UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 20, 1979
UNITED STATES OF AMERICA, APPELLEE,
HUGO ROBERT NICHOLAS VEGA, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Southern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge.
HONORABLE MURRAY I. GURFEIN, Circuit Judge.
HONORABLE JACOB MISHLER, District Judge, sitting by designation.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
1. The evidence was sufficient to show that Vega was a member of the conspiracy and that he knew "the essential nature of the plan." Blumenthal v. United States, 332 U.S. 539, 557 (1947). There is no "broader conspiracy" alleged in this case, cf. United States v. DeNoia, 451 F.2d 979, 981 (2d Cir. 1971), but one involving a single transaction in which Vega played the vital courier role. Since Vega was offered $100 to carry a small package a few blocks, he was seen leaving the Domino Restaurant with conspirators Espada and Torres shortly before picking up the package, and DeMarzo verified the contents of the package while Vega was in the bathroom with him, it could be "readily inferred that [Vega] knew that he was assisting [Espada] in a transaction involving narcotics." United States v. Agueci, 310 F.2d 817, 835 (2d Cir. 1962).
2. Vega's trial on the substantive count was not prejudiced by a spillover from the conspiracy charges. As in United States v. Miley, 513 F.2d 1191, 1209 (2d Cir.), cert. denied, 423 U.S. 842 (1975), "this was not a case where a minor participant... was forced to sit through weeks of damaging evidence relating to [a conspiracy in which he played no role]." Nearly all the evidence would have been admissible had Vega been tried alone, and only on the substantive count. See United States v. Sir Kue Chin, 534 F.2d 1032, 1035 (2d Cir. 1976).
3. The prosecutor did not put her credibility in issue. Given the evidence that Vega was in the bathroom when DeMarzo opened the package, her statement comes within the rule that "[both] prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments." United States v. Suarez, (2d Cir. slip op. Dec. 5, 1978).
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