Appeal by defendant from conviction of violations of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846 and of 18 U.S.C. § 2 in the District Court for the Southern District of New York before the Hon. Robert W. Sweet, District Judge, and a jury. Affirmed.
Before: Cardamone and Pratt, Circuit Judges and Wyzanski, Senior District Judge*fn*
WYZANSKI, Senior District Judge:
Defendant Raymond Jimenez appeals from a judgment of conviction on two counts: (1) conspiracy to distribute three kilograms of cocaine, in violation of 21 U.S.C. § 846, and (2) distribution of and possession of, with intent to distribute, cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). He makes four arguments for reversal: (1) the evidence of the March 1, 1985 seizures was improperly admitted as similar act evidence; (2) because the informant was a vital participant in the crime charged, it was error to refuse to order his production; (3) defendant's "motion to strike the Ross apartment evidence as the fruit of the defendant's involuntary post-arrest Miranda -less statement--a statement not disclosed to the defense pre-trial in violation of Rules 12(d)(2) and 16--should have been granted; defense counsel's delay in objecting and moving to strike the Ross apartment evidence because of his erroneous belief . . . that there was an independent basis for the admissibility of that evidence, was not a waiver"; and (4) the defendant had a reasonable exception of privacy in order to challenge the seizure at the Ross apartment.
The arguments require merely an abbreviated statement of the dominant facts.
The critical negotiations for the sale of cocaine on which the conviction of Jimenez was bottomed all occurred on November 20, 1984.
At apartment 2A at 568 West 173rd Street, New York City Detective Jose Guzman and Investigator Raymond Gonzalez and an anonymous Confidential Informant, all with the intent of buying three kilograms of cocaine, met, by previous agreement, Jose Vargas and his wife or girlfriend.
Vargas left the apartment to get a sample of the cocaine for Detective Guzman. During Vargas' absence, Guzman left the apartment. Outside, he, by telephone, gave information about the cocaine negotiations to the headquarters of the Drug Enforcement Administration. Then Guzman returned to the apartment; left once more; and on a second return found Jose Vargas, who had also returned, his brother, Hector Vargas, Eugene Pichardo, and the defendant-appellant Jimenez, but not the cocaine sample.
Next, Jimenez and Pichardo left the apartment together. They returned within minutes, Pichardo handed Guzman a sample of cocaine. Jimenez and Jose Vargas directed Guzman to the rear of the apartment so that they could test the sample. Jimenez told Guzman that he wanted to be sure Guzman was satisfied with the sample before he got the whole 3 kilograms.
In the presence of Jimenez, Guzman, using customary apparatus, tested the sample.
Guzman asked Jimenez to reduce, from the theretofore agreed rate of $41,000 per kilogram, the price of the three to-be-delivered kilograms of cocaine. Jimenez declined and said that before travelling to New Jersey to get the three kilograms he wanted to be sure that the deal was firm. Guzman replied that it was firm.
Jimenez drove his Oldsmobile to the corner of 173rd Street. There he met and talked with Pichardo. Jimenez then drove to the vicinity of 532 West 175th Street, where he picked up as a passenger Curtis Ross, whose identity was not then known to the government. Together they drove to Avenel, New Jersey where for 10 minutes they were in an apartment. Then they returned to New York.
At 5:30 p.m. Detective Guzman, Investigator Gonzalez, and the Confidential Informant, for the ostensible purpose of purchasing the cocaine, returned to and, by Jose Vargas, were admitted within, the apartment at West 173rd Street, where the earlier meeting had occurred. In the apartment were Hector Vargas, armed with a pistol which was cocked, and Pichardo.
The Vargas brothers and Pichardo demanded that Guzman bring into the apartment the purchase money. Guzman persuaded Jose Vargas to go outside to Guzman's car to see that Guzman really had the money immediately available. But, despite the exhibition of the money in the car, there was an impasse. Guzman testified the negotiations; he and his fellows left the area.
An hour later, federal agents observed Jimenez's car parked in the vicinity of 532 West 175st Street. Jimenez and a woman approached the vehicle. The agents placed Jimenez under arrest. The agents did not know whence Jimenez had come. Without giving Miranda warnings, Detective Casey asked Jimenez from where he had come. Jimenez answered 532 West 175th Street. (Hereafter this will be denominated "Jimenez's Miranda-less statement.")
Casey took Jimenez to an apartment at 532 West 175th Street. He and other federal agents, identifying themselves, knocked at the door. The door was opened by the man who earlier that day had been the companion of Jimenez during the trip to and from New Jersey. For the first time the government then learned that that man's name was Curtis ...