Appeal from a judgment of conviction for violation of federal narcotics laws after a jury trial in the United States District Court for the Southern District of New York (Lasker, Judge). The appellant claims insufficiency of evidence, improper admission of eleven-year-old conviction, and erroneous failure to give requested charge as to false exculpatory statements.
Van Graafeiland, Pierce, and Pratt, Circuit Judges.
This is an appeal from a judgment of conviction entered on June 1, 1984, against appellant after a four-day jury trial before Judge Morris E. Lasker in the United States District Court for the Southern District of New York. Appellant was convicted of conspiring to distribute and possess with intent to distribute heroin in violation of title 21, United States Code, section 846. Appellant filed a timely notice of appeal. We affirm.
The government presented evidence to show the events hereinafter described. Francis "Butchy" Pugliese, a drug seller, arranged to buy narcotics from Thomas Mattio, his former prison acquaintance and former drug customer. Unknown to Butchy, Mattio, a previously convicted drug trafficker, was acting as a United States Drug Enforcement Agency ("DEA") informant and was assisting government agents in a "reverse undercover operation." In mid-July 1983, Mattio told Butchy he had a source which could provide five kilograms of heroin per month. Butchy stated that he could dispose of it. On or about July 22, 1983, Mattio told him that this quantity was available at $165,000 per kilogram -- which Butchy found acceptable. Butchy introduced Mattio to co-defendant Ronald Ingrassia as one who would accept samples for him.
Toward the end of July 1983, Mattio spoke with Butchy from Florida by telephone and told him in code that his source had heroin to sell. Upon his return to the Bronx, Mattio met with Butchy and told him that his source had six kilograms to sell. Butchy answered that he knew several persons "who had a couple of million dollars," and, if absolutely necessary, he could "[get] rid of it" to "some guys in Buhre Avenue."
On or about August 2, 1983, Ingrassia, in the company of Mattio, received samples (stipulated to be on average 90 percent pure) at a motel in Tarrytown, N.Y. He delivered them to Butchy at an apartment near the intersection of Westchester Avenue and St. Paul's Avenue in the Bronx. Butchy took them away and in less than an hour returned and stated that the samples "checked out fine" but that the customer refused to release the purchase price without his partner's approval.
On August 5, 1983, Mattio went to a pre-arranged meeting in front of Bridge's Steak Pub in the Bay Terrace Shopping Center in Queens, and met with Butchy and Neal Ruggiero, another co-defendant and Butchy's prospective son-in-law. At this meeting, Butchy explained that he had encountered money problems and suspicion on the part of his prospective customers.
Butchy then proposed to Mattio an alternate plan: that Mattio would be paid $100,000 toward the $160,000 purchase price,*fn1 and give Butchy one kilogram of heroin. Butchy would owe $60,000 for the balance. He indicated that one-half of the kilo would go to one customer; from the other half he would take samples to show to some other possible customers. He stated that this remaining half-kilo he would dispose of "first come, first served."
On August 8, 1983, Mattio and Butchy met, as arranged, at the corner of Westchester and St. Paul's Avenue in the Bronx around 6:15 p.m. Neal Ruggiero arrived shortly thereafter and stated that he had just talked with some people who had money to purchase the heroin. At Mattio's insistence that they be "absolutely sure there was money available," Ruggiero arranged a meeting with the person who had the money, to take place in 15-20 minutes on Allerton Avenue, in the Bronx. Ruggiero departed. Mattio and Butchy drove to Allerton Avenue together; a few minutes later, Ruggiero arrived and stated that a person with "a bag full of money" was in a car around the corner. Butchy walked around the corner to verify this; he then returned to Allerton Avenue and told Mattio that he had seen "a bag full of money." Mattio stated, "Okay. I'll tell my people the money is available and we [will] set up a meeting for the next day or so." Butchy asked Mattio to arrange for him to receive a half-kilogram on consignment, and stated that the actual exchange would be handled between Mattio and Ruggiero. A short while later, a DEA Agent saw Ruggiero and appellant Martino walking up and down the street in the vicinity of Wilkinson and Westchester Avenues for a period of ten minutes or so, engaged in conversation and "using hand motions and such."
On August 9, 1983, Butchy telephoned Mattio and arranged for Ruggiero to meet with Mattio at noon on August 10, 1983, at the Bay Terrace Shopping Center in Queens to make the exchange. Also on August 9, appellant Martino contacted one Philip DeSimone, a long-time acquaintance, and sought permission to borrow his 1967 gray Chevrolet purportedly in order to meet his girlfriend. DeSimone agreed, and on the morning of August 10, 1983, appellant Martino, who was accompanied by co-defendant Neal Ruggiero, picked up the car. Martino told DeSimone he would return the car that day.
As planned, Mattio arrived at the Bay Terrace Shopping Center at noon on August 10 and looked for Ruggiero. He found him in front of Bridge's Steak Pub. Ruggiero left to go to the parking lot to get the money, but first he asked Mattio if he had the kilogram separated into half kilos. Mattio stated that they were separated but taped together, to which, according to Mattio, Ruggiero replied, "We'll have to take the tape off, because I have to bring back one package to Butch, and the other guy gets the other half."
DEA Agent Cavuto, who was conducting surveillance of the transaction, testified that on August 10 he was in a car in the parking lot and observed Ruggiero -- before he met Mattio -- walk up to two cars parked side by side and facing in the same direction; one was a 1967 gray Chevrolet and the other was a 1976 or 1977 gold Chrysler. Ruggiero then met Mattio in front of the restaurant at about 12:15 p.m. and, after spending about five minutes with him inside the restaurant, Ruggiero came out and walked through the parking lot back in the direction of the two cars. DEA Agent Maguire, who was also conducting surveillance in the parking lot at that time, later identified the driver of the gold car as Scarvalone and the driver of the gray car as appellant Martino. Ruggiero, upon returning to the two vehicles, reached into the gold Chrysler and removed a red plastic bag, later found to contain $50,000 -- he turned toward Martino in the gray Chevrolet, and Maguire testified that he saw each of them moving their hands; then Ruggiero walked back toward Bridge's Steak Pub carrying the red plastic bag and entered Mattio's car.
Ruggiero displayed the cash inside the red bag and asked for the merchandise. Mattio produced two taped half-kilogram packages, cut the take and handed them to Ruggiero who stuffed one into his waistband and placed the other inside a beige sports bag which Mattio gave to him. While this was occurring, appellant Martino and Scarvalone had turned around in their respective vehicles and for several minutes faced in the direction of Mattio's car; afterward, they turned to each other and gesticulated.
Ruggiero left Mattio's car and walked toward the cars in which Martino and Scarvalone were seated; again he walked between the two cars; the driver's window of Martino's car was open and his engine was running; Ruggiero placed the beige bag in the passenger's side of Scarvalone's car. At that point, the agents seized Ruggiero, Martino and Scarvalone and seized the half-kilogram package from Scarvalone's car -- later the other half-kilogram was retrieved from Ruggiero's waistband.
After Martino was informed of his rights, Agent Cavuto asked him what he was doing in the car; he replied that he was waiting for his wife who was shopping at the Grand Union in the shopping center. During his processing, Martino asked Agent Scalzo, "Artie, can you give the car back? It doesn't belong to me. The guy who owns it had nothing to do with what happened today." When Scalzo asked in Martino meant that the owner of the car "did not know anything about the deal today," Martino replied that the owner "had nothing to do with it."
When questioned further about the events at the shopping center, Martino admitted knowing Ruggiero but stated that it was just a coincidence that he happened to meet him at the shopping center. He also changed his earlier statement and said that he was not waiting for his wife but for his girlfriend, Carol DeLuca, from the Bronx.
At the trial, Ms. DeLuca identified Martino as someone she had met about two years ago; she knew him as "Donny" and wasn't sure if she knew his last name; she had seen him twice since meeting him, the last time in July 1983; she had not seen him at any time in August 1983; and although she had been to the Bay Terrace Shopping Center, she had not ever been there with Martino.
Over objection by defense counsel, the trial judge admitted in evidence Martino's 1973 judgment of conviction for federal narcotics offenses, which resulted in his being sentenced as a youthful offender, although the sentencing judge later declined to expunge his conviction. This evidence was received pursuant to Fed. R. Evid. 404(b) as similar act evidence bearing on the issues of Martino's knowledge and intent in this case. Appellant argues that his eleven-year-old conviction for narcotics offenses should not have been admitted in evidence because of its remoteness in time, slight probative value, and resulting prejudice.
Appellant further contends that the government's evidence was insufficient to support a conviction in that evidence showing mere presence at the scene of a crime even when coupled with knowledge that a crime is being committed, or mere association with conspirators, is insufficient to establish membership in a conspiracy. Appellant also asserts that false exculpatory statements are insufficient proof upon which to rely when the evidence of guilt is otherwise weak. Further, he argues that the failure of the trial judge, upon request, to instruct the jury as to the significance and weight to be accorded false exculpatory statements was reversible error.
A. Sufficiency of the Evidence
Appellant contends that there was insufficient evidence to support his conviction. The principles governing challenges to the sufficiency of the evidence are well-settled: the defendant making the insufficiency claim bears a "very heavy burden," United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983); the verdict of a jury must be sustained if there is substantial evidence . . . to support it;" Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), and we must view the evidence in the light most favorable to the government, id. The jury must have a full opportunity to determine credibility, weigh the evidence, and draw justifiable inferences of fact, United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972); and all permissible inferences must be construed in favor of the government. United States v. Young, 745 F.2d 733, 762 (2d Cir. 1984); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S. Ct. 133, 283, 78 L. Ed. 2d 128 (1983); United States v. Dazzo, 672 F.2d 284, 288 (2d Cir.), cert. denied, 459 U.S. 836, 74 L. Ed. 2d 77, 103 S. Ct. 81 (1982).
It is also settled that the existence of a conspiracy, and a defendant's membership in it, may be proved entirely by circumstantial evidence, United States v. Soto, 716 F.2d at 991. Yet, as appellant asserts, this Court has held that absent evidence of purposeful behavior, mere presence at the scene of a crime, even when coupled with knowledge that a crime is being committed, is insufficient to establish membership in a conspiracy; and mere association with conspirators is similarly insufficient. United States v. Pedroza, 750 F.2d 187, 198 (2d Cir. 1984); United States v. Johnson, 513 F.2d 819, 823-24 (2d Cir. 1975). There must be some evidence that the defendant has "associat[ed] himself with the venture in some fashion, 'participat[ed] in it as something that he wish[ed] to bring about,' or '[sought] by his action to make is succeed.'" United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938).
Assessed singly, or even in combination with several others, the events herein involving Martino could be perceived as "mere presence" or "mere association" on his part. We must, however, view the events as a whole. "Pieces of evidence must be viewed not in isolation but in conjunction." United States v. Young, 745 F.2d 733, 762 (2d Cir. 1984) (quoting United States v. Carson, 702 F.2d 351, 362 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 77 L. Ed. 2d 1335 (1983)). Viewing the ...