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United States v. Menendez

decided: November 26, 1979.

UNITED STATES OF AMERICA, APPELLEE,
v.
MANUEL D. MENENDEZ, APPELLANT .



Appeal from a judgment of conviction, after jury trial in the Eastern District of New York, Jacob Mishler, Chief Judge, on one count of conspiring to distribute 45 pounds of heroin in violation of 21 U.S.C. § 846 (1976), for which appellant was sentenced to 15 years in prison, to be followed by lifetime special parole, and fined $25,000. Affirmed.

Before Mulligan, Timbers and Van Graafeiland, Circuit Judges.

Author: Timbers

Appellant Manuel D. Menendez appeals from a judgment of conviction, after a jury trial in the Eastern District of New York, Jacob Mishler, Chief Judge, of conspiring to distribute 45 pounds of heroin in violation of 21 U.S.C. § 846 (1976), for which he was sentenced to 15 years in prison, to be followed by lifetime special parole, and fined $25,000.

Appellant's chief claim of error on appeal is that certain incriminating tapes of wiretapped conversations should not have been admitted in evidence because there were delays in the sealing of the tapes and asserted flaws in the warrants authorizing the interceptions. This claim is foreclosed to appellant by our recent decision rejecting the same claim with respect to the same wiretapped conversations in United States v. Vazquez, 605 F.2d 1269 (2 Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979).

Appellant raises other subordinate claims of error, all of which we find to be without merit.

We affirm.

I.

We assume familiarity with the facts set forth in Judge Meskill's comprehensive opinion in United States v. Vazquez, supra. Appellant Menendez was one of the defendants indicted in the Vazquez case.*fn1 The factual background of both cases is substantially the same. The following brief summary of the relevant facts is believed sufficient to an understanding of the legal issues upon which we rule in this opinion.

Menendez, Vazquez and others operated a sophisticated drug wholesaling and distribution network which was international in scope. It dealt in enormous quantities of narcotic drugs which were transported across the continent by a private air force maintained by the ring.*fn2

The chief government witness at the trial of Menendez was one Rodelo. He was an Aero Mexico agent in Tucson, Arizona, who helped with the smuggling of the drugs involved. The government also introduced various intercepted and recorded conversations among the conspirators. The control of the ring was described succinctly by Rodelo: "(Menendez) was supposed to take care of the business in the Eastern part and Vazquez in the Western part."

Rodelo had seen Menendez in Arizona during 1975 on at least two occasions. In January 1975, Menendez offered Rodelo $1,500 to move four tires from the trunk of Rodelo's car which was parked in a hot, open-air lot at the Tucson airport. Rodelo earlier had placed the tires there at Vazquez' request, but Rodelo was unaware that the direct heat of the sun might spoil the contents of the tires 42 pounds of heroin. Rodelo refused Menendez' offer of $1,500 and declined to move the tires. Vazquez moved the car himself. Menendez complained bitterly that he, Menendez, was supposed to "take care of the business" back East. Menendez added that he and Vazquez were not supposed to be together, for if "something happened" to one, the other should be in a position to make bail and retain counsel for his confederate.

From mid-1975 to May 1976, Rodelo helped Vazquez send a series of identical American Tourister suitcases to Mexico, ticketed in such a way as to avoid customs inspection. Rodelo had seen one such suitcase opened when it was delivered in Mexico. It was filled with cash. Menendez also was present at a Tucson motel in October 1975 when Rodelo picked up two suitcases bound for Mexico. Two later suitcases in the series were seized in Queens, New York, toward the end of the period of the conspiracy. They contained 45 pounds of heroin.

Menendez' voice was recorded throughout late 1977 and early 1978 on wiretaps authorized and carried out in New Jersey. The pattern of the calls indicated that he remained active in drug dealing. In one recorded conversation Menendez tried to get word to Vazquez to call him. In another he complained that Vazquez had not repaid a large sum of cash which Menendez had given him for safekeeping.

When police raided the Vazquez home in Las Vegas they seized, among other items, a document dated March 1, 1977 which recorded Vazquez' receipts and expenses in connection with a drug shipment. One of the items listed under expenses*fn3 was $50,000 for "Manolito," a code name by which ...


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