Appeal from a judgment entered in the United States District Court for the Southern District of New York, John M. Cannella, Judge, convicting appellant for conspiracy to violate federal narcotics laws, in violation of 21 U.S.C. § 846, and distributing and possessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b), and 18 U.S.C. § 2, and sentencing appellant to concurrent terms of three years' imprisonment. The Court of Appeals declined to apply the "concurrent sentence" doctrine and upheld the conspiracy and substantive convictions. Affirmed.
Before Moore, Oakes and Newman, Circuit Judges.
This appeal from conviction on substantive and conspiracy charges raises a question under Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), about some of the trial court's instructions possibly relating to the substantive count. The case also calls into question applicability of the "concurrent sentence" doctrine, since appellant was sentenced by the United States District Court for the Southern District Of New York, John M. Cannella, Judge, to concurrent terms of three years' imprisonment on Counts One (conspiracy to violate federal narcotics laws, 21 U.S.C. § 846) and Two (distributing and possessing with intent to distribute 44.93 grams of heroin on July 20, 1978, 21 U.S.C. §§ 812, 841(a)(1), (b); 18 U.S.C. § 2), to be followed by a three-year period of special parole. We decline to apply the "concurrent sentence" doctrine; we affirm the conviction on both counts.
The Government's proof was that on July 20, 1978, Louis Diaz, an undercover agent of the Drug Enforcement Administration (DEA) posing as a narcotics purchaser, and an informant named "Tonio" went to 600 East 139th Street in the Bronx, where Tonio introduced Diaz to appellant's codefendant Rafel Rivera, also known as "El Viejo." El Viejo then introduced Diaz and Tonio to a second codefendant, Juan Rivera, also known as "Junior." These meetings were all in reference to a package of heroin discussed over the telephone by Tonio and El Viejo the day before. Junior, Diaz, and Tonio entered an apartment on the first floor of the 600 East 139th Street building, where Junior made a telephone call during which he mentioned that the persons interested in the deal were with him and ready to spend about $1,400 per ounce. Following the phone call, Junior told Diaz and Tonio that the deal was "okay" at that price, and the three men returned to the front of the building.
About ten minutes later, appellant Vargas and her teenage daughter drove up in a brown car. Appellant met first with El Viejo, the two subsequently were joined by Junior, and finally appellant, her daughter, and El Viejo entered the building while Junior returned to tell Diaz and Tonio that the heroin would be there within an hour. Appellant, El Viejo, and appellant's daughter left the building ten minutes later and drove off in the brown car. They returned about forty-five minutes later, whereupon appellant and El Viejo met with Junior out of the presence of Diaz and Tonio, after which appellant and Junior entered the building. A short time later Junior returned with an aluminum foil package in his hand and directed Diaz and Tonio to a small basement room equipped with a workbench and narcotics paraphernalia. Junior opened the package containing brown powdery heroin, weighed the heroin, and computed a new price because of a small quantity shortfall. Junior used a friend of his to test the heroin by "shooting up," and the friend reported that the heroin had given him a nice "rush." Thereafter, Diaz paid Junior for the two ounces involved, and Diaz and Tonio exited. This transaction was alleged to be one of ten overt acts referred to in the conspiracy count; it also provided the basis for the substantive count.
Other overt acts included a transaction arranged on August 14 by telephone between Diaz and Junior, to be consummated on August 16, 1978 at the same Bronx address. Diaz arrived at 4:00 p. m. on schedule, and Junior advised him that the heroin was not yet there. Shortly thereafter, appellant left the building and drove off in the same brown car, accompanied by a man named "Cabeza" (which means "head" in English). A three-hour wait ensued, during which Junior made various telephone calls and explained the delay by reporting that appellant's connection was out "taking book." Appellant returned about 7:00 p. m. and shook her head to Junior, who then informed Diaz that the deal was off. There was another exchange of gestures between Diaz and Vargas, Diaz questioning her and receiving confirmation that the deal was off, evidently by a shake of the head.
On September 18, 1978, Diaz again called Junior, and Junior told him he had both white and brown heroin. During the telephone conversation, Diaz heard Junior ask someone named "Sada" what an ounce of white heroin would cost, and heard a reply from a female voice of "thirty-two hundred dollars." The transaction was arranged for the next day. Upon Diaz's arrival at the Bronx address, Junior informed him that the two ounces of brown heroin would be arriving momentarily, and that appellant was going to obtain a sample of white. Several minutes later, appellant exited the building, met with Diaz and Junior, told them she would get the "stuff," and drove off in the same brown car, this time accompanied by two teenage boys. Followed by DEA agents, she drove through the Bronx to a McDonald's restaurant in Manhattan near 103rd Street, double-parked, bought some food, and then waited in the car for about fifteen minutes until a man and woman approached the car for a brief conversation. Appellant then returned to East 139th Street, talked with El Viejo at the street corner, and then proceeded to meet Diaz at the building itself. She told him she was unable to obtain the sample because her connection was unavailable. But she also said she would try to meet the connection later that evening, and Diaz replied that he would try to return but said that in any event she should hold the heroin for him. He did not return, but a week later telephoned Junior, whose phone was answered by El Viejo. Diaz asked him if appellant had the white heroin sample and El Viejo replied that he did not know but would call appellant to the telephone. She came to the telephone and told Diaz that she had not received the heroin, but said that Diaz should speak with her "husband," William Vargas Rivera, also known as "Chapo," another codefendant. Chapo stated there was no need to obtain a sample because he had eight ounces of good heroin available at $3,200 an ounce. Diaz informed Chapo that he already knew the price, but wanted an ounce to judge the quality of the merchandise. Diaz was to call back the next day before coming to the Bronx to pick up the goods.
When Diaz did call, Junior answered, and Diaz explained that he had not been trying to avoid dealing with him. Junior reassured him that it made no difference since Chapo, Sada (appellant), El Viejo, and he all worked together. Junior told Diaz that he had the white heroin and that Diaz could purchase it that evening, but Diaz said he would come up instead the next day, September 29, 1978. When he did arrive at 600 East 139th Street, Junior met him and stated that, although the heroin was available, he would have to wait for appellant and Chapo to return. They did so, and Chapo then came back downstairs with an ounce of white heroin. In the basement room, he divided the drugs into five equal parts, "cut" them with some lactose, and gave some to Junior to test, who injected some of the heroin into his veins and reported it gave him a "nice flush." Diaz took the heroin from Junior, brought $3,200 from his car, and paid Junior to consummate the purchase of heroin.
Appellant did testify in her own behalf, admitting that she had been convicted of weapon possession and of heroin usage, but denying participation in the drug selling operation, in fact denying that she knew how to drive or conversed with Diaz beyond "hello." Although she admitted going to a McDonald's restaurant in September of 1978, she disputed Diaz's testimony and that of two surveillance agents that she met anybody there.
THE INSTRUCTION IN QUESTION
Appellant claims that the district judge erred, in his response to a jury note containing four questions and requests, by delivering a Pinkerton charge not warranted by the parties' contentions or correct as a matter of law. The second of the jury's four questions and requests asked: "If one or more members of the conspiracy is guilty of a crime committed during the period set forth in the indictment, is each member of the conspiracy, though not present, physically equally guilty?" Replying to this question, the judge instructed the jury:
If it is established beyond a reasonable doubt that a conspiracy existed and that the defendant was one of its members, then the acts and declarations of any member of such conspiracy in or out of the presence of the defendant, which is done in furtherance of the objects of the conspiracy and during its existence, may be considered as evidence against that defendant. When men join into an agreement for an unlawful purpose, they become agents for one another.
Appellant argues first that this instructed the jury that appellant could be convicted of the substantive crime under the rule of Pinkerton v. United States, supra, although this case was not tried under the Pinkerton rule, and second that the Government never requested the district court to give a Pinkerton instruction. Her argument is that the court's instruction, erroneous in any event, could have misled the jury into returning a guilty verdict on the substantive count although it did not find her a member of the conspiracy charged on July 20, 1978. Appellant maintains that the jury was permitted to find appellant guilty of a substantive crime committed by one of her indicted coconspirators on ...