Appeal from judgments of conviction for conspiracy to violate and for substantive violations of the federal narcotics laws, entered after a jury trial before the Hon. Kevin T. Duffy, Judge, in the United States District Court for the Southern District of New York. Affirmed.
Friendly, Mulligan and Meskill, Circuit Judges. Friendly, Circuit Judge, concurring.
This is an appeal by Wilson Arroyo-Angulo (Arroyo), Hugo Gomez, Jaime Rayo-Montano (Rayo) and Guillermo Moreno from judgments of conviction entered on July 21, 1977 in the United States District Court for the Southern District of New York, after a five-week trial before the Hon. Kevin T. Duffy, United States District Judge, and a jury. The indictment charged the four appellants and two others Jose Jeroncio Ahon-Casquete (Ahon) and "John Doe"*fn1 with federal narcotics law violations. Count one charged the appellants with conspiracy to violate the narcotics laws from December 20, 1975 until February 19, 1976. Count two charged each of the appellants with aiding and abetting the distribution of one kilogram of cocaine on February 19, 1976 in violation of 21 U.S.C. § 841(a)(1). The jury convicted each appellant on both counts and Judge Duffy sentenced them to the prison terms set forth in the margin.*fn2
The Government's case rested primarily upon the trial testimony of Emilio Rivas, a co-conspirator, who testified that he had assisted the defendants in smuggling some 20 kilograms of cocaine estimated to be worth over $700,000 from a Gran Colombiana Line ship moored in San Francisco in January, 1976. He was arrested in Manhattan on February 19, 1976 for the sale of some of this cocaine. Rivas had pleaded guilty to one count of an indictment charging him with conspiracy to distribute and the distribution of cocaine and on July 13, 1976, the Hon. Henry F. Werker, United States District Judge, sentenced him as a second felony offender to 20 years' imprisonment to be followed by six years' special parole. Rivas then decided to cooperate with the Government and was not charged in the instant indictment. At the time of his testimony in this case his motion for a reduction of his sentence was pending before Judge Werker.
Rivas testified that he had been a seller of cocaine since 1970. Late in 1975 Rivas went to San Francisco to obtain cocaine which was smuggled in from a Gran Colombiana vessel. After he assisted in having the drugs flown back to Brooklyn, Rivas received $4,500 in cash and cocaine for his part in the transaction. While he was engaged in this scheme in San Francisco, Rivas was introduced to defendants Moreno, Ahon, Rayo and Arroyo. Moreno later visited Rivas in Brooklyn and advised him that he, Moreno, could obtain "material" from ships coming into San Francisco harbor. At a second meeting at the Brooklyn home of Moreno's aunts Moreno again made the offer and discussed a trip by Rivas to San Francisco to join in the enterprise. Pursuant to arrangement Rivas, together with one of Moreno's aunts, flew to San Francisco in January, 1976. During his stay on the west coast Rivas resided in the same apartment house occupied by Moreno in Daly City, California. While waiting for the ship to arrive at San Francisco harbor, Rivas met and passed the time with the appellants Gomez, Rayo and Arroyo. With Arroyo and Rayo, Rivas also visited an apartment in San Francisco (the "house of the swimmers") which was frequented by those who pursued the sport of donning skin-divers' wetsuits and swimming out to ships moored in the harbor. There they retrieved packets of cocaine lowered into the water by members of the vessels' crews.
After a wait of two weeks, the ship Ciudad de Tunja arrived and was berthed at Pier 50 A in San Francisco.*fn3 Subsequent to a meeting among a Colombian sailor, Gomez, and Moreno, the latter announced that the arrangements to pick up the cocaine had been completed. Rivas drove the swimmers, Arroyo and Rayo, who wore wetsuits, to a small boat ramp in the area of Pier 50 where they entered the water. He returned later that night and picked them up. At that time Arroyo and Rayo were carrying a large, wet bundle which was loaded in the car before the three drove to Moreno's building. When the bundle had been carried into his apartment, Moreno emptied the bag into a bathtub and, with Gomez, counted out some 32 one-pound packets plus 5 larger packets containing from one kilo to three and one-half kilo quantities of cocaine. Gomez took the three largest packets saying: "These are ours." One of the packets was cut open and divided into smaller quantities so that Rivas could take some cocaine back to New York the next day. Moreno gave Rivas six eight ounce packets and fixed the price at $1,000 per ounce, less $5,000 which was Rivas' fee for transporting the swimmers that night. Rivas further testified that the next day Moreno made a cocaine sale in his presence to a cash customer. The cash was given by Moreno to Gomez.*fn4 Rivas then flew to New York where after all this complicated maneuvering, he made the usual mistake of selling one kilogram of diluted cocaine to an undercover agent of the Drug Enforcement Administration (DEA). This sale led to the conviction we have recounted.
The Government also introduced evidence of subsequent similar acts by Arroyo, Rayo and Gomez in May, 1976 and October, 1976 while they were under the surveillance of agents of the DEA and the United States Customs Service. Both incidents, one in San Francisco and one in Portland, Oregon, involved the retrieval by swimmers of cocaine from Gran Colombiana Line vessels. In addition, according to the testimony of three federal agents, Arroyo, who had been a paid informant of the DEA, admitted in March, 1976 that on six or seven occasions he had acted as a swimmer, smuggling cocaine and marijuana from Gran Colombiana Line vessels in San Francisco and elsewhere.
The principal argument raised on this appeal by Moreno and Arroyo is that during the course of the trial Judge Duffy conducted various in camera hearings at which not all the appellants and their counsel were present.*fn5 Moreover, the minutes of these proceedings were sealed and not made available to counsel. Appellants urge that these procedures deprived them of the right to be present at criminal proceedings against them in violation of their Sixth Amendment rights to a public trial, to the effective assistance of counsel and to confront the witnesses against them. This argument deserves close consideration since such in camera proceedings during a criminal trial are manifestly conceptually incompatible with our system of criminal jurisprudence. E.g., United States v. Moten, 582 F.2d 654 (2d Cir. 1978) (Moten II); In re Grand Jury Subpoena Directing Taylor to Appeal and Testify, 567 F.2d 1183, 1187-88 (2d Cir. 1977); United States v. Clark, 475 F.2d 240, 244-46 (2d Cir. 1973); United States v. Bell, 464 F.2d 667, 670 (2d Cir.), cert. denied, 409 U.S. 991, 34 L. Ed. 2d 258, 93 S. Ct. 335 (1972); see, e.g., Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965); In re Oliver, 333 U.S. 257, 92 L. Ed. 682, 68 S. Ct. 499 (1948) (defendant's right to a public trial); Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); United States v. Tortora, 464 F.2d 1202, 1208-10 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972); United States v. Dalli, 424 F.2d 45, 48 (2d Cir.), cert. denied, 400 U.S. 821, 27 L. Ed. 2d 49, 91 S. Ct. 39 (1960); F.R.Cr.P. 43; Anno., Accused's Right, Under Federal Constitution, to be Present at his Trial, 25 L. Ed. 2d 931 (1970) (defendant's right to be present at criminal proceedings against him).
However, there is precedent for the proposition that "limited exceptions are constitutionally permissible." United States v. Bell, supra, at 670; see, e.g., United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974); Dennis v. United States, 384 U.S. 855, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966); Palermo v. United States, 360 U.S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217 (1959), Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). Hence, our task is to determine whether the procedures adopted in the district court were constitutionally valid.
The constitutional rights of each defendant must of course be observed while he is standing trial with co-defendants. The Government, having seen fit to jointly indict and try multiple defendants cannot arbitrarily pick and choose those parts of the proceedings which it deems pertinent only to a particular defendant and exclude the others from participation therein. The decision of the trial judge to permit such closed sessions can only be justified by a compelling Government necessity for secrecy which must be weighed against the extent of the intrusion, if any, upon the interests of the excluded defendants, Moten II, supra, 582 F.2d at 3109; In re Grand Jury Subpoena Directing Taylor to Appear and Testify, supra, 567 F.2d at 1188; United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973); United States v. Clark, supra; United States v. Bell, supra; United States v. Lopez, 328 F. Supp. 1077, 1086-92 (E.D.N.Y. 1971).
The record here discloses that the principal reason for closed sessions was that some of the defendants had cooperated with the Government on various occasions in an ongoing investigation into the smuggling of cocaine and other drugs from Colombian ships and the illicit distribution of those drugs throughout the United States. This investigation encompassed activities far broader than the crimes charged in this indictment. In the course of their cooperation with the Government some defendants made statements which provided information about activities not pertinent to the trial below and which the security of the investigation required be kept confidential. These statements, however, also implicated one or more co-defendants. The full extent of the inculpation of co-defendants and others was not made public, nor was it known to all participants in the trial. However, extensive cooperation was obviously suspected since the trial judge observed that death threats had been made to cooperating witnesses. In fact, Rivas' family was placed in protective custody because of the overt cooperation of that witness. The defendants were each housed on separate floors and in separate quarters in the Metropolitan Correctional Center. Metal detectors were used to search those coming into the courtroom. The jury was provided with a special entrance to secure their privacy and protection. Prior to the beginning of the trial on May 18, 1977, Arroyo and Ahon engaged in a bloody brawl in the courthouse outside the presence of the jury. The fight resulted in visible bodily injury to Ahon when he entered the jury's presence. Consequently, it was necessary to impanel a new jury before the trial could proceed.
The judgment of the trial court that extreme security measures were warranted is corroborated by the fact that the defendants themselves requested those in camera proceedings which directly concerned them and most requested the sealing of the minutes of the proceedings as well. Arroyo, while moving with Moreno to unseal the minutes of these proceedings, is opposed to making public the record of his own in camera proceedings. In view of the above, in those proceedings where government agents were to testify to admissions made by certain defendants which implicated co-defendants or which revealed details of the investigation not pertinent to the trial of these defendants, there were compelling ...