Appeal from a judgment of conviction, Eastern District of New York, Platt, J., for conspiracy to possess with intent to distribute and for possession of, with intent to distribute, approximately one and one-half kilograms of cocaine. 21 U.S.C. §§ 841(a)(1), 846 (1982), Conviction on Count II affirmed. Conviction on Count I reversed.
Before: LUMBARD, MANSFIELD and CARDAMONE, Circuit Judges.
Justo Guzman appeals from his conviction, entered after a jury trial in the Eastern District, for conspiracy to possess with intent to distribute cocaine and for possession of, with intent to distribute, approximately ne and one-half kilograms of cocaine. 21 U.S.C. §§ 841(a) (1), 846 (1982). Guzman was sentenced to 15-year terms of imprisonment on each of the two counts, to run consecutively, to two fines of $25,000, and to a special parole term of life. Guzman claims error in five respects: (1) he was forced to go to trial less than 30 days after the filing of the indictment on which he was tried; (2) statements by a non-testifying co-defendant were improperly admitted against him at trial; (3) statements made by a police officer during interrogation, which asserted Guzman's connection to a large drug ring, were erroneously admitted at trial; (4) the court gave two supplementary "conscious avoidance" charges to the jury during its deliberations; and (5) Guzman was sentenced to the statutory maximum.
The appellant was forced to trial on the conspiracy count only one day after the filing of a superseding indictment which expanded the scope of the conspiracy from a time period of two days -- March 21 and 22, 1984 -- to a period covering almost two years, from April 12, 1982 to March 22, 1984. As we conclude that, in view of the substantive change in the conspiracy count charged in the superseding indictment, Guzman should not have been compelled to stand trial on that count until a reasonable time after this indictment was filed, we reverse his conviction as to Count I, the conspiracy charge.
We find no error regarding Guzman's conviction on Count II, the possession count, and accordingly, affirm that conviction.
Guzman, with Seiichi Kawai and Dora Susana Forero, was first brought to trial on June 4, 1984, on a March 28 indictment which charged, in Count I, that these three, "together with others known and unknown," had conspired, between and including March 21 and 22, 1984, to distribute cocaine in violation of Title 21, U.S.C. § 841(a)(1). Count II charged all three with possession, on or about March 22, 1984, of one and one-half kilograms of cocaine.
On the second day of trial, June 5, Judge Platt declared a mistrial, on motion of defendants' counsel, because of the prosecutor's opening remark that Guzman was a member of the Victor Crespo cocaine smuggling organization. The statement was improper because the prosecutor could not substantiate this assertion with competent evidence at trial. Later that same day, the government announced that it would seek a superseding indictment, expanding the scope of the alleged conspiracy, to avoid any conceivable objection to the introduction of a ledger that recorded drug transactions dating back to 1982.
The superseding indictment, filed June 6, charged the three defendants with conspiring together from April 12, 1982 to March 22, 1984, an enlargement of the duration of the alleged conspiracy from two days to almost two years. The second count charged only Guzman with the March 22, 1984 possession of one and one-half kilograms of cocaine.
Over the objection of defense counsel, the district court ordered the defendants to stand trial again the next day, June 7. On June 15, after two days of deliberation, the jury found Guzman guilty on both counts. The jury was then discharged, after reporting that they could not agree on a verdict with regard to the two remaining defendants, who were convicted at a subsequent trial. As Guzman makes no claim that the evidence was insufficient to support his conviction, nor that the March 22, 1984 seizures of records, drug paraphernalia, and cocaine were illegal, a brief summary of the government's case will serve for discussion of Guzman's arguments on appeal.
The government's case was presented through the testimony of 10 witnesses and the evidence seized pursuant to search warrant. Acting on a tip that the appellant was a cocaine distributor for the Victor Crespo organization, an international drug smuggling outfit, New York Drug Enforcement Task Force (DETF) agents placed Guzman under surveillance. On March 21, 1984, agents observed an apparent transaction between Guzman, Kawai, and Forero. According to the testimony of DETF agents, Kawai and Forero, who remained together after the suspicious encounter, were followed and then approached by officers. As the agents neared, Forero advised Kawai, in Spanish, not to worry, but to tell her how much money they had and whether they could allege that the money came from a land sale. When the officers examined the contents of a bag and purse, with the defendants' consent, they found approximately $240,000 in cash. The officers testified that during this encounter, Forero repeatedly asked Kawai, again in Spanish, to come up with an explanation for the money. Kawai and Forero were taken to headquarters and arrested.
A search, pursuant to warrant, of a Bayside, Queens apartment at 212-10 43rd Avenue, which was leased by Guzman, yielded 1203 grams of 99.4% pure cocaine and 53.5 grams of 93.2% pure cocaine -- the approximately one and one-half kilograms of cocaine charged in the indictment -- a heat tester and field test kit for narcotics, a triple-beam scale, and an electric money counter. Later that day, execution of a search warrant at an apartment at 353 E. 72nd Street, where ...