Appeal from judgments of conviction for conspiracy to possess with intent to distribute and possession with intent to distribute narcotics in violation of 21 U.S.C. § 846 and § 841(a)(1) entered in the United States District Court for the Eastern District of New York (Sifton, Judge) following a jury trial. Affirmed.
Before: FRIENDLY, PIERCE and PRATT, Circuit Judges
This case arises out of a government undercover operation which resulted in an agreement to purchase ten kilograms of cocaine. For their alleged parts in arranging and carrying out that agreement, appellants Carlos Ivan Piedrahita and Alan Ginsberg were tried together as co-defendants and convicted of conspiracy to possess with intent to distribute and possession with intent to distribute a sizeable quantity of high quality cocaine. The other principal actors (and co-defendants of appellants) involved in the conspiracy were Luis Pena-Estrada ("Luis"), Jose Albeiro Pena-Estrada ("Albeiro"), Rhina Toro, Humberto de Jesus Hoyos, Jose Montes-Hernandez, and John Cimino.
The events giving rise to this appeal began in the fall of 1983 when Rhina Toro, at the request of her boyfriend, Albeiro, approached Alan Ginsberg and John Cimino asking if they knew anyone interested in purchasing a large quantity of cocaine. They, in turn, spoke with one Louis Angora ("Sonny"), who approached the New York Drug Enforcement Task Force and proposed that he work for the government as a paid informant. After reaching an agreement with Sonny, Task Force agents instructed him to obtain a sample of the cocaine that would be sold. The Task Force selected Officer Charles Romanolo to be the undercover agent who would pose as a prospective buyer.
Sometime in late October or early November, 1983, at Sonny's request, Ginsberg arranged a meeting with Sonny at which Rhina Toro and John Cimino were also present. At this meeting, Ginsberg gave Sonny a sample of cocaine that he had obtained from Toro and informed Sonny that if a deal was consummated, the purchaser would have to pay twenty-five dollars for that sample. Ginsberg also stated that the price for each kilogram of cocaine sold would be $37,000.
Several days later, Sonny arranged a meeting at a restaurant in lower Manhattan in order to introduce undercover officer Romanolo to Ginsberg, Toro, and Albeiro. At this meeting, Romanolo asked if the cocaine delivered would be of the same quality as a sample he had received. Toro assured him that it would be and stated that her "husband's" family (i.e. Albeiro's family -- Toro and Albeiro were not in fact married) could supply an unlimited amount of cocaine at $37,000 per kilogram. Ginsberg volunteered that at that price, he, Cimino, Toro, and Albeiro would each make $1,000 per kilogram sold. Ginsberg also informed Romanolo that the cocaine was kept at a "factory" in Queens, New York. Romanolo then stated that he would be interested initially in purchasing ten kilograms of cocaine. Following lengthy negotiations, at several meetings, a deal was struck: Romanolo was to purchase ten kilograms of cocaine; Romanolo would pay with ten packets of $37,000 each, in old ten and twenty dollar bills; and each party was to bring someone as "back-up" to protect their respective assets -- the cocaine and the cash.
On November 17, 1983, the day arranged for the cocaine purchase, Romanolo and Sonny, along with undercover back-up officers, traveled to a Burger King restaurant on Sixty-ninth Street and Northern Boulevard in Queens, New York. There, while the back-up officers waited in a car in the parking lot, Romanolo and Sonny met with Ginsberg, Albeiro, Toro, and Cimino. Albeiro explained that he had with him only two kilograms of cocaine and that a "delivery boy" would bring the remainder shortly. After a brief conversation in Spanish with Toro, Albeiro left the restaurant. Surveillance officers observed Albeiro as he went to a bank of pushbutton telephones on Northern Boulevard where he appeared to make several phone calls and to receive one. He then returned to the restaurant and spoke briefly in Spanish with Toro who explained to Romanolo that Albeiro initially would deliver three kilograms of cocaine. If there were no problems, Albeiro would deliver three more kilograms, followed by the final four kilograms. Toro then gave Romanolo the address at which the transfer would be made. As Albeiro left the restaurant, Toro explained that Albeiro would pick up the third kilogram of cocaine on his way to the transfer point. Romanolo asked Toro to accompany him there to act as a translator and further instructed Toro to have Cimino and Ginsberg remain at the restaurant until the transaction was completed. Romanolo and Toro then left and proceeded to the transfer point followed by the waiting backup officers.
Meanwhile, surveillance officers observed Albeiro enter his car and drive one-half block to a three-family residence at #32-39 Sixty-eighth Street. Albeiro left his car and entered the building empty-handed. A short while later, another car arrived. The driver (later identified as appellant Carlos Ivan Piedrahita) slowed down in front of #32-39, sounded his horn several times, looked up at the residence and then parked his car. Piedrahita left his car and entered #32-39 carrying a white plastic "Pathmark" shopping bag which appeared to be weighted with several round objects, the outlines of which bulged against the sides of the bag. A few minutes later, Albeiro left the building carrying a black bag from which a white bag protruded. Shortly thereafter, Piedrahita left carrying nothing, entered his car and drove away, followed by the surveillance officers. Piedrahita circled the area alternately speeding up then slowing down until the surveillance officers stopped and arrested him. The officers seized from Piedrahita several items including a telephone beeper, a small telephone book containing Albeiro's telephone number, a business card with the access number for another beeper -- later found to be that of Albeiro -- and a car registration.
Meanwhile, Officer Romanolo and Toro had proceeded to the house at which the transfer of cocaine and money was to take place. Albeiro, along with two other men, Javier Montes-Hernandez and Humberto de Jesus Hoyos, was already present at the house. Albeiro delivered three kilograms of cocaine to Romanolo, and the two then went to retrieve the money that had been left in Romanolo's car. When the two reached the car, Romanolo arrested Albeiro and seized from him a loaded handgun, a telephone beeper, and a card with the access number for Piedrahita's beeper. Other officers entered the house and arrested Toro, Montes-Hernandez and Hoyos. Following these arrests, officers waiting at the Burger King restaurant arrested Cimino and Ginsberg, while other officers waiting at #32-39 Sixty-eighth Street arrested Luis Pena-Estrada, Rodrigo Pena-Estrada, and Jose Marin Cadavid.
Rodrigo Pena-Estrada and Jose Marin Cadavid, who were illegally in the United States, were deported after testifying before a grand jury. The appellants together with Javier Montes-Hernandez and Humberto de Jesus Hoyos were tried by a jury before Judge Sifton. Albeiro pleaded guilty to narcotics conspiracy, narcotics possession, and weapons charges. Toro pleaded guilty to narcotics conspiracy charges only. Luis Pena-Estrada fled on the eve of trial and was tried and convicted in absentia.
At trial the government presented evidence from which the jury could have found the above-stated facts. In his defense, Piedrahita presented the grand jury testimony of the two deported aliens and argued that they, not he, had delivered the cocaine to Albeiro. Ginsberg rested at the close of the government's case-in-chief and then, along with Piedrahita, moved pursuant to Fed. R. Crim. P. 29 to dismiss the indictment. The trial court considered and denied both appellant's Rule 29 motions, and thereafter turned to a motion by the government to re-open its case in order to present similar act evidence against Ginsberg through the testimony of Rhina Toro. Before trial, the government had put all parties on notice that it would seek to introduce similar act evidence against Ginsberg -- though it did not at that time identify the source thereof. The trial court deferred ruling on the admissibility of the evidence until the defense had concluded its case. At that point, considering the government's motion, the court concluded that because Ginsberg -- through his cross-examination of Rhina Toro when she testified during the government's case-in-chief and through his Rule 29 motion -- had placed in issue his intent, the probative value of the similar act evidence outweighed its prejudicial impact. The court therefore allowed the government to re-open its case and call Rhina Toro as a witness.
Toro testified that Ginsberg had previously been involved in another large cocaine transaction which had resulted in the loss of $40,000. This, Toro, explained, was Ginsberg's reason for pursuing the ten kilogram sale to Romanolo. Toro also testified that Luis Pena-Estrada (who was arrested at the #32-39 Sixty-eighth Street house) was "too big" to handle cocaine himself and that he thus employed a "delivery boy." Toro did not identify this delivery boy. Piedrahita presented surrebuttal evidence ...