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United States v. Paternina-Vergara

November 30, 1984

UNITED STATES OF AMERICA, APPELLEE,
v.
OSVALDO PATERNINA-VERGARA, JUSTINO REYES, JERRY CARTER AND JUAN GANEN, DEFENDANTS-APPELLANTS



Appeal from judgments of the District Court for the Western District of New York (John T. Curtin, Chief Judge) convicting defendants, after a jury trial, of cocaine distribution and conspiracy in violation of 21 U.S.C. §§ 841(a)(1), 846 (1982). Affirmed.

Author: Newman

Before:

NEWMAN, CARDAMONE, and DAVIS,*fn* Circuit Judges.

JON O. NEWMAN, Circuit Judge:

Osvaldo Paternina-Vergara, Justino Reyes, Jerry Carter, and Juan Ganen appeal from judgments entered in the District Court for the Western District of New York (John T. Curtin, Chief Judge) convicting them, after a jury trial, of cocaine distribution and conspiracy in violation of 21 U.S.C. §§ 841(a)(1), 846 (1982). Their principal claim on appeal is that the Jencks Act, 18 U.S.C. § 350 required production of documents in the possession of foreign law enforcement officials. For the reasons that follow, we affirm.

BACKGROUND

Appellants were the subjects of an undercover investigation begun by the Royal Canadian Mounted Police (RCMP) and later directed by the United States Drug Enforcement Agency (DEA). The operation began in February 1983 when Robert Stadel, a Canadian citizen who had engaged in various business deals with appellant Carter, approached the RCMP and suggested that he could provide information about the criminal activities of Carter's business associates, and GAnen family of Miami, Florida. The RCMP hired Stadel and pursued an investigation. RCMP Corporal Gerald Froud was assigned to pose as a Canadian citizen interested in purchasing cocaine for a nationwide distribution network.

Stadel and Froud held a series of meetings with appellants to arrange for the sale of the cocaine. Carter met with the agents in Toronto in March 1983 and discussed the sale of thirty to fifty kilograms of cocaine at a price of $46,000 per kilo.Carter and appellant Ganen met with the agents in West Palm Beach, Florida, on April 16, 1983, and discussed the possibility of increasing the quantity of cocaine to 100 kilos. At a second West Palm Beach meeting two days later, Carter and Ganen were accompanied by appellant Paternina-Vergara, who was described by Ganen as "my partner." Carter and Ganen met the agents again on April 19, 1983, at the Fort Lauderdale airport, where Carter handed Stadel a small business card case containing approximately one-half gram of cocaine.

Stadel and Froud remained in contact with Carter during the following weeks, while delivery of the cocaine was delayed. On April 25, the RCMP agents had an undercover DEA agent took Carter to a public storage area where they showed him the $4.6 million in cash with which they intended to purchase the cocaine. Carter informed Froud on May 5 that the initial shipment of 15 kilos would arrive on Saturday, May 7. DEA surveillance units took up positions near room 179 of the Executive Hotel in Cheektowaga, New York, on the afternoon of May 7. Sometime after 6:00 p.m. a white Plymouth Reliant arrived at the hotel. Appellant Ryes was the driver of the car, and Paternina-Vergara was a passenger. Ganen left room 179, met Reyes and Paternina-Vergara, and led them back to the hotel room.

At about 6:20 p.m., Froud, DEA Agent Kenneth Peterson, and Stadel went to room 179. Ganen assured them that everything was ready. Froud asked when the other thirty-five kilos would arrive; Paternina-Vergara replied, "Monday." Peterson asked whether it was all right to speak in front of Reyes, and Ganen replied that it was. Before leaving the room, Froud asked Reyes if the thirty-five was coming on Monday. Reyes nodded his head affirmatively. Paternina-Vergara, Ganen, Peterson, and Froud then left the room to examine the cocaine.

Outside, Paternina-Vergara opened the trunk of the Reliant, which contained two cardboard boxes. After opening the boxes and examining the cocaine, the group walked across the parking lot. Once out of sight of the room 179, Paternina-Vergara and Ganen were arrested.Froud and Peterson returned to room 179, where they arrested Reyes and Carter. Both suspects were advised of their rights. All four of the appellants made post-arrest statements to the authorities.

Discussion

I.

Appellants first contend that in the circumstances of this case the Jencks Act required the prosecutor to provide them with documents in the possession of Canadian law enforcement officials. Prior to trial, the Government made various investigative materials available to defense counsel. These materials included RCMP tape recordings of meetings and telephone calls between Froud, Stadel, and Carter and notebooks containing notes of meetings made by both Froud and Stadel. During the cross-examination of Froud, one of the defense counsel requested access to RCMP reports of interviews in which Froud had participated. The District Court directed Froud to request that his superiors permit access to the reports. The following day the Assistant United States Attorney (AUSA) trying the case advised the Court that he had been in contact with the RCMP and the Canadian Department of Justice. The Canadian authorities would permit the AUSA to review the documents, but only in Canada; they would ...


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