Appeal from judgment entered in the United States District Court for the Southern District of New York, Bonsal, J., on a jury verdict convicting appellant of conspiracy to distribute cocaine, 21 U.S.C. § 846 (1982), and distribution of cocaine, 21 U.S.C. §§ 812, 841(a)(1) & (b)(1)(A) (1982). Conviction reversed on the basis of United States v. Check, 582 F.2d 668 (2d Cir. 1978), and case remanded for a new trial. Judge Pierce filed a separate concurring opinion.
BEFORE: FRIENDLY, MESKILL and PIERCE, Circuit Judges.
This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Bonsal, J., on a jury verdict. Following a four day trial, the jury found appellant Leocadio Figueroa guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (1982) and of distributing or aiding and abetting the distribution of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) & (b)(1)(A) (1982). Appellant was acquitted on a third charge of possessing cocaine with intent to distribute, also a violation of 21 U.S.C. §§ 812, 841(a)(1) & (b)(1)(A).
The district court judge sentenced appellant to concurrent terms of seven years imprisonment on each of the two counts, to be followed by a three year special parole term on the distribution count. Appellant is serving his sentence.
Figueroa advances three grounds for reversal. Two of these, a challenge to the sufficiency of the evidence and a claim that certain evidence should have been suppressed, are meritless. But Figueroa's final contention is troublesome. Relying on our decision in United States v. Check, 582 F.2d 668 (2d Cir. 1978), appellant avers that the testimony of an undercover detective incorporated damaging hearsay and that the admission of the testimony was prejudicial error. We agree that the disputed testimony was inadmissible. Further, we cannot say with any degree of certainty that the testimony influenced the jury only slightly or not at all. Therefore, we are compelled by Check to reverse Figueroa's conviction and to remand the case for a new trial.
Figueroa was charged in three counts of a four count indictment. Count one, the conspiracy count, named appellant Figueroa, his son Leo Figueroa, Jr., Thomas Vazquez and Carolyn Cassell. Count two, the distribution charge, named appellant Figueroa, Leo Figueroa, Jr. and Vazquez. Count three charged appellant Figueroa with possession with intent to distribute. The fourth count, carrying a firearm during the commission of a felony, named Vazquez alone.
Vazquez pled guilty to all counts prior to trial. The government filed an order of nolle prosequi as to Cassell. Following the close of the government's evidence, the trial judge granted a Fed. R. Crim. P. 29(a) motion for judgment of acquittal on all counts in favor of Leo Figueroa, Jr. Consequently, only the charges against appellant Figueroa were submitted to the jury.
The government's case at trial centered on events that occurred during a nine day period in early August 1983. Orlando Caprio, an undercover detective from the Essex County, New Jersey prosecutor's office, testified that on August 4, 1983 he and an informant named Mike met with two other men in room 638 of the Skyline Hotel in Manhattan. One of these men was Vazquez. He was armed with an automatic pistol. Caprio saw an Uzi-type machine gun on the dresser. Caprio also noted an open bag containing packages, some wrapped in foil and some in clear plastic. When one of the packages was opened, Caprio observed that it contained chunks of a white powdery substance. Vazquez identified the substance as high quality cocaine and the men discussed its value. Caprio testified that, while this meeting was going on, Figueroa entered room 638 from the adjoining room. Figueroa neither spoke nor participated in any way. Caprio left soon thereafter, having been in the room for a total of only about five minutes.
Evidence showed that from August 1 to August 12 room 638 was registered to Figueroa and its adjoining room, 639, was registered to Vazquez under an assumed name. A plain metal door in their common wall connected the two rooms.
On August 5, Caprio and George Anarella, an undercover New York City detective assigned to the New York Drug Enforcement Task Force (Task Force), met with Mike. Caprio gave Mike money to purchase a sample of cocaine. Anarella testified that, that afternoon he saw Mike enter the Skyline Hotel alone and leave a short time later with Figueroa. Task Force detective saw the two climb into a dark blue limousine which then headed into the Lincoln Tunnel toward New Jersey.
About an hour and one-half later, Caprio testified, Mike met Caprio in a Newark, New Jersey parking lot. Mike emerged from a blue limousine, entered Caprio's car and handed Caprio a bag containing cocaine. In response to Caprio's request that future deals take place in New Jersey, Mike went and spoke with someone in the limousine, returning shortly to tell Caprio that future deals has to be in New York. The person in the limousine was not identified by Caprio.
Caprio and Mike met again on August 12, 1983 and Caprio made a telephone call to room 638 of the Skyline Hotel. Someone with a low voice and a pronounced Hispanic accent answered. This voice description matched one of the arresting detectives' description of appellant Figueroa's voice. Caprio addressed this otherwise unidentified party as Leo, asked him what the problem was, said that the money was ready and asked when the deal could be made. Without objecting to being called Leo, the party instructed Caprio to come to New York with Mike and to have Mike call him then. Because the deal was to take place in New York, Caprio was replaced by New York detectives.
On the evening of August 12, Anarella and Lawrence P. McDonald, a New York State Police Investigator assigned to the Task Force, met with Mike. Anarella and Mike then went to a telephone booth not far from the Skyline Hotel. Anarella testified that, in his presence and in accordance with his contemporaneous instructions, Mike had made three telephone calls.
Although he was apparently available, Mike did not testify at trial. Consequently, the jury heard about the telephone calls only from Anarella. Figueroa objected to the testimony on hearsay grounds. But, accepting the prosecutor's representations that the conversations were offered not for the truth of the matters asserted but merely as verbal acts, the trial judge admitted the testimony. It is this testimony that Figueroa challenges.
The conversations took little trial time to relate. Each call began with Mike dialing and requesting room 638. The other party and Anarella communicated through Mike. The government persists in characterizing the testimony as simply instructions concerning the drug deal given by Anarella through Mike to the other party. Because the relevant portion of the trial transcript is both central to this decision and brief, it is reproduced in its entirety below:
THE COURT: All right. What did you tell Mike?
THE WITNESS: On that first phone call I told Mike - Mike had asked me if I would go up to the room with the [ILLEGIBLE TEXT].
THE WITNESS: And I told him to tell the other people no, that if they wanted to see the money they would have to come down, that I wasn't going to the room.
THE COURT: All right. That's what you said. Do you know what room Mike had called?
A After he dialed the phone, he asked for room 638 and there was a short pause, at which time he said, "Hello."
Q He said that into the telephone?
Q After this first telephone conversation about which you've just testified, were there any ...