Appeal from a judgment of the District Court for the Western District of New York, John T. Elfvin, Judge, convicting appellant, after a jury trial, of conspiracy to distribute heroin, and of aiding and abetting in the distribution of heroin. The sole error alleged relates to the sufficiency of the evidence.
Before Mansfield and Timbers, Circuit Judges, and Hoffman, District Judge.*fn*
An indictment containing two counts charged Ramon Molina and Robert Molina, the appellant herein and a brother of Ramon Molina, with conspiracy to distribute heroin in the Western District of New York in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. The second count charges Ramon Molina with, on or about August 6, 1977, intentionally distributing 497 grams of heroin in violation of 21 U.S.C. § 841(a)(1), in the Western District of New York and, in the same count, charges Robert Molina with having aided and abetted in the commission of this offense in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Robert Molina was apparently accorded a separate trial. The record does not disclose the disposition of the case against Ramon Molina, other than to indicate that Robert's trial was severed from that of his brother.*fn1
The appellant's participation in these alleged crimes is based in Los Angeles, and grounded upon conversations which took place at the Marriott Motor Inn near the airport of that city. The participants in those conversations were Robert Molina, Bruce Johnson, a special agent with the Drug Enforcement Administration (DEA), and one William Hebert, a Canadian who was at the time acting as an informant.
On July 31, 1977, Johnson and Hebert flew from Buffalo to Los Angeles for the purpose of meeting Ramon Molina to purchase heroin from him. Prior telephone conversations between Hebert and Ramon took place on July 13, 19, 26 and 28, 1977. Robert Molina was apparently unknown to Hebert and Johnson. Upon renting a room, Johnson contacted the Los Angeles office of the DEA to arrange for surveillance at the motel.*fn2 Hebert then proceeded to make three telephone calls to the residence of Ramon Molina but without success as Ramon was not available. Finally, on the fourth call, Hebert made contact with Robert Molina at Ramon's residence and Robert agreed to come to the Marriott Motor Inn. It is obvious that Ramon Molina was the object of the investigation up to this time.
When Robert arrived at approximately 7:30 p. m., Hebert introduced Robert to Agent Johnson without, of course, revealing Johnson's true interest in the matter.*fn3 There was some discussion of a prior shipment of 20 ounces of heroin which had been seized*fn4 for which there remained unpaid to Ramon Molina the sum of $15,000.00. Johnson explained that he was not supposed to get any of that heroin and, in fact, Johnson had lost money on that shipment as he had put up some of the money given to Ramon Molina in advance of the shipment.
The parties then turned their attention to the purchase of heroin at that time. Johnson expressed an interest in purchasing four ounces for $5,000.00 and indicated that prior arrangements had been made with Ramon by telephone to consummate this deal. Robert expressed his agreement but said that Ramon was in Mexico obtaining a package of heroin and was due back that night or "very soon." Apparently Robert then made a call to Ramon's residence and, upon being advised that Ramon was not present but was due back that night, advised Johnson that he should telephone Ramon the following morning and arrange for the delivery. Robert further stated that he would accompany his brother to the Marriott in order to identify Johnson for his brother's benefit. When the parties concluded their conversation the understanding was that Johnson was to call Ramon early on the morning of August 1, 1977, and Robert and Ramon would come to the Marriott for the purpose of making delivery and obtaining payment.
Johnson never made the call on August 1. The Los Angeles office of the DEA was engaged in another investigation on that date and could not provide surveillance. Hebert*fn5 returned to Buffalo that same night, but Johnson remained until 1:00 p. m. on August 1 without endeavoring to make further contact with either Robert or Ramon.
With the exception of the August 6, 1977 incident involving Ramon Molina, this is the totality of the evidence against appellant.
After Johnson returned to Buffalo, he contacted Ramon Molina by telephone on August 2, 1977, once again negotiating for the purchase of four ounces of heroin. Several calls were thereafter made to Ramon, or a person who identified himself as such, with a final call on August 5, resulting in Ramon's agreement to fly to Buffalo with 20 ounces of heroin on the following day to deliver to Johnson at an agreed price. Ramon arrived around 10:00 p. m. on the night of August 6 and, pursuant to the description provided by Ramon in his telephone conversations, Johnson and Special Agent Kenneth B. Peterson met him in the airport waiting area. The three men left the airport, went to a parking lot, and entered an automobile. Ramon was wearing a waist band from which he produced approximately 20 ounces of heroin. Ramon handed the packages to Peterson seated in the back seat. Johnson had about $21,000.00 on his person to effect the purchase. However, after the packages were handed to Peterson, the agents arrested Ramon and this prosecution followed.*fn6
The record is silent as to any reference to Robert Molina in the telephone conversations between Johnson and Ramon during the first few days of August. Nor was Robert mentioned nor present when the events of August 6 took place. It may, however, be a fair inference to conclude that Johnson at least mentioned to Ramon the fact that he had met with Robert on the night of July 31.
Faced with these facts the sole inquiry is whether there was sufficient evidence to go to the jury on either count of the indictment. There were no exceptions to the charge as delivered by the district judge. Concurrent sentences under the Federal Youth Correction Act, 18 U.S.C. § 5010(c), to a ...