On June 3, Hugo contacted Agent Schnakenberg and introduced him to Sansone. Agent Schnakenberg had seen Sansone with appellant at the various places where they met to discuss the proposed large deliveries. Sansone offered to produce five kilograms for $40,000 per kilogram, the same terms that appellant had offered. When appellant was arrested in his apartment, Sansone was there.
We think these facts, including Sansone's knowledge of the terms of purchase and his continued association with appellant, were circumstantial evidence of appellant's involvement in an ongoing conspiracy to make the larger deliveries originally contemplated. See United States v. Araujo, 539 F.2d 287 (2d Cir. 1976). Because the defense might (and did) argue that the small amount distributed on May 20 was inconsistent with the conspiracy outlined in the indictment, we are satisfied that this evidence was ...