Appeals from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge Henry F. Werker for conspiracy to violate the drug laws, 21 U.S.C. §§ 841, 846, and related offenses. Affirmed.
Before Mulligan, Circuit Judge, Spears*fn* and Sweet,*fn** District Judges.
Defendants Oscar Aldemar Nunez-Rios ("Oscar") and Miladys Nunez-Rios ("Miladys") appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a jury trial before the Honorable Henry F. Werker. Count One of the indictment charged Oscar, Miladys, Luis Angel Rios and Jorge Munoz Valencia with conspiring to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Count Two charged Miladys with possession with intent to distribute 495.81 grams of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. Count Four charged Miladys with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. App. § 1202(a)(5). The jury convicted Oscar and Miladys of each count in which they were named.
In this appeal Oscar claims that the district court erred by refusing to give an instruction permitting the jury to acquit him if it found excessive involvement by the Government in the crimes charged in the indictment. Miladys urges that her Fifth Amendment right to remain silent was abridged when the Government elicited testimony as to her silence following arrest, but before she had received Miranda warnings, and when the Government, in its closing statement, argued that her silence after arrest impeached the credibility of her exculpatory testimony. We reject both arguments and accordingly affirm the convictions.
The principal witness for the Government was John Featherly, an undercover agent of the Drug Enforcement Administration ("DEA"). Featherly testified that on August 20, 1979 at 3:00 p.m., he and two other agents went to the Brass Rail Restaurant in Manhattan to meet an informant named Henry. The agents observed Henry meet and speak with Oscar and Luis Rios.
At 9:00 p.m. on that same evening Featherly returned to the Brass Rail and, posing as a narcotics purchaser from California, joined Henry, Oscar and Luis Rios at a table. Featherly testified that Henry acted as an intermediary in negotiating the purchase of a pound of cocaine from Oscar. Henry conversed with Oscar and Luis Rios in Spanish and with Featherly in English. Featherly, who speaks no Spanish, testified that he also negotiated directly with Oscar in English. After some discussion as to the place and time of delivery, Oscar agreed to meet Featherly at 7:00 p.m. the next evening at the Americana Hotel in Manhattan, at which Featherly claimed to be staying, to deliver one kilogram of cocaine for $32,000.
Agents of the DEA and Immigration and Naturalization Service ("INS") established surveillance near the hotel at about 6:00 p.m. on the next evening. At about 7:30 p.m., Featherly met Oscar. Speaking in English, Oscar introduced Featherly to his sister, Miladys, who was carrying a buckskin handbag under her arm. Oscar suggested that they retire to Featherly's room to complete the transaction, but Featherly asked to see the drugs first. The three walked outside the hotel. Oscar told Featherly that the contraband was in his sister's purse, and Miladys held the purse forward and nodded. Featherly testified that they then walked back into the hotel. Featherly told Miladys and Oscar to take the elevators to the fifth floor, where his room was located.
When the appellants arrived on the fifth floor, they were arrested by DEA agents. Agent Ridler testified that he seized Miladys' buckskin bag and opened it. The bag contained 495.81 grams of 43.5% pure cocaine and a fully loaded .44 caliber magnum revolver. Ridler testified that as he took the gun out of the purse, Miladys said nothing and that he observed no reaction on her part. The defendants did not object to this testimony.
Oscar and Miladys were transported to DEA headquarters. At approximately 9:00 p.m., an INS agent, Frank DiCostanzo, interviewed Miladys. DiCostanzo testified that Miladys, after being advised of her rights, told him that she had received the drugs and the firearm from a lady whom she did not know. The lady had telephoned her and offered to pay her $200 if she would pick up a package in "Grand Central Park" and deliver it. She stated that she did not know what was in the package.
Oscar, Miladys and Luis Rios all testified at trial. Oscar stated that he was 23 years of age and supported five dependents in Colombia. He had been in the United States for four years, but had lost his job on July 30, 1979 and was unemployed. He testified that he knew only a few words of English.
Oscar admitted that he had been at the Brass Rail at 3:00 p.m. on August 20, 1979, but denied meeting Henry at that time. He testified that he and Luis Rios had been at the bar of the Brass Rail at 9:00 p.m. on August 20 and that Henry and a friend had approached them. Oscar stated that Henry had made homosexual overtures to him while standing at the bar and that he and Luis had sat down at a table with Henry and his friend and ordered drinks. Five or ten minutes later Agent Featherly had approached the table, made a homosexual remark to Henry and joined the group.
Oscar stated that the group remained at the table until midnight. Oscar conversed with Henry in Spanish, and when Featherly addressed remarks to Oscar in English, Henry translated. Oscar denied hearing any discussion concerning the sale of narcotics.
At some point in the evening, Henry told Oscar that he would pay him $200 if he would deliver a package to Featherly the next day. Oscar testified that because of his need for money, he agreed to do so even though he suspected that the package might contain drugs. Oscar arranged to meet Henry at what was then the Americana Hotel at 7:00 p.m. the next evening. He and Miladys went to the hotel; Miladys waited at the entrance, while Oscar, carrying his sister's handbag, walked to the streetcorner to meet Henry. Henry placed a package inside Miladys' pocketbook and told him that he would pay him $200 once the delivery to Featherly had been completed. Oscar testified that he and Miladys met Featherly at the bar and followed him outside. Featherly made a gesture of inquiry about the package, and Oscar said "yes" and pointed to his sister's buckskin bag. When they returned inside the hotel, Featherly instructed them to go to the fifth floor, where they were placed under arrest.
Miladys testified that she had never discussed drugs with her brother, and that on August 21, 1979, he had told her that they were going to a party. She denied seeing either a gun or white powder when they left their house. She testified that upon arriving at the hotel, Oscar asked to borrow her purse, "so that they could put in something that was supposed to be put in there," but he did not specify what that something was. When Oscar returned the pocketbook, Miladys noticed that it was heavy; yet, she did not look inside and could not tell by feel what the purse contained.
Miladys testified that she discovered what was inside when she was arrested. She admitted making a false exculpatory statement to Agent DiCostanzo, but said that she had done so in the hope of helping her brother. On cross-examination, Miladys contradicted her direct testimony by denying that Oscar had told her that "he needed the pocket book so that he could put something in it that had to be in it."
In its rebuttal case, the Government presented DEA Agent Hubert Shockley, who testified that he had observed Oscar conversing with Henry at 3:30 p.m. on August 20 at the Brass Rail. He further testified that he had spoken with Henry, the informant, on August 21 at approximately 7:25 p.m. in a bar five or six blocks from the Americana Hotel. DEA Agent Lewis Rice testified that he and other agents had maintained surveillance at the corner of 52nd Street and Seventh Avenue the corner on which Oscar had supposedly ...