Appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, after a jury trial, for violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2. Affirmed.
Before Mulligan, Timbers and Van Graafeiland, Circuit Judges.
Jaime Vila, Narcisco Guzman and Luis Hernandez were convicted by a jury after a trial before the Hon. Pierre N. Leval, United States District Judge, Southern District of New York, of conspiracy to distribute, and to possess with intent to distribute, heroin and cocaine, in violation of 21 U.S.C. § 846, and of distributing approximately one and one-half kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Vila, Guzman and Hernandez were sentenced to and are presently serving concurrent prison terms of fifteen, nine and two and one-half years, respectively, to be followed by special parole terms of twenty, five and five years, respectively. Vila was also fined $20,000 on each count.
The evidence at trial established that Jaime Vila organized and supervised a widespread narcotics enterprise whose members possessed and distributed substantial quantities of heroin and cocaine in New York City and in California from late 1975 through late 1977. The Government's case focused on the involvement of Vila and eight members of his organization in the distribution of one and one-half kilograms of cocaine on August 10, 1977. The proof established a narcotics network with activities controlled by Vila in New York, California and Puerto Rico. Vila and his associates smuggled large quantities of heroin from Tijuana, Mexico into Los Angeles, California, where it was processed and then flown to New York City for distribution. Members of Vila's organization also sold wholesale quantities of cocaine, according to the instructions of Vila, in New York City and Los Angeles. Payments for the narcotics sales were made to Vila's associates both in New York and in Puerto Rico. Part of the proceeds were used to purchase real estate in Puerto Rico and Florida and to invest in businesses in Puerto Rico and the Bronx.
Appellants present numerous issues for review, most of which are frivolous and may be disposed of summarily. Appellants Vila and Hernandez contend that the destruction of rough notes taken by New York City Police Detective Raymond Vallely during debriefing sessions of one of the Government witnesses, Sonny Perlman, constituted a willful suppression by the Government of evidence favorable to appellant within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We disagree. Appellants never made this claim in the district court and cannot raise it here. See United States v. Braunig, 553 F.2d 777, 780-81 (2d Cir.), Cert. denied, 431 U.S. 959, 97 S. Ct. 2686, 53 L. Ed. 2d 277 (1977). In addition, as appellants acknowledge, before they may be viewed as Brady material, the rough notes taken by Detective Vallely must be capable of Substantially impeaching the credibility of Perlman. See Giles v. Maryland, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967); cf. United States v. Miller, 411 F.2d 825 (2d Cir. 1969) (Jencks Act). The uncontradicted testimony of Detective Vallely established that the notes were virtually consistent with Perlman's final debriefing statement*fn1 and with his trial testimony. The mere fact that Perlman's recollection of dates and meetings improved from one debriefing session to the next could not have been used to substantially impeach his credibility.
Appellant Vila argues that his Sixth Amendment right to a speedy trial was abridged because he was not brought to trial within such period of time as was "reasonable under the circumstances."*fn2 Vila was brought to trial in the Southern District of New York on March 20, 1978, 126 days after his arrest in Los Angeles. The relevant provisions of the Speedy Trial Act were not violated since Vila's trial took place within 120 days of his arraignment. 18 U.S.C. § 3161(b), (c), (f) and (g). With respect to appellant's Sixth Amendment right, the Supreme Court has held that "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" are factors to be considered in speedy trial cases. In the instant case, the delay was shorter than in other cases where no Sixth Amendment violation was found. Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) ("well over five years"); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) ("approximately 58 months"); United States v. Saglimbene, 471 F.2d 16, 17 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2146, 36 L. Ed. 2d 686 (1973) (six years). According to the record, the original trial date was adjourned at the request of Vila's attorney in order to permit the defense more time to prepare for trial and in order to hold suppression hearings. Finally, Vila has been able to show no prejudice as a result of the delay. Thus, we conclude that Vila's Sixth Amendment right to a speedy trial has not been violated.
Appellant Vila also contends that the delay in removing him from California to New York after his arrest violated the Speedy Trial Act, 18 U.S.C. § 3161(c), (f). The facts of the contention are fully set forth and properly disposed of in the district court's memorandum opinion below (77 Crim. 767 (S.D.N.Y. March 6, 1978)). Vila's arraignment took place well within the statutory period and he was not deprived of the right to the effective assistance of counsel by the delay in his removal from California. The record establishes that Vila was represented by counsel during the period pending his removal from California and was granted additional time to consult an attorney and prepare for trial once he arrived in New York.
We also find that the Sixth Amendment right of appellants Vila and Hernandez to confront the witnesses against them was not abridged by the failure of the Government to produce informer Jorge Rubio as a witness. Both Vila and Hernandez opposed the Government's motion for permission to reopen its rebuttal case in order to call Rubio. In addition, neither appellant called Rubio as a witness when he was available.
With respect to appellant Guzman's claims, the Government's evidence was strong enough to establish both his knowledge of and participation in the crimes charged in the indictment. Further, Guzman's argument that the proof at trial established two distinct conspiracies, one operating between New York City and California and the other operating between Puerto Rico and New York City is unpersuasive. As this court noted in United States v. Armedo-Sarmiento, 545 F.2d 785, 790 (2d Cir. 1976), cert. denied, 430 U.S. 917, 97 S. Ct. 1330, 51 L. Ed. 2d 595 (1977), "a single conspiracy is not transposed into a multiple one simply by lapse of time, change in membership, or a shifting emphasis in its locale of operations." (citations omitted). The evidence viewed in the light most favorable to the Government established a single narcotics distribution organization with a common source of supply, a central leadership, and a consistent pattern of operation.
We also reject Guzman's claim that the trial court improperly refused to instruct the jury, in accordance with our decision in United States v. Garguilo, 310 F.2d 249, 254 (2 Cir. 1962), that no defendant may be convicted of a crime unless the jury is convinced beyond a reasonable doubt that the defendant "was doing something to forward the crime that he was a participant rather than merely a knowing spectator." A review of the record establishes that the trial judge twice instructed the jury that the mere presence and guilty knowledge on the part of a defendant would not suffice to convict unless the defendant somehow promoted the venture.
Appellants Vila and Hernandez challenge here the district court's charge to the jury regarding juror bias on the grounds that it constituted a second modified Allen charge. According to the record, after returning partial verdicts acquitting four of the eight defendants, the jury reported an impasse to the trial court in a note which also suggested that not every juror was deliberating in accordance with the jurors' oaths. The trial court, after consulting with counsel for the Government and all remaining defendants, called the jury back into the courtroom, reminded them of the questions they were asked during Voir dire in order to eliminate juror bias, and admonished them not to allow ...